United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
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.
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
(4th Cir. 2016). 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
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)).
Standard of Review
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 (4th 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).
Original Motion to Vacate Sentence
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
Ineffective Assistance of Counsel
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 (4th 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 (4th 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.
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). 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).
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 (4th 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
(4th 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 (4th 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.
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 (4th 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 ...