Faraz v. United States, Civil Action No. RWT 17-0201

AMIR ALI FARAZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civil Action No. RWT 17-0201

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

November 14, 2018

(Related Criminal No. RWT 12-0640)

MEMORANDUM OPINION

Petitioner Amir Ali Faraz ("Faraz") has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("§ 2255 Motion" or "Motion to Vacate"). ECF No. 521. The Government has filed a Motion to Seal, ECF No. 523, and Faraz filed a Motion for Leave to File Out of Time, ECF No. 525. For the reasons discussed below, the Court will deny Faraz's § 2255 Motion, ECF No. 521, grant the Government's Motion to Seal, ECF No. 523, and grant Faraz's Motion for Leave to File Out of Time, ECF No. 525.

I. Background Facts

On December 12, 2012, a grand jury indicted eleven defendants, including Faraz, for a single count of conspiracy to distribute one kilogram or more of heroin, and 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 846 (Count I). ECF No. 1. On November 13, 2013, a grand jury issued a Superseding Indictment to include additional charges as to Faraz. ECF No. 235. Faraz was charged with (1) possession with intent to distribute heroin (Counts Two and Four); (2) use of a communications facility in furtherance of a drug trafficking offense (Counts Three, Five, Six, and Eight), and (3) interstate travel with intent to promote drug trafficking activities (Count Seven). Id.

On January 7, 2014, the Government filed a Notice/Information of Its Intention to Seek Enhanced Penalties Pursuant to 21 U.S.C. § 851 ("§ 851 Notice"). ECF No. 273. On January 24, 2014, a jury found Faraz guilty on all pertinent charges in the Superseding Indictment. ECF No. 290.

On June 23, 2014, Faraz filed Objections to the Government's § 851 Notice, ECF No. 357, which the Government responded to on July 1, 2014, ECF No. 358. On July 7, 2014, the Court held a hearing and sentenced Faraz to the mandatory minimum sentence of 240 months of imprisonment on Count One; the statutory maximum sentence of 240 months of imprisonment on Count Two; 48 months of imprisonment on Counts Three, Four, Five, Six, and Eight; and 60 months of imprisonment on Count Seven. ECF No. 368. All sentences were to run concurrently. Id.

Faraz timely appealed to the Court of Appeals for the Fourth Circuit, which affirmed his conviction on October 5, 2015. ECF No. 506. He then filed a petition for writ of certiorari with the U.S. Supreme Court, and on January 19, 2016, the Supreme Court denied certiorari. Faraz v. United States, 136 S. Ct. 913 (2016).

Faraz timely filed his § 2255 Motion on January 19, 2017. ECF No. 521. On February 1, 2017, the Court ordered the United States to respond to Faraz's § 2255 Motion within 60 days of the Order, and allowed Faraz to reply within 28 days of the United States' response. ECF No. 522. The Government filed its timely Opposition and a Motion to Seal. ECF Nos. 523, 524. On May 2, 2017, Faraz filed a Motion for Leave to File Out of Time and attached his proposed Reply. ECF No. 525.

II. Analysis

The Court will first address Faraz's Motion for Leave to File Out of Time, and then it will dispose of his Motion to Vacate.

a. Faraz's Motion for Leave to File Out of Time Due to Excusable Neglect Will Be Granted.

Faraz was allowed to file a reply within twenty-eight days of the Government's Response. ECF No. 522. The Government's Response was filed on March 17, 2017, so Faraz's reply was due on April 14, 2017. On May 2, 2017, Faraz filed a Motion for Leave to File Out of Time, asking the Court for leave to file his reply out of time due to excusable neglect. ECF No. 525. Specifically, he argues that the institution where he is incarcerated was on lock down, and once the lock down was lifted, the law library was closed due to a staffing shortage. Id. ¶¶ 1-2. He avers that due to these circumstances, which were beyond his control, there is good cause to grant him leave. Id. ¶ 3.

In determining whether excusable neglect has occurred, courts look at four factors: (1) danger of prejudice to the non-movant, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993). The Fourth Circuit has noted that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect." Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 533 (4th Cir. 1996) (quoting Pioneer, 507 U.S. at 392).

Considering Faraz's circumstances, the Pioneer factors weigh in his favor. Filing his Reply less than three weeks late did not have a significant impact on the proceedings nor did it prejudice the Government. Importantly, the reasons for the delay—that his institution was onlock down and the law library was closed—were beyond his control. Moreover, given that his Motion for Leave to File Out of Time was filed shortly after the deadline, it appears that he was acting in good faith. Accordingly, the Court finds that excusable neglect occurred, and the Motion for Leave to File Out of Time will be granted.

b. Faraz's § 2255 Motion Will Be Denied Because His Claims of Ineffective Assistance of Counsel Fail Under Strickland.

Faraz asserts that his sentence should be vacated, set aside, or corrected because his trial counsel did not provide effective representation under the Sixth Amendment. ECF No. 521-1 at 16. He asserts that his counsel (1) failed to argue that his § 851 enhancement no longer applied in light of Alleyne v. United States, 570 U.S. 99 (2013); (2) failed to argue that the Government had engaged in sentencing factor manipulation; and (3) failed to argue that his prior conviction used to enhance his sentence pursuant to 28 U.S.C. § 851 no longer qualified to support the enhancement. Id. None of Faraz's claims has legal merit.

To prevail on a § 2255 motion, a petitioner must prove 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, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255 (2012); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). If the § 2255 motion, along with the files and records of the case, "conclusively show that [he] is entitled to no relief," a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. See § 2255; Miller, 261 F.2d at 547.

Courts examine claims of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the performance prong, a petitioner must show that counsel's performance was deficient. Id. "Judicial scrutiny ofcounsel's performance must be highly deferential." Id. at 689; see also United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004). The alleged deficient performance must be objectively unreasonable and "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 689. The Court must evaluate the conduct at issue from counsel's perspective at the time, and must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.

Under the prejudice prong, a petitioner must show that the deficient performance prejudiced the defense, and but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694. Unless a petitioner makes both showings, the Court cannot find that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 669. Finally, "there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the [petitioner] makes an insufficient showing on one." Id. at 697.

i. Faraz's Claim that His Counsel Failed to Argue that His § 851 Enhancement No Longer Applied Fails Both Strickland Prongs.

Faraz alleges that his counsel was ineffective for failing to argue that his § 851 enhancement no longer applied in light of Alleyne v. United States, 570 U.S. 99 (2013). ECF No. 521-1 at 17-20, ECF No. 525-1 at 2-6. He asserts that in Alleyne, the Supreme Court held that any fact that increases the mandatory minimum is an element that must be submitted to the jury. ECF No. 521-1 at 17, ECF No. 525-1 at 8. Although Faraz correctly states the law, he neglects the exception the Court carved out to this rule: "'Other than the fact of a priorconviction,¹ any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" Alleyne, 570 U.S. at 126 (emphasis added) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Because Faraz's § 851 enhancement was based on a prior conviction, ECF No. 273, which is the exception to the rule stated in Alleyne, Alleyne did not apply. Thus, the conduct of Faraz's counsel was objectively reasonable in choosing not to make an argument contrary to Supreme Court precedent.²

Even if Faraz did show that his counsel performed deficiently, he still has not shown that he was prejudiced by it under Strickland. He asserts that had his attorney argued for his prior conviction to "be placed into the indictment, submitted to a jury, and proved beyond a reasonable doubt[,] . . . there is a reasonable probability that the outcome of th[e] case would be different." ECF No. 521-1 at 20. This recitation of the...