United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
September 14, 2017, Petitioner Damien Travis Boddy filed a
Motion to Vacate, Set Aside, or Correct his Sentence, arguing
that he is entitled to relief under 28 U.S.C. § 2255
because he alleges his initial lawyers-who he fired before
entering into a guilty plea-provided ineffective assistance
of counsel. ECF No. 114. The Government responded. ECF No.
118. Petitioner did not reply. No. hearing is necessary.
See 28 U.S.C. § 2255(b). For the following
reasons, Petitioner's Motion is denied.
28, 2016, Mr. Boddy pled guilty to Possession of an
Unregistered Firearm in violation of 26 U.S.C. § 5861(d)
and Transportation of Explosive Materials with the Intent to
Injure, Kill, or Intimidate in violation of 18 U.S.C. §
844(d). ECF Nos. 73, 74. The plea agreement stipulated that
Mr. Boddy would be sentenced to not less than 120 months (10
years) and not more than 240 months (20 years) imprisonment.
Id. at 5. The agreement superseded “any prior
understandings, promises, or conditions between” the
parties.” Id. ¶ 17.
hearing where Mr. Boddy accepted the plea agreement, the
Court confirmed with his counsel, Theresa Whalen, that
“all formal plea offers made by the government had been
conveyed” to him. ECF No. 104 at 23:5-7. The Court also
confirmed with Mr. Boddy that he understood he was waiving
his right to appeal his conviction or have a trial or further
proceeding concerning his guilt. Id. at 11:8-17.
Additionally, the Court confirmed that Ms. Whalen had
discussed the agreement with him, answered his questions, and
that Mr. Boddy was “satisfied with the job Ms.
Whalen” had done on his behalf. Id. at
23:8-24:3. At that hearing, the Court inquired whether Mr.
Boddy had been treated recently for mental illness of any
kind, and Mr. Boddy responded “mental, mental illness,
mental illness. A lawyer that I had previous, CitaraManis,
they gave me - had me take - I was taking Risperdal and
Benadryl.” Id. at 7:17-22. Mr. Boddy confirmed
that his medication, which he had not taken on the day of the
hearing because he typically took it at night, did not affect
his ability to enter his guilty plea knowingly and
voluntarily and that he was not having any difficulty
understanding the proceedings. Id. at 8:1-16.
on Mr. Boddy's guilty plea, the Court sentenced him on
October 6, 2016 to 144 months (12 years) of imprisonment,
consisting of 24 months imprisonment as to Count One,
followed by 120 months as to Count Five. ECF No. 94. At
neither the hearing where Mr. Boddy pled guilty nor the
sentencing hearing did Petitioner make any argument
concerning purported ineffective assistance of counsel.
Boddy appealed his conviction to the Fourth Circuit, but did
not raise an ineffective assistance of counsel issue as to
either his initial attorney or Ms. Whalen. ECF 116;
Appellant's Brief, United States v. Damien
Boddy, No.16-4649 (4th Cir. Dec. 20, 2016). The Fourth
Circuit affirmed Petitioner's conviction and sentence,
and Mr. Boddy's conviction became final. ECF 109; See
also Fed. R. App. 41(a); Sup. Ct. R. 13; Clay v.
United States, 537 U.S. 522, 532 (2003).
Boddy then filed this Motion to Vacate, Set Aside, or Correct
his Sentence. The Motion describes how his initial
lawyers-the Assistant Federal Public Defenders he worked with
before retaining Ms. Whalen-encouraged Mr. Boddy to take his
Risperdal, an anti-psychotic medication. ECF No. 114 at 4.
Mr. Boddy claims that his Assistant Federal Public Defenders
Michael CitaraManis and Amy Fitzgibbons (the initial lawyers)
believed it more likely that the Government would offer him a
plea agreement with an 8-10 year sentence if Mr. Boddy took
his medication. Id. Mr. Boddy took his medication in
reliance on this expected offer but never received the offer.
Id. Mr. Boddy then fired his initial lawyers and
began working with Ms. Whalen who relayed to Mr. Boddy that
the Government never offered an 8-10 year plea. Id.
Mr. Boddy claims that he spoke to Ms. Fitzgibbons on April
12, 2016 and confirmed that the Government had never formally
made an 8-10 year plea offer because “the prosecutor
changed their mind.” Id.
evidently believing it relevant to his ultimate sentence, Mr.
Boddy also claims that he offered to give his lawyers emails
“that personally contained information regarding [the
victim of the Petitioner's crimes] saying that she was a
Secret Service officer and that she did have an affair with
my friend[, ] Tyree Bond.” Id.
STANDARD OF REVIEW
entitled to relief under 28 U.S.C. § 2255, a petitioner
must prove by a preponderance of the evidence that “the
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(a). Where, however, a § 2255 petition, along
with the files and records of the case, conclusively shows
the petitioner is not entitled to relief, a hearing on the
motion is unnecessary and the claims raised therein may be
dismissed summarily. 28 U.S.C. § 2255(b).
Supreme Court has long made it clear 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 Fields v. Attorney
Gen., 956 F.2d 1290, 1295 (4th Cir. 1992) (“Once
judgment on a plea is final, collateral inquiry is limited to
whether the plea itself was counseled and voluntary.”).
There is no suggestion here that Petitioner involuntarily
agreed to the terms of his plea bargain. Nor is there any
evidence that Petitioner did not understand the charges to
which he pleaded guilty. Therefore, the Court will consider
only whether Petitioner was advised by competent counsel. To
challenge a guilty plea as the result of incompetent counsel,
Petitioner must “demonstrate that the advice was not
‘within the range of competence demanded of attorneys
in criminal cases.'” Tollet v. Henderson,
411 U.S. 258, 266 (1973) (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970).
accepting the claims in Mr. Boddy's Motion as true,
Petitioner makes no such showing. Mr. Boddy alleges that his
initial attorneys expected he would be offered a plea
agreement with an 8-10 year sentence if he took his
antipsychotic medication. In reliance on this expectation,
Mr. Boddy took his medication, but claims “the plea was
never given.” ECF No. 114 at 4. Mr. Boddy fired his
initial attorneys and hired Ms. Whalen who told him that the
Government never made a formal plea offer that included an
8-10 year sentence. Id. Similarly, Mr. Boddy
confirmed with Ms. Fitzgibbons that the Government had never
formally offered him an 8-10 year plea. Id. On these
facts, Petitioner's attorneys made no error in counseling
let alone an error that was not within the range of
competence demanded of criminal attorneys and the Court may
not revisit the plea agreement. Mr. Boddy has not alleged
that his attorneys failed to convey a formal plea offer to
him. To the contrary, consistent with Ms. Whalen's
confirmation to the Court that “all formal plea offers
made by the government had been conveyed, ” Mr. Boddy
claims that the Government never formally offered him the
8-10 year plea he had initially expected. Instead, Mr. Boddy
was offered a plea agreement with a 10-20 year sentence. ECF
No. 74 at 5. Ms. Whalen helped Mr. Boddy negotiate this
agreement and when Mr. Boddy voluntarily and knowingly
accepted it, ECF No. 104 at 22-24, the agreement superseded
“any prior understandings, promises, or conditions