United States District Court, D. Maryland
W. TITUS UNITED STATES DISTRICT JUDGE.
pending before the Court are Petitioner's (1) Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence (“Motion to Vacate”) (ECF No. 261), (2)
Motion to Amend the Filed 28 U.S.C. § 2255 Petition
Pursuant to Federal Rule of Civil Procedure Rule 15/Rule 12
Rules Governing Section 2255 Proceedings (“Motion to
Amend”) (ECF No. 268), (3) Motion for Summary Judgment
and Dismissal of the Government's Original and/or
Superseding Indictment (“Motion for Summary
Judgment”) (ECF No. 281), (4) Motion to Compel
Production of Documents (“Motion to Compel”) (ECF
No. 288), (5) Motion to Dismiss the Indictment (“Motion
to Dismiss”) (ECF No. 289), and (6) Second Motion
Seeking Leave to Amend (“Second Motion to Amend”)
(ECF No. 290). For the reasons discussed below, the Court
will deny all of the aforementioned Motions.
December 2, 2013, the grand jury returned a Superseding
Indictment, charging Petitioner with conspiracy to distribute
and possess with intent to distribute 1, 000 grams or more of
phencyclidine (“PCP”), a Schedule II substance,
in violation of 21 U.S.C. § 846. ECF No. 17. Petitioner
was arrested on or about December 6, 2013. ECF No. 276 at 1.
Petitioner had his initial appearance on January 30, 2014.
ECF No. 44. On February 6, 2014, the Court appointed Marc
Hall (“Mr. Hall”) as defense counsel for
Petitioner. ECF No. 50.
Government asserts through its Response in Opposition to
Petitioner's Motion to Vacate and Motion to Amend
(“Response”) and through an attached Affidavit of
Mr. Hall, that on February 20, 2014, Mr. Hall and Petitioner
attended a reverse proffer session at the United States
Attorney's Office in Greenbelt, Maryland, at which the
Government summarized its evidence against Petitioner and
reviewed with him his criminal record, which included two or
more prior felony drug offenses, and discussed the
possibility of an enhanced sentence pursuant to 21 U.S.C.
§ 851. ECF No. 276 (citing ECF No. 277, Attach. 1, Ex. 1
¶ 3). At his arraignment on March 11, 2014, Petitioner
pleaded not guilty to the charge against him. ECF No. 54.
to his arraignment, Petitioner, through counsel, filed (1) a
Motion to Adopt and Join in Motions of Codefendants (ECF No.
58), which in effect joined Petitioner in co-defendant Gary
Antonio Green's motion to suppress evidence (ECF No. 15),
(2) a separate Motion to Suppress Evidence (“Motion to
Suppress”), challenging the warrant authorizing a
search of Petitioner's residence in California as well as
an allegedly warrantless search of a drug lab and
Petitioner's vehicle in Palmdale, California (ECF No.
59), and (3) a Motion for 404(b) Disclosure (“Motion
for Disclosure”), requesting the Government to disclose
of any evidence of other crimes, wrongs, or acts the
Government intended to introduce at trial (ECF No. 60). A
hearing on those motions was held on August 4, 2014. ECF No.
72. For the reasons stated at the hearing, the Court, by
order on August 5, 2014, denied as moot Green's motion to
suppress, denied Petitioner's Motion to Suppress, and
denied as moot Petitioner's Motion for Disclosure. ECF
next day, August 6, 2014, the Government sent
Petitioner's counsel an email with notice that the
Government would file notices of Petitioner's five prior
drug felony convictions to seek an enhanced sentence pursuant
21 U.S.C. § 851 if the parties did not start actively
engaging in plea negotiations. ECF No. 276 at 2 (citing
Attach 1, Ex. 2 at 3). Petitioner's counsel responded
that he would like to receive a plea offer to review with
Petitioner, which the Government sent the next day.
Id. Mr. Hall attests that he visited Petitioner on
August 13, 2014 and reviewed with him both the plea offer and
the draft § 851 notice and its sentencing implications.
Id. Petitioner rejected the plea offer. Id.
September 8, 2014, the Government filed a Notice/Information
Pursuant to 21 U.S.C. § 851 of Government's Intent
to Seek Enhanced Penalties Under 21 U.S.C. §
841(b)(1)(A) (“§ 851 Notice”), informing the
parties of the Government's intention to seek enhanced
penalties based on Petitioner's conviction of five prior
drug felonies and the quantity of PCP listed in the
Superseding Indictment. ECF No. 87. Before trial,
Petitioner's counsel and the Government filed joint
voir dire and jury instructions. ECF Nos. 95, 96.
The Court proposed changes to the jury instructions, ECF No.
96, which were finalized on October 14, 2014, ECF No. 106.
Petitioner's case then proceeded to trial on October 9
through October 15, 2014. ECF Nos. 103, 105, 108, 109. On
October 15, 2018, the jury returned a verdict of guilty. ECF
sentencing, Petitioner's counsel filed an Opposition to
the Government's § 851 Notice (“Opposition to
§ 851 Notice”). ECF No. 117. Also before
sentencing, an attorney inquiry hearing was undertaken
regarding Mr. Hall, who ultimately withdrew as counsel for
Petitioner. ECF Nos. 124, 126. Michael Lawlor (“Mr.
Lawlor”) was appointed to represent Petitioner during
sentencing, and then again on appeal. ECF Nos. 127, 193.
January 7, 2015, Petitioner filed a pro se Motion
for New Trial, asserting that after the trial he learned from
a co-defendant that a key witness against him
“committed perjury and falsely testified” during
his trial. ECF No. 149. In light of this new evidence, and
because his counsel allegedly failed to follow up on this
exculpatory evidence, Petitioner argued he should receive a
new trial. Id. At sentencing, Petitioner consented
to withdrawing his Motion for New Trial. ECF No. 276 at 3
(citing Tr. of Sentencing Hr'g 7:14-17, ECF No. 200).
15, 2015, the Court sentenced Petitioner to life
imprisonment, the mandatory minimum resulting from the
enhanced sentence under 21 U.S.C. § 841(b)(1)(A)
pursuant to 21 U.S.C. § 851. ECF No. 189. At the
sentencing hearing, Mr. Lawlor challenged the sentence
enhancement, arguing that there was insufficient evidence of
the PCP weight at trial, renewed the challenges to the
validity of the search of Petitioner's vehicle, and
argued that application of the gun enhancement was improper.
ECF No. 276 at 3 (citing ECF No. 200 at 5:7-21). The Court
asked Petitioner's counsel whether he wished to be heard
on the issue of whether the Government gave him sufficient
notice under § 851, but counsel decided to rest on the
arguments made in his predecessor's Opposition to §
851 Notice and declined to add anything. Id. at 3-4
(citing ECF No. 200 at 7:25-8:1). The Court ultimately found
that the Government provided Petitioner with sufficient
notice under § 851. Id. at 4 (citing ECF No.
200 at 11:14-17).
appealed the judgment against him to the Fourth Circuit. ECF
No. 187. His appeal argued that the Court erred in (1)
admitting evidence of Petitioner's conduct in California,
including the evidence found during the search of
Petitioner's vehicle, and (2) applying a mandatory
minimum life imprisonment sentence without first submitting
Petitioner's prior convictions to a jury for a finding of
fact. Id.; Br. of Appellant, United States v.
Bullette, No. 15-4408 (Dec. 28, 2015). On April 20,
2017, the Fourth Circuit affirmed the Court's denial of
Petitioner's Motion to Suppress Petitioner's
California-based conduct. United States v. Bullette,
854 F.3d 261, 265 (4th Cir. 2017). The Fourth Circuit also
found that Petitioner had conceded that the Government was
not required to submit to a jury his prior convictions for a
finding of fact beyond a reasonable doubt before subjecting
Petitioner to a mandatory minimum sentence. Id. at
November 6, 2017, Petitioner timely filed his Motion to
Vacate. ECF No. 261. On November 29, 2017, the Court issued
an order directing the Government to respond. ECF No. 265.
Before the Government responded, Petitioner filed his
supplemental Motion to Amend on December 28, 2017. ECF No.
268. The Government ultimately responded, after a number of
permitted time extensions by the Court, on March 9, 2018. ECF
No. 276. On April 9, 2018, Petitioner filed his Motion for
Summary Judgment. ECF No. 281. According to Petitioner's
correspondence with the Court on June 18, 2018, Petitioner
had filed his Motion to Compel, ECF No. 288, in May 2018,
see ECF No. 286, although the motion was not
docketed until June 18, 2018. The Court received
Petitioner's Motion to Dismiss, ECF No. 289, and Second
Motion to Amend, ECF No. 290, also on June 18, 2018.
also filed a correspondence titled Petitioner's Pleading
of Ex Parte Violation Between United States Prosecutor and
District Court (“Pleading of Ex Parte
Violation”), asserting that the Government allegedly
had never served on Petitioner a copy of the Government's
Response, in violation of the rule against ex parte
communications. ECF No. 287. This is belied by the
certificate of service appended to the Government's
Response. ECF No. 276 at 19. Most recently, Petitioner filed
a petition for writ of mandamus in the Fourth Circuit, asking
for the Fourth Circuit to direct the undersigned either to
compel the United States Attorney to serve Petitioner with a
complete and true copy of ECF No. 276 along with an admission
that the document had not been timely served on Petitioner or
to recuse himself. In re Raymond Bullette, III, No.
18-1801 (4th Cir. July 16, 2018), ECF No. 2. The Court will
now address and dispose of all of the pending motions.
Court will first address Petitioner's Motion to Vacate
and Motion to Amend, and then it will dispose of the
Motion to Vacate and Motion to Amend
Motion to Vacate and supplemental Motion to Amend,
Petitioner asserts twelve grounds for vacating his sentence,
some of which are interrelated and substantively repetitive:
(1) the Court erred in failing to explain to the jury for
which purpose it may consider evidence of Petitioner's
California-based conduct; (2) the Court erred in instructing
the jury on definitions related to
“manufacturing” PCP when those allegations were
not included in the Superseding Indictment; (3) the Court
erred in permitting the jury to hear evidence of multiple
conspiracies even though Petitioner was charged with only
one; (4) the Court erred in admitting evidence of the
California manufacturing operation; (5) the Government failed
to give Petitioner adequate notice of its intent to use Rule
404(b) evidence; (6) trial counsel provided ineffective
assistance; (7) Petitioner was innocent of and did not have a
chance to defend himself against the California manufacturing
conduct; (8) the Court erred by considering substantially
increased drug quantities and evidence of a gun, which were
based on the California conduct; (9) appellate counsel
provided ineffective assistance of counsel; (10) the Court
erred in admitting evidence of the California-based conduct,
which impermissibly joined offenses committed in two
different jurisdictions; (11) all of the preceding grounds
had the cumulative effect of violating Petitioner's due
process rights; and (12) trial counsel failed to inform
Petitioner of the Government's advance notice to seek
enhanced penalties under § 851. ECF No. 261 at 5b-5c;
ECF No. 268 at 2.
ease of analysis, the Court will follow the Government's
example and address the above grounds in three groups: (1)
the grounds dealing with evidence of Petitioner's
California-based conduct (Grounds 1, 2, 3, 4, 5, 7, 8, 10);
(2) grounds dealing with ineffective assistance of counsel
(Grounds 6, 9, 12); and (3) grounds dealing with the
cumulative effect of the allegations (Ground 11).
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).
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). Issues fully
litigated on direct appeal cannot be raised on collateral
attack. Boeckenhaupt v. United States, 537 F.2d
1182, 1183 (4th Cir. 1976). Fourth Amendment exclusionary
rule claims, specifically, are cognizable only if there has
been no opportunity for full and fair litigation of the
claim. Stone v. Powell, 428 U.S. 465, 494-95 (1976).
Similarly, a petitioner cannot challenge a sentencing
enhancement that is based on a facially-valid prior
conviction. Custis v. United States, 511 U.S. 485,
496-97 (1994). 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