United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE.
Henry Thomas was charged in a six-count indictment for
conspiracy to distribute and possess with intent to
distribute controlled substances, in violation of 21 U.S.C.
§ 846 (Count 1); distribution of controlled substances,
in violation of 21 U.S.C. § 841 (Counts 2, 3, 4, and 5);
and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g) (Count 6). Superseding
Indictment, ECF No. 22. On April 8, 2016, pursuant to a Fed.
R. Crim. P.11(c)(1)(C) plea agreement (“Plea
Agreement”) executed on March 17, 2016, Thomas entered
a “guilty” plea as to Counts 1 and 6 and a
“not guilty” plea as to Counts 2, 3, 4, and 5.
Rearraignment, ECF No. 56. In the Plea Agreement, Thomas and
the Government agreed to a sentence of 180 months'
incarceration, consisting of a sentence of 180 months on
Count 1 and a sentence of 120 months on Count 6, to be served
concurrently. Plea Agr., ECF No. 57. As also agreed in the
Plea Agreement, the Government moved to dismiss Counts 2, 3,
4, and 5 of the Superseding Indictment; the Court granted the
Government's motion. Jmt., ECF No. 66.
Court accepted the terms of the Plea Agreement under Rule
11(c)(1)(C) and sentenced Thomas to 180 months'
incarceration. Id. The Court constructed the
sentence differently from the plea agreement (120 months for
Count 1 and 180 months for Count 6, to be served
concurrently), but nonetheless ordered the agreed-upon
180-month total sentence. Id. The Court also imposed
a supervised release terms of five years as to the conspiracy
count and five years as to the firearm possession count, to
run concurrently; entered a $200 special assessment; and
issued a Forfeiture Order for the firearm at issue in Count
6, five rounds of ammunition, and $2, 916 in connection with
the charges. Id. Thomas appealed, ECF No. 68, and
the Fourth Circuit affirmed his conviction and sentence on
June 15, 2017. See United States v. Thomas, 691
Fed.Appx. 760 (4th Cir. 2017).
pending is Thomas's Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence, ECF No. 84,
which he contends that his trial counsel failed to provide
effective assistance. However, Thomas has not shown that his
trial attorney's performance was constitutionally
deficient or demonstrated a “reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984).
Accordingly, I will deny his § 2255 motion.
U.S.C. § 2255(a) permits a prisoner to file a motion to
vacate, set aside, or correct a sentence on the ground that
it “was in violation of the Constitution or laws of the
United States . . . or that the sentence was in excess of the
maximum authorized by law . . . .” 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.” 28 U.S.C.
§ 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 4563376, at *5 (citing Gordon v.
Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978); 28 U.S.C.
prevail on a claim of ineffective assistance of counsel as
the alleged Constitutional violation,
[t]he 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,
prejudice, the defendant must demonstrate “a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S.
668, 694 (1984). A probability is reasonable if it is
“sufficient to undermine confidence in the
outcome.” Id. Additionally, the defendant must
show that “the ‘result was fundamentally unfair
or unreliable.'” Lomax, 2014 WL 1340065,
at *2 (quoting Sexton v. French, 163 F.3d 874, 882
(4th Cir. 1998) (quoting Lockhard v. Fretwell, 506
U.S. 364, 369 (1993))); see also Lockhard, 506 U.S.
at 369 (“[A]n analysis focusing solely on mere outcome
determination, without attention to whether the result of the
proceeding was fundamentally unfair or unreliable, is
defective.”). If the defendant fails to show prejudice,
the Court need not consider the performance prong. Fields
v. Att'y Gen. of Md., 956 F.2d 1290, 1297 (4th Cir.
1992) (citing Strickland, 466 U.S. at 697).
Sentence Above the Statutory Maximum
argues that the assistance he received from his counsel was
constitutionally deficient because his attorney did not
object to the sentence ordered by the Court even though it
exceeded the statutory maximum as to Count 6 for violation of
18 U.S.C. § 922(g). It is true that § 922(g)
carries a maximum penalty of 120 months, and Thomas received
a sentence of 180 months. But, the Court applied the armed
career criminal enhancement to Count 6, which enhances the
penalty of § 922(g) from a maximum sentence of 120
months (ten years) to a minimum sentence of 180 months
In the case of a person who violates section 922(g) of this
title and has three previous convictions by any
court referred to in section 922(g)(1) of this title for
a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such
person shall ...