United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
Osiomwan, Petitioner, through post-conviction counsel, has
filed a Motion to Vacate under 28 U.S.C. § 2255 (ECF
110, the “Petition”). He challenges the judgment
entered on October 25, 2013, reflecting his convictions for
conspiracy to distribute heroin and possession with intent to
distribute heroin. ECF 83. Petitioner claims that his trial
counsel was ineffective for failing to move to suppress
“evidence gleaned from the warrantless use of his
cellular telephone tracking device . . . .”, commonly
called a “Stingray” or a “Cell-Site
Simulator.” ECF 110 at 4. The Petition is supported by
an unredacted memorandum of law (ECF 118) and a redacted
version (ECF 117). The government opposes the Petition (ECF
124) and Petitioner has replied (ECF 130).
addition, petitioner has filed a “Motion For Leave To
Take Discovery Pursuant To Rule 6 Of The Rules Governing
Section 2255 Cases.” ECF 119. In particular, he seeks
to depose DEA Task Force Officer Brian Shutt, the lead
investigator in the underlying criminal case.
the Petition was pending, the Supreme Court granted
certiorari in United States v. Carpenter, 819 F.3d
880 (6th Cir. 2016), cert. granted, 2017 WL 2407484
(June 5, 2017). See ECF 133. As a result, Petitioner
submitted an unopposed motion to stay. ECF 134. By Order of
June 26, 2017, I granted the Order and stayed this case
pending the Supreme Court's decision in
Carpenter. ECF 135.
22, 2018, the Supreme Court issued its decision in United
States v. Carpenter, ___U.S. ___, 138 S.Ct. 2206 (2018).
Thereafter, by Order of July 11, 2018, I lifted the stay. ECF
Petitioner filed a supplement to his Petition. ECF 138.
Similarly, the government filed a supplement to its
opposition. ECF 139.
was working on this case, I determined that certain documents
referenced by the government in its submissions may not have
been submitted. See ECF 140. Accordingly, in an
Order of October 26, 2018, I asked the government to
supplement its submission. Id. The government
complied on November 9, 2018. See ECF 142.
28 U.S.C. § 2255(b), the post-conviction court must hold
a hearing “[u]nless the motion and the files and
records conclusively show that the prisoner is entitled to no
relief. . . .” United States v. LeMaster, 403
F.3d 216, 220-23 (4th Cir. 2005); see, e.g.,
United States v. White, 366 F.3d 291, 302 (4th Cir.
2004). Courts have determined that a hearing is not necessary
where “the motion . . . fail[s] to allege sufficient
facts or circumstances upon which the elements of
constitutionally deficient performance might properly be
found [or] where the defendant has failed to present any
affidavits or other evidentiary support for the naked
assertions contained in his motion.” United States
v. Taylor, 139 F.3d 924, 933 (D.C. Cir. 1998) (internal
quotation marks and citation omitted); accord United
States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993).
On the other hand, a hearing is generally “required
when a movant presents a colorable Sixth Amendment claim
showing disputed material facts and a credibility
determination is necessary to resolve this issue.”
United States v. Robertson, 219 Fed. App'x 286,
286 (4th Cir. 2007); see also United States v. Ray,
547 Fed. App'x 343, 345 (4th Cir. 2013).
issues here do not turn on credibility. I am satisfied that
no hearing is necessary to resolve Osiomwan's claims.
And, for the reasons that follow, I shall deny the Petition.
Factual and Procedural Background
15, 2012, Osiomwan was indicted on charges of conspiracy to
distribute and possess with intent to distribute one kilogram
or more of heroin, in violation of 21 U.S.C. § 846
(Count One), and possession with intent to distribute heroin,
in violation of 21 U.S.C. § 841(a)(1) (Count
Two). Defense counsel subsequently filed
numerous motions on behalf of Osiomwan. These included the
following: Motion To Suppress Wiretap Evidence (ECF 24);
Motion To Compel Disclosure Of Existence And Substance Of
Promise of Immunity, Leniency or Preferential Treatment (ECF
27); Motion For Disclosure Of Electronic Surveillance And to
Compel Disclosure Of Audio And Visual Tape Recordings (ECF
28); Motion For Disclosure Of Informants And Witnesses (ECF
29); Motion For Disclosure Of Identity Of Informants (ECF
30); Request For Notice Of Intention To Use Evidence (ECF
31); Motion To Compel Production Of Communications Between
Government And Law Enforcement Agents Prior To Execution Of A
Search Warrant And Arrest Of The Defendant (ECF 33); Motion
To Suppress Evidence Resulting From Defendant's Arrest
(ECF 34); Motion To Suppress Evidence Resulting From A Search
Of Defendant's Residence (ECF 35); and two motions in
limine. See ECF 35; ECF 36.
Quarles heard the motions beginning on May 21, 2013,
contemporaneous with a bench trial that he conducted that
began on the same date. Pursuant to a Memorandum Opinion of
May 22, 2013 (ECF 75), the motions were denied or, in some
instances, denied as moot. Id. Judge Quarles
subsequently found defendant guilty of a lesser included
offense as to Count One and guilty as to Count Two.
See ECF 76 (Memorandum Opinion); ECF 77 (Verdict).
Presentence Report (“PSR”) is docketed at ECF 82.
Sentencing was held on October 23, 2013. ECF 80. The
defendant's advisory sentencing guideline range called
for a period of incarceration ranging from 97 to 121 months.
See ECF 84. The Judgment of October 25, 2013 (ECF
83) reflects that the Court imposed concurrent sentences of
120 months' incarceration as to Count One and Count Two.
Petitioner noted an appeal. ECF 87. In a Judgment of December
5, 2014 (ECF 102), the United States Court of Appeals for the
Fourth Circuit affirmed the convictions. The mandate issued
on December 29, 2014. ECF 103.
year later, on December 16, 2015, the parties filed a consent
motion to reduce sentence, pursuant to U.S.S.G. Amendment
782. ECF 106. By Order of December 18, 2015, Judge Quarles
granted the consent motion and reduced petitioner's
sentence to 97 months' incarceration. ECF 107.
Petition followed on March 4, 2016. During the post-conviction
proceedings, the Court released sealed exhibits to
Petitioner's counsel, which of course had previously been
disclosed to defense counsel at the relevant time. These
exhibits had been filed by the government on May 13, 2013.
See ECF 65 (Government's Motion To Seal); ECF
66-1 - ECF 66-6 (Sealed Exhibits); ECF 67 (Order Granting
Motion To Seal).
facts are included in the Discussion.
the volume of motions filed by Petitioner's trial
counsel, including a motion to suppress wiretap evidence,
Petitioner contends that his defense counsel “failed to
argue that a much more glaring Fourth Amendment violation had
taken place-the warrantless use of a
‘stingray' device to track Osiomwan
and his co-defendant's movants-key evidence to help the
Government build its case against Osiomwan.” ECF 117 at
1; ECF 118 at 1. Petitioner states: id. at 2:
“It was evident from the Government's response to
Osiomwan's motion to suppress that a ‘Stingray'
had been used, although the word ‘Stingray' was not
referenced.” Id. (citing ECF 66 at 7).
also complains that the government “purported to rely
on a ‘court order' that permitted [the government]
to obtain ‘location information, '” but the
“orders were granted based on misleading search warrant
affidavits that did not identify, in all respects, the true
manner and means of surveillance that the police sought to
employ.” ECF 117 at 2; ECF 118 at 2. Further,
Petitioner asserts, id.: “At no time did
police indicate in their affidavits that a warrant was sought
for the use of a ‘Stingray' or similar
device.” Id. In Petitioner's view,
although law ...