United States District Court, D. Maryland
L. Hollander, United States District Judge
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
“Affirmation” is appended to the Petition. ECF
397-1. The government filed a response in
opposition. ECF 399. Sinani replied. ECF 409.
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.
hearing is necessary to resolve the pending matters. For the
reasons that follow, I shall deny both the Petition and the
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 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. 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.
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.
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.
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.
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.
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.
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.
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.
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
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, 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).
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 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)).
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