Russell v. USA

Filing 49

MEMORANDUM ORDER. Defendants § 2255 Motion (Dkt. 1 in Civil case and Dkt. 161 in Criminal Case) is DENIED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
TODD ALLEN RUSSELL,

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Petitioner,
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VS.
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UNITED STATES OF AMERICA,
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Respondent.
________________________________ )

Criminal No.: 06-132-N-EJL
Civil No.: 10-00554-N-EJL
MEMORANDUM ORDER

Pending before the Court is Defendant Todd Russell’s Motion Under 28 U.S.C.
§ 2255 To Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt.
1 in civil case). The Court reviewed the pleadings and found there were contested
matters that require an evidentiary hearing in this case. The Court issued an order for a
limited evidentiary hearing in 2013. Russell requested the hearing date be moved to
allow him to participate in certain programing. The Court rescheduled the hearing for
May 27, 2014. At the hearing seven witnesses were called to testify. The parties were
directed to file closing arguments in writing. The parties requested the due date for the
arguments be extended to allow a transcript to be prepared. Closing argument briefs
were filed. The Court has now reviewed the complete record and finds the § 2255
motion should be denied.

Factual Background
Defendant Todd Russell exercised his Constitutional right to a jury trial. At trial,
the Defendant was represented by retained counsel Mr. Douglas Phelps. The jury
convicted the Defendant of conspiracy to possess methamphetamine and possession of
methamphetamine with intent to deliver. The Court sentenced the Defendant as a career
offender to the mandatory minimum sentence of 360 months on Count 1 and 240
months to run concurrent on Count 2, 5 years supervised release on Count 1 and 3 years
on Count 2 to run concurrent, $4,000 fine and a $200 special assessment. Two codefendants pled guilty to other charges in this case.
The Court appointed new counsel to represent Defendant on appeal as Mr.
Russell was determined to be indigent. Mr. Mark Moorer was appointed to represent
Russell. On appeal, the convictions and sentence were affirmed. The Ninth Circuit
declined to reach Mr. Russell’s claim of ineffective assistance of counsel in 2009. The
Ninth Circuit noted:
Russell contends that he received ineffective assistance of counsel at trial. We
decline to review this claim on direct appeal. The record is not sufficiently
developed to permit review and determination of the issue, and Russell was not
obviously denied his Sixth Amendment right to counsel. See United States v.
McKenna , 327 F.3d 830, 845 (9th Cir. 2003).
Memorandum Decision, Dkt. 159 in criminal case.
A timely § 2255 motion was filed in November of 2010. In 2011, Mr. Moorer
was appointed to represent Mr. Russell on the § 2255 motion. Mr. Moorer was granted
numerous extensions of time to file a reply brief. Tragically, Mr. Moorer passed way
and was unable to file the reply brief. The Court then appointed Mr. Benjamin to

represent Russell.
Defendant claims in his § 2255 motion that his trial counsel was ineffective for
three reasons: 1) failing to inform him of the career offender guideline range of 360
months to life would be the sentencing range on Count 1 if he was convicted at trial; 2)
failing to adequately discuss the advantages and disadvantages of the plea offers that
resulted in Defendant rejecting Government’s plea offer of a sentence a 236 month term
of imprisonment; and 2) failing to file a motion to suppress Defendant’s confession as
being involuntary due to his withdrawal from Xanax.
Ineffective Assistance of Counsel Standard of Review
A petitioner claiming ineffective assistance of counsel must allege specific facts
which, if proved, would demonstrate that (1) counsel’s actions were “outside the wide
range of professionally competent assistance,” and (2) “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 687-690 (1984). Mere
conclusory allegations do not prove that counsel was ineffective. See Shah v. United
States, 878 F.2d 1156, 1161 (9th Cir. 1989). A defendant fails to state a claim for
ineffective assistance if he fails to allege facts sufficient to meet either the
“performance” or “prejudice” standard, and the district court may summarily dismiss
his claim.

The Supreme Court has recently held that the Sixth Amendment’s right to
effective assistance of counsel extends to the consideration of plea offers that are
rejected. Missouri v. Frye, ___ U. S. ___, 132 S. Ct. 1399 (2012). The Strickland test
applies in ineffective assistance of counsel claims regarding plea negotiation. Lafler v.
Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012).
In this case, the Court determined a hearing was necessary in order to evaluate
the credibility of the witnesses who had filed affidavits as to whether the Defendant was
advised of the plea offer and whether he was advised he was facing a minimum of 30
years if convicted on Count 1 due to his career offender status (which was based on
Defendant’s prior felony conviction for a crime of violence and a prior felony drug
conviction). Additionally, the issue of whether a motion to suppress should have been
filed by counsel was also addressed at the evidentiary hearing. Based on the Court’s
evaluation of the testimony at the evidentiary hearing and the complete record, the
Court will address the claims of ineffective assistance of counsel.
1. Failing to inform Defendant of the career offender guideline range of 360
months to life would be applicable if Defendant was convicted at trial and failing to
discuss the plea offers with Defendant in light of the career offender status.
These are actually two different claims but are intertwined so will be discussed
together by the Court. Defendant claims his attorney failed to advise him that he was
looking at a minimum of 30 years imprisonment due to the career offender enhancement
if he went to trial and was found guilty. Defendant testified his attorney told him he was

looking at 10 to 15 years if he went to trial. Defendant claims that is why he did not
accept the Government’s alleged plea offer of 236 months or 20 years. Defendant
claims had he known he was looking at 360 months to life if found guilty by the jury, he
would have accepted the Government’s offer.
It appears undisputed that Mr. Phelps communicated two plea offers to Mr.
Russell. The first offer was made on Janizary 26, 2007 and Mr. Phelps’ notes
(Government Ex. 3) indicates a minimum of 20 years if he pleads guilty and it appears
Mr. Russell would have to give up his California supplier. Mr. Phelps’ notes indicate
this offer was communicated to Mr. Russell on January 27, 2007 and that the offer was
rejected.
The second plea offer was right before trial on or about October 16, 2007 and
based on Mr. Phelps’ notes (Government Ex. 6) the offer was a base offense level of 36.
The offer was communicated by phone to Mr. Russell. Mr. Phelps notes indicate that
Mr. Russell said no to the offer and that Mr. Russell wanted to “see if the jury is going
to accept the claims of these people.” Mr. Phelps testified this is the offer that put the
sentencing range at about 236 months imprisonment.
What is disputed in this motion is if Mr. Russell understood that he faced a much
longer sentence if convicted and whether his counsel adequately advised Mr. Russell
regarding the plea offers, the strength and weaknesses of his case and recommended
going to trial or accepting the plea. The Court must discuss the Sentencing Guidelines
in effect at the time of this case in order to analyze and apply Defendant’s ineffective
assistance of counsel arguments.

The Court notes that the Presentence Investigation Report used the drug quantity
determined by the jury (Dkt. 113) of approximately 7 kilograms (15.5 pounds) of
methamphetamine which provided at the time a base offense level of 36 which was
lower than the 17 to 36 pounds argued in closing by the Government. Trial Transcript,
Dkt. 153. Under the Guidelines in effect at the time, 36 pounds of meth mixture would
be 16 kilograms and under the Guidelines 15 to 45 kilograms of meth mixture provided
for a base offense level of 38.1
In Defendant’s § 2255 motion, Dkt. 1, p.4, he indicates he would have accepted
the Government’s offer of a 236 month sentence. Defendant claims the Government’s
offer was a drug offense level 36 (5 to 15 kilograms of meth mixture) less 3 levels for
acceptance of responsibility and a recommendation for the low end of the Guidelines.
Presumably, Defendant is assuming no role enhancement and the total offense level
would be 33 with career offender criminal history category of VI resulting in a
sentencing range of 235-293. Defendant states in his testimony he was not informed of
the career offender enhancement to his criminal history so his current counsel argues
1

The Probation Officer calculated the offense level under § 4B1.1 to be 32, not 37. This
appears to be an error by the probation officer. Paragraph 31 of the Presentence Investigation
Report refers to § 4B1.1(C), but that section is not applicable since Mr. Russell was not charged
with a 924 offense. It appears the probation officer meant § 4B1.1(b) and then mistakenly used
subsection (3) for a offense level of 32 (statutory sentence of 20 years or more). Then since the
base offense level of 32 was less that the otherwise applicable base offense level determined by
the jury’s finding on drug quantity, the probation officer used the higher base offense level of 36
to calculate the Defendant’s Guidelines sentencing range.
As pointed out by the Government, the probation officer should have used an offense
level of 37 pursuant to § 4B1.1(b)(1) as life was the statutory maximum on Count 1. This would
have resulted in a base offense level higher than the jury determined and total offense level after
the role in the offense enhancement of 41. The sentencing range for 41, IV was 360 to life, so the
ultimate sentence of the defendant would not have been affected.

the plea offer was for total offense level of 33, criminal history of V = 210 to 262 in
which case the “low end” offer of 236 does not seem to apply. Rather, this “offer” of a
base offense level of 36 less 3 points for acceptance for a recommendation of 236
months imprisonment only makes sense if the proper criminal history category was
discussed by former counsel.
Moreover, it is unclear to the Court if the “offer” only addressed the base offense
level for the quantity of drugs and acceptance of responsibility or if also addressed any
increase for Defendant’s role in the offense. Defendant received a 4 point enhancement
in the Presentence Investigation Report. Based on Defendant’s history and statements
during his interview, it is unlikely the Court could have ignored imposing some level of
a role adjustment for Mr. Russell’s admitted role in the conspiracy. With acceptance (3) and a 4 point role adjustment, the total offense level would be 37 with a criminal
history of VI provides for a sentencing range of 360 months to life. Which is what Mr.
Phelps advised Mr. Russell faced if he went to trial.
The plea offer of 236 months appears to be an attempt to reduce the drug
quantity Mr. Russell would be held accountable for well below what the government
believed he actually possessed or distributed in order to avoid a trial and allow Mr.
Russell to receive a 3 point reduction for acceptance of responsibility. If the Defendant
was sentenced using the 90 pounds (approximately 41 kilograms) mentioned in Mr.
Russell’s jail phone calls, the base offense level at the time would have been 38 (for 15
kilograms or more of a mixture containing methamphetamine). Assuming a 4 point
adjustment for role in the offense, minus 3 for acceptance and a criminal history of V,

Mr. Russell was looking at a sentence for a total offense level of 39 which provides for
a sentencing range of 360 to life if he went to trial and was found guilty on Count 1.
Finally, the Defendant would have been advised had he entered a plea that the
Court is not a party to the plea agreement and the sentence would be determined by the
Court after reviewing the Presentence Investigation Report and considering the factors
in 18 U.S.C. § 3553. The Court finds it is unreasonable to argue a 236 month sentence
would have ever been imposed by the Court even if that was the plea offer.2 The Court
finds Mr. Russell understood the plea offer of 236 months and the possible penalty if he
went to trial based on his criminal history was a minimum of 30 years. This analysis by
Mr. Phelps was not ineffective assistance of counsel. Rather, the record establishes Mr.
Russell made a choice to proceed to trial knowing his punishment could be higher if
convicted by the jury. Regardless of what exactly the terms of the plea offers were, the
Court finds after hearing the testimony of the witnesses, that Mr. Russell was informed
of the possibility of a sentence of 30 years to life imprisonment and the plea offers of
236 or 20 years and still elected to proceed to trial.
The Court acknowledges that Mr. Russell’s father, John Russell, testified Mr.
Phelps never used the term “career offender” and never said his son could be facing 30
years to life. John Russell testified counsel estimated 8 to 10 years, but could not make
a prediction. However, John Russell stated in his affidavit that he understood the

2

Current defense counsel argues the Court would have imposed the low end of the
Guidelines. This argument is speculative based on the fact it was Mr. Russell’s second
conviction possession with intent to distribute methamphetamine.

possible sentence to be 10 to 15 years. Further, John Russell admitted he was not aware
of all the conversations between Mr. Phelps and his son. In fact there is no evidence
John Russell was present at the meetings or on the phone when the plea offers and
discussions of likely outcomes at trial and possible sentences were discussed with Mr.
Russell. There is no evidence to support that Mr. Phelps discussed either of these offers
with John Russell. Therefore, the weight the Court placed on this testimony is minimal
as the understanding of John Russell is not controlling in determining what the
Defendant was told regarding the plea offers.
Mr. Russell testified he was advised of a plea offer of 20 years but that his
attorney advised him it was a weak case and he should proceed to trial as the amount of
drugs alleged by the government could not be proved and much of the discovery was
based on hearsay and weak paperwork. Mr. Russell claims Mr. Phelps told him in the
presence of another attorney from Mr. Phelps’ law firm, Mr. Peter Jones, he was
looking at 10 to 15 years imprisonment.
During phone calls with his counsel from jail regarding the second plea offer,
Mr. Russell claims his attorney did not use 30 years to life or the career offender term.
Mr Russell testified he had no knowledge of the “career offender” term at trial. Mr.
Russell testified he did not understand the government needed to prove only 50 grams
of drugs for the career offender criminal history and base offense level of 37 to apply.
Mr. Phelps testified he discussed the possible penalties a number of times with
Mr. Russell and on two occasions Mr. Jones (another attorney in his office) was also
present. Mr. Phelps testified he advised Mr. Russell he was looking at 30 years or more

if convicted. Mr. Phelps confirmed there were two plea offers – early on and just prior
to trial. Mr. Phelps testified he advised Mr. Russell the government had a strong case
based on his statements during the video interview. Mr. Phelps testified Mr. Russell
told him he did not think a number of the witnesses would actually appear to testify
against him and he was not going to accept plea. Mr. Russell did not like the quantity
of drugs the government wanted to say he was responsible for possessing. Mr. Phelps
testified Mr. Russell’s position about wanting to go to trial was consistent throughout
his representation.
Mr. Phelps testified the first offer was for a recommendation of 20 years if Mr.
Russell gave up his California supplier. Mr. Phelps testified the second plea offer was
for a base drug offense of 36 based on 5 to 15 kilograms of drugs (instead of the 90 plus
pounds the government alleged he had distributed), this was communicated to Mr.
Russell and he was advised what he could expect the Guidelines sentencing range to be
based on his criminal history [235 - 293]. Mr. Phelps admits he may not have used the
term “career offender” in discussions with Mr. Russell but that he did inform Mr.
Russell that his drug quantity and criminal history would determine the sentencing
range. Mr. Phelps and Mr. Pulver testified Mr. Russell rejected all plea offers and
indicated he wanted to go to trial.
Mr. Phelps testified Mr. Russell understood Count 2 related to a specific sale or
controlled buy of 14 grams of a mixture containing methamphetamine, but knew the
government was seeking to hold Mr. Russell responsible for over 500 grams of a
mixture of methamphetamine in Count 1 and that would be enough to trigger a longer

sentence. Mr. Phelps testified he advised Mr. Russell to accept the plea offers as he
would be looking at a higher sentence if convicted by the jury.
Mr. Phelps’ testimony is corroborated by Mr. Russell’s calls from jail to third
parties. Mr. Russell’s jail phone call to Kelli Carneiro was recorded and during the call
on October 11, 2007, he stated he was looking at “30 years as a minimum.”
Government Ex. 8. On a second phone call on October 13, 2007 to Tara Thompson, Mr.
Russell indicated the government was seeking to hold him responsible for 14 grams to
94 pounds and a minimum of 30 years. Id.
Mr. Russell testified the 30 years to life information did not come from his
attorney, but another inmate. Even if this was true that an inmate told him he was
looking at 30 years to life and his attorney had not told him of this possibility, one
would expect Mr. Russell to immediately call his attorney and ask if he really was
facing a 30 years to life sentence if he was found guilty at trial. This criminal case is
not Mr. Russell’s first experience with the Sentencing Guidelines and drug
calculations.3 Yet there is no testimony by Mr. Russell that he asked his attorney if he
was really looking at 30 years if convicted.
Moreover, the second plea offer was discussed with Mr. Russell on October 16,
2007, which is after the taped phone calls when Mr. Russell told third parties he was
looking at 30 years minimum. And Mr. Phelps notes indicate that Mr. Russell said no to
the offer and that Mr. Russell wanted to “see if the jury is going to accept the claims of

3

Mr. Russell had cooperated and pled guilty to possession with intent to distribute
methamphetamine in 1992 and was sentenced to 54 months imprisonment in 1993.

these people.” Mr. Phelps testified this is the offer that put the sentencing range at about
236 months imprisonment. The Court finds based on the factual record, Mr. Russell’s
claim of ineffective assistance of counsel simply do not add up even if an inmate instead
of his counsel informed him of the maximum possible penalties. There can be no doubt,
Mr. Russell understood he was facing 30 years imprisonment if convicted and instead
decided to see if the jury was going to believe the witnesses testifying against him when
he rejected the second plea offer.
Furthermore, the Court is not persuaded Mr. Russell did not know the maximum
possible sentence was life as such was discussed at his arraignments. The maximums
are reflected on the cover sheet filed by the Government with the Indictment (Dkt. 1-1
in criminal case). The Indictment cover sheet states a mandatory minimum of 10 years
and up to life on Count 1. A superseding Indictment was filed in September of 2006
(Dkt. 24 in criminal case). The cover sheet for the Superseding Indictment indicates a
mandatory minimum of 10 years to life on Count 1 and five years to 40 years on Count
2. A Second Superseding Indictment was filed on May 16, 2007 (Dkt. 45-2 in criminal
case) indicating 10 years mandatory minimum and up to life imprisonment on Count 1
and imprisonment of not more than 20 years on Count 2. These cover sheets offer
support for the fact Mr. Russell was told (independent of his own counsel) that
maximum penalty he faced if convicted on Count 1 was life imprisonment.
The investigator, Mr. Ted Pulver, testified that Mr. Russell appeared proud of his
video interview and was still hoping to cooperate which made it difficult to convince
Mr. Russell he should take the plea deal. Mr. Pulver testified Mr. Russell was sure his

friends would not testify, so except for the confession it would all be based on hearsay.
Mr. Pulver agreed the “career offender” term may not have been used in discussions
with Mr. Russell, but was sure Mr. Russell had been advised 30 years to life was a
possible sentence.
The Court is not overly concerned that Mr. Phelps may not have used the term
“career offender” with Mr. Russell. Mr. Phelps indicated he discussed a sentence of 30
years to life based on Mr. Russell’s criminal history. The career offender section of the
Guidelines was to created to ensure certain “career” offenders receive a sentence of
imprisonment “at or near the maximum term authorized.” § 4B1.1 Background. There
is no difference in the sentencing range in applying the § 4B1.1 and the quantity of
drugs the government was alleging Defendant was involved with distributing in this
case. In applying the career offender section of the Guidelines, the offense level of 37,
IV (360 to life). In applying the base offense level of 38 (15 kilograms or more of a
meth mixture) and a criminal history of V also results in a Guidelines range of 360 to
life.4 The Court finds counsel’s explanation that Mr. Russell was looking at 30 years
minimum if he lost at trial was an accurate interpretation of the Guidelines.
Based on the record, the Court finds Mr. Russell was advised and aware that he
was facing a possible 30 years to life sentence based on his criminal history. The Court
found Mr. Russell’s testimony to be less credible than the detailed recollections of his

4

The Court acknowledges these calculations do not take into account the impact of
acceptance of responsibility if Mr. Russell pled or the likelihood of a role in the offense
enhancement being applied by the Court.

former attorney and investigator. The Court also finds Mr. Russell admitted in two
separate phone calls to third parties he was facing a minimum of 30 years to life. The
testimony of former counsel and the investigator regarding Mr. Russell’s belief his
friends would not testify against him and the case on paper was weak since there were
not large quantities of drugs the government could physically produce to the jury
unfortunately did not turn out to be true. Mr. Russell’s confidence about what the jury
would do seems consistent with his confident and arrogant manner when trying to
convince law enforcement to allow him to cooperate to reduce his potential punishment
in the video interview. Mr. Russell appeared cocky about everything he knew and this
attitude is consistent with the description counsel and the investigator testified to
regarding Mr. Russell consistently saying no to plea offers and his belief his friends
would not testify against him and he could win at trial. In fact, one witness Nquala
John Bigman did not appear at trial to testify. (Dkt. 109 and Dkt. 119 in criminal case.)
Current counsel argues that Mr. Phelps should have advised Mr. Russell that if
the Government proved 50 grams or more of methamphetamine he would have been
facing an automatic base offense level of 37 and life imprisonment. The Court finds this
argument is misplaced. In order for the offense level of 37 under § 4B1.1 to have
applied, the Government would have had to prove beyond a reasonable doubt Mr.
Russell was involved in a conspiracy to possess 500 or more grams of a mixture
containing methamphetamine or 50 or more grams of “actual” methamphetamine. See
21 U.S.C. § 841(b)(1)(A)(viii) where “actual” methamphetamine is referred to as
“methamphetamine, its salts, isomers, and salts of its isomers.” The Indictment,

Superseding Indictment and Second Superseding Indictment all allege a
methamphetamine mixture, not “actual” methamphetamine, so the Government had to
prove Mr. Russell was involved in 500 or more grams of a meth mixture, not just 36
more grams of methamphetamine mixture when combined with the 14 grams of
methamphetamine mixture in the controlled buy set out in Count 2.
The trial transcript makes clear Mr. Phelps argued at closing the jury could find
Mr. Russell guilty of Count 2, the controlled buy of 14 grams of a meth mixture, but
should not find him guilty of Count 1 as the evidence linking him to the 17+ pounds the
Government was alleging was not reliable. Obviously, the jury agreed in part with this
argument as they did not find the Government had proven Mr. Russell was responsible
for more than 15. 5 pounds of meth mixture when the Government argued the amount
of methamphetamine mixture was much larger. While in hindsight this argument may
appear to be ineffective, counsel was following his client’s wishes of proceeding to trial
and hoping his friends would not testify and the jury would not convict him if the
Government could not actually produce 17+ pounds of meth mixture in the courtroom.
Mr. Phelps argued Mr. Russell was a braggart but not a large scale drug dealer. The jury
found otherwise, but this does not mean counsel was ineffective or the result would
have been different if another attorney had handled this matter. It was Mr. Russell who
decided to proceed to trial against his attorney’s advice and in light of the possible 30
year sentence.
The Court finds Mr. Russell was advised about the quantity of drugs the
government intended to show he was involved with as Mr. Russell stated on phone calls

the government was seeking to hold him responsible for 14 grams on the controlled buy
in Count 2 and over 90 pounds on Count 1. Mr. Phelps argued there was no hard
evidence of the pounds of methamphetamine alleged by the government at trial and the
jury should only convict on the quantity in the controlled buy. Current counsel finds this
argument to have been unreasonable, but the Court does not find the strategy to be
ineffective as a matter of law. Moreover, the Court does not find the 50 grams or more
argument to be persuasive in this § 2255 motion. Under the statute and the Guidelines,
the Court does not find Mr. Russell was looking at a base offense level of 37 if the
government proved only 50 grams or more of a mixture containing methamphetamine –
the government had to prove 500 or more grams of a mixture containing
methamphetamine for the base offense level of 37 under career offender section of the
Guidelines, § 4B1.1(b) to apply.
It is undisputed that counsel discussed both the strengths and the weaknesses of
the government’s case with Mr. Russell. Even if counsel indicated it was a weak case,
the Court finds that Mr. Phelps as well as the investigator Mr. Pulver recommended Mr.
Russell accept the plea offers and Mr. Russell consistently rejected this advice. This
distinguishes the case from the facts in Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376
(2012) where counsel advised his client to reject the plea offer based on a mistaken
understanding of the law. Here, Mr. Phelps is an experienced criminal defense attorney
who advised his client of both plea offers and recommended Mr. Russell accept the plea
offers. Mr. Phelps provided correct legal analysis that based on Mr. Russell’s criminal
history he was looking at 30 years or more if convicted at trial.

Based on the entire record in this matter, the Court finds the claim of ineffective
assistance of counsel for failing to advise of possible 30 years to life sentence or to
adequately discuss the plea offers is unfounded and these claims are denied. Mr. Russell
has failed to establish (1) Mr. Phelps’ actions were “outside the wide range of
professionally competent assistance,” and (2) “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 687-690 (1984). Simply put. Mr.
Russell was not denied effective assistance of counsel guaranteed by the Sixth
Amendment.

2. Failing to file a motion to suppress Defendant’s confession as being
involuntary due to his withdrawal from Xanax.
Defendant claims Mr. Phelps should have filed a motion to suppress his
statements to law enforcement as he was under the influence of a withdrawal from his
Xanax medication (an antidepressant and anti-anxiety agent) and Mr. Phelps should
have raised the Xanax issue in a motion to suppress. Mr. Phelps and his investigator,
Mr. Ted Pulver, both filed affidavits and testified that they discussed a possible motion
to suppress with Russell and he stated he knew what he was doing during the interview
with law enforcement officers and he was trying to get the FBI to agree to let him
cooperate as a confidential informant. They maintain they asked Russell about the
drug’s impact on him during the interview and he said it did not impact him.

The Court acknowledges the testimony of Mr. Russell’s parents that he could be
confused and forgetful in the morning when his Xanax had worn off. It is undisputed
Mr. Russell was arrested at his parent’s residence early in the morning and had not
taken his medication and the arresting officers refused to accept the medication from the
parents. The Court also acknowledges Mr. Russell suffered a seizure approximately 24
hours after his arrest. But his parents had not viewed the interview of their son and
therefore could not testify to signs of his withdrawal.
Mr. Loring Beals, a toxicologist, also testified as to the possible impacts of a
person going through withdrawals from Xanax. Mr. Beals testimony was interesting,
but he too did not view the Defendant’s interview to determine if the typical symptoms
were evident on the day Mr. Russell was interviewed.
Mr. Phelps testified at the evidentiary hearing that Mr. Russell maintained that
his lack of Xanax medication did not affect his statements during the interview. Mr.
Phelps also testified after the trial was concluded John Russell thought the Xanax could
have affected his son’s confession during interview and indicated to Mr. Phelps it could
help his son if Mr. Phelps would say there was a Xanax problem. Mr. Phelps testified
he told John Russell he could not lie.
The Court viewed the 1 hour 39 minute interview which began shortly after Mr.
Russell was arrested. Mr. Russell did not appear to be confused or in any way suffering
from withdrawals or negative symptoms from not having his Xanax during the
interview. Mr. Russell was given both food and drink during the interview. Mr. Russell
did not appear to eat the food but did drink the water. Mr. Russell did not appear

anxious although he did appear somewhat nervous. Mr. Russell’s speech was not
slurred and he did not appear to be just agreeing to whatever the officers asked. Instead
he appeared to understand his waiver of rights, voluntarily signed the waiver and agreed
to speak with the investigators. He admitted his involvement and was clearly trying to
portray himself as the big fish in the pond and that he could offer lots of information on
others and that he should be allowed to cooperate like he had negotiated in the past.
This interview was not of a person who denied drug activities. This was the interview
of a confident and coherent person trying to work with officers to reduce his jail time
and negotiate his release from custody. Mr. Russell was specific about details in the
information he provided and he did not appear to have any difficulty recalling facts.
The Court finds at the time of the interview, Mr. Russell was not negatively
impacted by not having taken his Xanax and Mr. Russell’s statement to his counsel and
the investigator that his conduct during the interview was not impacted by the lack of
Xanax was consistent with what actually occurred the interview. While certainly it is
possible on other occasions observed by his parents, Mr. Russell was impacted by not
having dose of Xanax, the interview was not such an occasion. The Court finds the
decision by Mr. Phelps not to file a motion to suppress based on the failure to take his
Xanax medication or to present such evidence to the jury was not ineffective assistance
of counsel.
Mr. Russell has failed to establish (1) Mr. Phelps’ actions regarding the Xanax
claim were “outside the wide range of professionally competent assistance,” and (2)
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
687-690 (1984). For these reasons, this claim must also be denied.

ORDER
IT IS ORDERED:
1. Defendant’s § 2255 Motion (Dkt. 1 in Civil case and Dkt. 161 in Criminal
Case) is DENIED.

February 27, 2015