Bond v. USA

Filing 1

MEMORANDUM ORDER: (1) Dft Marquice Kenyatta Bond's Motion to Vacate, Set Aside or Correct his Sentence is DENIED. (2) Dft's habeas action [Lexington Civil Action No. 5:12-7252-DCR] is DISMISSED and STRICKEN from the Court's docket in accordance with 28 USC 1915A(b)(1) for failure to state a claim upon which relief may be granted. Signed by Judge Danny C. Reeves on February 4, 2013. (AWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
UNITED STATES OF AMERICA,
Plaintiff,
V.
MARQUICE KENYATTA BOND,
Defendant.

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Criminal Action No. 5: 09-107-DCR
Civil Action No. 5: 12-7252-DCR

MEMORANDUM ORDER

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This matter is pending for consideration of Defendant Marquice Kenyatta Bond’s motion
for collateral relief under 28 U.S.C. § 2255. [Record No. 51] On December 28, 2012, United
States Magistrate Judge Edward B. Atkins directed the defendant to file a supplemental
memorandum outlining the factual basis for his claims. [Record No. 52] However, the
defendant failed to comply with this directive. Having considered the entire record, the Court
will now dismiss this proceeding under 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon
which relief may be granted.1
Defendant Bond was indicted by a federal grand jury on July 1, 2009, and charged with
a violation of 21 U.S.C. § 841(a)(1) [Count 1]; one count of possessing two firearms in
furtherance of his drug crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) [Count 2]; and one
count of possessing two firearms after having been convicted of a felony offense in violation of

1

On December 27, 2012, this matter was reassigned to the undersigned due to the announced
retirement of United States District Judge Jennifer B. Coffman. [Record No. 50]

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18 U.S.C. §§ 922(g)(1) and 924(e). In Counts 4 and 5, the United States sought forfeiture of the
weapons and ammunition referenced in Counts 1, 2 and 3. [Record No. 1; Indictment]
Thereafter, counsel was appointed for the defendant.
Defendant Bond’s appointed counsel initially moved to suppress the evidence obtained
during a traffic stop and a subsequent search of his motel room. Counsel asserted that the initial
stop of the vehicle and all evidence obtained and statements made as a result of the stop and
searches violated his Constitutionally-protected rights under the Fourth Amendment. [Record
No. 14] A hearing on this motion was held on August 190, 2009. [Record No. 17] During this
hearing, the United States presented three Kentucky State Police Officers as witnesses: Sergeant
Jeremy Slinker, Trooper Jason Denny and Sergeant Mark Burden. Defendant Bond chose to
testify in response. [Record No. 26] Following this testimony, the Court orally denied the
defendant’s motion. [Id., at pp. 120-124]
Following the detention hearing, Defendant Bond, by counsel, filed a Motion to
Supplement the Record. [Record No. 22] The defendant submitted his affidavit in support of
the motion to supplement which outlined additional facts which were not presented during the
suppression hearing. [Id.] However, construing the motion as a motion to reopen, Judge
Coffman denied the relief sought because: “1) the defendant’s explanation for initially failing
to introduce the evidence [was] not reasonable and adequate; and 2) the defendant’s new
testimony, as proffered, [did] not change the court’s decision to deny the motion to suppress.”
[Record No. 27] Thus, while the Court rejected the attempt to re-open the detention hearing, the

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additional testimony was considered. However, it did not alter the Court’s analysis. In denying
the defendant’s motion, Judge Coffman noted:
It is true that the plaintiff would suffer no great prejudice by a reopening of the
suppression hearing, since it would be allowed to cross-examine the defendant
and offer rebuttal witnesses if necessary before trial on the merits. However, even
if the defendant’s new testimony, as tendered, were introduced into the
suppression inquiry, the court would not change its ruling on the defendant’s
motion to suppress. The court would still have found that the consent to search
the defendant’s hotel room was voluntarily given by the defendant; thus the
search for the items found in that room did not violate the Fourth Amendment to
the U.S. Constitution.
[Record No. 27]
After the defendant’s motion to suppress evidence was denied, he immediately
determined to enter a guilty plea to Counts 1 and 2 of the Indictment. [See Record Nos. 28
through 32.]2 However, his plea was conditional, allowing Bond the right to challenge the
District Court’s determination regarding his motion to suppress. [See Record No. 32; Plea
Agreement, ¶ 1.] In exchange, the United States agreed to dismiss Count 3 at the time of
sentencing.
A sentencing hearing was held in this case on January 14, 2010. Defendant Bond
received a sentence of 120 months on Count 1 and 120 months on Count 2, to be served
consecutively, to produce a total term of imprisonment of 240 months of incarceration. [Record
No. 39] Thereafter, he filed a Notice of Appeal in accordance with the provisions of his Plea
Agreement and conditional guilty plea. [Record No. 41] However, on August 15, 2011, the
United States Court of Appeals for the Sixth Circuit affirmed the defendant’s conviction and
2

Defendant Bond also conditionally forfeited any interest in the items listed in Counts 4 and 5 of the
Indictment.

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sentence. [Record No. 48] In relevant part, the court rejected Bond’s argument that this Court
erred in denying his motion to suppress. The Sixth Circuit’s mandate was filed on September 12,
2011. Thus, the defendant had ninety days after that date to seek review by the Supreme Court.
And because Bond did not file a petition for a writ of certiorari with the Supreme Court, his
conviction, sentence and judgment because final on or about December 12, 2011.
Bond’s present motion for collateral relief was signed on December 19, 2012, postmarked
on December 20, 2012, and filed by the Clerk of the Court on December 27, 2012. Thus, it does
not appear to be timely under 28 U.S.C. § 2255(f).3 Additionally, the motion does not contain
any factual support for the defendant’s bare-bones assertions of ineffective assistance of counsel
for failure to challenge federal jurisdiction and for other unspecified reasons.4 As a result of the
defendant’s failure to provide any information to support his generic claims, United States
Magistrate Judge Edward B. Atkins entered an Order on December 28, 2012, which provided
that,
According to Rule 2(b)(2) of the Rules Governing Section 2255 Proceedings,
“[t]he motion must state the facts supporting each ground.” The Defendant does

3

Because the defendant’s motion will be dismissed under 28 U.S.C. § 1915A(b)(1), it is not necessary
for the Court to examine whether any period of equitable tolling applies.
4

The defendant’s motion contains four general claims. First, he contends that his attorney was
“ineffective under th Sixth Amendment for the conscious failure to challenge the search and seizure under
the proper jurisdiction, where as here, no federal agents nor federal interests was violated at the time of the
stop of Petitioner’s vehicle by local police.” This argument is clearly frivolous. Next, he asserts that his
conviction was the result of evidence obtained pursuant to an unlawful arrest and following an unlawful
search and seizure. These arguments were addressed during his direct appeal and a collateral proceeding may
not be used to re-litigate them. Finally, Bond argues generally that his attorney was “ineffective as certain
critical stages of the prosecution, resulting in a miscarriage of justice.” [See Record No. 51, pp. 4-5.] No
details of these claims have been presented, despite the defendant’s representation that a memorandum of law
would be forthcoming and despite additional time having been provided for the defendant to outline facts
which would support these claims.

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not support his claims with any facts whatsoever; the motion consists only of the
Defendant’s arguments. Unless the Defendant wishes to have his § 2255 motion
summarily dismissed for failure to state facts supporting each ground, the
Defendant shall file a supplemental memorandum setting forth the facts for each
of his four (4) claims. Accordingly, and the Court being otherwise advised,
IT IS ORDERED THAT the Defendant shall file a Supplemental Memorandum
on or before MONDAY, JANUARY 28, 2013. Within the Supplemental
Memorandum, the Defendant shall state the facts supporting each ground raised
in his § 2255 motion. If the Defendant fails to file a supplemental memorandum
or does not state the facts supporting each ground, the Court will have grounds to
dismiss his § 2255 motion under 28 U.S.C. § 1915A(b)(1).
[Record No. 52]
Defendant Bond has failed to respond to the Magistrate Judge’s Order. Further, this
Court has conducted an independent review of the record. Based upon this review, the Court is
unable to find any facts which would support the generic claims contained in the defendant’s
motion. Accordingly, it is hereby
ORDERED as follows:
1.

Defendant Marquice Kenyatta Bond’s motion to vacate, set aside, or correct his

sentence [Record No. 51] is DENIED.
2.

The defendant’s habeas action [Lexington Civil Action No. 5: 12-7252-DCR] is

DISMISSED and STRICKEN from the Court’s docket in accordance with 28 U.S.C. §
1915A(b)(1) for failure to state a claim upon which relief may be granted.
This 4th day of February, 2013.

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