United States District Court, D. Maryland, Southern Division
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
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