United Statesr v. Grier

          MEMORANDUM OPINION AND ORDER

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE.

         Shaun Orland Grier was charged in a five-count indictment^[2] with two counts of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841 (Counts 1 and 2); one count of possession of a firearm having been previously convicted of a crime punishable by a term exceeding one year, in violation of 18 U.S.C. § 922(g) (Count 3); one count of possession of body armor having been previously convicted of a felony considered to be a crime of violence, in violation of 18 U.S.C. § 931(a)(2) (Count 4); and one count of possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count 5). Second Superseding Indictment, ECF No. 33. A six-day jury trial began on November 5, 2013, which resulted in Grier's conviction on Counts 1, 2, 3, and 5, and an acquittal on Count 4. Jury Verdict, ECF No. 66. On January 2, 2014, the Court sentenced Grier to a term of 290 months as to Counts 1, 2, and 3 (to be served concurrently) and a term of 60 months as to Count 5 (to run consecutively) for a total sentence of 350 months imprisonment. Jmt., ECF No. 79. The Court also imposed supervised release terms of three years as to Count 1, eight years as to Count 2, and five years as to Counts 3 and 5, to be served concurrently. Id. Grier appealed, ECF No. 81, and the Fourth Circuit affirmed his conviction. See United States v. Grier, 619 Fed.Appx. 227 (4th Cir. 2015).

         Now pending is Grier's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, ECF No. 106, and extensive Memorandum in Support, ECF No. 106-2, which he filed without the assistance of counsel. The Government filed a comprehensive opposition, ECF No. 110; and Grier filed a Reply, ECF No. 112, and a supplemental exhibit, ECF No. 115.^[3] Grier advances numerous arguments that his attorney provided ineffective counsel during his trial. He argues that his counsel failed (1) to make several arguments based on what he believed to be illegal search and seizure in violation of the Fourth Amendment and Miranda violations, (2) to introduce a relevant expert witness, (3) to argue for a Franks hearing, or (4) to argue competently for the exclusion of highly prejudicial evidence with no probative value. Yet, Grier has not shown that his 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.” See Strickland v. Washington, 466 U.S. 668, 694 (1984). Moreover, many of these issues were, in fact, argued at trial and raised on Grier's direct appeal. Accordingly, I will deny his § 2255 Motion.

         Standard of Review

         28 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. § 2255(b). A petitioner may not “recast, under the guise of collateral attack” issues considered on direct appeal. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976); see also Anderson v. United States, 468 F.Supp.2d 780, 785 (D. Md. 2007) (“It is well-established law that an issue that has been determined on direct appeal may not be relitigated in a § 2255 motion.”).

         Grier's claims are all based on ineffective assistance of trial counsel as the alleged constitutional violation. To prevail on these claims, Grier

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. Att'y 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).

United States v. Lomax, Civil No. WMN-13-2375 & Crim. No. WMN-10-145, 2014 WL 1340065, at *2 (D. Md. Apr. 2, 2014).

         To show 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, 466 U.S. at 694. 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.”).

         Discussion

         Failure to Raise Fourth Amendment Arguments Competently Regarding Seizure and Detention of Package

         On February 27, 2013, Postal Inspectors in Linthicum, Maryland stopped a package based on several suspicious characteristics, and a K-9 police dog trained to detect various narcotics positively responded to the package. Warrant Aff. (mail), ECF No. 106-9. This Court issued a search warrant for the package, and on March 5, 2013, law enforcement officers searched the package and discovered $30, 000 in U.S. currency. Id. These events led the Government to seek a search warrant for Grier's residence, which was listed as the return address on the package in question; the subsequent search of Grier's residence led to the bulk of the evidence introduced by the Government at trial. Returned Search Warrant (residence), ECF No. 106-7.

         Grier argues that his trial counsel “was incompetent in her litigation of Petitioner's Fourth Amendment issue for suppression” by failing to subject the Government's case to “adversarial testing” during the suppression hearing relating to the seizure and subsequent search of the package allegedly mailed by Grier to California. Pet. Mem. 1. Grier first contends that his counsel was “unfamiliar with the law” and failed to conduct a “proper investigation” into the sequence of events concerning the Post Office's stopping of a suspicious package and the Drug Enforcement Agency's subsequent seizure of the package that contained incriminating evidence. Id. at 4. He also asserts that she failed to argue that the Post Office acted as an agent of the Government with relation to his claim that the Post Office lacked probable cause to search the package and that the Post Office seized the package for an unreasonable amount of time without probable cause before obtaining a search warrant. Id. at 5, 38.

         The assistance of Grier's counsel was not objectively unreasonable in handling these Fourth Amendment issues. Far from “guessing” or making a “completely uninformed decision” concerning the probable cause to stop and eventually seize the incriminating package, she challenged the Government's (both the Post Office and DEA) actions in seizing and then continuing to detain the package at length by written motion, and at the pretrial motions hearing she argued:

Given that there was not reasonable, articulable suspicion of crime being afoot, this package should never have been detained. The package never should have been taken out of the flow of the mail services. It should not have been placed into another room. So at that point, given that there was no basis for the stop, the initial detention, I argue that everything that happened thereafter with this package would have been the fruit of the poisonous tree.

Oct. 10, 2013 Pretrial Mot. Hr'g 15:5-13, ECF No. 89; see also Mot. to Suppress, ECF No. 41. As noted, the presumption is that counsel's performance fell “within the range of reasonable professional assistance, ” Strickland, 466 U.S. at 689, and these efforts further support the Government's argument that Grier received effective assistance on these Fourth Amendment issues; Grier does not provide any evidence to the contrary. Additionally, the constitutional merit of the Court's decision to deny Grier's Motion to Suppress was raised on direct appeal and rejected by the Fourth Circuit. See Grier, 619 Fed.Appx. at 227. Grier cannot “recast, under the guise of collateral attack” issues raised on direct appeal. Boeckenhaupt, 537 F.2d at 1183.

         As for Grier's assertion that counsel failed to argue that the package was seized for an unreasonable length of time without probable cause, Pet. Mem. 38, Grier's counsel specifically raised this issue at trial as well, arguing:

[A]fter the detention itself, when the package was placed there, there is no indication in the affidavit of how long it took before the dog came. It says it was that day. It said that it was sometime on the 27th. It doesn't say one hour, two hours, three hours, or otherwise, and, obviously, the burden is on the government to prove that it was a reasonable period of time. In some cases, they say 20 minutes is enough. In some cases, they say an hour and a half is enough. In this particular case, we are working with a whole 24 hours. All we know is that at some point in time this package was detained on the 27th, and at some point in time on the 27th, the package was, in fact, sniffed by a dog. But what's odd even further after that, which is why I bring up the issue in United States vs. Sharpe, 470 U.S. 675, is that after the detention of the packaging and after the sniff by the dog, several days elapsed before a search warrant was even attempted to be obtained. This happened on a Wednesday, the 27th. Thursday, Friday, and then the following Monday was the first time the warrant, itself, was sought. In Sharpe, the Court talked -- this was a - the Court talked about, in assessing whether this detention is too long a duration to be justified, it determined whether or not the officers diligently pursued a means of investigation that were likely to dispel their suspicions, i.e., getting the warrant. In this particular case, no one even attempted to acquire the warrant until the following Monday. There is no reason why the warrant could not have been requested on Thursday, on Friday. Those were all business days. But in this particular case, I do not believe the brevity was met. This package was left somewhere unknown to anyone at this point, because there is no evidence of where it was, what its conditions were, who had control of it, or otherwise.

Oct. 10, 2013 Pretrial Mot. Hr'g 15-17. Again, in light of the vigorous argument of this issue by Grier's counsel both in a written brief and at the Pretrial Motions Hearing, Grier has not overcome the presumption that his counsel's ...