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United States v. Bryant-Royal

United States District Court, D. Maryland

April 30, 2019



          Ellen L. Hollander United States District Judge.

         This Memorandum Opinion addresses a Motion To Vacate, Set Aside, Or Correct Sentence filed by counsel on behalf of Daheem Bryant-Royal, Petitioner, pursuant to 28 U.S.C. § 2255. ECF 166.[1] The petition, is supported by a memorandum. ECF 168. Petitioner subsequently supplemented his petition with an affidavit. ECF 175-1. And, he also filed a second supplement. ECF 201. I shall refer to ECF 166, ECF 168, ECF 175-1, and ECF 201 collectively as the “Petition, ” unless otherwise noted.

         In his Petition, Bryant-Royal asserts claims of ineffective assistance of counsel in connection with his trial on sex offenses involving a 15-year-old female, in violation of 18 U.S.C. § 2242(2) and § 2243. The events in issue occurred at a party held on a military base on September 4, 2011, attended by the victim, M.J., and Petitioner, who was then 21 years of age. According to Petitioner, “not since the Germans scuttled the Bismarck in 1941 . . . has a party been this effective at sinking his own ship.” ECF 168 at 8 n.1.[2]

         The government opposes the Petition. It has filed several responses, with exhibits, docketed at ECF 173, ECF 187, and ECF 202. I shall refer to the responses collectively as the “Opposition, ” unless otherwise noted.

         The Court held an evidentiary hearing on the Petition on January 18, 2019. ECF 204.[3]Post-hearing submissions were filed by Petitioner (ECF 207) and the government. ECF 208.

         For the reasons that follow, I shall deny the Petition.

         I. Procedural Background

         Defendant was initially indicted on January 25, 2012 (ECF 1) and charged only with sexual abuse of a minor, under 18 U.S.C. § 2243. A Superseding Indictment followed on March 28, 2012 (ECF 15), adding a charge of sexual abuse, in violation of 18 U.S.C. § 2242(2).

         Prior to trial, and continuing during trial, defense counsel filed numerous motions and responses. See, e.g., ECF 14; ECF 27; ECF 28; ECF 29; ECF 30; ECF 31; ECF 37; ECF 39; ECF 40; ECF 47; ECF 48; ECF 49; ECF 50; ECF 51; ECF 58; ECF 60; ECF 65; ECF 87; ECF 91; ECF 94. By Memorandum (ECF 52) and Order (ECF 53) of August 6, 2012, Judge Quarles granted defendant's motion (ECF 27), seeking to dismiss Count Two of the Superseding Indictment.[4]

         A Second Superseding Indictment followed on August 2, 2012. ECF 55. Petitioner was charged with two sexual offenses involving M.J. In Count One, he was charged under 18 U.S.C. § 2243 with sexual abuse of a minor by vaginal and anal penetration with his penis. In Count Two, the defendant was charged with sexual abuse of a person “incapable of declining participation in and communicating unwillingness to engage in that sexual act, due to being under the influence of alcohol, physically ill and in and out of consciousness, ” in violation of 18 U.S.C. § 2242(2). The events occurred on or about September 4, 2011, at the Fort George G. Meade Military Base. As noted, M.J. was 15 years old at the time, and the defendant was 21 years of age.

         The case proceeded to a five-day jury trial before the Honorable William D. Quarles, Jr., beginning on December 10, 2012. Defendant was represented by retained counsel, Joseph Owens. On December 18, 2012, the jury returned a verdict of guilty as to Count One, charging sexual abuse of a minor, but it was unable to reach a verdict as to Count Two, charging sexual abuse of an incapacitated person. See ECF 108. Count Two was subsequently dismissed. ECF 163 at 9.

         The defendant appeared for sentencing on August 14, 2013. ECF 123. According to the Amended Presentence Report (“PSR”, ECF 126), the defendant had a total offense level of 38. Id. ¶ 30. Notably, although Petitioner was not convicted of Count Two, his guidelines were calculated based on the “relevant conduct” that was at issue in that count. See ECF 160 (Sentencing Transcript), at 4-16, 29; see also ECF 119 (Government's Sentencing Memorandum) at 8-20. Therefore, in calculating the defendant's offense level, the PSR reflects application of the Cross Reference at U.S.S.G. § 2A3.2(c), with a base offense level of 30, under U.S.S.G. § 2A3.1(a)(2). See ECF 126, ¶ 23. Four levels were added under § 2A3.1(b)(1), because the offense involved conduct under 18 U.S.C. § 2241. ECF 126, ¶ 24. Two levels were added under § 2A3.1(b)(2)(B), because of the age of the victim. ECF 126, ¶ 25. And, two more levels were added under § 2A3.1(b)(4)(B), because the victim “sustained serious bodily injury.” ECF 126, ¶ 26. As the defendant had no prior offenses, his criminal history category was I. ECF 126, ¶ 35.

         The advisory sentencing guidelines of 180 months' incarceration corresponded to the statutory maximum of 15 years' imprisonment. See ECF 126, ¶ 41 (citing U.S.S.G. § 5G1.1(a)). However, the government recommended a sentence of 120 months' imprisonment. ECF 160 at 16. And Judge Quarles imposed that sentence as to Count One. ECF 124; ECF 125

         Thereafter, the defendant filed a Notice of Appeal. ECF 127. However, the United States Court of Appeals for the Fourth Circuit dismissed the appeal for failure to prosecute. ECF 133 (Order); ECF 134 (Mandate).

         Bryant-Royal subsequently filed a Motion to Vacate under 28 U.S.C. § 2255 (ECF 136, “Motion”). In that Motion, Bryant-Royal sought the opportunity to file another appeal. In response, the government indicated its belief that “the appropriate relief is to reinstate Petitioner's right to appeal . . . .” ECF 138 at 2. By Order of April 21, 2014, Judge Quarles granted the Motion. ECF 141. An amended judgment followed (ECF 142), and Bryant-Royal noted another appeal to the Fourth Circuit. ECF 144.

         On appeal, Petitioner presented the following claims: 1) the prosecutor's comments during closing argument about the defendant's out-of-court statements, which were not in evidence, deprived Bryant-Royal of his constitutional right to a fair trial; 2) defense counsel made inappropriate, inflammatory, and prejudicial remarks during closing argument, which deprived Petitioner of the effective assistance of counsel; and 3) the district court erred by admitting into evidence the testimony of defendant's former girlfriend, as well as phone records showing text messages and phone calls between them on the night of the incident. ECF 163 at 5.

         In an unpublished, per curiam opinion dated February 27, 2015, the Fourth Circuit affirmed Petitioner's conviction. See ECF 163; see also United States v. Bryant-Royal, 607 Fed. App'x 258 (4th Cir. 2015) (per curiam).[5] The mandate followed on June 12, 2015. ECF 164. Bryant-Royal did not file a petition for certiorari to the Supreme Court. ECF 168 at 5.

         Thereafter, on August 16, 2016, through appointed counsel, Bryant-Royal filed his Petition under 28 U.S.C. § 2255 (ECF 166), supported by a memorandum filed on September 13, 2016. ECF 168. The government opposed the Petition. ECF 173. Bryant-Royal did not file a reply, and the time to do so expired.

         After review of the submissions, I held a telephone conference with counsel on October 5, 2017.[6] As a result of the discussion, on October 24, 2017, Petitioner filed a motion to supplement his Petition (ECF 175), along with his Affidavit (ECF 175-1), providing sworn allegations concerning his claims with respect to plea negotiations.[7] In particular, the Affidavit pertained to Petitioner's claims that trial counsel failed to engage in plea negotiations; failed to explain the federal sentencing guidelines; and failed to review the evidence with Petitioner. Id. Another supplement followed on December 4, 2018. ECF 201. The government responded on January 13, 2019. ECF 202.

         II. Factual Summary

         As noted, trial began on December 10, 2012. In opening statement, defense counsel told the jury that the defendant would probably testify. See Joint Appendix (“JA”) at 31. But, the defendant did not do so.

         At trial, the government presented the testimony of twelve witnesses. These included the victim, M.J.; three witnesses who attended the party with Petitioner and M.J.; a DNA expert; a toxicologist; a nurse; a physician; an Army official; the defendant's former girlfriend, who testified about repeated calls she received from the defendant on the night in question; FBI Special Agent Kathleen Beaton; and an official from Verizon Wireless, who testified about cell site information and the defendant's cell phone usage at the relevant time.

         The defense called three witnesses: Thomas Chase, a defense investigator; Special Agent Beaton; and Suzanne Rotolo, Ph.D, a licensed practical nurse who specializes in forensic nursing.

         M.J. testified that, at the party on the night in question, she was “[r]eally drunk” and “couldn't walk . . . .” Supplemental Joint Appendix (“SJA”) at 92. She recalled that while she was “puking” at the toilet, id. at 93, defendant entered the bathroom. Id. at 94. According to M.J., defendant penetrated her anally and vaginally and performed oral sex on her. Id. at 96-98. M.J. insisted that several times she told the defendant to stop. Id. at 96-97.

         In addition, the government presented evidence that defendant was aware of M.J.'s age. M.J. testified that defendant asked M.J. her age, and M.J. told defendant that she was 15 years old. See JA at 72. Alleyah Jones also testified that, on the night in question, defendant asked Jones M.J.'s age, and Jones told defendant that M.J. was 15. JA at 99. The government also presented evidence that defendant was aware of M.J.'s intoxication.

         Forensic evidence presented at trial was consistent with sexual intercourse. Moreover, semen was recovered from the victim, and the DNA in that biological material matched defendant's DNA. See ECF 119 at 6. Expert testimony was also presented that established that M.J.'s injuries were consistent with “nonconsensual acute penetrating blunt force sexual trauma.” SJA at 270; see also Id. at 292.

         The defendant did not dispute that he had sexual intercourse with M.J. ECF 168 at 5. Rather, the defense claimed that the sexual intercourse was voluntary and that the defendant reasonably believed that M.J. was over the age of 15. Id.

         In regard to the facts at trial, I quote below from portions of the Fourth Circuit's factual summary, ECF 163 at 5-8.

On September 4, 2011, Bryant-Royal, who was 21 years old at the time, attended a party with a group of teenaged acquaintances who lived at a military base in Maryland (the “Base”). Prior to the party, Bryant-Royal made plans to meet his ex-girlfriend after the party. During the evening, Bryant-Royal stated his intention to “get some tonight.” SJA 170.
The party guests included M.J., who was 15 years old at the time. M.J. consumed alcoholic beverages at the party. When the guests decided to leave the party, she required assistance walking to the car, and vomited multiple times during the drive back to the Base. Over the course of the drive, Bryant-Royal, also in the car and expressing frustration that the trip was taking too long, made several unsuccessful attempts to call his ex-girlfriend. She eventually answered his call, but said that she would not see him that night because he would be returning to the Base too late.
The group returned to the Base and dropped off Bryant-Royal before driving to another guest's house. M.J. was carried into the house and left near a toilet. Shortly thereafter, Bryant-Royal arrived at the house. A member of the group testified that Bryant-Royal was agitated because he had not been able to meet his ex-girlfriend. J.A. 97. After a time, everyone at the house except for Bryant-Royal and M.J. went to bed. They awoke to find M.J. crying in the living room, her hair and clothes disheveled. M.J. stated that Bryant-Royal had raped her. Her friends took her home, and M.J. reported the sexual assault to her parents and law enforcement officials. Forensic evidence confirmed that sexual intercourse had taken place between M.J. and Bryant-Royal.
[T]he prosecution introduced the testimony of M.J. and a friend of hers, each of whom testified about a different conversation in which Bryant-Royal asked about M.J.'s age and was told that she was 15. JA 72, 99.
Bryant-Royal's defense for Count Two centered on the theory that M.J. consented to the sexual act and, fearing pregnancy or other consequences, concocted the rape allegation. By contrast, the government sought to prove that Bryant-Royal's conduct was knowing because it was motivated by his anger at not getting back in time to meet his ex-girlfriend. To prove this theory, the government offered the testimony of Bryant-Royal's ex-girlfriend to establish Bryant-Royal's state of mind directly before the assault. She testified that on the night of the offense, Bryant-royal called her approximately nine times. The government also introduced into evidence phone records showing text messages and phone calls between the two on the night of the offense.
Additional facts are included in the Discussion.

         III. Standard of Review


         Pursuant to 28 U.S.C. § 2255(a), Petitioner may “move the court which imposed the sentence to vacate, set aside or correct the sentence, ” but only on certain grounds: “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. . . .” See also United States v. Newbold, 791 F.3d 455, 459 (4th Cir. 2015).

         Collateral attack is not a substitute for direct appeal; failure to raise certain issues on direct appeal may render them procedurally defaulted on post-conviction review. United States v. Frady, 456 U.S. 152, 165 (1982); accord Bousely v. United States, 523 U.S. 614, 630 (1998). As a general rule, a petitioner who fails to raise a claim on direct appeal is barred from raising the claim on collateral review. Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006). However, this bar generally does not apply to claims pertaining to ineffective assistance of counsel. See, e.g., Massaro v. United States, 538 U.S. 500, 503-04 (2003).

         Under 28 U.S.C. § 2255(b), a post-conviction 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). This is such a case. Therefore, the Court held an evidentiary hearing on January 18, 2019. ECF 204.

         At the hearing, the government presented the testimony of one witness: Petitioner's trial counsel, Joseph Owens. Petitioner did not present any witnesses.


         The Sixth Amendment to the Constitution guarantees a criminal defendant the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); see also Buck v. Davis, __U.S.__, 137 S.Ct. 759, 775 (2017). Ineffective assistance of counsel is a well recognized basis for relief under § 2255. See generally Missouri v. Frye, 566 U.S. 133 (2012); Lafler v. Cooper, 566 U.S. 156 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010).

         To mount a successful challenge under 28 U.S.C. § 2255 based on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the two-pronged test set forth in Strickland, 466 U.S. at 687-88. See Williams v. Taylor, 529 U.S. 362, 390 (2000); United States v. Winbush, __F.3d__, 2019 WL 1770010, at *2 (4th Cir. April 23, 2019); United States v. Carthorne, 878 F.3d 458, 465 (4th Cir. 2017); United States v. Powell, 850 F.3d 145, 149 (4th Cir. 2017).

         First, the petitioner must show that counsel's performance was deficient. Second, the petitioner must show that he was prejudiced by the deficient performance. Strickland, 466 U.S. at 687; see Buck, 137 S.Ct. at 775; Chaidez v. United States, 568 U.S. 342, 348 (2013); Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Hill v. Lockhart, 474 U.S. 52, 57 (1985); Winbush, 2019 WL 1770010, at *2; Powell, 850 F.3d at 149; United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015); United States v. Dyess, 730 F.3d 354, 361 (4th Cir. 2013); Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012); United States v. Higgs, 663 F.3d 726, 735 (4th Cir. 2011); see, e.g., United States v. Baker, 719 F.3d 313, 318 (4th Cir. 2013). As the Padilla Court said, 559 U.S. at 371: “Surmounting Strickland's high bar is never an easy task.”

         The first prong is known as the “performance prong, ” which relates to professional competence. The petitioner must demonstrate that his attorney's performance fell “below an objective standard of reasonableness, ” as measured by “prevailing professional norms.” Strickland, 466 U.S. at 688; see Harrington v. Richter, 562 U.S. 86, 104 (2011); Powell, 850 F.3d at 149. The central question is whether “an attorney's representation amounted to incompetence under ‘prevailing professional norms,' not whether it deviated from best practices or most common custom.” Richter, 562 U.S. at 88 (quoting Strickland, 466 U.S. at 690).

         As the Supreme Court recently reiterated, the “first prong sets a high bar.” Buck, 137 S.Ct. at 775; see also Powell, 850 F.3d at 149. “The lawyer has discharged his constitutional responsibility so long as his decisions fall within the ‘wide range of professionally competent assistance.'” Buck, 137 S.Ct. at 775 (citation omitted). Consequently, the performance prong is “‘difficult'” to establish. Lawrence v. Branker, 517 F.3d 700, 709 (4th Cir. 2008) (quoting James v. Harrison, 389 F.3d 450, 457 (4th Cir. 2004)).

         To satisfy the high bar, the burden is on the petitioner to establish “‘that counsel made errors so serious that his “counsel” was not functioning as the “counsel” guaranteed by the Sixth Amendment.'” Richter, 562 U.S. at 88 (quoting Strickland, 466 U.S. at 687). Notably, “the Strickland standard must be applied with scrupulous care, ” Richter, 562 U.S. at 105, and “the standard of judging counsel's representation is a most deferential one.” Id. Indeed, “[k]eenly aware of the difficulties inherent in evaluating counsel's performance, the Supreme Court has admonished that courts ‘must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” Lawrence, 517 F.3d at 708 (quoting Strickland, 446 U.S. at 689); see Cullen v. Pinholster, 563 U.S. 170, 189 (2011); Richter, 562 U.S. at 104; Lee v. Clarke, 781 F.3d 114, 122 (4th Cir. 2015).

         Second, the petitioner must show that his attorney's deficient performance “prejudiced [his] defense.” Strickland, 466 U.S. at 687. To satisfy the “prejudice prong, ” a petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694; see also Buck, 137 S.Ct. at 776; Lafler, 566 U.S. at 163; Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993). “A reasonable probability is a probability sufficient to undermine confidence in the outcome” of the proceedings. Strickland, 466 U.S. at 687. However, a petitioner is not entitled to post-conviction relief based on prejudice where the record establishes that it is “not reasonably likely that [the alleged error] would have made any difference in light of all the other evidence of guilt.” Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).

         A court “need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697. Nor must a court address both components if one is dispositive. Jones v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015). This is because failure to satisfy either prong is fatal to a petitioner's claim. As a result, “there is no reason for a address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.

         IV. Discussion

         Petitioner contends in his submissions that his retained attorney “committed several egregious errors” that had “no strategic grounding and [were] the result of incompetence.” ECF 168 at 13. In this regard, he complains that his lawyer failed to engage in plea negotiations. He also points to defense counsel's failure to abide by the representation he made in his opening statement to the jury concerning testimony from defendant. Further, he claims that defense counsel presented witnesses that hurt the defense. And, Petitioner maintains that, during closing argument, defense counsel used shocking, inflammatory, and offensive language that prejudiced the defendant.

         At the hearing, Petitioner's counsel told the Court that two issues were “in play.” One concerned the matter of plea bargaining, and the other concerned trial counsel's opening and closing arguments. Petitioner's counsel advised that he would submit on the plea issue. As to the argument of defense counsel, Petitioner complains about the “outrageous” ...

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