Ervin v. United States of America

Filing 9

REPORT AND RECOMMENDATIONS denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Demetrius John Ervin. Objections to R&R due by 2/15/2017. Signed by Magistrate Judge G. R. Smith on 2/1/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DEMETRIUS JOHN ERVIN,
Movant,
CV416-047
CR412-232
UNITED STATES OF AMERICA,
Respondent.

REPORT AND RECOMMENDATION
Convicted after a jury trial for possession with intent to distribute
and distribution of cocaine hydrochloride in violation of 21 U.S.C. § 841,
docs. 1 (indictment), 76 (judgment for 168 months' imprisonment),'
Demetrius Ervin moves under 28 U.S.C. § 2255 to have his sentence
vacated. Doc. 97. He contends his sentence must be upended due to
ineffective assistance of counsel, prosecutorial misconduct, and district
court errors. Docs. 97 & 98. The Government opposes. Doc. 100.
Review of the parties' briefing shows that Ervin's motion must be
denied.

1

The Court is citing to the criminal docket in CR412-232 unless otherwise noted,
and all page numbers are those imprinted by the Court's docketing software.

A. BACKGROUND
Movant was recorded on several telephone calls discussing a
cocaine purchase with a confidential informant (CI). Doc. 84 & 85 (Trial
Transcript)' at 24, 87-88. At an agreed time and location, Ervin met the
CI and was observed making a sale of 7 grams of cocaine.

Id. at 65, 93-

94. Law enforcement moved to arrest him, using their vehicles to block
his vehicle from escaping.

Id. at 104-105. Despite the fact that all

officers wore tactical vests identifying them as "Police" and clearly
ordered him to cease resisting, Ervin used his vehicle to back in and out
between the blocking vehicles, forcing the rear vehicle backwards and
nearly striking an officer. Id. at 110-12. During the ensuing struggle to
subdue him, Ervin had to be tasered twice, a canine had to be deployed
into his car, and an officer sustained a broken bone in his hand. Id. at
112-18; doc. 83 at 18. A search of the vehicle turned up more cocaine and
drug paraphernalia, including baggies, scales, and presses. Trial Tr. at
67-71.
Ervin was charged with four counts: possession with intent to

2

The trial transcript is lodged at two consecutively-paginated volumes on the
Court's docket, does. 84 & 85, and for convenience will be referred to as a single
volume.
2

distribute cocaine hydrochloride, and distribution of that drug,
possession of a firearm in furtherance of a drug trafficking crime, and
being a felon-in-possession of a firearm. Docs. 1 & 76. His attorney
advised him, based on an investigation of the case and Ervin's criminal
history, that he would be considered a career criminal and would receive
"the greater" of the following "range of estimated sentencing:"
21

Usc 841(a)(1) (201.1)

46-57 months

21 Usc 924(c)(A)(1)(ii)/841(a)(1)
(2K2.4)/(2D1.1)

100-125 months if career criminal
46-57 months if no career Criminal
5 year minimum (60 months) or 7
year minimum (84 months)

18

Usc 924(c) (2K2.1)

168-210 months 20 year maximum
(240 months) with a 5 year
minimum (60 Months) to be served
after serving count i & count ii

18

Usc 922(g)(1) (2K2.1)

168-210 months with a 120 month
cap

Doc. 100-3 at 5. Ervin responded that he would proceed to trial.
Doc. 100-4. Although "it had been explained to [him] that a trial will
result in a conviction on all counts" -- resulting in a consecutive sentence
of at least 152 months (a minimum 92-115 months "plus 60 months") -and the proposed plea agreement would limit his sentence to a total of
only 117 months, Ervin demurred.
3

Id.

He hoped to "defeat the

trafficking charge" and "six (6) level increase for harming a public
official," shaving off two months from the 115-month plea his lawyer
"ha[d] advised [him] to accept." Id.
Despite his hopes, the jury convicted Ervin on all four counts
(doe. 66) and the Court sentenced him to 168 months' imprisonment
(doe. 83 at 76 (consisting of 108 months' imprisonment for Counts 1, 2,
and 4 and 60-months consecutive imprisonment for Count 3)). Doc. 76
(judgment). His conviction was affirmed on appeal.

United States v.

Ervin, 601 F. App'x 793 (11th Cir. 2015).
B. ANALYSIS
Ervin presents several grounds for relief: (1) errors by the district
court, (2) generalized prosecutorial misconduct, and (3) ineffective
assistance of counsel for failing to raise those errors on appeal. Doc. 97.
1. District Court Errors
On appeal, Ervin challenged (1) the sufficiency of the evidence to
convict, (2) an erroneous jury instruction, (3) improper admission of "bad
acts" character evidence, (4) the prosecutor's closing statement, and
(5) the six-level official victim sentence enhancement. See Ervin, 601 F.
Appx. at 793. Here, he argues the Court erred for (1) "failing to grant [a]

motion of acquittal," (2) "permitting evidence concerning unindicted
events," (3) permitting introduction of prior convictions, and (4) by
applying the U.S.S.G. § 3A1.2(c) official victim enhancement. Doc. 97 at
2. His first, third, and fourth claims were already considered, and
rejected, on appeal.

See Ervin, 601 F. App'x 793. They are thus

procedurally barred.

Stoufflet v. United States, 757 F.3d 1236, 1239

(11th Cir. 2014); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir.
2000). And because his second claim was not raised on appeal, it too is
procedurally barred. Lynn v. United States, 365 F.3d 1225, 1232 (11th
Cir. 2004) (a § 2255 movant may not use his collateral attack as "a
surrogate for a direct appeal."). His associated, meritless IAC claims do
not overcome that bar.

United States v. Montano, 398 F.3d 1276, 1280

(11th Cir. 2005); Lynn, 365 F.3d at 1232.
2. Prosecutorial Misconduct & Ineffective Assistance
Ervin argues his attorney failed to: fully investigate the case, move
to suppress evidence from the search of his home, raise issues "important
to his client," or "preserve any/all of the unlawful acts committed by the
government or the court." Doc. 98 at 3. He contends his attorney
provided "bad legal advice" "which led [him] to proceed to trial," much to
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his detriment. Id.
Movant, however, lacks specifics when it comes to the details of
counsel's failures -- he contends that the search warrant was
unsupported because the CI was "unreliable" and the testifying agents
"lied" by presenting apparently conflicting testimony about the video
recording of his cocaine sale and arrest. Doc. 98 at 3-18. But a failed
video recording does not negate, or convert into perjury, eye witness
testimony about the sale and arrest, nor does it detract from the
successfully recorded telephone calls with the CI to set up the buy. Ervin
doesn't offer any explanation beyond mere belief that it does, and
conclusory allegations do not support § 2255 relief. 3
To try and salvage this claim, Ervin cites the Government's failure
to locate the phone number provided (by the CI as his) within their

"Laundry list" claims of deficient representation -- offered without explaining,
with full citation to the record, how they were viable and that no reasonable lawyer
would have missed them -- do not an IAC claim make. A typical IAC claim succeeds
only where counsel has, metaphorically speaking, shot at the side of a barn yet
missed. See Sullivan v. Secretary, Fla. Dep't. of Corr., 837 F.3d 1195, 1205 (11th Cir.
2016) (an attorney's ignorance of a point of law that is fundamental to his case
combined with his failure to perform basic research on that point is a quintessential
example of unreasonable performance, as element of ineffective assistance of
counsel); see also id, at 1206 (in prosecution for fleeing and attempting to elude a law
enforcement officer, trial counsel was ineffective in presenting a voluntary
intoxication defense long after it had been statutorily abolished, instead of advising
defendant to accept state's pretrial plea offer).
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database. Doc. 98 at 11 & 20-21. But that "deficiency" does not disturb
the facts that his voice was clearly identifiable on the phone calls (see
Trial Tr. at 91-94), or that he showed up to make the sale. See also Trial
Tr. at 64-65 (officer testified the phone found in movant's car at the time
of the arrest "was found to be the same cell phone with the same
assigned number that we used to make the recorded phone calls prior to
this incident").
Counsel was under no obligation to advance a frivolous argument.

Id. at 27 (counsel told Ervin that law enforcement "had probable cause to
obtain the search warrant, so there is no reason to pursue a motion to
suppress the evidence, because it would just be a waste of time.").

See

Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (the Sixth Amendment
does not require counsel to raise every non-frivolous argument on a
client's behalf); Castillo v. United States, 816 F.3cl 1300, 1303 (11th Cir.
2015) ("If a search was constitutional, then counsel is not obligated to
move to suppress the evidence or dismiss the indictment and a
defendant is not prejudiced by counsel's failure to do so."). And
movant's allegation that the agent swore "falsely" that a reliable
confidential informant had informed on him (doc. 98 at 24) is
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undermined by the undisputed facts that he was directly observed
making the sale of 7 grams of cocaine, and that more than two ounces of
cocaine, a loaded firearm, and drug paraphernalia, including digital
scales and haggles, were recovered in the ensuing searches of both his
vehicle and his home. Trial Tr. at 25, 64-71.
Finally, Ervin's disingenuous contention, that but for counsel's
"misadvice" he would have pleaded guilty, is hogwash. Doc. 98 at 3.
Counsel told him in no uncertain terms that he risked a maximum
sentence by going to trial (doe. 100-3) and advised him to accept the plea
deal of 117 months' imprisonment, but Ervin thought he could do better
and get 115 months at trial. Doc. 100-4. That movant gambled and lost,
in the face of overwhelming evidence of his guilt, does not render his
counsel's performance deficient.
C. CONCLUSION
Accordingly, Demetrius Ervin's § 2255 motion should be
DENIED. 4 For the reasons set forth above, it is plain that he raises no

Because his motion is entirely without merit and his contentions are
unambiguously contradicted by the record, Ervin's request for an evidentiary hearing
(doe. 97 at 13) is DENIED. Winthrop-Redin v. United States, 767 F.3d 1210, 1216
(11th Cir. 2014) (a hearing is unnecessary "if the allegations are 'patently frivolous,'
'based upon unsupported generalizations,' or 'affirmatively contradicted by the
8

substantial claim of deprivation of a constitutional right. Accordingly,
no certificate of appealability should issue. 28 U.S.C. § 2253; Fed. R.
App. P. 22(b); Rule 11(a) of the Rules Governing Habeas Corpus cases
Under 28 U.S.C. § 2255 ("The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the
applicant."). Any motion for leave to appeal in forma pauperis therefore
is moot.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of
service, any party may file written objections to this R&R with the Court
and serve a copy on all parties. The document should be captioned
"Objections to Magistrate Judge's Report and Recommendations." Any
request for additional time to file objections should be filed with the
Clerk for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this

record."); Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (same);
Lynn, 365 F.3d at 1239 (where the motion "amnount[ed] to nothing more than mere
conclusory allegations, the district court was not required to hold an evidentiary
hearing on the issues and correctly denied Lynn's § 2255 motion.").

R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge's findings and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App'x 787, 790 (11th Cir. 2016); Mitchell u. U.S., 612 F. App'x
542 1 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED, this 1st day of
February, 2017.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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