United States District Court, D. Maryland
CURTIS R. MARTIN, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
28, 2015, pro se Petitioner, Curtis R. Martin, Jr.
("Petitioner" or "Martin"), pleaded
guilty before this Court to one count of Wire Fraud in
violation of 18 U.S.C. § 1343. (ECF No. 43 at
This Court sentenced Martin to ninety-six (96) months'
imprisonment and ordered that he remain on supervised release
for a period of three years. (ECF No. 75.) Martin subsequently
appealed his sentence to the United States Court of Appeals
for the Fourth Circuit because it was above the advisory
Guidelines range of 63 to 78 months. (ECF No. 78.) On
February 21, 2017, the Fourth Circuit affirmed this
Court's Judgment. See United States v. Martin,
676 Fed.Appx. 214 (4th Cir. 2017). On January 10, 2018,
Martin filed the subject Motion to Vacate, Set Aside, or
Correct Sentence, pursuant to 28 U.S.C. § 2255. (ECF No.
90.) The parties' submissions have been reviewed, and no
hearing is necessary. See, e.g., United States
v. Lemaster, 403 F.3d 216, 220-23 (4th Cir. 2005)
(holding that a hearing must be held "[u]nless the
motion and the files and records conclusively show that the
prisoner is entitled to no relief . . . ."); United
States v. White, 366 F.3d 291, 302 (4th Cir. 2004);
United States v. Taylor, 139 F.3d 924, 933 (D.C.
Cir. 1998); see also Local Rule 105.6 (D. Md. 2016).
For the reasons stated herein, Petitioner's Motion to
Vacate (ECF No. 90) is DENIED.
facts of this case are largely laid out in Martin's Plea
Agreement. (Statement of Facts, ECF No. 32 at
12-16.) To summarize, Martin incorporated Oledix
Technologies, LLC ("Oledix") during die summer of
2010 while serving the final portion of a one-hundred and
sixty-two (162) month federal prison sentence at a halfway
house in the District of Maryland. (Id. at 12.)
Martin represented Oledix as a technology firm that designed
and distributed a variety of touchscreen products.
the companies from which Martin sought financing was New
Century Financial ("NCF"), a Texas company in the
business of accounts receivable financing. (Id. at
13.) In early April 2012, Martin provided NCF with fraudulent
documents that presented a misleading picture of
Oledix's financial position. (Id.) As a result,
Martin ultimately received financing on three different
invoices from Oledix, with the amount of the invoices being
substantially greater than the financing he received.
(Id.) Specifically, on June 13, 2012, Martin
submitted a request for financing to NCF. (Id.) This
request was based upon a counterfeit invoice purportedly
issued by Oledix to Johns Hopkins Medical Center
("Hopkins") in the amount of $174, 720, for the
sale of three "Oledix mobile telemedicine carts."
(Id. at 15.) The next day, based upon receipt of
this Hopkins invoice, NCF provided $119, 986 in funding for
Oledix via a wire transfer from its bank account in Texas to
Oledix's PNC bank account in Maryland. (Id; see
also Count 5 of Indictment, ECF No. 1 at 8.)
March 18, 2015, a federal Grand Jury charged Martin with
various wire fraud offenses related to his involvement as
President and Chief Executive Officer (CEO) of Oledix in
these fraudulent schemes. (ECF No. 1.) Martin subsequently
executed a Plea Agreement and pleaded guilty to Count 5 of
the Indictment. (ECF Nos. 32, 43.) The Government then
proceeded to dismiss Counts 1-4, and 6-14. (Id.)
This Court sentenced Martin to ninety-six (96) months'
imprisonment and ordered that he remain on supervised release
for a period of three years subject to additional conditions.
(ECF No. 75.) Martin appealed this Court's Judgment
to the Fourth Circuit based upon his sentence being above his
advisory Guidelines range. Martin, 676 Fed.Appx.
214. The Fourth Circuit affirmed this Court's Judgment
stating that "Martin's sentence [was] procedurally
and substantively reasonable." Id. at 215.
Currently pending is Martin's Motion to Vacate, Set
Aside, or Correct Sentence, pursuant to 28 U.S.C § 2255.
(ECF No. 90.)
Martin proceeds pro se in this manner, this Court
must construe his pleadings liberally. See Brickson v.
Vardus, 551 U.S. 89, 94 (2007); see also Alley v.
Yadkin County Sheriff Dept., 698 Fed.Appx. 141
(4th Ck. Oct. 5, 2017) (citing Erickson for the
proposition that "]p]ro se complaints and pleadings,
however inartfully pleaded, must be liberally construed and
held to less stringent standards than formal pleadings
drafted by lawyers").
28 U.S.C. § 2255, a prisoner in custody may seek to
vacate, set aside or correct his sentence on four grounds:
(1) the sentence was imposed in violation of the Constitution
or laws of the United States; (2) the court was without
jurisdiction to impose the sentence; (3) the sentence was in
excess of the maximum authorized by law; or (4) the sentence
is otherwise subject to a collateral attack. Hill v.
United States, 368 U.S. 424, 426-27 (1962) (citing 28
U.S.C. § 2255)). "[A]n error of law does not
provide a basis for collateral attack unless the claimed
error constituted 'a fundamental defect which inherently
results in a complete miscarriage of justice."'
United States v. Addoniyo, 442 U.S. 178, 185 (1979)
(quoting Hill, 368 U.S. at 428).
scope of a § 2255 collateral attack is far narrower than
an appeal, and a '"collateral challenge may not do
service for an appeal."' Foster v. Chatman,
136 S.Ct. 1737, 1758 (2016) (quoting United States v.
Frady, 456 U.S. 152, 165 (1982)). Thus, any failure to
raise a claim on direct appeal constitutes a procedural
default that bars presentation of the claim in a § 2255
motion unless the petitioner can demonstrate cause and
prejudice, or actual innocence. United States v.
Pettiford, 612 F.3d 270, 280 (4th Cir. 2010); see
Dretke v. Haley, 541 U.S. 386, 393 (2004); Reed v.
Farley, 512 U.S. 339 (1994); see also United States
v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999).
However, any "failure to raise an
ineffective-assistance-of-counsel claim on direct appeal does
not bar the claim from being brought in a later, appropriate
proceeding under § 2255." Massaro v. United
States, 538 U.S. 500, 509 (2003).
Martin's § 2255 Motion, he claims his sentence
should be vacated based upon four grounds. First,
Martin claims the Government failed to provide evidence
establishing that the wire transmission in Count 5 of the
Indictment moved in interstate commerce, "resulting in a
fatally defective indictment, centralizing undue fraud upon
the court." (ECF No. 32 at 2.) As a result, Petitioner
argues that as a matter of law, no violation of 18 U.S.C.
§ 1343 occurred and therefore he is not guilty of wire
fraud. (Id.) Second, Martin requests to withdraw his
guilty plea for "fair and just" reason under Rule
11(d)(2)(B) of the Federal Rules of Criminal Procedure.
(Id. at 3.) Third, Martin alleges that he
"experienced harm resulting from exposure to racial
prejudice through a version of 'sentence
entrapment'" (Id.) Fourth, Martin alleges
that the "District Court committed 'plain error'
when erroneously ordering restitution from BOP Inmate
Financial Responsibility Program (IFRP) and impermissibly
'handing over' discretionary power to [the] probation
light of Martin proceeding pro se in this matter,
this Court has construed his legal arguments to assert
five claims for relief. To summarize, Martin's
Motion is based on the alleged: (1) invalidity of his guilty
plea; (2) insufficiency of the facts supporting his
conviction; (3) sentencing errors related to restitution and
post-incarceration employment; (4) prosecutorial misconduct;
and (5) ineffective assistance of trial counsel. (ECF Nos.
general rule governing procedural default of claims brought
under § 2255 bars consideration of any matters that
"could have been but were not pursued on direct appeal,
[unless] the movant. . . show[s] cause and actual prejudice
resulting from the errors of which he complains," or
shows "actual innocence." Pettiford, 612
F.3d 270, 280 (4th Cir. 2010) (citing Mikalajunas,
186 at 492-93).
the "cause and prejudice" standard, the petitioner
must show: (1) cause for not raising the claim of
error on direct appeal; and (2) actual prejudice
from the alleged error. Bousky v. United States, 523
U.S. 614, 622 (1998) (emphasis added); see also
Dretke, 541 U.S. at 393; Massaro, 538 U.S. at
505 (2003); Reed, 512 U.S. at 354 ("the writ is
available only if the petitioner establishes 'cause'
for the waiver and shows 'actual prejudice resulting from
the alleged violation."'); Murray v. Carrier,
Ml U.S. 478, 485, 496 (1986); United States v.
Frady, 456 U.S. 152, 167-68 (1982);
Mikalajunas, 186 F.3d at 492-93. In addition, any
ineffective assistance of counsel claim may also be raised
for the first time in a § 2255 petition. See
Massaro, 538 U.S. at 508.
order to show cause for not raising the claim of error on
direct appeal, a petitioner must prove that "some
objective factor external to the defense such as the novelty
of the claim or a denial of effective assistance of
counsel" impeded their counsel's efforts to raise
the issue earlier. Coleman v. Thompson, 501 U.S.
722, 753 (1991); see also Carrier, 477 U.S. at 492
("[C]ause . . . requires a showing of some external
impediment preventing counsel from constructing or raising
the claim."); Mikalajunas, 186 F.3d at 493
(movant must demonstrate "something external to the
defense, such as the novelty of the claim or a denial of
effect assistance of counsel"). Additionally, the
alleged error cannot simply create a possibility of
prejudice, but must be proven to work to the petitioner's
"actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions."
Frady, 456 U.S. at 170 (emphasis in original).
Pursuant to the Supreme Court's ruling in
Carrier, prejudice does not support relief of a
procedural default in the absence of a showing of cause.
Id. at 494; Engle v. Isaac, 456 U.S. 107,
134 n.43 (1982).
order to show "actual innocence," the petitioner
"must demonstrate actual factual innocence of the
offense of conviction, i.e., that petitioner did not commit
the crime of which he was convicted; this standard is not
satisfied by a showing that a petitioner is legally, but not
factually, innocent." Mikalajunas, 186 F.3d at
494 (citing Sawyer v. Whitley, 505 U.S. 333, 339
(1992)); see also Bouslej, 523 U.S. at 623. The
actual innocence exception "only applies in limited
circumstances." United States v. Jones, 758
F.3d 579, 583 (4th Cir. 2014). The petitioner must meet this
burden by clear and convincing evidence.
Mikalajunas, 186 F.3d at 494. In other words, a
"petitioner must show that it is more likely than not
that no reasonable juror would have convicted him in light of
the new evidence." Jones, 758 F.3d at 583
case, Martin procedurally defaulted on all grounds raised in
his § 2255 petition, with the exception of his
ineffective assistance of trial counsel claim. See
Massaro, 538 U.S. at 509. In Martin's direct appeal
to the Fourth Circuit, he challenged this Court's
decision to sentence him "above his advisory Guidelines
range of 63 to 78 months," but chose not to raise any
other issues pertaining to his conviction. See
Martin, 676 Fed.Appx. 214. To be clear, Martin's
sentencing challenge under § 2255 presents new
claims regarding restitution and post-incarceration
employment that were not raised on direct appeal.
Id. Therefore, Martin's first four claims are
procedurally barred unless he can demonstrate either (a)
"cause and actual prejudice" sufficient to excuse
his procedural default, or (b) that an "imminent
miscarriage of justice" would result from a denial of
the collateral attack, i.e. he is factually innocent of the
charge against him. See Mikalajunas, 186 F.3d at
492-93 (4th Cir. 1999)). However, Martin fails to satisfy
either exception for his procedural default.
Martin is unable to provide any "cause" for his
procedural default Martin failed to provide evidence of any
"objective factor external to the defense" that
impeded his appellate counsel's opportunity to raise this
issue, nor did he assert any claim as to the ineffective
assistance of his trial counsel. See Carrier, 477
U.S. at 488. Additionally, this is not a case where Martin
can claim that the legal basis for his claim was not
reasonably available to him at any time during these
proceedings. See Bousley, 523 U.S. at 622. All the
elements of the wire fraud statute are explained in detail
under 18 U.S.C. § 1343. Therefore, Martin cannot allege
that the legal basis for his claim was not reasonably
available to him during these proceedings. Without being able
to show cause under the "cause and prejudice"
standard, Martin has not satisfied the first exception for
procedural default on his claims. See Carrier, 477
U.S. at 494; Etigle, 456 U.S. at 134 n.43.
determining whether any "fundamental miscarriage of
justice" would result if his claims were denied, this
Court finds that Martin has failed to produce any "clear
and convincing evidence" of his "factual innoncence
of the offense of the conviction." Mikalajunas,
186 F.3d at 494 (citing Sawyer, 505 U.S. at 339
(1992)); see also Bousley, 523 U.S. at 623.
Additionally, this Court notes that any "allegations in
a § 2255 motion that directly contradict the
petitioner's swom statements made during a properly
conducted Rule 11 colloquy are always palpably incredible and
patently frivolous or false." United States p.
Lemaster, 403 F.3d 216, 221 (4th Or. 2005) (internal
quotation marks omitted). "[A] district court should,
without holding an evidentiary hearing, dismiss any §
2255 motion that necessarily relies on allegations that
contradict the sworn statements." Id. at 222.
In this case, both documentary evidence, and the undisputed
facts on record direcdy contradict any attempt on behalf of
Martin to claim "actual innoncence" of wire fraud
in connection with his receipt of the $119, 985 that was sent
to him in Maryland from NCF in Texas. (ECF Nos. 32, 43,
96-5.) Accordingly, Martin's allegations fail to
represent a "prototypical example" of the
application of the "actual innocence" exception;
where a petitioner is innocent of all criminal wrongdoing,
such as where he claims that the government has convicted the
wrong person for the crime. See Sawyer, 505 U.S. at
340 (1992). Therefore, since Martin has not shown any
"fundamental miscarriage of justice" would occur if
his claims were denied, this Court finds that Martin has
procedurally defaulted on all his claims besides his claim to
ineffective assistance of counsel and is barred from bringing
forth these claims in his § 2255 petition. Even if these
four claims are not procedurally barred, they are meritless
Petitioner's Claims Are Without Merit
than thirty years ago, the Supreme Court stressed that
"a voluntary and intelligent plea of guilty made by an
accused person, who has been advised by competent counsel,
may not be collaterally attacked." Mabry v.
Johnson, 467 U.S. 504, 508 (1984); see also
Bousley, 523 U.S. at 621 ("We have strictly limited
the circumstances under which a guilty plea may be attacked
on collateral review"); United States v.
Timmreck, 441 U.S. 780, 784 (1979) (emphasizing that
"the concern with finality served by the limitation on
collateral attack has special force with respect to
convictions based on guilty pleas."). Here, Martin's
guilty plea was clearly established on record when he signed
the Plea Agreement and affirmed his guilty plea in this
Court's Rule 11 colloquy. (ECF Nos. 32, 43.) Therefore,
Martin's only avenue to setting aside his guilty plea is
to prove that his plea was not knowing or