Morrison v. United States
| Decision Date | 12 March 2014 |
| Docket Number | Civil No. RDB-12-3607,Criminal No. RDB-10-0507 |
| Parties | JOHN STEWART MORRISON, IV v. UNITED STATES OF AMERICA |
| Court | U.S. District Court — District of Maryland |
On December 21, 2010, John S. Morrison ("Petitioner"), pled guilty to a violation of the mail fraud statute, 18 U.S.C. § 1341 (ECF No. 18).1 Thereafter, this Court imposed a sentence of fifteen (15) months incarceration with a period of two (2) years supervised released, and restitution in the amount of $240,947.40 (ECF No. 31). In order to satisfy a portion of the restitution, Petitioner's interests in the Brothers Partnership Property—his former residence—were forfeited. Now pending is the pro se Petitioner's Motion to Modify Court Ordered Restitution Under 28 U.S.C. § 2255 (ECF No. 66). Petitioner alleges that his counsel failed "to present facts" at sentencing and failed to accurately calculate restitution, thereby rendering ineffective assistance of counsel. After reviewing the parties' submissions, this Court finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For thereasons stated herein, Petitioner's Motion to Modify Court Ordered Restitution (ECF No. 66) is DENIED.
Additionally, as indicated herein, Petitioner's Motion for Reconsideration re 64 Order Authorizing Sale (ECF No. 75), Emergency Motion to Modify Court Ordered Sale of Brothers Partnership Property (ECF No. 69), Motion to Appoint Counsel (ECF No. 63), Motion to Re-Occupy the Brothers Partnership Property (ECF No. 62), Motion to Modify Court Ordered Restitution, Thirty (30) Day Ordered Home Eviction (ECF No. 42), Motion to Modify Court Ordered Restitution (ECF No. 41), and the Government's Motion for an Amended Final Order of Forfeiture (ECF No. 48) are DENIED as MOOT.
On December 21, 2010, John S. Morrison, pled guilty to one count of mail fraud in violation of 18 U.S.C. § 1341 (ECF No. 18).2 This plea of guilty was accepted by this Court after a very thorough plea colloquy pursuant to Rule 11 of the Federal Rules of Criminal Procedure. On December 7, 2011, this Court sentenced Morrison to a term of fifteen (15) months incarceration with a period of two (2) years supervised released, and imposed restitution in the amount of $240,947.40 (ECF No. 31).
Following sentencing this Court entered a Final Order of Forfeiture (ECF No. 39), upon the government's request, forfeiting all of Petitioner's real property interests in his former residence (the "Brothers Partnership Property") to the government, the sale of which was to be applied to Petitioner's restitution liability. The sale of the Brothers Partnership Property was subsequently authorized by this Court on December 3, 2012 (ECF No. 64).
In an effort to halt or prevent the sale of the Property, Petitioner filed several motions including:
The Property was ultimately sold on or about August 27, 2013. See ECF No. 81.
This Court recognizes that because Petitioner is proceeding pro se, he is held to a "less stringent standard[]" than is a lawyer, and the Court must liberally construe his claims, no matter how "inartfully" pled. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); accord Brown v. N.C. Dep't of Corrs., 612 F.3d 720, 724 (4th Cir. 2010) (). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence where (1) "the sentence was imposed in violation of the Constitution or laws of the United States," (b) the court lacked "jurisdiction to impose the sentence, . . .[(c)] the sentence was in excess of the maximum authorized by law, or [(d) the sentence] is otherwise subject to a collateral attack." 28 U.S.C. § 2255. "[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. Addomzio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Although Petitioner is no longer in custody, his § 2255 motion was filed while in prison. See Reed v. U.S., 471 F.2d 721 (5th Cir. 1973) ().
To state a claim for relief under 28 U.S.C. § 2255 based on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 671 (1984). See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). The first prong of the test, known as the "performance" prong, requires a showing that defense counsel's representation was deficient and fell below an "objective standard of reasonableness." Strickland, 466 U.S. at 688. In making this determination, courts observe a strong presumption that counsel's actions fell within the "wide range of reasonable professional assistance." Id. at 688-89. The second prong, known as the "prejudice" prong, requires that defendant demonstrate that his counsel's errors deprived him of a fair trial. Id. at 687. To establish this level of prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The United States Court of Appeals for the Fourth Circuit has previously noted that "[t]he defendant bears the burden of proving the first prong under the Strickland test," and unless this burden is met, "a reviewing court does not need to consider the second prong." Fields v. Attorney General, 956 F.2d 1290, 1297 (4th Cir. 1992). The Fourth Circuit has also noted that the mere possibility of a different trial result does not satisfy the burden placed on the defendant. See Hoots v. Allsbrook, 785 F.2d 1214, 1220 (4th Cir. 1986). Thus, ineffective assistance of counsel claims may be disposed of solely based on a deficiency in showing prejudice as to the second Strickland prong. See Strickland, 466 U.S. at 697. Additionally, "[i]neffective assistance claims are generally not cognizable on direct appeal, . . . 'unless [an attorney's ineffectiveness] conclusively appears from the record.'" United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008) (quoting United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)).
Petitioner's motion pursuant to 28 U.S.C. § 2255 challenges the imposition of restitution at sentencing. Specifically, Petitioner alleges that his counsel "failed to present facts [to this Court]" and failed to calculate the amount of restitution correctly. The gravamen of Petitioner's claims concern the forfeiture of the Brothers Partnership Property. As explained below, this Court concludes that (1) Petitioner has waived his right to collaterally attack any order of forfeiture and, (2) notwithstanding his waiver of appeal, Petitioner's claims are wholly without merit.
As noted above, in order to establish a claim of ineffective assistance of counsel, the defendant must prove both the "performance" and the "prejudice" prongs of the Strickland standard. When a defendant alleges ineffective assistance after a guilty plea has been entered, the burden is even greater. See Premo v. Moore, ___ U.S. ___, 131 S. Ct. 733, 745-46 (2011) (); Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). In other words, Petitioner has "a substantial burden to show ineffective assistance of counsel" where a plea agreement exists. Premo, 131 S. Ct. at 746.
The terms of the plea agreement entered into and understood by Petitioner expressly provide that Petitioner has waived "all constitutional, legal, and equitable challenges (including direct appeal, habeas corpus, or any other means) to any forfeiture," Plea Agreement at 6 ¶ 14, ECF No. 18, as well as the right to seek appellate review of any order of restitution. Id. at 6-7 ¶ 15 (). Petitioner may not circumvent the terms of the plea agreement by challenging this Court's order of restitution through a § 2255 motion.3 As noted by the Fourth Circuit in U.S. v. Linder 552 F.3d 391, 397 (4th Cir. 2008) (citations omitted) (emphasis added); seeUnited States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) () (citations omitted); cf. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (...
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