Edwards v. United States

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Presently pending and ready for resolution is a motion to vacate sentence filed by Petitioner Antonio Edwards (“Petitioner”). (ECF No. 299). Petitioner has since filed three supplements to his motion to vacate sentence. (ECF Nos. 322; 333; 342). For the following reasons, the motion and first supplement will be denied and the additional supplements will be dismissed as untimely.

         I. Background

         On June 27, 2014, Petitioner was convicted by jury of conspiracy to interfere with commerce by robbery in violation of 18 U.S.C. § 1951(a) (“Count 1”), conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 846 (“Count 2”), conspiracy to possess a firearm in furtherance of a drug trafficking crime and crime of violence in violation of 18 U.S.C. § 924(o) (“Count 3”), possession of a firearm in furtherance of a drug trafficking crime and crime of violence in violation of 18 U.S.C. § 924(c) (“Count 4”), and felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1) (“Count 5”). On October 1, Petitioner was sentenced to 240 months imprisonment, consisting of 180 months on Counts 1, 2, 3, and 5, concurrent, and a consecutive 60 months on Count 4. Petitioner appealed to the United States Court of Appeals for the Fourth Circuit, and his conviction was affirmed on April 19, 2016. United States v. Hare, 820 F.3d 93 (4^th Cir. 2016).^[1] Petitioner did not file a petition for writ of certiorari with the Supreme Court of the United States. Accordingly, Petitioner's convictions became final on July 18, 2016. See Clay v. United States, 537 U.S. 522, 525 (2003) (holding that “a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction[]” - i.e., “90 days after entry of the Court of Appeals' judgment[]”).

         On September 29, 2016, Petitioner filed the pending motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 299). The government was directed to respond to the motion and did so on February 7, 2017. (ECF No. 308). Petitioner replied on March 20. (ECF No. 311). Petitioner has since filed three supplements to his motion to vacate sentence. (ECF Nos. 322 (July 10, 2017); 333 (December 6, 2017); 342 (May 24, 2018)).

         II. Standard of Review

         To be eligible for relief under § 2255, a petitioner must show, by a preponderance of the evidence, that his “sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law[.]” 28 U.S.C. § 2255(a). A pro se movant, such as Petitioner, is entitled to have his arguments reviewed with appropriate consideration. See Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4^th Cir. 1978). But if the § 2255 motion, along with the files and records of the case, conclusively shows that he is not entitled to relief, a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. § 2255(b).

         III. Analysis

         A. Original Motion to Vacate Sentence

         Petitioner moves to vacate his sentence on the grounds of (1) ineffective assistance of counsel, (2) court error, (3) prosecutorial misconduct, and (4) constitutional error in light of Johnson v. United States, 135 S.Ct. 2551 (2015).

         1. Ineffective Assistance of Counsel

         To establish ineffective assistance of counsel, the petitioner must show both that his attorney's performance fell below an objective standard of reasonableness and that he suffered actual prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a strong presumption that counsel's conduct falls within a wide range of reasonably professional conduct, and courts must be highly deferential in scrutinizing counsel's performance. Strickland, 466 U.S. at 688-89; Bunch v. Thompson, 949 F.2d 1354, 1363 (4^th Cir. 1991). Courts must judge the reasonableness of attorney conduct “as of the time their actions occurred, not the conduct's consequences after the fact.” Frye v. Lee, 235 F.3d 897, 906 (4^th Cir. 2000). Furthermore, a determination need not be made concerning the attorney's performance if it is clear that no prejudice could have resulted from some performance deficiency. Strickland, 466 U.S. at 697. To demonstrate actual prejudice, 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.

         Although Petitioner states that “[a]ll three attorneys were ineffective to [him] in some way” (ECF No. 299, at 5), Petitioner only alleges deficiencies in the performance of his appellate counsel, Jonathan Gladstone, who helped prepare the consolidated opening brief (ECF No. 299-1, at 16-17).^[2] Petitioner argues that Mr. Gladstone “went against [Petitioner's] expressed instructions and filed an opening brief without notifying [Petitioner] or allowing [Petitioner] to submit any input on what [Petitioner] thinks the issues at trial that should have been addressed through the appeal process.” (Id. at 16). As a result, Petitioner “[did] not get his issues in review on the guns that he didn't have knowledge of[, ] the act of prejudice during the motions before trial[, ] and several other issues that weren't addressed[.]” (Id. at 16-17).

         The selection of which issues to present on appeal is, almost by its very nature, a strategic decision. See Burket v. Angelone, 208 F.3d 172, 189 (4^th Cir. 2000) (“[A]ppellate counsel is given significant latitude to develop a strategy that may omit meritorious claims in order to avoid burying issues in a legal jungle.”); Haynes v. United States, 451 F.Supp.2d 713, 722 (D.Md. 2006) (“Limiting the issues to the stronger or strongest ones while winnowing out the weaker is sound appellate strategy.”). “Effective assistance of appellate counsel does not require the presentation of all issues on appeal that may have merit, and [the court] must accord counsel the presumption that he decided which issues were most likely to afford relief on appeal.” Lawrence v. Branker, 517 F.3d 700, 709 (4^th Cir. 2008) (quotation marks, brackets, and citations omitted). Consequently, while it is conceivably possible to bring an ineffective assistance claim premised on an appellate counsel's failure to raise an issue, “it will be difficult.” Bell v. Jarvis, 236 F.3d 149, 164 (4^th Cir. 2000) (quotation marks and brackets omitted). An ineffective assistance claim based on an ignored issue generally will only succeed “when ignored issues are clearly stronger than those presented[.]” Lawrence, 517 F.3d at 709.

         That standard has not been met here. Appellate counsel raised several issues on appeal, making at least one argument of such strength that the Fourth Circuit addressed the appeal in a published opinion. Contrary to Petitioner's contention, appellate counsel did argue that there was no evidence that Petitioner was aware of the presence of guns to support his conviction for possession of firearms. Consolidated Opening Brief of Appellants, United States v. Hare, 2015 WL 1869623, at *66-70 (4^th Cir. 2016). Additionally, appellate counsel argued that based on the decision of the Supreme Court in Rosemond v. United States, 134 S.Ct. 1240 (2014), this court's aiding and abetting instructions were erroneous because they did not require Petitioner to know in advance that guns would be involved ...