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Sinani v. United States

United States District Court, D. Maryland

July 1, 2019



          Ellen L. Hollander, United States District Judge

         This Memorandum Opinion resolves the Motion to Vacate, Set Aside, or Correct Sentence, filed under 28 U.S.C. § 2255 by Amberli Sinani, the self-represented Petitioner. ECF 397 (the “Petition”). Sinani's “Affirmation” is appended to the Petition. ECF 397-1.[1] The government filed a response in opposition. ECF 399. Sinani replied. ECF 409.

         In addition, Sinani has filed a “Motion For A Nunc Pro Tunc ‘Minus-2' Point Reduction Of Sentence.” ECF 395 (the “Motion”). The Motion is filed pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 of the United States Sentencing Guidelines (“U.S.S.G.”). The government opposes the Motion. ECF 401. Sinani has not directly replied. But, he has filed a “demand” to be released from captivity. ECF 413. And, on May 28, 2017, he filed a submission challenging this Court's jurisdiction in regard to the underlying case. ECF 417.

         No hearing is necessary to resolve the pending matters. For the reasons that follow, I shall deny both the Petition and the Motion.

         I. Procedural Background

         In a multi-count, multi-defendant Indictment, filed on April 12, 2016, Sinani was charged in Count One with conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. See ECF 76. Of the eleven defendants named in the Indictment, Sinani was the only defendant who proceeded to trial.

         The trial began on January 23, 2017. ECF 251. Several codefendants testified for the government at the trial, and implicated the defendant in the conspiracy. Text messages and recorded, wiretapped telephone conversations were also introduced.[2] In addition, Sinani testified in his own behalf. On February 2, 2017, after deliberating for about ten to fifteen minutes, the jury returned a verdict of guilty. See ECF 265 (Verdict); ECF 377 (Sentencing transcript) at 8.

         Sentencing was held on April 13, 2017. ECF 335. Notably, the offense carried a congressionally mandated minimum term of imprisonment of 120 months and a maximum term of life imprisonment. 21 U.S.C. § 841(a)(1), (b)(1)(A). Sinani's advisory sentencing guideline range called for a period of incarceration of 121 to 151 months. See ECF 343 (Statement of Reasons) at 1. The government recommended a prison sentence of 144 months (12 years). ECF 377 at 19. But, the Court imposed a sentence of 125 months' incarceration. ECF 342.

         Petitioner timely filed a Notice of Appeal. ECF 339. On February 7, 2018, the United States Court of Appeals for the Fourth Circuit affirmed the conviction and the sentence in an unpublished, per curiam opinion. ECF 392; see United States v. Sinani, 710 Fed. App'x 601 (per curiam). The Mandate issued on March 1, 2018. ECF 393. Sinani's Petition followed on July 11, 2018. ECF 397.

         II. Contentions

         Sinani alleges numerous grounds for relief, most of which involve claims of ineffective assistance of counsel: (1) This Court lacks subject matter jurisdiction; (2) Petitioner was engaged in multiple conspiracies and/or a mere buyer-seller relationship; (3) Petitioner was entitled to the benefit of the “Safety Valve” and therefore should have been allowed to plead guilty to a lesser penalty; (4) defense counsel failed to retain an interpreter to provide assistance prior to trial; (5) Petitioner's attorney was ineffective for failing to advise Petitioner of his immigration/deportation status and the unlikelihood of his success at trial, thereby depriving Petitioner of the opportunity to plead guilty; (6) the Court erred in failing to define reasonable doubt in its jury instructions; (7) Petitioner was denied a fair trial because of a juror's inattentiveness/sleeping during the trial.

         To elaborate, Sinani complains that his attorney failed to challenge this Court's lack of subject matter jurisdiction over the case, ECF 397-1 at 2-7, and the corresponding “Prosecutorial Misconduct Via Vindictive And Selective Prosecution.” Id. at 3. Further, he contends that a multiple conspiracy defense “would have made a difference if objected to and presented.” Id. at 7. In his Petition, Sinani also asserts that he was “unable to benefit from the result of the parties [sic] plea bargaining discussions and proffer sessions, due to counsels' inadequate plea bargaining negotiation tactics and poor advice.” Id. at 9. And, Sinani complains that defense counsel failed to obtain an interpreter during pretrial preparation to explain to Sinani the “full ramifications” of his “options with regards to pleading guilty or going to trial . . . .” Id. at 12. In addition, Petitioner contends that he was “not properly advised of [his] immigration-deportation status, as a result of a guilty plea or possible trial conviction.” Id. at 13.

         Moreover, Sinani complains that the Court failed “to directly explain the ‘beyond reasonable doubt' element in its instructions to the jury, ” which denied him “the right to a fair trial.” Id. at 15. And, Sinani alleges that the Court erroneously failed to remove juror number seven from the trial, thereby depriving defendant of a fair trial.

         III. Legal Standards


         Section 2255(a) of Title 28 of the United States Code, under which Sinani filed his Petition, provides relief to a prisoner in federal custody only on specific grounds: that the sentence was imposed in violation of the Constitution or laws of the United States; that the court was without jurisdiction to impose such a sentence; that the sentence was in excess of the maximum authorized by law; or that the sentence is otherwise subject to collateral attack.

         Pursuant to 28 U.S.C. § 2255(b), the court must hold a hearing “[u]nless the motion and the files and records conclusively show that the prisoner is entitled to no relief. . . .” 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).

         In reviewing the Petition and the Motion, the Court is mindful that a self-represented litigant is generally “held to a ‘less stringent standard' than is a lawyer, and the Court must liberally construe his claims, no matter how ‘inartfully' pled.” Morrison v. United States, RDB-12-3607, 2014 WL 979201, at *2 (D. Md. Mar. 12, 2014) (internal citations omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims of self-represented litigants are held “to less stringent standards than formal pleadings drafted by lawyers”); Bala v. Commonwealth of Virginia Dep't of Conservation & Recreation, 532 Fed.Appx. 332, 334 (4th Cir. 2013) (same). Nevertheless, in my view, no hearing is necessary to resolve any claim in the Petition or in the Motion.


         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, 922 F.3d 227, 229 (4th Cir. 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, 922 F.3d at 229; 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).

         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).

         The Supreme Court recently reiterated that the “first prong sets a high bar.” Buck, 137 S.Ct. at 775; see also Powell, 850 F.3d at 149. In Padilla, the Court said, 559 U.S. at 371: “Surmounting Strickland's high bar is never an easy task.” Notably, a “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, ‚Äúthere is no reason for a address ...

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