711 F.3d 460 (4th Cir. 2013), 11-6781, United States v. Fisher

Docket Nº:11-6781.
Citation:711 F.3d 460
Opinion Judge:WYNN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Cortez FISHER, Defendant-Appellant.
Attorney:Marta Kahn, Baltimore, Maryland, for Appellant. Philip S. Jackson, Office of the United States Attorney, Baltimore, Maryland, for Appellee. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.
Judge Panel:Before AGEE, WYNN, and FLOYD, Circuit Judges. Reversed by published opinion. Judge WYNN wrote the majority opinion, in which Judge FLOYD joined. Judge AGEE wrote a dissenting opinion. AGEE, Circuit Judge, dissenting:
Case Date:April 01, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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711 F.3d 460 (4th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,


Cortez FISHER, Defendant-Appellant.

No. 11-6781.

United States Court of Appeals, Fourth Circuit.

April 1, 2013

Argued: Oct. 26, 2012.

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[Copyrighted Material Omitted]

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Marta Kahn, Baltimore, Maryland, for Appellant.

Philip S. Jackson, Office of the United States Attorney, Baltimore, Maryland, for Appellee.


Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before AGEE, WYNN, and FLOYD, Circuit Judges.

Reversed by published opinion. Judge WYNN wrote the majority opinion, in which Judge FLOYD joined. Judge AGEE wrote a dissenting opinion.


WYNN, Circuit Judge:

It is axiomatic that, " to be constitutionally valid, a plea of guilty must be knowingly and voluntarily made." United States v. Brown, 117 F.3d 471, 473 (11th Cir.1997). And " a guilty plea is not knowingly and voluntarily made when the defendant has been misinformed" as to a crucial aspect of his case. Id.

In this extraordinary case, the law enforcement officer responsible for the investigation that led to the defendant's arrest and guilty plea himself later pled guilty to having defrauded the justice system in connection with his duties as an officer. Regarding this case specifically, the officer admitted to having lied in his sworn affidavit that underpinned the search warrant for the defendant's residence and vehicle, where evidence forming the basis of the charge to which the defendant pled guilty was found. We hold that the officer's affirmative misrepresentation, which informed the defendant's decision to plead guilty and tinged the entire proceeding, rendered the defendant's plea involuntary and violated his due process rights. Accordingly, we reverse the district court's decision holding otherwise and remand for further proceedings.



On October 29, 2007, Mark Lunsford, a Baltimore City Drug Enforcement Agency (" DEA" ) Task Force Officer, applied for a search warrant for Defendant Cortez Fisher's residence and vehicle. In his sworn affidavit— the sole affidavit supporting the application for the search warrant— Lunsford averred that he targeted Defendant after a confidential informant told him that Defendant distributed narcotics from his residence and vehicle and had a handgun in his residence. Lunsford described the confidential informant as a " reliable" informant who had previously provided him with information that led to numerous arrests for narcotics violations. J.A. 46, 149. Lunsford further averred that the confidential informant provided him with a physical description of Defendant, Defendant's

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residential address, the make and model of Defendant's vehicle, and his license plate number. Based on the information provided by the confidential informant, Lunsford obtained a photograph of Defendant. Lunsford showed the photograph to the confidential informant, who then confirmed Defendant's identity. Lunsford declared that he subsequently conducted surveillance and saw Defendant make narcotics transactions from his car, after which Defendant returned to his residence.

On the morning of October 29, 2007, Lunsford and other officers saw Defendant leave his residence and stopped him for questioning. According to Lunsford, Defendant declined questioning and backed into a police vehicle. Officers then arrested and searched Defendant and found fifty empty glass vials in his pants pocket.

Solely on the basis of his sworn affidavit, Lunsford obtained a search warrant for Defendant's residence and vehicle on October 29, 2007 and executed the warrant that same day. During the search, officers found crack cocaine and a loaded handgun.

Defendant was charged with one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Defendant entered into a plea agreement which, among other things, required him to plead guilty to possession of a firearm by a felon. Defendant was sentenced to ten years in prison.


Over a year after Defendant pled guilty, in September 2009, Lunsford was charged with various fraud and theft offenses related to his duties as a DEA officer, including falsely attributing information to a confidential informant with whom he was splitting reward money. On March 15, 2010, Lunsford pled guilty to several such offenses. As part of his plea agreement, Lunsford admitted to falsely identifying a confidential informant on an affidavit supporting a wiretap application, an affidavit supporting a criminal complaint, and numerous investigation reports. Regarding Defendant's case, Lunsford admitted to the Federal Bureau of Investigation that the confidential informant he identified in his affidavit " had no connection to the case" and that another individual was " the real informant[.]" J.A. 65.

Shortly after Lunsford's guilty plea, Defendant filed a pro se motion seeking to have his guilty plea vacated based upon Lunsford's criminal misconduct. On motion of the Federal Public Defender's Office, the district court appointed counsel to represent Defendant. The district court denied Defendant's motion to vacate on July 28, 2010. Defense counsel subsequently filed a motion to alter or amend the judgment, requesting that the district court reconsider its order and reopen the proceeding with the assistance of counsel. Defense counsel also filed a supplement to Defendant's pro se motion to vacate. On May 31, 2011, the district court filed a Memorandum and an Order denying Defendant's motion to vacate, stating:

Unquestionably, if [Defendant] had known of Lunsford's criminal misconduct, he would have filed a motion to suppress, and the motion may well have been successful. Nevertheless, [Defendant] does not deny that he was unlawfully in possession of a firearm (as he admitted under oath during his Rule 11 colloquy). Under these circumstances[,] I cannot find that a failure to allow [Defendant] to withdraw his guilty plea would result in a " miscarriage of justice." Certainly, [Defendant] was denied of an opportunity to pursue a motion to suppress that might have been meritorious, but neither the Government nor his own counsel was aware of Lunsford's

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criminal misconduct at the time that [Defendant] entered his guilty plea and was sentenced. Therefore, it cannot be said that [Defendant's] counsel was ineffective or that the Government breached any obligation that it owed to him....

J.A. 136 (internal citation omitted).

Nevertheless, the district court granted Defendant's motion for a certificate of appealability as to his Sixth Amendment ineffective assistance of counsel claim. Thereafter, this Court granted Defendant's motion to expand the certificate of appealability to include the issue of whether the belated disclosure of Lunsford's misconduct rendered Defendant's plea invalid under the Due Process Clause.



After the imposition of a sentence, a guilty plea may be set aside pursuant to 28 U.S.C. § 2255. United States v. Davis, 954 F.2d 182, 184 (4th Cir.1992). In reviewing a ruling on a motion to vacate a plea under Section 2255, we review a district court's legal conclusions de novo and its findings of fact for clear error. United States v. Roane, 378 F.3d 382, 395 (4th Cir.2004).



Defendant first contends that the district court erred by concluding that his guilty plea was knowing, intelligent, and voluntary because he did not know at the time he entered his plea that Lunsford lied in his search warrant affidavit. Defendant essentially argues that his plea is constitutionally infirm for two distinct reasons: (1) Lunsford's underlying pre-plea misconduct rendered his plea involuntary under Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); and (2) the government failed to meet its evidentiary disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).1 We turn first to Defendant's Brady v. United States argument.

" [A] guilty plea is a grave and solemn act to be accepted only with care and discernment[.]" Brady v. United States, 397 U.S. at 748, 90 S.Ct. 1463. When a defendant pleads guilty, he forgoes not only a fair trial, but also other accompanying constitutional guarantees. United States v. Ruiz, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). Thus, a guilty plea " not only must be voluntary but must be [a] knowing, intelligent act[ ] done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. at 748, 90 S.Ct. 1463.

" The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (citations and quotation marks omitted). The Supreme Court has outlined the following standard as to the voluntariness of guilty pleas:

A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).

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Brady v. United States, 397 U.S. at 755, 90 S.Ct. 1463 (quotation and...

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