United States District Court, D. Maryland
W. TITUS UNITED STATES DISTRICT JUDGE.
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.
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,  [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 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. ¶
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,  $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. 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.
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.
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).
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.
Petitioner's Claims of Ineffective Assistance of ...