United States v. Tatum, Criminal No. DKC 13-0492-001

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtDEBORAH K. CHASANOW United States District Judge
PartiesUNITED STATES OF AMERICA v. ANTHONY TORELL TATUM
Decision Date02 March 2021
Docket NumberCivil Action No. DKC 18-0002,Criminal No. DKC 13-0492-001

UNITED STATES OF AMERICA
v.
ANTHONY TORELL TATUM

Criminal No. DKC 13-0492-001
Civil Action No.
DKC 18-0002

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

March 2, 2021


MEMORANDUM OPINION

Petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is ready for resolution. (ECF No. 425). Also pending are two subsequent filings from Petitioner that are properly construed as motions for leave to file supplements to his § 2255 motion. (ECF Nos. 538 and 561). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Petitioner's motion will be denied, and, while the motions to supplement will be granted, the relief they seek will be denied.

I. Background

On February 24, 2014, Mr. Anthony Torell Tatum ("Petitioner") was charged in an eight-count superseding indictment. (ECF No. 24). On December 30, 2014, Petitioner entered a guilty plea to three of the charges — count 1: Conspiracy to Distribute and Possess with Intent to Distribute Five Kilograms or More of Cocaine and One Hundred Grams or More of Heroin in violation of 21

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U.S.C. § 846; count 7: Possession of a Firearm in Furtherance of a Drug Trafficking Offense in violation of 18 U.S.C. § 924(c); and count 8: Conspiracy to Commit Money Laundering in violation of 18 U.S.C. § 1956. (No. 94). On July 23, 2015, he was sentenced to 324 months' imprisonment, consisting of 264 months on count one, 240 months concurrent on count eight, and a consecutive 60 months on count seven. (ECF No. 211).

On July 29, 2015, Petitioner filed a notice of appeal to the Fourth Circuit. (ECF No. 213). The Fourth Circuit subsequently appointed Richard Finci to represent Mr. Tatum in his appeal, the same attorney who had represented him during his plea negotiations, the entry of his plea, and at sentencing. (ECF No. 217). On June 10, 2016, the Fourth Circuit affirmed the judgment and sentence against Mr. Tatum. (ECF No. 355). Twelve days later, the court stayed its mandate pending a motion for rehearing. (ECF No. 359). While this request was pending, Petitioner also filed a motion to withdraw his guilty plea in this court on August 4, 2016. (ECF No. 371). On October 12, 2016, the Fourth Circuit denied Petitioner's request for a rehearing. (ECF Nos. 388 and 389). On November 3, 2016, the Fourth Circuit issued its mandate. (ECF No. 391). Four days later, this court issued an opinion and order denying Mr. Tatum's motion to withdraw his guilty plea.

Mr. Tatum continued to fight his conviction on multiple fronts. First, Petitioner appealed the order denying his motion

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to withdraw the guilty plea on December 9, 2016. (ECF No. 395). Second, on January 12, 2017, the court received notice from the Supreme Court that Mr. Tatum had filed a petition for writ of certiorari on his original appeal a few days earlier. (ECF No. 398). On February 21, 2017, the Court denied this petition, thus finalizing Mr. Tatum's conviction. (ECF No. 408). See United States v. Segers, 271 F.3d 181, 185-86 (4th Cir. 2001) ("The courts of appeals to address the issue have consistently concluded that a judgment of conviction becomes final under § 2255 (f)(1) when the Supreme Court denies certiorari."). The same day this entry was made, the Fourth Circuit affirmed the denial of Petitioner's motion to withdraw his guilty plea, and this ruling took effect on March 16, with the issuance of the Fourth Circuit's mandate. (ECF Nos. 407 and 410).

On January 4, 2018, Petitioner timely filed the currently pending motion to vacate, set aside, or correct sentence. (ECF No. 425). More than two years later, on July 6, 2020, Mr. Tatum filed a motion that attempted to supplement his petition. It was docketed as, and will be construed as, a motion for leave to file a supplemental § 2255 motion. The motion cites to recent Supreme Court caselaw as a basis for its claim and its timeliness. (ECF No. 538). A few months later, on November 12, Petitioner filed another attempted supplement that will similarly be treated as a

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motion for leave to supplement his motion to vacate/correct sentence. (ECF No. 561) (filed under seal).

II. Motion to Vacate

A. Standard of Review

To be eligible for relief under § 2255, a petitioner must show, by a preponderance of the evidence, that his "sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law." 28 U.S.C. § 2255(a). "[T]he scope of review of non-constitutional error is more limited than that of constitutional error; a non[-]constitutional error does not provide a basis for collateral attack unless it involves 'a fundamental defect which inherently results in a complete miscarriage of justice,' or is 'inconsistent with the rudimentary demands of fair procedure.'" United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999) (internal citations omitted).

A pro se movant is entitled to have his arguments reviewed with appropriate consideration. See Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978). But if the § 2255 motion, along with the files and records of the case, conclusively shows that he is not entitled to relief, a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. § 2255(b).

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B. Ineffective Assistance of Counsel Legal Standard

The bulk of Petitioner's motion rests on various alleged deficiencies in the performance of his former counsel, Mr. Finci. To establish ineffective assistance of counsel, the petitioner must show both that his attorney's performance fell below an objective standard of reasonableness and that he suffered actual prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a strong presumption that counsel's conduct falls within a wide range of reasonably professional conduct, and courts must be highly deferential in scrutinizing counsel's performance. Strickland, 466 U.S. at 688-89; Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991). A determination need not be made concerning the attorney's performance if it is clear that no prejudice could have resulted from it. Strickland, 466 U.S. at 697.

In the context of a § 2255 petition challenging a conviction following a guilty plea, a defendant establishes prejudice by demonstrating "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); accord United States v. Mooney, 497 F.3d 397, 401 (4th Cir. 2007). Moreover, Petitioner "must convince the court" that such a decision "would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). "The challenger's subjective preferences, therefore, are not dispositive; what matters is

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whether proceeding to trial would have been objectively reasonable in light of all of the facts." United States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012).

A petitioner who pleads guilty has an especially high burden in establishing an ineffective assistance claim. As the Supreme Court of the United States explained, "[t]he plea process brings to the criminal justice system a stability and a certainty that must not be undermined by the prospect of collateral challenges in cases . . . where witnesses and evidence were not presented in the first place." Premo v. Moore, 562 U.S. 115, 132 (2011). Thus, a petitioner alleging ineffective assistance in the context of a guilty plea must meet a "substantial burden . . . to avoid the plea[.]" Id.

C. Alleged Coercion in the Plea Negotiations

While Petitioner's motion to vacate is fifty-three pages, not counting its numerous attachments, a large portion of it is animated by a single claim: Petitioner alleges that Mr. Finci was ineffective by allowing the government "to coerce" him into "waving his rights" by entering the plea agreement. (ECF No. 425, at 52). In particular, Mr. Tatum asserts that, during his plea negotiations, prosecutor Deborah Johnston told him, "if you don't accept some type of plea agreement and if you decide to go to trial, I will make sure that I pick the whitest, most conservative jurors from the counties in Maryland that you have never heard of

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before." (Id. at 3) (quoting his first retelling of this incident during his sentencing hearing, ECF 231, at 74). Petitioner says that he looked to his counsel for help when this threat was made, but that his lawyer "looked back at him like a deer in the headlights."

The government quotes to a separate section of the motion to explain how this alleged inaction of Mr. Finci serves as the motion's central thrust: "At the broadest level, Petitioner's claims of ineffective assistance of counsel stem from his contention that the Government engaged in 'coercing [Petitioner] into a plea of guilty and his attorney [] stood ideally [sic, idly] by and failed to present this misconduct to the Court's attention.'" (ECF No. 457, at 5) (quoting ECF No. 425, at 20). Mr. Tatum explains that he raised this issue in a pro se supplemental brief in the Fourth Circuit on direct appeal, which he attaches to his motion. He says all these arguments "were available" for Mr. Finci to raise himself as his counsel, but he failed to do so. (ECF No. 425, at 51-52) (referencing and attaching ECF No. 425-9).

1. The Underlying Constitutional Claim

While the government frames the allegation of a coercive plea as purely a claim of ineffective assistance of counsel, the claim contains a separate and distinct constitutional element. By highlighting the racial nature of the alleged threat, Petitioner

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argues that "selective prosecution on the basis of race violates due process." His conviction is therefore invalid, he argues, not just because of his counsel's failure to object to Ms. Johnston's statement...

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