United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
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. 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.
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.
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.
Court held an evidentiary hearing on the Petition on January
18, 2019. ECF 204.Post-hearing submissions were filed by
Petitioner (ECF 207) and the government. ECF 208.
reasons that follow, I shall deny the Petition.
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).
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.
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.
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.
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.
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
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).
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
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.
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). 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.
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
review of the submissions, I held a telephone conference with
counsel on October 5, 2017. 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. 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.
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.
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.
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
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.
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.
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.
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.
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
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
[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.
Standard of Review
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).
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,
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
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.
hearing, the government presented the testimony of one
witness: Petitioner's trial counsel, Joseph Owens.
Petitioner did not present any witnesses.
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.
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).
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.”
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).
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)).
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).
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).
“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 court...to address
both components of the inquiry if the defendant makes an
insufficient showing on one.” Strickland, 466
U.S. at 697.
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
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” ...