Joseph Stines v. USA

Filing

OPINION filed : The judgment of the district court is AFFIRMED. Decision not for publication. Danny J. Boggs, R. Guy Cole, Jr., and David W. McKeague (AUTHORING), Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0481n.06

FILED

Case No. 12-2223

Jul 03, 2014

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JOSEPH ROVESS STINES,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.

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DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

OPINION

BEFORE: BOGGS, COLE and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. This case presents an appeal from the denial of relief
under 28 U.S.C. § 2255 in relation to a 1999 conviction and sentence for conspiracy to possess
and distribute cocaine and cocaine base. Defendant Joseph Stines’ conviction and sentence were
affirmed on direct appeal. United States v. Stines, 313 F.3d 912 (6th Cir. 2002). Stines moved to
vacate the conviction and sentence under § 2255 based largely on the claim that the prosecution
suppressed Brady material and suborned perjury from cooperating co-conspirator witnesses. The
district court conducted an evidentiary hearing, found the testimony of the sole witness presented
“inherently incredible,” and denied the motion.

The district court granted a certificate of

appealability on the prosecutorial-misconduct claim. We later expanded the certificate to include
a second claim, for ineffective assistance of appellate counsel, in the event Stines were held to

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have procedurally defaulted the first claim. For the reasons that follow, we affirm the denial of
relief.
I
In the late 1980s and 1990s, Stines was the ringleader of a street gang known as Stone
Life in Ypsilanti, Michigan. Stines, 313 F.3d at 914. During an investigation of Stone Life
conducted in the late 1990s, undercover officers participated in and observed a series of cocaine
purchases.

Stines and six co-conspirators

Antonio James, David Bowles, and

Durand Ford, Keith Phelan, Kenneth Jefferson,

aron o les

were indicted for conspiracy to possess and

distribute cocaine and cocaine base. Several co-conspirators cooperated with the government
pursuant to plea agreements assuring them of favorable treatment in exchange for their
cooperation. All seven defendants, including Stines, were found guilty.
In conjunction with sentencing, the district court conducted two hearings in December of
1999 and February of 2000. The court determined that seven kilograms of crack cocaine and
two kilograms of powder cocaine were attributable to Stines. In reaching this determination, the
court relied on the trial testimony of Athaiah Reed, Walter Phelps, Eva Taylor, Reese Palmer,
and Rasul Warren. Considering the

itnesses’ testimony, Stines’ involvement as the leader of

Stone Life, and Stines’ prior criminal history, the court determined the applicable sentencing
guidelines range to be 360 months to life. Stines was sentenced to a prison term of 400 months
on February 22, 2000.
Stines timely filed a notice of appeal. Several months later, while the appeal was
pending, he filed a motion for new trial in the district court, alleging prosecutorial misconduct
and suppression of Brady material. The district court denied the motion for new trial for lack of
jurisdiction because of the pendency of the direct appeal. Stines did not appeal the denial of the

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motion for new trial, and the issues raised in that motion, akin to those now before us, were not
addressed in our ruling affirming Stines’ conviction and sentence on direct review. See Stines,
313 F.3d 912 (Appendix).
Stines filed his motion to vacate sentence pursuant to 28 U.S.C. § 2255 on October 12,
2004, contending, in relevant part, that prosecutorial misconduct deprived him of due process in
trial and in sentencing, and that his appellate counsel was ineffective for having failed to appeal
the denial of his motion for new trial.
In a series of status conferences, Stines’ newly-appointed counsel requested an
evidentiary hearing. Counsel summarized the substance of testimony that she expected to elicit
in the evidentiary hearing from numerous

itnesses

ho testified in Stines’ trial, from the

prosecuting attorney allegedly responsible for the misconduct, Assistant United States Attorney
Richard Convertino, and from two district judges who imposed surprisingly lenient sentences on
the cooperating witnesses. Stines’ counsel ackno ledged, ho ever, that she as not prepared to
immediately call any of these witnesses; that she needed the assistance of a court-appointed
investigator to locate and interview witnesses; and that additional steps were necessary before
she could call AUSA Convertino or the sentencing judges.
The district court granted the request for an evidentiary hearing but determined at the
outset that it would be limited to the testimony of Rasul Warren, a member of the Stone Life
gang and co-conspirator who had testified to having obtained a certain amount of cocaine from
Stines. The inquiry would initially be limited to Warren because he appeared to offer the
strongest evidence in support of Stines’ motion. Warren not only received favorable sentencing
treatment, like other cooperating witnesses, but also reported that he had given perjured
testimony. That is, Warren was expected to testify that, in response to Convertino’s prompting,

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he attributed more drugs to Stine than he was responsible for. The district court indicated that it
would potentially expand the hearing, depending on ho Warren’s testimony ent.
The evidentiary hearing was held on January 22, 2010. Warren testified that AUSA
Convertino encouraged him to testify in the 1999 trial that Stines was the supplier of all the
cocaine seized from Warren at the time of his 1996 arrest, even though Warren recalled that it
had come from more than one supplier.

t the time of Stines’ trial, Warren was already serving

a prison sentence of 262 months. Convertino offered to move for reduction of his sentence in
exchange for his cooperation. Warren cooperated and attributed all the cocaine he had to Stines.
Subsequently, he was released from prison after serving just 47 months.

ccording to Warren’s

“corrected” testimony, only part of the seized cocaine actually came from Stines, but Warren
could not remember the name of any other supplier.
On completion of Warren’s testimony, and consistent

ith the district court’s order as to

the scope of the evidentiary hearing, Stines’ counsel ackno ledged that no other

itnesses

ere

available to testify. The court directed counsel to submit closing arguments in writing after the
hearing transcript was prepared. In his post-hearing brief, Stines argued that Warren’s testimony
made out a sufficient record to warrant relief but he renewed his earlier request to call other
witnesses. The government’s post-hearing brief took a three-pronged approach. First, the
government renewed its motion to dismiss the § 2255 motion as barred by procedural default.1
Second, the government explained

hy Warren’s attempt to partially recant his trial testimony

as not credible. Third, even if Warren’s new testimony were credited, the government argued
that Warren’s drug-quantity clarification, viewed in light of the extensive evidence of Stines’
1

Prior to the evidentiary hearing, the government moved to dismiss the motion based on
procedural default. The government argued that Stines failed to preserve objection to the
prosecutorial-misconduct issues hen he failed to appeal the district court’s denial of his motion
for new trial.
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responsibility for distributing multiple kilograms of cocaine over several years, would have had
no impact on either the jury’s verdict or the court’s sentence.
The court issued a

ritten opinion on December 1, 2010, denying Stines’ § 2255 motion

for new trial or resentencing. The court ignored the procedural default issue and proceeded to
the merits of Stines’ motion. Having observed Warren’s testimony both in Stines’ trial and in
the evidentiary hearing, the court found that Warren’s trial testimony was credible and his
testimony in the evidentiary hearing was “inherently incredible.” The court held Stines had
failed to show by a preponderance of evidence either (a) that there was an express or tacit
agreement between Convertino and Warren that should have been disclosed, or (b) that
Convertino had suborned perjury. Distinguishing Bell v. Bell, 512 F.3d 223, 232–33 (6th Cir.
2008), the court implicitly determined that there was no need for additional testimony from other
cooperating witnesses because, unlike in Bell, the understandings pursuant to which they testified
had been disclosed and were used to effectively impeach them during Stines’ trial, rendering
putative evidence of even more favorable understandings immaterial for Brady purposes.2
Stines appealed the denial of his § 2255 motion and asked the court to certify two issues
for appeal. The district court granted a certificate of appealability as to the prosecutorialmisconduct claim, but denied the certificate as to the ineffective-assistance-of-counsel claim.
We later expanded the certificate to include the ineffective-assistance claim, to be considered in
the event the prosecutorial-misconduct claim were held to be procedurally defaulted.
Accordingly, the parties have briefed both issues. Yet, the district court did not address the
procedural-default defense and instead addressed the merits of Stines’ prosecutorial-misconduct

2

Subsequently, on August 2, 2011, Stines filed a motion for reduction of sentence under
18 U.S.C. § 3582, based on retroactive application of the Fair Sentencing Act of 2010. The court
granted the motion, reducing Stines’ prison sentence to 330 months.
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claim. This is the ruling challenged by Stines on appeal. The government has not filed a crossappeal challenging the implicit denial of the procedural-default defense. We therefore confine
our attention to the ruling challenged by Stines. Neither the procedural default defense nor
Stines’ attempt to excuse procedural default based on ineffective assistance is considered further.
II
A. Standard of Review
“In revie ing the denial of a 28 U.S.C. § 2255 motion,

e apply a de novo standard of

review to the legal issues and uphold the factual findings of the district court unless they are
clearly erroneous.” Hamblen v. United States, 591 F.3d 471, 473 (6th Cir. 2009). To warrant
relief under § 2255, “a petitioner must demonstrate the existence of an error of constitutional
magnitude which had a substantial and injurious effect or influence on the guilty plea or the
jury’s verdict.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003). Stines contends that
his sentence should be vacated because the prosecution’s suppression of Brady material and
suborning of perjury deprived him of a fair trial and fair sentencing.
Pursuant to the rule of Brady v. Maryland, 373 U.S. 83, 87 (6th Cir. 1963), the
prosecution is obliged to disclose all material, exculpatory evidence to a defendant. The rule
encompasses impeachment evidence as well. United States v. Bagley,

3 U.S.

,

(1985). Where such evidence is “material” to guilt or innocence, a failure to disclose it results in
a due process violation, irrespective of the good faith or bad faith of the prosecution. Bell, 512 at
231. A successful Brady claim requires a three-part showing: (1) that the withheld evidence was
favorable to the defendant; (2) that the prosecution suppressed the evidence, either purposefully
or inadvertently; and (3) that the suppression resulted in prejudice to the defendant. Id. To
satisfy the prejudice prong, Stines must show that disclosure of the favorable evidence would

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have created a “reasonable probability” of a different result, such that the government’s
suppression of the evidence “undermines confidence in the outcome.”

Id. at 236 (quoting

Bagley, 473 U.S. at 678, 682). Evidence that is “merely cumulative” of evidence presented at
trial is not “material” for purposes of the Brady analysis. Brooks v. Tennessee, 626 F.3d 878,
893 (6th Cir. 2010).
Similarly, the prosecution’s alleged misconduct in knowingly soliciting or allowing false
testimony also comes under the Brady disclosure doctrine:
The knowing use of false or perjured testimony constitutes a denial of due process
if there is any reasonable likelihood that the false testimony could have affected
the judgment of the jury. In order to establish prosecutorial misconduct or denial
of due process, the defendants must show the statement was actually false; (2) the
statement was material; and (3) the prosecution knew it was false.
Id. at 894–95 (quoting Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998)).
B. Analysis
The district court based its denial of relief largely on the record established at the
evidentiary hearing, consisting of the testimony of Stines’ co-conspirator, Rasul Warren,
follo ed by the parties’ post-hearing briefs. The court recognized that a itness’s recantation of
trial testimony in post-conviction proceedings is viewed with great suspicion, citing Brooks,
626 F.3d at 897. The court recalled its observations of Warren’s trial testimony ten years earlier
and compared it

ith his testimony at the evidentiary hearing. The court found Warren’s trial

testimony regarding his gang-member and drug-trafficking relationship with Stines consistent
with other trial testimony. Conversely, the court explained

hy it found Warren’s “ne ”

testimony “inherently incredible.” Among other things, the court noted Warren’s reluctance to
provide complete answers and characterized his testimony as “replete ith evasiveness.”

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In challenging this reasoning, Stines points to other evidence of wrongdoing by AUSA
Convertino in this and other cases and argues that Warren’s ne

testimony “does not seem so

far-fetched at all.” He notes that, apart from its inconsistency with his original trial testimony,
Warren’s ne

testimony about Convertino’s misconduct has not been rebutted by the

government.
The district court’s credibility determination is revie ed under the “highly deferential
clear-error standard.” Id. Stines has fallen short of showing clear error in the court’s assessment
of Warren’s credibility. Stines gives no persuasive reason to disturb the assessment of the trial
judge,

ho had extensive opportunity to observe Warren’s demeanor and comportment both at

trial and in the evidentiary hearing.

ecause the district court found Stines’ most promising

itness “not close to credible,” the court sa

no need to continue the evidentiary hearing to

entertain additional testimony tending to rebut or corroborate Warren’s testimony.

nd because

the court found Warren’s testimony not credible, it concluded that Stines had failed to
substantiate his allegations (1) that there was either an express or tacit agreement between
Warren and Convertino that remained undisclosed by the prosecution; or (2) that Convertino
solicited false testimony from Warren.
In connection

ith Stines’ allegation that several other cooperating witnesses were

promised even more favorable assistance from Convertino than they disclosed in their trial
testimony, the district court observed that it “had been apparent throughout the testimony in this
case

that every

itness

ho

as involved in drug trafficking had been promised something

ith regard to sentencing in exchange for their testimony” and “ as cross-examined extensively
about that consideration.” R. 695, Opinion and Order at 6, Pg ID 3485. The court distinguished
this case from the situation presented in Bell, 512 F.3d at 232–33, where the alleged

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consideration was undisputedly not disclosed by the prosecution. The court thus implicitly
determined that there was no need to expand the evidentiary hearing and entertain additional
testimony regarding specific representations that may have been made to witnesses concerning
the extent of assistance the prosecution intended to provide in exchange for their testimony.
Indeed, any evidence clarifying the nature of promises or assurances made would appear
to be “merely cumulative” and therefore not “material” for Brady purposes. Brooks, 626 F.3d at
893. This is precisely the conclusion reached in Jefferson v. United States, 730 F.3d 537 (6th
Cir. 2013), where we addressed substantially identical Brady claims (involving many of the same
witnesses) by one of Stines’ co-defendants, Kenneth Jefferson. As we observed in Jefferson,
“ here the undisclosed evidence merely furnishes an additional basis on

hich to challenge a

witness whose credibility has already been shown to be questionable or who is subject to
extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and
hence not material.” Id. at 550 (quoting Byrd v. Collins, 209 F.3d 486, 518 (6th Cir. 2000)). See
also Akrawi v. Booker, 572 F.3d 252, 264 (6th Cir. 2009) (holding that, where the jury heard
substantial evidence of the potential for a charge-reduction deal, but a mutual understanding
remained undisclosed, the possibility that disclosure of that understanding might have made
cross-examination incrementally more effective was insufficient to establish prejudice for Brady
purposes).
In Jefferson, we considered very similar allegations that the prosecution failed to disclose
evidence of tacit agreements that AUSA Convertino had reached with many of the same
cooperating witnesses discussed in Stines’ § 2255 motion. We acknowledged that evidence that
witnesses were offered even more favorable deals than was disclosed could have been used to
more effectively discredit their testimony and was therefore favorable to the defendant,

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satisfying the first prong of the Brady rule. Jefferson, 730 F.3d at 550. Insofar as evidence of
more favorable deals existed and was not disclosed, we held that the prosecution had
“suppressed” hat it

as obliged to disclose, thus satisfying the second prong of the Brady rule.

Id. As to the third prong, however, we held, in relation to five of the same witnesses whose
testimony is implicated in this case (i.e., Rasul Warren, Tali Alexander, Reese Palmer, Labron
Nunn and Eva Taylor), that the requisite sho ing of “materiality” or prejudice

as lacking. Id.

at 551–53.
We noted that the mere fact that the witnesses later received favorable sentencing or
prosecution treatment “is not evidence that a deal existed prior to their testimony at trial.” Id. at
552 (quoting Williams v. Coyle, 260 F.3d 684, 707 (6th Cir. 2001)). Further, a “ itness’s
expectation of a future benefit is not determinative of the question of whether a tacit agreement
subject to disclosure existed.” Bell, 512 F.3d at 233.

“The government is free to re ard

witnesses for their cooperation with favorable treatment in pending criminal cases without
disclosing to the defendant its intention to do so, provided that it does not promise anything to
the

itnesses prior to their testimony.” Id. at 234 (quoting Shabazz v. Artuz, 336 F.3d 154, 165

(2d Cir. 2003)). It follows that although the prosecution is obliged to disclose promises that have
been made to witnesses to induce their cooperation, prosecutors retain discretion to further
reward witnesses after their cooperation, so long as the further reward was not promised before
their testimony.
But even assuming impeachment evidence was improperly suppressed, we noted in
Jefferson that all of the above five witnesses were cross-examined regarding their deals with the
government resulting in favorable treatment.

The jury had thus been made aware of the

incentives each witness had to testify in a manner favorable to the prosecution. Hence, we

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concluded that the additional impeachment evidence ould not have “put the hole case in such
a different light as to undermine confidence in the verdict.” Jefferson, 730 F.3d at 553 (quoting
Kyles v. Whitley, 514 U.S. 419, 435 (1995)).
Stines is not oblivious to our ruling in Jefferson or its significance to his case. He
contends that Jefferson is distinguishable. Here, he argues, beyond the pervasive evidence of
Convertino’s disregard of his Brady obligations,

e have Rasul Warren’s s orn testimony that

Convertino also encouraged and allowed him to give false testimony regarding the quantity of
drugs Stines was responsible for. This, in combination with circumstantial evidence that Warren
and other witnesses ultimately received more favorable treatment than they said they had been
offered, is said to justify re-sentencing or at least a full evidentiary inquiry.
Stines’ argument, attempting to distinguish this case from Jefferson, might gain traction
but for the district court’s finding that Warren’s changed testimony was “inherently incredible.”
As explained above, this finding is not clearly erroneous.3 Hence, we are left with a similar array
of cooperating witnesses who received even more favorable treatment than they stated they had
expected in exchange for their cooperation.

In addition to the five cooperating witnesses

3

Stines insists that even if he has failed to sho clear error in the district court’s
assessment of Warren’s credibility, e should find a “legal error of process” in that the court
failed to explain the impact of the “Schools Memorandum” on the credibility assessment. The
Schools Memorandum is a document submitted to the district court and disclosed to defense
counsel under a protective order. As explained in Jefferson, 730 F.3d at 542, the Schools
Memorandum summarizes the results of an internal investigation, conducted by the United States
ttorney’s Office, of suspected misconduct by US Convertino in this and other cases.
Ostensibly, the district court refrained from mentioning it because it was subject to a
protective order prohibiting disclosure of its contents. As indicated in Jefferson, the report
“suggests there is evidence” of improper conduct by Convertino in relation to cooperating
witnesses. The focus of the report is not on the validity of Stines’ conviction or sentence.
Rather, the report addresses hether Convertino’s actions in seeking sentence reductions and
downward departures were without supervisory approval. Upon review of its contents, we find
no basis to disturb the district court’s ruling on Stines’ § 2255 motion. In regard specifically to
Warren’s credibility, e note that the report gives as many reasons to disbelieve or doubt
Warren’s ne testimony as to credit it.
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mentioned above, whose testimony was used by the prosecution against both Jefferson and
Stines, Stines relies on the testimony of six other witnesses, Hans Thomas, Athaiah Reed, Walter
Phelps, Carl Burton, Elwood Shemwell, and Oscar Little. Stines contends that the favorable
treatment they ultimately received represents circumstantial evidence that AUSA Convertino
promised or intended to help the witnesses more than they acknowledged when cross-examined
at trial on the nature of their cooperation agreements. Such promises or intentions, he argues,
ought to have been disclosed as Brady material.
Yet again, as we held in Jefferson, evidence that a cooperating witness subsequently
received favorable treatment, in and of itself, is not conclusive evidence of a pre-existing
promise or assurance of such treatment that would be subject to Brady’s disclosure requirements.
And even if such evidence might be considered worthy of further inquiry, it is apparent, for the
reasons explained in Jefferson, that any evidence of a pre-existing agreement that should have
been disclosed would not satisfy the prejudice requirement under the Brady rule because, as our
review of the record confirms, each of these additional witnesses, like those addressed in
Jefferson, was subject to impeachment based on his or her agreement to cooperate with the
prosecution. Evidence of additional bases on which to question their credibility would have been
cumulative and is therefore not “material” for Brady purposes. This is true, notwithstanding
evidence that Convertino’s misconduct as not inadvertent but deliberate, because “the bad faith
of the prosecutor does not impact our Brady analysis.” Jefferson, 730 F.3d at 554 (“If the
suppression of evidence results in constitutional error, it is because of the character of the
evidence, not the character of the prosecutor.” (quoting United States v. Agurs, 427 U.S. 97, 110
(1976))).

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Stines has failed to demonstrate that any of the cooperating witnesses who might have
been called to testify in an expanded evidentiary hearing are situated any differently from those
who were considered in Jefferson. Stines has presented no grounds for holding that disclosure of
the additional impeachment evidence

even assuming cooperating

Stines expected

hole case in such a different light as to undermine our

ould have put the

itnesses

ere to testify as

confidence in the outcome. Hence, e find no abuse of discretion in the district court’s failure to
expand the evidentiary hearing before denying Stines’ motion for relief under § 2255.
III
Accordingly, consistent with the analysis set forth in Jefferson, we find no error in the
district court’s denial of Stines’ motion to vacate sentence under 28 U.S.C. § 2255. The ruling of
the district court is therefore AFFIRMED.

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