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Black v. United States

United States District Court, D. Maryland

October 25, 2019

OMAR NATIFIE BLACK, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. ELH-17-0384

          MEMORANDUM

          Ellen L. Hollander, United States District Judge.

         This Memorandum resolves a motion to vacate filed by the self-represented Petitioner, Omar Natifie Black, Jr., pursuant to 28 U.S.C. § 2255. ECF 131. It is supported by a memorandum (ECF 131-1) (collectively, the “Petition”). The Petition was received by the Court on January 7, 2019. See ECF 131-1. Duplicate submissions were also received on January 8, 2019 (ECF 132) and January 18, 2019 (ECF 135).[1] In addition, Mr. Black has provided his Sworn Declaration. ECF 131-1 at 5; ECF 135 at 5.

         Petitioner asserts three grounds for relief. First, he claims his attorney was ineffective for failing to challenge a particular count in the Indictment as duplicitous. Second, Black claims that his attorney was ineffective for failing to advise him as to the elements of the offenses in issue. Third, Black maintains that his attorney failed to consult with him regarding his right to appeal following imposition of sentence. The government opposes the Petition. ECF 142. No. reply has been filed, and the time to do so has expired.

         In reviewing the Petition, the Court is mindful that a self-represented litigant is generally “held to a ‘less stringent standard' than is a lawyer, and the Court must liberally construe his claims, no matter how ‘inartfully' pled.” Morrison v. United States, RDB-12-3607, 2014 WL 979201, at *2 (D. Md. Mar. 12, 2014) (internal citations omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims of self-represented litigants are held “to less stringent standards than formal pleadings drafted by lawyers”); Bala v. Commonwealth of Virginia Dep't of Conservation & Recreation, 532 Fed.Appx. 332, 334 (4th Cir. 2013) (same).

         Under 28 U.S.C. § 2255(b), the Court must hold a hearing “[u]nless the motion and the files and records conclusively show that the prisoner is entitled to no relief . . . .” See, e.g., United States v. White, 366 F.3d 291, 302 (4th Cir. 2004). This is such a case. No. hearing is necessary.

         For the reasons that follow, I shall deny the Petition.

         I. Procedural and Factual Background

         Between March 2016 and January 2017, Black sold over one kilogram of heroin and more than 100 grams of fentanyl. He also purchased about 10 handguns. During a search of Black's residence, a loaded Glock .40 caliber pistol was recovered, along with a bag of fentanyl weighing approximately 136 grams. See ECF 142-1 at 30-33.

         On July 19, 2017, Black and three others were indicted on multiple charges. ECF 18. The charges against Black included conspiracy to distribute and possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846 (Count One); thirteen counts of distribution of controlled substances, in violation of 21 U.S.C. § 841(a)(1); possession with intent to distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1) (Count Fifteen); possession of a firearm in furtherance of drug trafficking crimes, i.e., Counts One and Fifteen, in violation of 18 U.S.C. § 924(c) (Count Sixteen); two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g); and one count of maintaining a drug involved premises, in violation of 21 U.S.C. § 846. ECF 18.

         Black entered a plea of guilty on November 29, 2017, to Count Two, charging distribution of a controlled substance, and to Count Sixteen, charging possession of a firearm in furtherance of a drug trafficking crime. ECF 59. The plea was tendered pursuant to Fed. R. Crim. P. 11(c)(1)(C), by which the parties stipulated to a total sentence of 156 months (13 years) incarceration. See ECF 61 (Plea Agreement), ¶ 9; see also ECF 142 at 3.

         In connection with the guilty plea, the Court conducted a comprehensive Rule 11 proceeding. See ECF 142-1 (Transcript). Among other things, the Court posed several questions to Petitioner regarding his satisfaction with his attorney. The answers established that Mr. Black thoroughly discussed the case with his lawyer and was satisfied with his lawyer's representation of him.

         For example, the Court asked, “Without getting into the particulars of any of your private conversations with [your lawyer], in general can you tell me whether you have discussed with him your rights in connection with these charges . . . .” ECF 142-1 at 5. Black responded, “Yes.” Id. The Court also reviewed the terms of the Plea Agreement in detail, including the elements of the offenses. The Court asked Black, “Do you understand these essential elements?” Black responded, “Yes.” Id. at 8. After discussing the remainder of the Plea Agreement, including the maximum penalties, the factual basis, and other terms, the Court accepted Petitioner's guilty plea as knowing and voluntary.

         At the request of the defendant, the Court proceeded directly to sentencing. See ECF 142-1 at 34-45.

         As the record reflects, Mr. Black may have qualified as a career offender. However, the Court declined to resolve that issue, in light of the C plea. ECF 142-1 at 50. Assuming that Mr. Black was not a career offender, the Court found that he was a criminal history category of VI and, for Count Two, his offense level was a 27, yielding advisory guidelines of 130 to 162 months for Count Two. Id. at 48-50. Count Sixteen carried a congressionally mandated minimum sentence of five years, consecutive. Therefore, the non career offender advisory guidelines called for a total sentence ranging between 190 months and 222 months of imprisonment.

         In accordance with the Plea Agreement, the Court imposed a below guidelines sentence of 156 months -- eight years for Count Two and five years, consecutive, for Count Sixteen. Pursuant to the Plea Agreement, the government dismissed Count One, which carried a mandatory minimum sentence of ten years' imprisonment.

         No appeal was noted by Mr. Black.

         Additional facts are included, infra.

         II. Section 2255

         Section 2255(a) of Title 28 of the United States Code provides relief to a prisoner in federal custody only on specific grounds: that the sentence was imposed in violation of the Constitution or laws of the United States; that the court was without jurisdiction to impose such a sentence; that the sentence was in excess of the maximum authorized by law; or that the sentence is otherwise subject to collateral attack. See Hill v. United States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C. § 2255); United States v. Hodge, 902 F.3d ...


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