United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
August 19, 2015, a grand jury indicted Defendant Delonte
Parker on a charge of conspiracy to possess with intent to
distribute one kilogram or more of heroin, in violation of 21
U.S.C. § 846. See ECF No. 1. A superseding
information filed on July 26, 2016, broadened his potential
liability, charging him with one count of conspiracy to
distribute one kilogram of heroin, 21 U.S.C. § 846
(“Count 1”), and one count of possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)
(“Count 2”). See ECF No. 143. Parker
pleaded guilty to both counts. See Plea Agreement,
ECF No. 147. The plea agreement stipulated that a sentence of
“not less than 60 months (five years) and not more than
108 months (nine years) imprisonment” was appropriate.
Id. at 5. The parties did not agree on the quantity
of heroin for which Parker was responsible. See Id.
at 4. The Government's position was that Parker was
responsible for at least 400 grams but less than 700 grams of
heroin, while Parker maintained he was responsible for at
least 100 grams but less than 400 grams. See id.
January 25, 2017, this Court sentenced Parker to a total of
90 months of imprisonment on Count 1 and 90 months on Count
2, to run concurrently. Judgment 2, ECF No. 217. At the
sentencing hearing, this Court found the amount of heroin
attributable to Parker was less than 400 grams. See
Sentencing Hr'g Tr. 76:5-24, ECF 236. Parker subsequently
filed an appeal, which the Fourth Circuit dismissed on
November 14, 2017. See United States v. Parker, 701
Fed.Appx. 282 (4th Cir. 2017) (per curiam).
then filed a motion to vacate pursuant to 28 U.S.C. §
2255 on March 23, 2018. ECF 244. With this motion, Parker
seeks to vacate, set aside, or correct his sentence based on
ineffective assistance of counsel. See Mot. to
Vacate, ECF No. 244. He alleges his counsel was ineffective
in three ways: (1) counsel informed him, falsely, that he
would receive a 60-month sentence, or at most a 71-month
sentence, if he accepted the Government's plea deal, (2)
counsel advised him to take the Government's plea deal
without further investigating his case, and (3) counsel was
ineffective during the sentencing phase in failing to object
to the Court's findings regarding the weight of the
controlled substance. See Pet'r's Mem. 3,
5-7, 9, ECF No. 244-1.
Government opposed Parker's motion, contending that all
his claims are meritless and should be denied without a
hearing. Opp'n 7, ECF No. 255. Parker filed a response to
the Government's motion, reiterating the same arguments
he made in his motion to vacate. See Pet'r's
Reply 2, ECF 264. I have reviewed all of the filings and
conclude that a hearing is unnecessary. See Loc. R.
28 U.S.C. § 2255, a prisoner sentenced by a federal
court may seek to vacate, set aside, or correct his sentence
on the ground that it “was imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C.
§ 2255(a). The prisoner must prove his case by a
preponderance of the evidence. Brown v. United
States, Civil No. DKC-10-2569 & Crim. No.
DKC-08-529, 2013 WL 4562276, at *5 (D. Md. Aug. 27, 2013). If
the court finds for the prisoner, “the court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate.” §
2255(b). Although “a pro se movant is entitled to have
his arguments reviewed with appropriate deference, ”
the court may summarily deny the motion without a hearing
“if the § 2255 motion, along with the files and
records of the case, conclusively shows that [the prisoner]
is not entitled to relief.” Brown, 2013 WL
4562276, at *5 (citing Gordon v. Leeke, 574 F.2d
1147, 1151-53 (4th Cir. 1978)).
prevail on a claim of ineffective assistance of counsel as
the alleged constitutional violation,
a petitioner must show that counsel's performance was
constitutionally deficient to the extent that it fell below
an objective standard of reasonableness, and that he was
prejudiced thereby. Strickland v. Washington, 466
U.S. 668, 687-91 (1984). In making this determination, there
is a strong presumption that counsel's conduct was within
the wide range of reasonable professional assistance.
Id. at 689; see also Fields v. Attorney Gen. of
Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992).
Furthermore, the petitioner “bears the burden of
proving Strickland prejudice.”
Fields, 956 F.2d at 1297. “If the petitioner
fails to meet this burden, a reviewing court need not
consider the performance prong.” Fields, 956
F.2d at 1297 (citing Strickland, 466 U.S. at 697).
In considering the prejudice prong of the analysis, the Court
may not grant relief solely because the petitioner can show
that, but for counsel's performance, the outcome would
have been different. Sexton v. French, 163 F.3d 874,
882 (4th Cir. 1998). Rather, the Court “can only grant
relief under . . . Strickland if the ‘result
of the proceeding was fundamentally unfair or
unreliable.'” Id. (quoting Lockhard v.
Fretwell, 506 U.S. 364, 369 (1993)).
United States v. Lomax, Civil No. WMN-13-2375 &
Crim. No. WMN-10-145, 2014 WL 1340065, at *2 (D. Md. Apr. 2,
2014). The Strickland standard applies to
“guilty pleas based on ineffective assistance of
counsel.” Hill v. Lockhart, 474 U.S. 52, 58
(1985). “When a petitioner alleges ineffective
assistance of counsel following the entry of a guilty plea,
he ‘must show that there is a reasonable probability
that, but for counsel's errors, [he] would not have
pleaded guilty and would have insisted on going to
trial.'” United States v. Fabian, 798
F.Supp.2d 647, 670- 71 (D. Md. 2011) (quoting Hill,
474 U.S. at 59). “A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
Ineffective Assistance - Advising Parker that He Would Be
Sentenced Only to 60-71 Months if He Pleaded Guilty
first contends that his attorney provided ineffective
assistance of counsel by telling him -- incorrectly, as it
turns out - that he would “get no more than 71 months,
and would likely end up with a 60 month sentence.”
Pet'r's Mem. 5. Parker alleges that his
“[c]ounsel's assurances that he would get no more
than a 71-month sentence was the motivating factor to the
entry of a guilty plea in this case to an amount of heroin
that he did not feel he was guilty of, nor did the evidence
demonstrate he was guilty of.” Pet'r's Reply 2,
ECF No. 264.
arguments are in tension both with the plea agreement he
signed and with the record of his Rule 11 colloquy. The plea
agreement was clear. In it, the parties stated that they
“stipulate and agree pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C) that, regardless of the final
applicable guidelines range, a sentence of not less than 60
months (five years) and not more than 108 months (nine years)
imprisonment in the custody of the Bureau of Prisons is the
appropriate disposition of this case.” Plea Agreement
5. At Parker's Rule 11 colloquy, when this Court asked
Parker if he had signed the plea agreement and read and
understood it before doing so, he said he had. Rearraignment
Tr. 7:17-19, ECF No. 235.
Court went on to discuss with Parker the potential penalties
he could incur from his plea agreement:
THE COURT: As part of this agreement, there's an
agreement that you give up the right to appeal and the
government gives up the right to appeal. And basically, it
means that if I sentence you to at least 60 months, but no
more than 108 month[s], then neither you or the government
can appeal. If I sentence you to more than that, you can
appeal; or less than that, the government can appeal. But
otherwise, if I sentence you within that ...