United States District Court, D. Maryland
L. Hollander, United States District Judge.
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). In addition, Mr. Black has
provided his Sworn Declaration. ECF 131-1 at 5; ECF 135 at 5.
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.
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).
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.
reasons that follow, I shall deny the Petition.
Procedural and Factual Background
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.
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.
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.
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.
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
request of the defendant, the Court proceeded directly to
sentencing. See ECF 142-1 at 34-45.
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.
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'
appeal was noted by Mr. Black.
facts are included, infra.
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 ...