Young v. United States

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         This Memorandum Opinion resolves a motion to vacate under 28 U.S.C. § 2255, filed in July 2019 by Joseph Young, the self-represented Petitioner. ECF 2159 (the “Petition”). The government opposes the Petition. ECF 2164. Young has replied. ECF 2166.

         No hearing is necessary to resolve the Petition. For the reasons that follow, I shall deny the Petition.

         I. Factual and Procedural Background

         A. Summary

         At the relevant time, Young was a member of a gang known as the Black Guerilla Family (“BGF”). In 2013, Young was one of 44 defendants indicted on charges that included racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. He was also charged with conspiracy to distribute and possess with intent to distribute controlled dangerous substances, in violation of 21 U.S.C. § 846, and money laundering conspiracy, under 18 U.S.C. § 1956(h).

         The criminal charges were rooted in a pervasive criminal enterprise at the Baltimore City Detention Center (“BCDC”), a facility for pretrial detainees. The defendants generally consisted of two groups: BGF members who were inmates at BCDC, and corrupt correctional officers who worked at BCDC and helped to facilitate the enterprise. The Second Superseding Indictment (ECF 869), which was the operative charging instrument, alleged that the racketeering enterprise spanned the period from 2007 to November 2013. Id. ¶ 11 at 6.^[1]

         Eight of the defendants, including Young, proceeded to a jury trial at which Judge J. Frederick Motz presided.^[2] The trial began on November 17, 2014. On February 5, 2015, Young was convicted on all charges. Four other defendants were also convicted. ECF 1425; ECF 1426. Two of the five defendants who were found guilty were BGF gang members who had been inmates at BCDC. The other three were correctional officers who worked at BCDC.

         On June 24, 2015, Judge Motz sentenced Young to a total term of imprisonment of fifteen years. See ECF 1709 (Judgment, docketed 6/30/15). On appeal to the Fourth Circuit, the court affirmed all of the convictions but vacated Young's sentence and remanded for resentencing. ECF 1992; see United States v. Carrington, et al., 700 Fed.Appx. 224 (4th Cir. 2017). I presided at the resentencing.^[3] In connection with the resentencing, I held several hearings and issued a lengthy Memorandum Opinion. See ECF 2085.

         On March 28, 2018, I sentenced Young to a guidelines sentence of 170 months' imprisonment. See ECF 2089; ECF 2091 (Amended Judgment of 3/29/18). That sentence was affirmed by the Fourth Circuit in a per curiam opinion issued on January 9, 2019. ECF 2144.

         B. Trial, first appeal, and remand

         On February 5, 2015, a jury convicted Young of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d); conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846; and money laundering conspiracy, in violation of 18 U.S.C. § 1956(h). The jury also convicted four codefendants of racketeering conspiracy and related offenses.

         As noted, the Fourth Circuit affirmed the convictions in an unpublished opinion. See United States v. Carrington, 700 Fed.Appx. 224 (4th Cir. 2017). In its opinion, the Fourth Circuit said, id. at 225-26 (emphasis added):

For a number of years, the Black Guerilla Family (“BGF”), a prison and street gang, ran a criminal enterprise inside the Baltimore City Detention Center. With the help of complicit correctional officers and other Detention Center employees, BGF inmates were able to smuggle narcotics, cell phones, and other contraband into the facility, and to use their dominant position to control other inmates and to support gang members on the outside . . . From 2007 through 2013, the Baltimore City Detention Center was home to a sprawling criminal enterprise led by the [BGF]. BGF members, correctional officers, and other jail employees all played central roles in the enterprise. BGF members bribed correctional officers to smuggle into the facility contraband supplied by gang members on the outside, including drugs, tobacco, and cell phones . . . And BGF used its position within the Detention Center to assist gang members outside the jail, financially supporting BGF with profits from narcotics trafficking and coordinating outside criminal activity. In exchange for their cooperation in this extensive BGF enterprise, Detention Facility employees were paid with “Green Dot MoneyPak” cards, prepaid debit cards available at retail stores . . . Joseph Young and Russell Carrington were inmates and members of BGF: Young, a high -ranking BGF member, sold controlled substances in the jail . . . Witnesses also testified to the participation of Carrington and Young as BGF members . . . .

         Although the Fourth Circuit affirmed Young's convictions, it vacated his sentence. In its view, the original sentencing court failed to resolve disputed factual matters that were pertinent to the calculation of Young's advisory sentencing guidelines range. Id. at 234.

         C. Resentencing and second appeal

         On remand, counsel for both sides filed numerous motions, exhibits, and memoranda. See Docket, beginning at ECF 2006. Between November 28, 2017 and March 28, 2018, I conducted several hearings. See ECF 2019; ECF 2021; ECF 2036; ECF 2041; ECF 2046; ECF 2078; ECF 2089. And, on March 22, 2018, I issued a forty-five page Memorandum Opinion (ECF 2085), in which I reviewed, inter alia, the evidence as to the drug quantity foreseeable to Young. Id. at 12-35. I concluded, id. at 35:

Based on the evidence as to Young's personal involvement with drug trafficking during his incarceration; Young's stature in BGF, as a Bushman who outranked White and a person with considerable authority, particularly as to the floor of BCDC where he was detained; BGF's extensive drug trafficking organization at BCDC, of which Young was a part; and the many participants in the conspiracy, I am satisfied that the smuggling of Percocet pills into BCDC was within the scope of the jointly undertaken criminal enterprise and in furtherance of it. Moreover, as to Young, the criteria of U.S.S.G. § 1B1.3(a)(1)(B)(i)-(iii) have been met with respect to a drug quantity of at least Level 20, which only requires 300 Percocet pills of 30 milligrams each, or 600 Percocets of 15 milligrams each. Put another way, this drug quantity was clearly foreseeable to Young.

         In addition, I found that Young was subject to certain upward adjustments under the United States Sentencing Guidelines (“U.S.S.G.”), including a two-level upward adjustment based on evidence that he used violence, made a credible threat to use violence, or directed the use of violence, and a two-level increase as to the racketeering count, under U.S.S.G. § 2S1.1(b)(2)(B). Id. at 35-38. Further, I found that Young was subject to a three-level upward adjustment based on his role in the offense, although the Presentence Report (ECF 1643, “PSR”) awarded a four-level upward adjustment. See ECF 1643, ¶ 29. Therefore, I found that Young had a final offense level of 31. ECF 2085 at 41-43. And, although the PSR (ECF 1643) concluded that Young had a criminal history category of V (id. ¶ 44), I determined that his criminal history category was a IV. ECF 2085 at 43-44.

         As noted, at the resentencing on March 28, 2018, I sentenced Young to concurrent terms of imprisonment of 170 months. That sentence was below the government's recommendation of 188 months and below the original sentence of 180 months. An amended judgment was entered on March 29, 2018. ECF 2091.

         Young filed a notice of appeal to the Fourth Circuit on April 4, 2018. ECF 2095. On January 9, 2019, in per curiam decision, the Fourth Circuit affirmed the sentence. ECF 2144. The mandate issued on January 31, 2019. ECF 2147.

         II. Legal Standard

         A.

         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.

         Pursuant to 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). Courts have determined that a hearing is not necessary where “the motion . . . fail[s] to allege sufficient facts or circumstances upon which the elements of constitutionally deficient performance might properly be found [or] where the defendant has failed to present any affidavits or other evidentiary support for the naked assertions contained in his motion.” United States v. Taylor, 139 F.3d 924, 933 (D.C. Cir. 1998) (internal quotation marks and citation omitted); accord United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993). On the other hand, a hearing is generally “required when a movant presents a colorable Sixth Amendment claim showing disputed material facts and a credibility determination is necessary to resolve this issue.” United States v. Robertson, 219 Fed. App'x 286, 286 (4th Cir. 2007); see United States v. Ray, 547 Fed. App'x 343, 345 (4th Cir. 2013).

         In reviewing the Motion, 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). Nevertheless, in my view, no hearing is necessary to resolve the Petition.

         B.

         Young claims that his attorney provided ineffective assistance of counsel. Ineffective assistance of counsel is a well recognized basis for relief under § 2255. See generally Missouri v. Frye, 566 U.S. 133 (2012); Lafler v. Cooper, 566 U.S. 156 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010). This is because the Sixth Amendment to the Constitution guarantees a criminal defendant the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); see also Buck v. Davis, __ U.S.__, 137 S.Ct. 759, 775 (2017).

         To mount a successful challenge under 28 U.S.C. § 2255 based on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the two-pronged test set forth in Strickland, 466 U.S. at 687-88. See Williams v. Taylor, 529 U.S. 362, 390 (2000); United States v. Winbush, 922 F.3d 227, 229 (4th Cir. 2019); United States v. Carthorne, 878 F.3d 458, 465 (4th Cir. 2017); United States v. Powell, 850 F.3d 145, 149 (4th Cir. 2017). First, the petitioner must show that counsel's performance was deficient. Second, the petitioner must show that he was prejudiced by the deficient performance. Strickland, 466 U.S. at 687; see Buck, 137 S.Ct. at 775; Chaidez v. United States, 568 U.S. 342, 348 (2013); Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Hill v. Lockhart, 474 U.S. 52, 57 (1985); Winbush, 922 F.3d at 229; Powell, 850 F.3d at 149; United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015); United States v. Dyess, 730 F.3d 354, 361 (4th Cir. 2013); United States v. Baker, 719 F.3d 313, 318 (4th Cir. 2013); Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012); United States v. Higgs, 663 F.3d 726, 735 (4th Cir. 2011).

         The first prong is known as the “performance prong, ” which relates to professional competence. The petitioner must demonstrate that his attorney's performance fell “below an objective standard of reasonableness, ” as measured by “prevailing professional norms.” Strickland, 466 U.S. at 688; see Harrington v. Richter, 562 U.S. 86, 104 (2011); Powell, 850 F.3d at 149. The central question is whether “an attorney's representation amounted to incompetence under ‘prevailing professional norms,' not whether it deviated from best practices or most common custom.” Richter, 562 U.S. at 88 (quoting Strickland, 466 U.S. at 690).

         As the Supreme Court recently reiterated, the “first prong sets a high bar.” Buck, 137 S.Ct. at 775; see also Powell, 850 F.3d at 149. In Padilla, the Court said, 559 U.S. at 371: “Surmounting Strickland's high bar is never an easy task.” Notably, a “lawyer has discharged his constitutional responsibility so long as his decisions fall within the ‘wide range of professionally competent assistance.'” Buck, 137 S.Ct. at 775 (citation omitted). Consequently, the performance prong is “‘difficult'” to establish. Lawrence v. Branker, 517 F.3d 700, 709 (4th Cir. 2008) (quoting James v. Harrison, 389 F.3d 450, 457 (4th Cir. 2004)).

         To satisfy the high bar, the burden is on the petitioner to establish “‘that counsel made errors so serious that his “counsel” was not functioning as the “counsel” guaranteed by the Sixth Amendment.'” Richter, 562 U.S. at 88 (quoting Strickland, 466 U.S. at 687). Notably, “the Strickland standard must be applied with scrupulous care, ” Richter, 562 U.S. at 105, and “the standard of judging counsel's representation is a most deferential one.” Id. Indeed, “[k]eenly aware of the difficulties inherent in evaluating counsel's performance, the Supreme Court has admonished that courts ‘must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” Lawrence, 517 F.3d at 708 (quoting Strickland, 446 U.S. at 689)); see Cullen v. Pinholster, 563 U.S. 170, 189 (2011); Richter, 562 U.S. at 104; Lee v. Clarke, 781 F.3d 114, 122 (4th Cir. 2015).

         Second, the petitioner must show that his attorney's deficient performance “prejudiced [his] defense.” Strickland, 466 U.S. at 687. To satisfy the “prejudice prong, ” a 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; see also Buck, 137 S.Ct. at 776; Lafler, 566 U.S. at 163; Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993). “A reasonable probability is a probability sufficient to undermine confidence in the outcome” of the proceedings. Strickland, 466 U.S. at 687. Therefore, a petitioner is not entitled to post-conviction relief based on prejudice where the record establishes that it is “not reasonably likely that [the alleged error] would have made any difference in light of all the other evidence of guilt.” Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).

         A court “need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697. Nor must a court address both components if one is dispositive. Jones v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015). This is because failure to satisfy either prong is fatal to a petitioner's claim. As a result, “there is no reason for a court...to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.

         C.

         “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428). In other words, the movant must establish (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law so fundamental as to render the entire proceeding invalid. Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003).

         Moreover, the scope of collateral attack under § 2255 is far narrower than on appeal, and a “‘collateral challenge may not do service for an appeal.'” Foster v. Chatman, __ U.S.__, 136 S.Ct. 1737, 1758 (2016) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)). Thus, any failure to raise a claim on direct appeal constitutes a procedural default that bars presentation of the claim in a § 2255 motion, unless the petitioner can demonstrate “cause and actual prejudice resulting from the errors of which he complains, ” or “actual innocence.” United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citing United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)). See Bousley v. United States, 523 U.S. 614, 621 (1998) (“Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.”) (internal quotations and citations omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); see also Dretke v. Haley, 541 U.S. 386, 393 (2004); Reed v. Farley, 512 U.S. 339, 354 (1994) (“the writ is available only if the petitioner establishes ‘cause' for the waiver and shows ‘actual prejudice resulting from the alleged violation.'”); Finch v. McKoy, 914 F.3d 292, 298 (4th Cir. 2019) (discussing requirements for a claim of actual innocence); United States v. Linder, 552 F.3d 391 (4th Cir. 2009).

         Under the “cause and prejudice” standard, the petitioner must show: (1) cause for not raising the claim of error on direct appeal; and (2) actual prejudice from the alleged error. Bousley, 523 U.S. at 622; see also Dretke, 541 U.S. at 393; Reed, 512 U.S. at 354; Frady, 456 U.S. at 167-68.

         In order to show cause for failure to raise a claim of error on direct appeal, a petitioner must prove that “some objective factor external to the defense such as the novelty of the claim or a denial of effective assistance of counsel” impeded the efforts to raise the issue earlier. Coleman v. Thompson, 501 U.S. 722, 753 (1991); see also Carrier, 477 U.S. at 492 (“[C]ause . . . requires a showing of some external impediment preventing counsel from constructing or raising the claim.”); Mikalajunas, 186 F.3d at 493 (movant must demonstrate “something external to the defense, such as the novelty of the claim or a denial of effect assistance of counsel”). Additionally, the alleged error cannot simply create “a possibility of prejudice, ” but must be proven to work to the petitioner's “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170 (emphasis in original). Put another way, prejudice does not support relief of a procedural default in the absence of a showing of cause. Carrier, 477 U.S. at 494; Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982).

         The actual innocence exception “only applies in limited circumstances.” United States v. Jones, 758 F.3d 579, 583 (4th Cir. 2014). The Fourth Circuit recently said in the context of a habeas case under 28 U.S.C. § 2254:^[4] “A valid actual innocence claim ‘requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.'” Finch v. McKoy, 914 F.3d 292, 298 (4th Cir. 2019) (quoting Schlup v. Delo, 513 U.S. 298, 325 (1995). Moreover, a petitioner must “‘demonstrate that the totality of the evidence would prevent any reasonable juror from finding him guilty beyond a reasonable doubt, such that his incarceration is a miscarriage of justice.'” Finch, 914 F.3d at 298 (quoting Teleguz v. Pearson, 689 F.3d 322, 329 (4th Cir. 2012)). It is an “exacting standard, ” based on a “‘holistic judgment about all the evidence'. . . .” Finch, 914 F.3d at 299 (quoting House v. Bell, 547 U.S. 518, 539 (2006)).

         In order to show “actual innocence, ” then, the petitioner “must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent.” Mikalajunas, 186 F.3d at 494 (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)); see also Bousley, 523 U.S. at 623. Moreover, the petitioner must meet his burden by clear and convincing evidence. Mikalajunas, 186 F.3d at 494. In other words, a “petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Jones, 758 F.3d at 583 (emphasis added); see Bousley, 523 U.S. at 623.

         III. ...