Russell v. United States of America

Filing 18

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 2/9/2016. (PSM)

FILED
2016 Feb-09 PM 04:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
ROBERT RUSSELL,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
) 3:13-cv-08007-LSC-JHE
) (3:11-cr-00011-LSC-JHE-4)
)
)
)

MEMORANDUM OF OPINION
Robert Russell (“Russell” or “Movant”) has moved pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his conviction and sentence. (CV, doc. 1;
CR, doc. 129). 1 Upon due consideration, the remaining claims in Russell’s § 2255
motion are due to be denied.
I. Procedural History 2 and Background
On February 3, 2011, Russell was indicted on five counts of a nineteen count
indictment. Russell was indicted on two counts of mail fraud, 18 U.S.C. § 1341,
one count of conspiracy to commit mail fraud, 18 U.S.C. § 1349, and two counts of
aggravated identity theft, 18 U.S.C. § 1028A. The indictment proceeded to trial,
1

Unless otherwise designated “CR,” all subsequent citations will be to document
numbers as assigned by the Court’s electronic filing system in the civil habeas case.
2

See generally, United States v. Robert Russell, 3:11-cr-00011-LSC-JHE-4.
1

and, on September 8, 2011, a jury found Russell guilty on one count of mail fraud
and one count of conspiracy to commit mail fraud. The government dismissed the
remaining charges when the jury was unable to reach a verdict as to them. At a
sentencing hearing on December 8, 2011, Russell was sentenced to 87 months
confinement on both counts to run concurrently. 3 Judgment was entered on
December 9, 2011.
Russell directly appealed to the Eleventh Circuit Court of Appeals on
December 9, 2011. On appeal, Russell argued the trial evidence was insufficient
because it did not demonstrate that he showed his alleged co-conspirators how to
fraudulently order drugs over the internet, that there was an agreement to carry out
a fraudulent scheme, that he intended online pharmacies to suffer losses, or that he
sent false or misleading information to pharmacies to obtain drugs. See United
States v. Russell, 501 F. App’x 860 (11th Cir. 2012) (per curiam). In reviewing the
evidence presented at trial, the Eleventh Circuit explained as follows:
Count 13 of the indictment alleged that Alfred Shawn Johnson,
Kristi Fraley, Marcus Oakley, Russell, and others conspired to commit
mail fraud. To begin, Oakley and Johnson testified about how they
became involved through Russell in the scheme to defraud by ordering
prescription drugs over the internet. Oakley described how he would
provide Russell with his identification information and an old medical
record, and they would order the pills and then split them. Oakley
also described his own operation, in which he ordered prescription
On November 9, 2015, Russell filed an unopposed motion to reduce his sentence from
87 months to 71 months based on 18 U.S.C. § 3582 and USSG Amendment 782. (CR, doc. 132).
3

2

drugs for third parties using altered medical records, and explained
that he learned how to order prescription drugs online from Russell
and that his operation was “similar to” Russell’s operation.
The evidence further showed the fraudulent nature of Russell’s
scheme and the misrepresentations used to deceive the online
pharmacies and obtain drugs. Oakley explained that he witnessed
Russell ordering pills online using the names of third parties on
multiple occasions, and he witnessed Russell using the identification
of third parties to facilitate this activity. After the orders were placed,
he and Russell would pose as the persons in whose name the pills were
ordered. Oakley altered medical records and when asked if Russell did
this, said that “we all done it.” Although the pills were ordered in a
particular person’s name, Johnson and Oakley each sold some of the
pills that they obtained, and Russell also sold some of the pills. In
addition, the physical evidence presented--including pill bottles found
in the truck and at the residence of Russell, and copies of driver’s
licenses of third parties and medical records of third parties found
both in Johnson’s and in Russell’s residences--further supported the
existence of their scheme to defraud. . . . .
The evidence also showed an agreement among Oakley,
Russell, and Johnson to carry out the scheme to defraud, and Russell’s
knowing and willful participation in the scheme. Oakley and Johnson
each initially worked directly with Russell to order prescription drugs
over the internet. Oakley used Russell’s computer and fax machine to
place his order and the two ordered pills together several times. Even
after Oakley began ordering pills over the internet on his own, he and
Russell “still talked to each other,” and Oakley said that if he “needed
money I would go get it from Bobby [Russell], get my orders.”
Johnson said that in order to become involved in the scheme, he had to
“buy my way in” and make his first few orders with either Oakley or
Russell.
Moreover, the parties shared significant information in carrying
out the scheme. Oakley and Russell shared websites where drugs
could be ordered. Johnson and Russell shared medical records, some
of which had been altered. Johnson allowed Russell to have access to
3

identification cards and driver’s licenses that were at Johnson’s
residence. This sharing of information was further supposed by
physical evidence, which included copies of Oakley’s identification
information that had been found in the search of Russell’s residence;
copies of Russell’s identification information and medical records that
had been found in the search of Johnson’s residence; and similar
paperwork for a third party, Brandon Gene Prestridge, that had been
found in both Russell’s and Johnson’s residences.
The evidence also showed that Russell knowingly and willfully
participated in the scheme. For example, Russell told Oakley he could
get pills in Ken McDonald’s name because he had copies of his
driver’s license and social security card. Physical evidence consisting
of a pill bottle label with McDonald’s name, copies of his
identification, and his medical records, were found in the search of
Russell’s residence. Although other pills were ordered in Johnson’s
name, not in Russell’s name, Russell took half of these pills as
payment.
As for the substantive mail fraud count, the evidence showed
that Russell and Johnson defrauded an online pharmacy in Ocala,
Florida, by ordering drugs in Carla Pigg’s name. Oakley testified that
Carla Pigg gave him her driver’s license, but he said that he did not
order pills for Pigg. Rather, as we’ve detailed, the parties to the
scheme significantly shared information. So, for instance, Oakley
shared his customer identifications with Russell, and Oakley and
Johnson also shared medical records. A cover sheet was found in
Johnson’s residence that contained Carla Pigg’s email address and
password. Johnson admitted that he wrote the cover sheet and that he
would have used it to order drugs over the internet. Copies of Pigg’s
driver’s license and medical records were also found in Johnson’s
residence. Johnson and Russell shared records and Johnson allowed
Russell access to identification cards and copies of driver’s licenses at
his residence. In addition, a January 2009 search of the truck that
Russell was driving yielded a pill bottle labeled in Carla Pigg’s name
for hydrocodone, which was from Sunshine Drugs in Ocala, Florida.
Furthermore, Russell denied knowing Pigg and claimed he had never
seen her identification information, adding support that the pill bottle
4

in her name was obtained fraudulently. In considering this evidence
together, a reasonable juror could infer and conclude that Russell and
Johnson had defrauded an online pharmacy in Ocala, Florida, by
ordering drugs in Pigg’s name.
Id. at 862-64. On December 12, 2012, the Eleventh Circuit affirmed Russell’s
convictions. See id.
On March 21, 2013, Russell filed this § 2255 motion. (Doc. 1). On March
27, 2013, the magistrate judge to whom this case was previously assigned entered a
show cause order requiring the government to respond to claims 1, 2, and 4. (Doc.
6).

On April 1, 2013, the Court entered a memorandum opinion and order

dismissing claim 3, which alleged abuse of judicial discretion/excessive sentence, as
procedurally defaulted. (Docs. 7 & 8).
In response to the previously entered show cause order, on April 16, 2013,
Respondents filed a motion to dismiss claims 1, 2, and 4 (Russell’s remaining
claims) without an evidentiary hearing. (Doc. 9). On April 25, 2013, the magistrate
judge to whom this case was previously assigned entered an order informing
Russell of his right to file affidavits and/or other documents in opposition to
Respondent’s motion. (Doc. 10). Russell filed a rebuttal to the government’s
motion to dismiss. (Docs. 12 & 14).
II. Claims

5

Russell’s remaining claims raise three general issues: (1) seven separate
claims for ineffective assistance of counsel; (2) prosecutorial misconduct; and (3)
actual innocence.
III. Analysis
Respondent argues all of Russell’s remaining claims should be dismissed
without a hearing. (Doc. 9 at 3). An evidentiary hearing is not required if “the
motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). “A hearing is not required on patently
frivolous claims or those which are based on unsupported generalizations. Nor is a
hearing required where the petitioner’s allegations are affirmatively contradicted
by the record.” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989).
A. Ineffective Assistance of Counsel
The seminal case articulating the standard to evaluate the effectiveness of
counsel is Strickland v. Washington, 466 U.S. 668 (1984).

In Strickland, the

Supreme Court established a two-prong test to determine whether counsel
provided effective assistance. The movant must show (1) his attorney’s
performance was deficient (“performance prong”) and (2) the deficient
performance prejudiced him (“prejudice prong”). When judging whether the
attorney’s performance was deficient, the movant must show that the attorney’s

6

representation fell below an objective standard of reasonableness, while giving a
strong presumption that counsel’s conduct was appropriate. As to the prejudice
prong, the movant must show that the outcome of the proceeding would have been
different but for the attorney’s errors. Id. at 687-96.
1. Failure to Suppress/Discredit Evidence – Pill Bottle (Label) in Name of
Carla Pigg Recovered From Russell’s Truck on January 20, 2009 and
Presentation of 10 or 15 Partially-filled Pill Bottles in Court
Russell contends his attorney’s performance was deficient because he did
not object to or discredit certain testimony provided by Agent Tim Glover of the
Lauderdale County Task Force. (Doc. 2 at 6-7). Specifically, Russell contends
Agent Glover committed perjury when he testified that a pill bottle with Carla
Pigg’s name on it was found during the search of the truck Russell was driving on
January, 20, 2009, and when he testified that 10-15 partially-filled bottles of pills
presented at trial were found in Russell’s home during the February 2, 2009,
search. (Doc. 2 at 6-7). Russell states that, during the trial, he told his attorney
about evidence that would show Agent Glover was lying, but that his attorney said
“I can’t do that” and instead his attorney asked Agent Glover if he might have
gotten the evidence from the searches mixed up. (Doc. 2 at 7). According to
Russell, Agent Glover testified that there was no way he could have mixed up the
evidence because Russell’s search was a state search and Oakley’s search was

7

federal. (Id.). Russell points to two pieces of evidence in support of his argument:
(1) a file memorandum drafted by Agent Glover regarding his investigation
outlining what was found during each search, (doc. 4 at 8-9), and (2) the complaint
in support of his arrest warrant with the evidence against Russell, (doc. 4 at 10).
Agent Glover’s memo states, in pertinent part, as follows:
On 2/2/2009, Agents of the Lauderdale County Drug Task
Force executed a search warrant at [address]. This was the residence
of ROBERT TAYLOR RUSSELL. ROBERT TAYLOR RUSSELL
was present and alone at the residence during the search. During the
execution of the search warrant agents located and seized an unlabeled
pill bottle that contained what is believed to be Hydrocodone. . . .
...
As part of my investigation of ROBERT TAYLOR RUSSELL, I
learned that ROBERT TAYLOR RUSSELL was stopped by Alabama
State Trooper Scott Simpson on 10/13/2008, and was found to be in
possession of 2 (two) pill bottles, both contained prescription
controlled substances. 1 (one) of the pill bottles was labeled to
Kenneth McDonald for Alprazolam but contained Soma and
Hydrocodone. The other pill bottle contained Morphine and was also
labeled to Kenneth McDonald.
On 1/20/2009, Alabama State Trooper Scott Simpson stopped
ROBERT TAYLOR RUSSELL again and found him to be in
possession of 2 (two) empty pill bottles that were in a name other than
ROBERT TAYLOR RUSSELL.
Armed with this information, I obtained a search warrant for the
vehicle ROBERT TAYLOR RUSSELL was driving on 1/20/2009.
This vehicle was impounded by Trooper Simpson and was stored at
Cox Towing in Killen Alabama. During the search of this vehicle,
agents located empty pill bottles and prescription receipts in the name
8

of Ernest Wilkerson, Robert Long, Anthony Hines and Kenneth
McDonald.
During the search of [address] on 2/2/2009, agents located
numerous pill bottles labeled to ROBERT TAYLOR RUSSELL. The
pill bottle that contained Hydrocodone had no label. I believe the
Hydrocodone in this pill bottle belonged to someone other than
ROBERT TAYLOR RUSSELL.
(Doc. 4 at 8-9). Russell also points to the complaint in support of his arrest warrant
in Lauderdale County, which states, in part, “ROBERT TAYLOR RUSSELL DID
ON

2/2/2009

POSSESS

THE

CONTROLLED

SUBSTANCE

HYDROCODONE IN A BOTTLE THAT DID NOT HAVE A LABEL.” (Doc.
4 at 10). The complaint further states that Russell possessed controlled substances
in the names of several other individuals, but none were Carla Pigg. (Id.). As to the
prejudice prong, Russell argues if his counsel would have done a proper pretrial
investigation and had this information, he could have shown Agent Glover was not
telling the truth and this would have changed the outcome of the trial. (Doc. 2 at
7).
In response, the government contends that the evidence in question,
(government exhibit #6, doc. 9-1), was a pill bottle label, not a pill bottle, and that
there was nothing for counsel to object to because it was found as the result of a
validly-executed search warrant of Russell’s vehicle. (Doc. 9 at 4-5; see doc. 9-1
(the Carla Pigg pill bottle label exhibit)).
9

The record reveals that at trial, the government called Agent Glover to
testify. (CR, doc. 122 at 1). He testified that in 2008, the task force executed a
search warrant on Johnson and Fraley’s residence and that some of the evidence
recovered led to a larger, subsequent investigation. (Id. at 3). He further testified
that, at some point during that larger investigation, he developed information on
Russell, which led to a search on January 20, 2009, of the truck Russell drove,
where authorities found items that supported his investigation during that search.
(Id.).

The government then introduced six exhibits, to which Agent Glover

testified each was found in the January 20, 2009 search of the truck Russell was
driving.

Specifically, they were: (1) an empty pill bottle labeled to Earnest

Wilkerson for diazepam ten milligrams, 32 count, (id. at 4-5); (2) an empty bill
bottle labeled to Robert Long for hydrocodone ten milligrams, 90 tablets, (id.at 56); (3) a pill bottle labeled to Robert Long for Aprazolam (Xanax), one milligram,
30 tables, (id. at 6-7); (4) paperwork, i.e., a copy of the label that is on the pill bottle
in exhibit #3 that the pharmacy gives you when you receive a prescription, (id. at
8); (5) a pill bottled labeled to Kenneth McDonald for Alprazolam two milligrams,
90 count, (id. at 8-9); and (6) a pill bottle label in the name of Carla Pigg from
Sunshine Drugs in Ocala, Florida, for Hydrocodone, ten milligrams, (id. at 9-10).
Q: Show you what’s been marked as government’s exhibit number six.
Do you recognize that?
10

A: Yes, sir, I do.
Q: How do you recognize it?
A: It is a label that it appeared to be torn off a pill bottle that was found
inside Mr. Russell’s truck.
Q: Did you take custody of it at that time?
A: Yes, sir, we did.
Q: Is it in the same or substantially same condition today as when you
first became into possession of it?
A: Yes, sir.
(Id. at 9). At this point, the government moved to admit exhibit #6, which the
court admitted with no objection from defense counsel. (Id. at 9-10).
Q: Specifically, what is exhibit number six?
A: It is a pill bottle label from sunshine drugs in Ocala, Florida, in the
name of Carla Pigg [] for hydrocodone, ten milligram.
(Id. at 10).
Russell argues that authorities did not find the Carla Pigg pill bottle label 4
during the January 20, 2009 truck search, providing Agent Glover’s file memo and
complaint in support of arrest warrant as evidence. The government’s exhibit list
provided prior to trial lists descriptions for exhibits 1 through 5 and states “Search
Russell argues the exhibit was a pill bottle but admits it makes no difference to his
argument whether it was the labeled pill bottle or merely the label. (Doc. 12 at 2-3).
4

11

Warrant – Russell truck.” (CR, doc. 73 at 1-2). For exhibit 6, the list states “Carla
Pigg – prescription label – Hydrocodone” but provides no indication where the
government obtained this evidence. (Id. at 2).
Agent Glover testified that, after the search of Russell’s residence on
February 2, 2009, Agent Joe Hearn was responsible for compiling a list of the
evidence seized. (CR, doc. 122 at 46-47). Agent Glover further testified that Agent
Hearn did not determine or segregate what was found in the truck parked in the
driveway versus what was found inside the residence. (Id. at 47). Instead, Agent
Hearn listed “assorted paperwork” and did not specify whether it was found in the
residence or the truck, but was all referred to as “Bobby Russell Residence Search
Warrant.” (Id. at 47-48).
Even assuming that Russell’s counsel should have used the file memo and
complaint to try to impeach Agent Glover’s testimony, Russell has not
demonstrated this would have changed the outcome of his trial. See Strickland, 466
U.S. at 687-96 (discussing the prejudice prong). At most, it appears this evidence
would show that the Carla Pigg pill bottle label could have been found in the truck
on February 2, 2009, or in Russell’s residence that same day. At trial, the jury
heard Agent Glover’s testimony regarding the search of the truck and Russell’s
residence, testimony that Oakley had access to the truck and that the label could

12

have been his, as well as evidence regarding Oakley’s March 30, 2009 interview
where he identified his “customers” and the orders placed in their names,
including “Carla Pigg – One order per month,” (doc. 4 at 14), but where he denied
placing this order. In the same interview, Oakley stated that Russell continued to
order drugs, but used his own “customers,” who were primarily Whitney Keith
Tate, Anthony Hines, and Ken McDonald. (Id.). There was also substantial
evidence that the co-defendants shared information regarding customers. Based on
all of this, the jury found Russell guilty of one count of mail fraud. Crossexamination of Agent Glover based on the two documents Russell offers would not
have changed this outcome.
As to Russell’s argument about the “10 or 15 partially-filled bottles of pills,”
he fails to demonstrate how this prejudiced him. Accordingly, this claim is due to
be denied.
2.

Failure to Call Todd Johnson, Tim Crews, and Nick McFall as
Witnesses for the Defense

Russell contends his attorney failed to call Todd Johnson, Tim Crews, and
Nick McFall as witnesses for the defense. (Doc. 2 at 8-9). The decision to call (or
not to call) potential witnesses is a strategic trial decision left up to trial counsel,
and one which is ordinarily insulated from scrutiny under Strickland. See 466 U.S.
at 689-90.
13

Russell’s claim fails because a reasonable attorney could have concluded that
these potential witnesses could have done more harm than good to Russell’s
defense. 5 Tim Crews and Nick McFall were defendants in the parallel case brought
by the Lauderdale County District Attorney’s Office. Both men had given
statements to law enforcement admitting their involvement in the overarching
scheme as to co-defendants Oakley and (Alfred Shawn) Johnson. (Doc. 4 at 15 &
16). Neither provided any information (one way or another) as to Russell. (Id.).
Had they been called to testify by the defense, any testimony as to Oakley or
Johnson’s criminal behavior would have been merely cumulative as both Oakley
and Johnson pleaded guilty to the scheme and testified to their illegal behavior at
trial.
As to Todd Johnson, Russell specifically contends that he would have
testified that Alfred Shawn Johnson was already ordering pills online in 2004, three
years before Alfred Shawn Johnson testified that Russell showed him how to do it
in 2007. (Doc. 12 at 4; doc. 4 at 12). Russell contends that, on the day of trial, he
showed his attorney Todd Johnson’s statement to this effect, and his attorney said
“if you’s [sic] shown me this earlier I would have called him to be a witness.”
(Doc. 12 at 4). Russell contends he told his counsel that he had already shown him
The reasonableness of a strategy is a question of law to be decided by the court, not a
matter subject to factual inquiry and evidentiary proof. Provenzano v. Singletary, 148 F.2d 1327,
1332 (11th Cir. 1998).
5

14

the statement in June 2011, at Morgan County Jail, but his counsel said he did not
remember it. (Id.) Even assuming this exchange is true and Russell’s counsel said
these things, it is clear from Todd Johnson’s statement he had a criminal record
and may have been involved in the scheme, making him easily impeachable. (See
doc. 4 at 12). More importantly, Todd Johnson’s statement contradicts the trial
testimony provided by government witnesses, (see CR, doc. 121 at 43), so a
reasonable attorney could have concluded that calling Todd Johnson to the stand
and having the jury conclude he was lying was not in the best interest of the
defendant.6 The decision not to call these witnesses was squarely within defense
counsel’s purview and was a reasonable option, hence there was no Strickland
violation.
3 & 4.

Failure to Conduct a Thorough Investigation (Truck Title
and Internet Service)

Russell claims his counsel was ineffective because he failed to conduct a
thorough investigation; specifically, that counsel should have investigated whether
or not the truck Russell was driving was titled in his name and whether or not he
Indeed, Russell’s trial counsel has submitted an affidavit in response to Russell’s motion
to vacate in which he states that he did not call these witnesses because he did not believe these
witnesses would have been helpful to the defense. (Doc. 9-2). He states that, “[d]uring the
course of my trial preparation, the Defendant gave me the names of potential defense witnesses.
I learned during my investigation that most of them were cooperating co-defendants, or had
potentially inculpatory information about the Defendant’s involvement.” (Id. at 1). He further
explained that he determined that Nick McFall was hiding to avoid service, and Russell could not
say with certainty what McFall would say other than not naming Russell when he was
interviewed by police earlier in the investigation. (Id. at 2).
6

15

had internet service at the time of the crime. (Doc. 2 at 10). Russell’s counsel
knew that the truck’s title was not in Russell’s name, but was in the name of Misty
Oakley (wife of co-defendant/co-conspirator Marcus Oakley). This fact came out
at trial, when defense counsel used this information during the cross-examination
of Agent Tim Glover as to the search of the vehicle and its relationship to Russell.
(See CR doc. 122 at 111). Furthermore, defense counsel questioned Agent Glover
on the fact that no computer or fax machine was found in Russell’s home during
the search. (See CR doc. 122 at 111-12). Any further information regarding
whether Russell had internet service would have been cumulative. Counsel’s
performance was not deficient under Strickland in this regard.
5. Failure to Move to Exclude Government Exhibits 1 Through 36
Russell contends his counsel was ineffective for failing to move to exclude
government exhibits 1 through 36, because the exhibits had not been provided
before trial. (Doc. 2 at 11). In support of his allegation that his attorney did not
know about these exhibits beforehand, Russell contends that his attorney told him a
month before trial that the government had no evidence at all against him and he
was going to get him an acquittal. (Doc. 12 at 6). Then, Russell further contends,
one week before trial he talked to his lawyer on the phone and he still said the
government had no evidence against him. (Id.) As an initial matter, assuming

16

Russell’s counsel made these statements, these statements are ambiguous as to
whether they mean no evidence or insufficient evidence to convict Russell.
Secondly, again assuming the statements are true, the statements are not
inconsistent with the timeline showing that Russell’s co-defendants, who provided
a substantial portion of the evidence against Russell, entered plea agreements a
week and two weeks before trial. (See CR, docs. 59 & 70).
In contrast to Russell’s allegations, Russell’s counsel has stated in his
affidavit submitted in these proceedings that he “received timely discovery from
the United States Attorney, and had ample time and opportunity to review and
search the issues presented by the evidence.” (Doc. 9-2 at 1). Ordinarily, a district
court in a § 2255 proceeding may not decide a disputed factual issue by relying on
the petitioner’s defense counsel’s affidavit over the petitioner’s statement, and
must instead decide those types of disputed factual issues by conducting an
evidentiary hearing. See Alvarez-Sanchez v. United States, 350 F. App’x 421, 423
(11th Cir. 2009) (citing Owens v. United States, 551 F.2d 1053, 1054 (5th Cir. 1977)).
However, an exception to this rule exists when other record evidence corroborates
the defense counsel’s statement. See id. (citing id; see also Jordan v. Estelle, 594
F.2d 144, 145-46 (5th Cir. 1979) (holding that the district court erred in denying a §
2254 petition because it had improperly resolved a disputed factual issue based

17

solely on an affidavit filed by the petitioner’s attorney, and there was no record
evidence that corroborated the attorney’s affidavit); Montgomery v. United States,
469 F.2d 148, 150 (5th Cir. 1972) (holding that “contested fact[ual] issues in § 2255
cases must be decided on the basis of an evidentiary hearing, not affidavits”). Here,
this Court need not and does not rely solely on defense counsel’s affidavit because
defense counsel’s statement in his affidavit is supported by ample undisputed
record evidence that he had indeed been provided with the exhibits in question
prior to trial.
The record plainly contradicts Russell’s allegations that his defense counsel
was not provided with exhibits 1 through 36 prior to trial. First, the government
filed its exhibit list prior to trial listing out descriptions of all of these exhibits. (CR,
doc. 62 (exhibit list), doc. 73 (amended exhibit list)). Importantly, Russell’s defense
counsel then filed a motion in limine seeking to exclude certain evidence in which
he acknowledged that he had received the government’s exhibit list and
acknowledged that the government would be presenting several items of physical
evidence at trial. (Doc. 67.) Then, on the first day of trial, during a recess and
outside the presence of the jury, the Court addressed both counsel for the
government and counsel for Russell and asked them to go through all of the exhibits
and attempt to agree on which ones could come in to avoid the necessity of having a

18

witness identify each one. (CR, doc. 121 at 62.) Counsel for the parties then did this
during the recess. This exchange occurred before the exhibits in question were
introduced to the jury, and it indicates defense counsel’s knowledge of the exhibits.
Russell cites several instances where his counsel asked what an exhibit was before it
was presented to the jury. (See, e.g., CR, doc. 122 at 21-22). However, all the
transcript shows is that Russell’s counsel did not know which documents were
being presented in what order, certainly not that he had not seen them before.
Additionally, Russell’s counsel did, in fact, object to the admission of certain
photographs taken at Russell’s home during the search warrant on the grounds that
they were not presented before trial. (Doc. 122 at 11). The Court overruled the
objection, stating that though the photographs themselves were not provided,
defense counsel was aware of the date, location, and results of the search, therefore
the defendant was not prejudiced by not having the photographs earlier.
Accordingly, Russell’s counsel’s failure to make the objection was not
deficient performance under Strickland.
6.

Failure to Impeach/Discredit Testimony of Marcus Oakley and
Agent Tim Glover

Russell contends his counsel was ineffective because he did not impeach or
otherwise discredit testimony of government witnesses Marcus Oakley and Agent
Tim Glover. (Doc. 2 at 12-13). Specifically, Russell argues his counsel should have
19

impeached Oakley’s testimony that he did not order pills in Carla Pigg’s name with
Oakley’s March 30, 2009 interview with Special Agent Kuykendall (U.S.
Marshalls) where he identified his “customers” and the orders placed in their
names and included “Carla Pigg – One order per month.” (Doc. 2 at 12 (citing
doc. 4 at 14)). Russell states that if the jury had been aware that Oakley admitted to
ordering in Carla Pigg’s name once a month, the jury would have determined that
there was at least a reasonable doubt as to Russell’s guilt.
At trial, Oakley testified under oath that he knew Carla Pigg, that she was a
friend he had known much of his life, but further testified he did not order pills for
Carla Pigg. (Doc. 121 at 39). While Agent Kuykendall’s report said something
different, a witness cannot be impeached by someone else’s statement.
Additionally, defense counsel did ask Oakley about his interview with Agent
Kuykendall, asking if he answered his questions truthfully, to which he said he did.
(Doc. 121 at 34.) Russell’s counsel did not act unreasonably in failing to further
pursue that line of inquiry.
Second, Russell argues that during the cross-examination of Agent Glover,
defense counsel failed to point out that the pill bottle label with Carla Pigg’s name
on it was dated October 28, 2008, and Russell borrowed the truck on December 25,
2008. (Doc. 2 at 13). Russell contends that this would have shown that the label

20

was probably in the truck before he borrowed it.

(Id.)

However, the date

“10/27/08” was readily apparent from the exhibit, (doc. 9-1), and thus known to
the jury.
7.

Failure to Challenge Conclusions in the Pre-Sentence Report

Russell contends his counsel was ineffective for failing to challenge certain
conclusions in the pre-sentence report, specifically regarding the quantity of the
orders and his leadership role. (Doc. 2 at 13). Defense counsel filed objections to
the pre-sentence report on November 30, 2011, and raised both of these arguments.
(CR, doc. 100). There is no Strickland violation here.
B. Prosecutorial Misconduct/Denied Fair Trial
Russell’s second claim is for prosecutorial misconduct and that he was
denied a fair trial based on the presentation of false evidence and false testimony.
(See doc. 2 at 14-18; doc. 12 at 8-9). Generally, a defendant must assert an available
challenge to a sentence on direct appeal or be barred from raising the challenge in a
§ 2255 motion. Green v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989), cert.
denied 494 U.S. 1018 (1990). Of course, if the challenge was not available to the
defendant at the time of the direct appeal, the defendant would not be procedurally
barred from presenting the issue in a § 2255 proceeding, providing the issue is
within the narrow range of issues reviewable under § 2255. Id. (citations omitted).

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A movant can avoid this procedural bar only by showing both cause for the failure
to raise the claim on direct appeal and actual prejudice arising from the failure. Id.
(citing Parks v. United States, 832 F.2d 1244, 1245 (11th Cir. 1987)). Russell did not
raise any claims for prosecutorial misconduct on direct appeal. See United States v.
Russell, Case No. 11-15794 (11th Cir. 2012). Russell argues this failure was because
he “only came into this evidence of prosecutorial misconduct after the trial so it is
properly admitted in [his] motion 2255.” (Doc. 12 at 9). This argument fails. For
Russell’s argument to work, the Court has to believe that he was unaware that the
testimony and evidence presented against him at trial was false. Because the
evidence at trial related to allegations against Russell, he would have known at the
time the evidence was presented that it was false. Thus, this challenge was
available to Russell on direct appeal, and he has presented nothing to excuse his
default.
Furthermore, even if this claim were not procedurally defaulted, it is due to
be denied. Even assuming government witnesses committing perjury in testifying
against Russell, as Russell conclusorily claims, Russell presents no evidence that
the government knew the testimony was false. 9 When dealing with the unwitting
use of perjured testimony, most circuit courts employ the “probability standard”
Russell has presented no evidence to suggest any of the testimony of the government
witnesses was perjured.
9

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and only grant relief when the discovery of the perjured testimony “probably” or
“likely” would lead to acquittal. United States v. Torres, 128 F.3d 38, 29 (2d Cir.
1997), United States v. Sinclair, 109 F.3d 1527, 1528 (10th Cir. 1997), United States
v. Tierney, 947 F.2d 854 860-61 (8th Cir. 1991), United States v. Krasny, 607 F.2d
840, 844-45 (9th Cir. 1979), United States v. Huddleston, 194 F.3d 214, 216 (1st Cir.
1999).
Although Russell conclusorily claims that “had the perjured testimony not
been presented in court he would have been acquitted on all charges,” (doc. 12 at
8), the trial consisted of voluminous testimony and physical evidence to prove his
guilt. Co-conspirators took the stand and testified against Russell. Even if it had
come out at trial that Oakley did buy pills for Carla Pigg, in contradiction to his
sworn trial testimony, there is overwhelming evidence of Russell’s guilt. The
undersigned cannot conclude that it is more probable than not that Russell would
be acquitted on retrial absent the claimed “false testimony.” As to the alleged
discovery violations, those are addressed supra in the subsection on Russell’s fifth
claim of ineffective assistance of counsel.
C. Actual Innocence
Finally, Russell claims his sentence should be vacated because he is actually
innocent. (Doc. 2 at 18-20; doc. 12 at 9-11). Actual innocence generally requires an

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offer of new evidence not presented at trial that is so reliable that it supports that,
even in light of all of the other evidence and circumstances in the case, no
reasonable jury would have found the defendant guilty beyond a reasonable doubt.
See Schlup v. Delo, 513 U.S. 298 (1995). It may also occur where courts determine
that the defendant’s conduct, as shown by the evidence or admitted by the
defendant, was actually non-criminal. See Bousley v. United States, 523 U.S. 614
(1998). To be credible, a claim of actual innocence must be based on reliable
evidence not presented at trial. Fortenberry v. Haley, 297 1213, 1222 (11th Cir.
2002).
Russell claims that if Todd Johnson had testified, he would have been found
not guilty and contends that is the same thing as actual innocence. (Doc. 2 at 18-19,
doc. 12 at 9-10). Even assuming that Todd Johnson would have testified that
Russell “did not do it,” and that Oakley was guilty of mail fraud, this is insufficient.
First, Oakley is guilty of mail fraud – he pleaded such. Second, the defense “I did
not do it” came out at trial through Russell’s testimony. Russell took the stand and
denied each of the Government’s accusations. The jury simply did not believe
him. In light of the overwhelming evidence against Russell, it is not reasonable to
believe that Johnson’s testimony would have changed the result. Nothing in
Russell’s motion, briefs, or evidence raises any doubts as to the jury’s decision.

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IV. Conclusion
Based on the foregoing, Russell’s § 2255 motion is due to be denied and this
action dismissed with prejudice.
Additionally, Rule 11(a) of the Rules Governing 2255 Proceedings requires
the district court to issue or deny a certificate of appealability when it enters a final
order adverse to the applicant. This Court may issue a certificate of appealability
“only if the applicant has a made a substantial showing of the denial of a
constitutional right.”

28 U.S.C. § 2253(c)(2). To make such a showing, a

“petitioner must demonstrate that reasonable jurist would find the district court’s
assessment of the constitutional claims debatable and wrong,” Slack v. McDaniel,
529 U.S. 473, 484 (2000), or that “the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotations omitted). This Court finds Russell’s claims do not satisfy
either standard. As such, a certificate of appealability will not be issued.
A separate order will be entered.
DONE and ORDERED on February 9, 2016.

_____________________________
L. Scott Coogler
United States District Judge
160704

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