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Osiomwan v. United States

United States District Court, D. Maryland

November 26, 2018




         Joseph 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.[1] 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).[2] The government opposes the Petition (ECF 124) and Petitioner has replied (ECF 130).

         In 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.

         While 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.

         On June 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 137.

         Subsequently, Petitioner filed a supplement to his Petition. ECF 138. Similarly, the government filed a supplement to its opposition. ECF 139.

         While I 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.

         Under 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).

         The 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.

         I. Factual and Procedural Background

         On May 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).[3] 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.

         Judge 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).

         The 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.

         Thereafter, 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.

         About a 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.

         The Petition followed on March 4, 2016.[4] 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).

         Additional facts are included in the Discussion.

         II. Contentions

         Despite 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).

         Petitioner 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 ...

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