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D'Amico v. United States

United States District Court, D. Maryland

August 2, 2018

DAVID D'AMICO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          ROGER W. TITUS, UNITED STATES DISTRICT JUDGE.

         Now pending before the Court is Petitioner's Motion to Vacate and Set Aside Sentence and/or Plea Pursuant to 28 U.S.C. § 2255 (“§ 2255 Motion”), which asserts claims of ineffective assistance of counsel and other violations of Petitioner's Sixth Amendment rights. See ECF No. 1084. For the reasons discussed below, the Court will deny Petitioner's § 2255 Motion.

         I. Background

         The background facts of this case, well stated by the Government in its Response in Opposition to Petitioner's § 2255 Motion (“Response”), are as follows:

Starting in at least 2007, [1] [Petitioner] and co-conspirators imported massive quantities of marijuana from Canada and California and distributed it in Maryland, Pennsylvania, and elsewhere. [Presentence Investigation Report (“PSR”)] ¶ 10, ECF No. 1013. [Petitioner's] role in the conspiracy was to, among other things, rent warehouses in Maryland and Pennsylvania for the unloading of the drugs, count drug proceeds at a stash house in Baltimore, and facilitate the purchase, operation, and rental of planes[2] used to transport marijuana and currency. Id. [Petitioner] also participated in money laundering and used aliases and false identifications to create shell corporations to hold and hide assets, conduct financial transactions, title vehicles, convert asserts [sic], hide the identity of conspirators, and disguise the nature, source, and control of assets. Id. ¶ 16.
In March 2009, DEA agents executed a search warrant at a residence in Baltimore that was used as a center of operations for the conspiracy. Id. ¶ 12. Agents recovered over 100 pounds of marijuana, [3] $20, 000 in U.S. currency, 31 cell phones, documents regarding the purchase of an airplane, money counters, tally sheets with balances over $1.5 million, false identifications, and documents in [Petitioner's] name. Id.
Shortly thereafter, [Petitioner] met with other co-conspirators and told them that they needed to destroy their cell phones and flee the country.[4] Id. ¶ 13. [Petitioner] then fled to South America, where he remained until his arrest in Colombia in 2013. Id. In 2014, he was extradited to the United States based on the charges in this case. . . .
[Petitioner] was originally represented by Steven H. Levin, Esq. [(“Mr. Levin”)]. Mr. Levin had previously represented another co-conspirator and the Government moved to disqualify Mr. Levin as Defendant's counsel on that basis. See United States v. D'Amico, 2014 WL 12668109, at *1-2 (D. Md. Dec. 18, 2014) (Judge Connelly's Report and Recommendation on the motion to disqualify). Judge Connelly recommended that Mr. Levin be disqualified because Mr. Levin faced a conflict of interest if [Petitioner] or the former client decided to cooperate, which would result in Mr. Levin's current and former client having completely adverse interests in the same matter. Id. The Court adopted the Report and Recommendation over [Petitioner's] objections. United States v. D'Amico, 2015 WL 13105718, at *1 (D. Md. Feb. 19, 2015).
Defendant was thereafter represented by Justin Brown, Esq. [(“Mr. Brown”)]. All of [Petitioner's] claims of ineffectiveness are directed at Mr. Brown's performance. . . .

ECF No. 1093 at 1-3. On January 13, 2016, Petitioner pleaded guilty to (1) conspiracy to distribute and possess with intent to distribute 1, 000 kilograms or more of a mixture or substance containing a detectable amount of marijuana, in violation of 21 U.S.C. § 846 (“Count One”), and (2) conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (“Count Two”). ECF No. 999 at 1. On May 2, 2016, the Court adopted the PSR recommendation without change and sentenced Petitioner to 120 months imprisonment—the mandatory minimum of 120 months imprisonment imposed as to Count One and 97 months imprisonment as to Count Two to run concurrently—five years of supervised release, and a $200 special assessment. ECF No. 1038 at 2-4; ECF No. 1039 at 1. Petitioner did not file a direct appeal.

         On May 11, 2017, Petitioner filed his pro se § 2255 Motion. ECF No. 1084. On July 26, 2017, the Government filed its Response, ECF No. 1093, and Petitioner filed his Reply on October 18, 2017. ECF No. 1105.

         II. Discussion

         To prevail on a § 2255 motion, a petitioner must prove by a preponderance of the evidence that “[his] sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .” 28 U.S.C. § 2255 (2012); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). A claim which does not challenge the constitutionality of a sentence or the court's jurisdiction is cognizable in a § 2255 motion only if the alleged violation constitutes a “miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Collateral attack is not a substitute for direct appeal, therefore the failure to raise certain issues on direct appeal may render them procedurally defaulted on habeas review. United States v. Frady, 456 U.S. 152, 165 (1982). If the § 2255 motion, along with the files and records of the case, “conclusively show that [the petitioner] is entitled to no relief, ” a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. 28 U.S.C. § 2255; Miller, 261 F.2d at 547. Pro se petitions are liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

         Petitioner alleges four grounds for relief pursuant to § 2255. The first three claims assert that Mr. Brown provided ineffective assistance of counsel by failing to (1) investigate for, or review with Petitioner, exculpatory evidence, (2) correct factual errors in Petitioner's plea agreement, and (3) argue at sentencing for enhanced credit for time served in Colombia. ECF No. 1084 at 2-3. The last claim asserts that the disqualification of Mr. Levin violated Petitioner's Sixth Amendment rights. Id. As the Court will discuss below, none of these grounds has legal merit.

         A. Petitioner's Claims of Ineffective Assistance of ...


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