Estes v. USA
Filing
7
MEMORANDUM OF DECISION AND ORDER denying Petitioner's 1 Motion to Vacate, Set Aside or Correct Sentence (2255); denying Petitioner's 6 MOTION Post-Conviction Discovery Pursuant To Rule 6 Of The Rules Governing 2255 Habeas Proceedings; and Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 3/7/17. (ejb)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:15-cv-00224-MR
[CRIMINAL CASE NO. 2:12-cr-00011-MR-DCK-1]
WILLIAM ANDREW ESTES,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
________________________________ )
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on the Petitioner’s Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody [CV Doc. 1]1 and the Petitioner’s Motion for Post-Conviction
Discovery Pursuant to Rule 6 of the Rules Governing 2255 Habeas
Proceedings [CV Doc. 6]. The Petitioner is represented by attorneys E.J.
Hurst, II and Marcia G. Shein.
1
Because this Memorandum and Order must reference documents contained on the
docket in both Petitioner’s civil case and in his various criminal cases, the Court will cite
to documents from Petitioner’s civil case with the prefix “CV.” Citations to documents
from Petitioner’s criminal cases will include a reference to the docket number for the
particular case being referenced.
I.
FACTUAL BACKGROUND
In November 2010, federal and state law enforcement officials began
investigating a large-scale methamphetamine distribution conspiracy led by
Michael James Taylor and involving several others, including William Wesley
Hargett, Sonya Maddy, Larry Watkins, Kirsten McGillivray, Adam Cochran,
Johnny Frady, and Ricky Fisher.
Through their investigation, law
enforcement officials learned that Taylor owned the Budget Inn Motel in
Sylva, North Carolina, and used the motel as a distribution point for large
quantities of methamphetamine.
Taylor and other members of his
distribution network also conducted drug transactions at a house located at
19 Pine Street, Greenville, South Carolina (“the Pine Street residence”), as
well as other locations within the Western District of North Carolina.
[Criminal Case No. 2:12-cr-00011-MR-DCK, Doc. 19 at ¶¶ 10, 11, 17, 18].
On June 3, 2011, the Petitioner William Andrew Estes was released
from the North Carolina Department of Corrections after serving a 14-year
sentence for first degree kidnapping. Prior to the Petitioner’s imprisonment,
the Petitioner was in a relationship with Taylor’s mother and acted as a stepfather to him. Also at some point, Taylor and the Petitioner were incarcerated
together and maintained their bond during that time. After his release from
prison, the Petitioner contacted Taylor to discuss his financial situation and
2
to talk about ways that the Petitioner could make money. Eventually, Taylor
informed the Petitioner about his methamphetamine distribution and the
Petitioner began to work for Taylor. [Id. at ¶¶ 12].
The Petitioner was considered Taylor’s “enforcer” during the
conspiracy. [Id. at ¶ 35]. Taylor referred to the Petitioner as his “right hand
man,” although the Petitioner very rarely dealt directly with the sale or
distribution of methamphetamine. [Id.]. One co-conspirator described the
Petitioner’s job as “beat[ing] people up and threaten[ing] people on behalf of
Taylor.” [Id. at ¶ 27]. The Petitioner is 6’2” tall and weighs 200 pounds. [Id.
at 3].
The Petitioner was often observed in Taylor’s presence when
methamphetamine was sold or distributed. [Id. at ¶¶ 24, 25]. The Petitioner
was observed on one occasion by a co-conspirator at the Pine Street
residence when Michael Taylor received a delivery of approximately 2½
pounds of methamphetamine from a Mexican male. The Petitioner was
observed
assisting
Taylor
with
weighing
and
repackaging
the
methamphetamine. [Id. at ¶ 19].
In June 2011, the Petitioner accompanied Taylor to meet with a coconspirator who owed Taylor money for a drug debt. During that meeting,
3
Taylor demanded that the co-conspirator turn over the keys to her car as
payment for the drug debt. [Id. at ¶ 30].
On another occasion in June 2011, law enforcement officials
conducting telephonic surveillance of the conspiracy members heard Taylor
direct a co-conspirator to use a vehicle to transport methamphetamine. Law
enforcement later heard the Petitioner, in Taylor’s absence, coordinating the
pickup of that vehicle after the methamphetamine was delivered. [Id. at ¶
20].
In July 2011, the Petitioner accompanied Taylor to a co-conspirator’s
house where Taylor introduced the Petitioner as a friend who had just gotten
out of prison.
The Petitioner accompanied Taylor on multiple other
occasions to the co-conspirator’s residence when Taylor was dropping off or
picking up bulk amounts of methamphetamine. Taylor frequently used two
magnetic boxes attached to the underside of his pickup truck to transport or
hide methamphetamine. The Petitioner was present and witnessed Taylor
using these boxes. [Id. at ¶ 25].
Following his arrest in August 2011, the Petitioner was housed in the
same jail as Taylor and other co-conspirators. Taylor was overheard in the
jail directing the Petitioner upon his release to travel to South Carolina to get
money from “Shane” and “Pops,” individuals who were known to distribute
4
methamphetamine for the Taylor conspiracy. Taylor and the Petitioner were
also overheard trying to identify who was “snitching” within the conspiracy.
[Id. at ¶ 31].
While incarcerated, the Petitioner continued to speak freely about the
conspiracy to other inmates. The Petitioner detailed one event that occurred
around July 4, 2011, when some unknown Mexicans made a delivery of
methamphetamine to a motel in South Carolina where the Petitioner was
present. The Petitioner was patrolling the area outside the motel while
waiting for Taylor. At this point, the Petitioner and Taylor were suspicious
that one of the co-conspirators was cooperating with law enforcement. That
co-conspirator was also travelling to the motel and the Petitioner believed
that the co-conspirator intended to follow the Mexicans back to Atlanta,
Georgia, to provide law enforcement with the location. [Id. at ¶ 32].
The Petitioner stated in these jailhouse conversations that he never
sold any methamphetamine but had been present when methamphetamine
deliveries were made. The Petitioner also described incidents where he
confronted one of the members of the conspiracy by “putting hands on him”
because the co-conspirator owed Taylor money. [Id. at ¶ 33].
Eventually the Petitioner stopped talking freely about the conspiracy
because he heard that an acquaintance had provided a statement to law
5
enforcement. The Petitioner was heard saying that he was having someone
find out when the acquaintance would be released and where he would
reside. The Petitioner further stated that he had guns “stashed” and that if he
“got out,” they would not have to worry about witnesses. [Id. at ¶ 34].
On July 21, 2012, while housed at the Cherokee County Detention
Center in Murphy, North Carolina, the Petitioner was involved in an
altercation with two of his co-defendants, Lonnie Payne, Jr. and Adam
Cochran. According to Payne and Cochran, the door between two inmate
housing areas was left open and the Petitioner was able to enter the pod
where Cochran and Payne were standing. When the Petitioner entered the
pod he assaulted both Payne and Cochran.
During the altercation,
witnesses overheard the Petitioner yelling about Payne and Cochran “turning
evidence.” Both Payne and Cochran sustained physical injuries from the
assault. The Petitioner later admitted committing the assaults and told law
enforcement officers he could have easily killed Payne and Cochran but did
not. [Id. at ¶¶ 38-40].
II.
PROCEDURAL BACKGROUND
On September 20, 2011, the Petitioner was charged in a Bill of
Indictment, along with ten co-defendants, with conspiracy to possess with
intent to distribute at least 50 grams of actual methamphetamine and at least
6
500 grams of a mixture or substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. [Criminal
Case No. 2:11-cr-00022-MR-DLH-2, Doc. 74]. The Federal Defenders of
Western North Carolina were appointed to represent the Petitioner.
On May 18, 2012, the Petitioner entered into a Plea Agreement in
which he agreed to plead guilty to a Bill of Information that charged a
conspiracy involving a lower drug quantity, in exchange for which the
Government agreed to dismiss the Indictment against the Petitioner.
[Criminal Case No. 2:12-cr-00011-MR-DCK, Docs. 1 and 2]. The effect of
this was to reduce the mandatory minimum sentence from ten years to five.
[Id.].
In the Plea Agreement, the parties made a series of joint sentencing
recommendations to the Court, including the following:
a.
The amount of actual methamphetamine that
was known to or reasonably foreseeable by the
defendant was 947.6 grams, which is a base offense
level of 36, pursuant to U.S.S.G. § 2D1.1(c)(2);
b.
The defendant’s offense level is decreased by
three levels to 33, pursuant to U.S.S.G. §
2D1.1(a)(5), because he is entitled to an adjustment,
pursuant to U.S.S.G. § 3B1.2, for a mitigating role[;]
c.
The defendant’s offense level is further
decreased to 32, pursuant to U.S.S.G. § 2D1.1(a)(5),
7
because the resulting offense level was greater than
32 and the defendant was a minimal participant;
d.
The defendant’s offense level is increased by
two levels to 34, pursuant to U.S.S.G. § 2D1.1(b)(2),
because the defendant used violence or made a
credible threat to use violence;
e.
The defendant’s offense level is decreased by
four levels to 30, pursuant to U.S.S.G. § 3B1.2(a),
because the defendant was a minimal participant;
f.
The defendant’s offense level is decreased two
additional levels to 28, pursuant to U.S.S.G. §
2D1.1(b)(15), because the defendant was a minimal
participant and he was motivated by an intimate or
familial relationship to commit the offense and was
otherwise unlikely to commit such an offense; the
defendant received no monetary compensation from
the illegal purchase, sale, transport or storage of
controlled substance; and the defendant had minimal
knowledge of the scope and structure of the
enterprise;
*
*
*
i.
The parties agree that the appropriate
sentence is one at the low end of the “applicable
guideline range” and that neither party will seek a
departure or variance from the low end of the
“applicable guideline range.”
[Id. at ¶ 7].
Despite these joint recommendations, the Petitioner
acknowledged in the Plea Agreement that he understood that the Court
would consider the Guidelines as advisory; that the Court had not yet
determined the sentence and that any estimate of the likely sentence was “a
8
prediction rather than a promise”; that the Court had the discretion to impose
any sentence up to the statutory maximum; and that the Court would not be
bound by any recommendations or agreements made by the Government.
[Id. at ¶ 6].
The Petitioner further agreed in the Plea Agreement, “in
exchange for the concessions made by the United States,” to waive his right
to appeal his conviction or his sentence, except on the bases of ineffective
assistance of counsel or prosecutorial misconduct. [Id. at ¶ 19].
On May 21, 2012, the Petitioner appeared before the Honorable
Dennis L. Howell, United States Magistrate Judge, for a Rule 11 hearing.
The Petitioner was placed under oath and was asked a series of questions
by the Magistrate Judge, who recorded his responses. [Criminal Case No.
2:12-cr-00011-MR-DCK, Doc. 8]. During this colloquy, the Petitioner averred
that he could hear and understand the Magistrate Judge’s questions and that
his mind was clear. [Id. at 1-2].
The Magistrate Judge advised the Petitioner of the essential elements
of the offense to which he was pleading guilty, as well as the minimum and
maximum penalties. [Id. at 2-3]. In response to the Magistrate Judge’s
questions, the Petitioner affirmatively stated that he understood that the
Court would not be bound by the Sentencing Guidelines in sentencing him
and could impose a sentence greater or less than the sentence as provided
9
for by the Guidelines.
[Id. at 5].
The Petitioner further stated that he
understood that if the imposed sentence was more severe than expected or
the Court did not accept the Government’s sentencing recommendation, he
would still be bound by his guilty plea and would have no right to withdraw
his plea. [Id. at 5-6].
The Petitioner further admitted that he was guilty of the offense
described in the Bill of Information; that his guilty plea was voluntary; that he
understood and agreed with the terms of the written Plea Agreement; and
that no promises were made to him other than the promises contained in that
written agreement. [Id. at 7-8]. The Petitioner also affirmed that he was
waiving his right to appeal. [Id. at 8]. Based upon the representations and
answers given by the Petitioner, the Magistrate Judge found that his guilty
plea was knowingly and voluntarily made and that the Petitioner understood
the charges, potential penalties, and consequences of that plea. [Id. at 9].
Following his guilty plea to the conspiracy charge, the Petitioner was
charged with two counts of retaliating against a witness, in violation of 18
U.S.C. § 1513(b)(2), arising from the altercation with Payne and Cochran at
the Cherokee County Jail. [Criminal Case No. 2:12-cr-00023-MR-DCK-1,
Doc. 1]. On January 24, 2013, the Petitioner pleaded guilty to both counts
without a written plea agreement. [Id., Doc. 11].
10
In preparation for the Petitioner’s sentencing, the Probation Office
prepared a Presentence Report (“PSR”) with respect to both the conspiracy
count in Criminal Case No. 2:12-cr-00011-MR-DCK and the retaliation
counts in Criminal Case No. 2:12-cr-00023-MR-DCK. [Criminal Case No.
2:12-cr-00011-MR-DCK, Doc. 19]. With respect to the conspiracy count, the
probation officer calculated a total offense level of 35 and a criminal history
category of II, yielding an advisory Guidelines range of imprisonment of 188
to 235 months. [Id. at ¶¶ 71, 84, 102]. In calculating the total offense level,
the probation officer recommended a two-level reduction based on the
Petitioner’s role as a minor participant in the conspiracy, rather than the fourlevel reduction and other reductions recommended by the parties in the Plea
Agreement based on the assertion that the Petitioner was a minimal
participant.
[Id. at ¶¶ 49, 51].
In response to the PSR, the Petitioner
presented several objections, including an objection to the failure of the
probation officer to recommend a decrease in his offense level by four levels
based on his minimal participation in the charged conspiracy. [Id. at 31-33;
Doc. 21]. In accord with the Plea Agreement, the Government also objected
to the probation officer’s failure to recommend a minimal-participant
reduction. [Id., Doc. 19 at 30].
11
On September 19, 2013, the Court held a sentencing hearing in
Criminal Case No. 2:12-cr-00011-MR-DCK and Criminal Case No. 2:12-cr00023-MR-DCK.
The Court first confirmed that all of the Petitioner’s
responses to the Magistrate Judge’s questions in the prior Rule 11
proceedings were true and correct. [Criminal Case No. 2:12-cr-00011-MRDCK, Doc. 33 at 5]. Petitioner’s counsel confirmed that he was satisfied that
the Petitioner understood all of the questions that were asked of him in the
Rule 11 proceedings. [Id. at 6]. The Petitioner confirmed that he was
pleading guilty in both matters because he did in fact commit the crimes
charged. [Id.]. He further confirmed that he was pleading guilty voluntarily
and not as a result of any threats, force or promises other than those promise
set forth in the plea agreement to the conspiracy charge. [Id. at 7].
Noting that the parties had agreed to make various sentencing
recommendations in the Plea Agreement, the Court confirmed that the
Petitioner understood that the Court was “not required to accept those facts
or factors simply because both sides have agreed” and that if the Court
“decline[d] to accept any of those facts or factors in [its] sentencing decision,
[the Petitioner would] not have the right to withdraw [his] plea.” [Id.].
The Petitioner then stipulated that there was a factual basis to support
his guilty pleas and that the Court could accept the facts as set forth in the
12
final revised PSR to which no objection had been made as establishing such
factual basis. [Id. at 8-10]. Based upon the representations made to the
Court and the answers given by the Petitioner, the Court accepted the
Petitioner’s guilty pleas in both matters. [Id. at 10].
During the sentencing hearing, both parties argued in favor of a
minimal participant reduction in the Petitioner’s offense level. The Court,
however, rejected these arguments, noting that the Petitioner assisted the
leader of the conspiracy by allowing himself to be portrayed as the enforcer,
or “muscle,” of the conspiracy and impliedly threatening violence at a time
when the conspiracy was otherwise “floundering.” [Id. at 41-43].2 The Court
therefore concluded that no mitigating role reduction under U.S.S.G. § 3B1.2
was warranted. [Id. at 44]. The Court ultimately calculated a total offense
level of 38 and a criminal history category of II, resulting in an advisory
Sentencing Guidelines range of 262 to 327 months’ imprisonment. [Id. at
71]. After hearing from both parties as to the appropriate sentence, the Court
imposed a downward-variance sentence of 208 months as to the conspiracy
2
Even the joint recommendations of the parties in the Plea Agreement seemed
inconsistent in that the Petitioner admitted that he was responsible for 947.6 grams of
methamphetamine and that he used violence or a credible threat of violence in the drug
transactions, but the parties recommended that such participation was “minimal.” [See
Criminal Case No. 2:12-cr-00011-MR-DCK, Doc. 2 at ¶ 7(a), (d), (e)].
13
offense and a concurrent term of 38 months as to the retaliation offenses.
[Id. at 102]. The Court entered its Judgment on October 7, 2013. [Criminal
Case No. 2:12-cr-00011-MR-DCK, Do. 24].
The Petitioner filed a timely notice of appeal, arguing that the Court
committed procedural error in calculating Petitioner’s advisory guidelines
range. [Criminal Case No. 2:12-cr-00011-MR-DCK, Doc. 26]. On July 11,
2014, the Fourth Circuit Court of Appeals dismissed the Petitioner’s appeal
upon motion of the Government, finding the issue that he sought to raise on
appeal “falls squarely within the compass of his waiver of appellate rights.”
[Criminal Case No. 2:12-cr-00011-MR-DCK, Doc. 34 at 1-2].
On October 2, 2015, the Petitioner, through retained counsel, filed the
present motion to vacate pursuant to 28 U.S.C. § 2255. [CV Doc. 1]. In his
motion, the Petitioner states the following five grounds for relief:
GROUND ONE: Counsel was ineffective for failing to have the
sentencing Court [conduct the Rule 11 hearing] in light of the
significant guideline concessions being represented in the pleas
and the sentencing Court’s predisposition on mitigating role
adjustments. Counsel was also ineffective in not knowing the
Court’s predisposition on mitigating role issues.
GROUND TWO: The prosecution and counsel failed to support
the plea agreement by presenting testimony evidence at
sentencing in support of the mitigating role adjustments or
incremental role reduction options resulting in ineffective
assistance of counsel and prosecutorial misconduct.
14
GROUND THREE: The prosecution committed misconduct
when it failed to provide notice to petitioner of the court’s
predisposition
regarding
mitigating
role
adjustment
considerations before the plea was entered thus making the
pleas illusory or to void [sic] knowing of the Court’s predisposition
....
GROUND FOUR: Counsel was ineffective in failing to properly
advise the petitioner regarding the gross misrepresentation of
the guidelines in the plea as opposed to the Court’s
predisposition on granting minimal or minor adjustments and
failed to attempt to withdraw the plea or inform the petitioner of
this option.
GROUND FIVE: The prosecution committed misconduct when it
failed to inform the petitioner of the courts [sic] predisposition
regarding mitigating role adjustment considerations before the
plea was entered thus making the plea illusory and failed to
withdraw the plea or inform the petitioner of this option.
[CV Doc. 1 at 4-9]. In the Memorandum of Law filed by counsel in support
of the Motion to Vacate, the Petitioner raises an additional issue, arguing that
the Government committed prosecutorial misconduct in failing to disclose
certain exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963), and that counsel failed to compel discovery of this information,
resulting in ineffective assistance of counsel and a violation of the Petitioner’s
due process rights. [CV Doc. 1-1 at 21-24]. Finally, the Petitioner by way of
a separate motion moves to compel certain discovery from the Government.
[CV Doc. 6].
15
III.
STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings, sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the record of prior proceedings”
in order to determine whether a petitioner is entitled to any relief. After
having considered the record in this matter, the Court finds that no response
is necessary from the United States. Further, the Court finds that this matter
can be resolved without an evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
IV.
DISCUSSION
A.
Ineffective Assistance and Prosecutorial Misconduct Claims
Based on Counsels’ Alleged Failure to Advise Petitioner of
Court’s “Predisposition” Against Granting Mitigating Role
Adjustments
In order to challenge a conviction based on the ineffective assistance
of counsel, a petitioner has the burden of establishing that: (1) defense
counsel’s performance was deficient, in that counsel’s “representation fell
below an objective standard of reasonableness” as measured by “prevailing
professional norms,” and (2) the petitioner was prejudiced thereby, meaning
“there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
16
Washington, 466 U.S. 668, 688, 694 (1984). In order to assert a claim of
prosecutorial misconduct, a petitioner must show “(1) that the prosecutors
engaged in improper conduct, and (2) that such conduct prejudiced the
defendant's substantial rights so as to deny the defendant a fair trial.” United
States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005).
Petitioner, through counsel, asserts five grounds for relief in his motion
to vacate based on claims of prosecutorial misconduct and ineffective
assistance of counsel. In four of the grounds asserted (Grounds One, Three,
Four, and Five), the Petitioner claims that the Government and defense
counsel failed to advise him of the Court’s alleged “predisposition” against
granting minimal or minor role adjustments.
[CV Doc. 1 at 4-9].
The
Petitioner’s arguments are premised on a single comment, made during an
exchange between the Court and defense counsel at sentencing regarding
the application of U.S.S.G. § 3B1.2, wherein the Court noted that it had seen
“very, very few cases” that it considered to warrant the minimal participant
reduction. [Criminal Case No. 2:12-cr-00011-MR-DCK, Doc. 33 at 24]. The
Petitioner contends that by this comment, the Court identified “its almost total
prohibition against mitigating role adjustments.” [CV Doc. 1-1 at 19].
Because of the Court’s alleged “predisposition,” the Petitioner contends,
counsel
should
have
known
that
17
the
parties’
joint
sentencing
recommendations as set forth in the Plea Agreement would not be accepted
by the Court. Further, because he was not advised of this “predisposition,”
the Petitioner argues, his guilty plea was “illusory at best and meaningless
at worst.” [CV Doc. 1 at 4].
Each of these grounds is based on the flawed premise that the Court
was somehow predisposed against granting mitigating role adjustments. In
so arguing, the Petitioner relies heavily on the Court’s observation that “very,
very few cases” warrant the most extensive reductions for having had merely
a minimal role in the offense. Far from being a statement of any bias or
predisposition of the Court, this statement simply reflects the reality that in
the drug conspiracy cases that have been tried and/or sentenced by this
Court, relatively very few defendants truly qualify for a minimal participant
reduction (as opposed to any mitigating role adjustment). When the Court’s
statement is viewed in its proper context, it is evident that the Court was
merely expressing its view that the minimal participant reduction is a narrow
exception that is not applicable to most defendants who are accused of
engaging in a conspiracy:
As I'm sure you know, and certainly most lawyers
who appear in front of me know, I see very, very few
cases that I see as minimal participant cases. In fact,
I think of all the -- and I see maybe one a year that
falls within the context of a minimal participant case.
18
All but one of them that I can think of literally falls
within the so-called "girlfriend exception." In other
words, the boyfriend is the one who's participating in
the -- in fact, I think this is a case that you [referring
to defense counsel] argued in front of me down in
Charlotte. The boyfriend is the participant in the
conspiracy. They find out that the shipment of drugs
is coming in from who knows where and they need to
parcel it out to these dealers who are then going to
distribute it.
And so on the way to the mall, boyfriend and
girlfriend go [to the drop-off location] and . . . he's
sorting these things out and, yes, the girlfriend takes
a couple of the packages and throws them in the
trunk of one car. Is she a minimal participant? Yes,
she is. She has this incidental contact with the
conspiracy but she knows it's a drug conspiracy. She
picked up the packages of the marijuana. That's what
I see as a minimal participant.
[Id. at 24-25].
As the Court correctly noted at the sentencing hearing, mitigating role
adjustments are available for a defendant who played a “substantially less
culpable” role than the average participant in the offense. U.S.S.G. § 3B1.2
cmt. n.3(A) (2012). Under § 3B1.2, a defendant’s offense level may be
decreased by four levels for being a “minimal participant.”
U.S.S.G. §
3B1.2(a) (2012). This provision is intended to cover the defendant who is
“plainly among the least culpable of those involved in” the offense. U.S.S.G.
§ 3B1.2 cmt. n.4 (2012). A defendant’s offense level may be decreased by
19
two levels for being a “minor participant.” U.S.S.G. § 3B1.2(b) (2012). A
“minor participant” is one “who is less culpable than most other participants”
in the offense “but whose role could not be described as minimal.” U.S.S.G.
§ 3B1.2 cmt. n.5 (2012). A three-level reduction is available for a defendant
whose conduct falls somewhere between being a “minimal” and a “minor”
participant. U.S.S.G. § 3B1.2 (2012).
Whether a defendant is entitled to a reduction for a mitigating role is a
fact-intensive inquiry that is “based on the totality of the circumstances” of
the particular case.
U.S.S.G. § 3B1.2 cmt. n.3(C) (2012).
Whether a
mitigating role adjustment is warranted should be “determined not only by
comparing the acts of each participant in relation to the relevant conduct for
which the participant is held accountable, but also by measuring each
participant’s individual acts and relative culpability against the elements of
the offense of conviction.” United States v. Palinkas, 938 F.2d 456, 460 (4th
Cir.1991) (internal quotation marks and citation omitted). “The critical inquiry
is thus not just whether the defendant has done fewer ‘bad acts' than his codefendants, but whether the defendant's conduct is material or essential to
committing the offense.” United States v. Pratt, 239 F.3d 640, 646 (4th Cir.
2001) (quoting Palinkas, 938 F.2d at 460).
20
Here, upon considering the totality of the circumstances, the Court
ultimately concluded that the Petitioner was not entitled to any mitigating role
adjustment. In so doing, the Court noted that this was an “extremely difficult”
case in light of the unique role that the Petitioner played in the conspiracy.
[Criminal Case No. 2:12-cr-00011-MR-DCK, Doc. 33 at 41]. Most of the
other co-conspirators were involved primarily in the sale or distribution of
methamphetamine at the direction of Michael Taylor.
The Petitioner
participated in several of these methamphetamine transactions but not as a
seller or buyer. The Petitioner nevertheless participated in the conspiracy in
a manner that was material to the commission of the crime by serving as
Michael Taylor’s right hand man and by allowing himself to be portrayed as
the “muscle.” This impression, which the Petitioner fostered, was meant to
convey to others a threat of violence that was necessary to support the
conspiracy and its overall goal.
Determining whether the Petitioner was entitled to a mitigating role
adjustment first required comparing the Petitioner’s involvement to the
involvement of others who were also part of the conspiracy. In order to
satisfy this component of § 3B1.2, the Petitioner would have had to establish
that his actions in allowing himself to be portrayed as the muscle (along with
its implicit threat of violence), in addition to participating in some
21
methamphetamine deliveries, rendered him substantially less culpable than
the average participants, i.e., those who participated in the selling and the
delivery of the drugs. In light of the unique circumstances of this particular
conspiracy, the Court properly concluded that the Plaintiff had not met his
burden on this issue. Taylor required the continued implied threat of violence
provided
by
the
Petitioner
in
order
to
continue
operating
the
methamphetamine distribution conspiracy. Without the “muscle” supplied by
the Petitioner, the Court determined that the conspiracy was “floundering.”
[Id. at 43]. Thus, the Petitioner’s involvement was every bit as critical to the
success of the conspiracy as those who routinely sold and delivered
methamphetamine.
Section 3B1.2 next required comparing the Petitioner’s acts against
the elements of the offense.
To prove a federal drug conspiracy, the
Government would have had to adduce competent evidence that an unlawful
agreement was made to distribute methamphetamine; that the Petitioner
knew of the conspiracy; and that the Petitioner knowingly and voluntarily
became a part of that conspiracy. See United States v. Burgos, 94 F.3d 849,
857 (4th Cir. 1996). Here, the Petitioner agreed to be the enforcement arm
of the conspiracy.
As the Petitioner’s involvement was essential to
maintaining the operations of the conspiracy, the Court properly concluded
22
that the Petitioner was not substantially less culpable than the average
participant in the conspiracy. [Id.]. Thus, while the parties stipulated in the
Plea Agreement that the Petitioner was a minimal participant in the
conspiracy, the Court ultimately concluded that application of U.S.S.G. §
3B1.2 to the particular facts of this case did not support any reduction for a
mitigating role.3
The Petitioner contends that his counsel was ineffective in failing to
recognize that the Court would not accept the parties’ joint sentencing
recommendations and in failing to advise him to withdraw the Plea
Agreement.
He further contends that the Government committed
prosecutorial misconduct in agreeing to make sentencing recommendations
that the Government knew that the Court would not accept. Again, however,
the Court was not predisposed against granting any mitigating role
adjustments.
Rather, the Court was intent upon applying § 3B1.2 and
relevant Fourth Circuit precedent.
In Ground Two, the Petitioner contends that when the Court rejected the parties’
recommendation that the Petitioner receive a minimal participant reduction, counsel was
ineffective in failing to advocate for at least a minor role reduction instead. The Court’s
analysis, however, applied to any type of mitigating role under § 3B1.2, whether as a
minor or minimal participant. In the end, neither adjustment was warranted. Thus,
counsel’s alleged failure to advocate specifically for the minor role reduction did not cause
the Petitioner any prejudice.
3
23
The Petitioner was repeatedly and clearly advised that the parties’ joint
sentencing recommendations did not bind the Court in any way. In his Plea
Agreement, the Petitioner acknowledged that the Court had the discretion to
impose any sentence up to the statutory maximum and that the Court would
not be bound by any recommendations or agreements made by the
Government. At his Rule 11 hearing, the Petitioner confirmed under oath
that he understood that if the imposed sentence was more severe than
expected or if the Court did not accept the Government’s sentencing
recommendation, he would still be bound by his guilty plea and would have
no right to withdraw it.
At his sentencing hearing, the Petitioner again
confirmed that he understood that the Court was not required to accept the
parties’ joint sentencing recommendations and that if Court declined to
accept those joint recommendations, he would not have the right to withdraw
his guilty plea.
The Petitioner was advised repeatedly that the joint
sentencing recommendations were not binding on the Court, and therefore
the Petitioner cannot demonstrate any prejudice by counsel’s performance
with respect to advising him about withdrawing his guilty plea.
The Petitioner further contends that counsel “grossly misadvised” him
of his potential sentencing exposure in accepting the guilty plea. [CV Doc.
1-1 at 8]. In support of this contention, the Petitioner offers several affidavits
24
of family members and friends who state that defense counsel had advised
them that by pleading guilty, the Petitioner would be sentenced to a term of
five years’ imprisonment. [CV Doc. 1-1 at 8; CV Doc. 1-2]. These affidavits,
however, directly contradict the Petitioner’s own sworn statements at his
Rule 11 hearing that he understood the minimum and maximum penalties
for the offense; that he understood that the Court was not bound by the
parties’ joint sentencing recommendations; and that the Court was not bound
by the Sentencing Guidelines and could impose a sentence that was greater
or less than the recommended Guideline sentence. To the extent that these
affidavits imply that counsel promised a particular sentence, such affidavits
are squarely refuted by the Petitioner’s sworn acknowledgement that no
promises were made to him regarding a particular sentence being imposed.
If the solemnity, care, and personal attention required of a plea colloquy has
any meaning at all, its binding force cannot be undone simply by the factually
unsupported, post-hoc allegations of a disgruntled defendant and his family
members. See United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir.
2005) (“Thus, in the absence extraordinary circumstances, the truth of sworn
statements made during a Rule 11 colloquy is conclusively established, and
a district court should, without holding an evidentiary hearing, dismiss any §
2255 motion that necessarily relies on allegations that contradict the sworn
25
statements. Otherwise, a primary virtue of Rule 11 colloquies would be
eliminated....”) (citing Blackledge v. Allison, 431 U.S. 63, 79 n. 19 (1977)).
Accordingly, the Petitioner’s claim of ineffective assistance in this regard
must fail.
In sum, the Court’s decision not to apply any mitigating role adjustment
was not the result of any predisposition against granting such reductions but
rather was the result of the considered evaluation of the evidence before the
Court and the application of binding precedent to such evidence. Thus, to
the extent that the Petitioner bases his claims of ineffective assistance and
prosecutorial misconduct on a theory that the Court was predisposed against
granting mitigating role adjustments, such claims are without merit and are
therefore dismissed.
B.
Ineffective Assistance and Prosecutorial Misconduct
Arising from the Parties’ Failure to Present Evidence in
Support of Mitigating Role Adjustments
In Ground Two, the Petitioner argues that the Government committed
prosecutorial misconduct and that his trial counsel was ineffective when they
both “failed to support the plea agreement by presenting testimonial
evidence at sentencing in support of the mitigating role adjustments or
incremental role reduction options . . . .” [CV Doc. 1 at 5]. Specifically, the
Petitioner argues that his counsel was ineffective in failing to present the
26
testimony of Michael Taylor, who the Petitioner contends would have
testified that the Petitioner “was working legitimate jobs for Mr. Taylor and
was used by him because Taylor knew the Petitioner would do whatever
Taylor asked, having known him as family since Petitioner [sic]4 was a young
child.” [CV Doc. 1-1 at 15].
The Petitioner fails to demonstrate, however, that the result of the
sentencing would have been different had counsel presented Taylor’s live
testimony. “Deficient performance is prejudicial only if ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” See Tucker v. Ozmint, 350 F.3d
433, 439 (4th Cir. 2003) (quoting in part Strickland, 466 U.S. at 694). Here,
counsel argued at sentencing that the Petitioner was employed by Taylor to
perform legitimate work for Taylor’s business and that to the extent that the
Petitioner performed any task on behalf of the conspiracy, he was motivated
to do so due to his familial-like relationship to Taylor. Thus, the substance
of Taylor’s proposed testimony was presented to the Court through the
arguments of counsel. Further, while the Petitioner did not qualify for a
The PSR indicates that the Petitioner had been in a relationship with Taylor’s mother
and acted as a step-father to Taylor; thus, it is unlikely that Taylor was acquainted with
the Petitioner when the Petitioner was a young child.
27
4
minimal participant reduction under U.S.S.G. § 2D1.1(b)(15), the Court
accounted for the fact that the Petitioner’s involvement in the conspiracy was
motivated by a familial interest in helping Taylor when the Court varied
downward from the recommended Guidelines range. The Petitioner fails to
demonstrate what difference it would have made if counsel had presented
such information through the live testimony of Taylor.
While Taylor may have provided favorable testimony for the Petitioner
on some points, it must be noted that Taylor had also made various
statements to co-defendants and law enforcement indicating that the
Petitioner’s assistance went far beyond performing merely “legitimate jobs.”
Taylor referred to the Petitioner repeatedly as his “right hand man” and
acknowledged that the Petitioner played the role of an “enforcer” in the
conspiracy.
In light of this evidence, the Petitioner simply cannot
demonstrate prejudice from counsel’s failure to present the live testimony of
Michael Taylor at sentencing. This claim, therefore, is also dismissed.
C.
Alleged Brady Violations
In Ground Five of his Motion to Vacate, the Petitioner asserts that the
Government “committed misconduct when it failed to inform the petitioner of
the courts [sic] predisposition regarding mitigating role adjustment
considerations….” [CV Doc. 1 at 9]. In the Memorandum filed in support of
28
the Motion to Vacate, however, the Petitioner makes a completely different
argument as his fifth ground for relief. Specifically, the Petitioner argues that
the Government committed misconduct in failing to disclose exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that
counsel failed to compel discovery of this information, resulting in ineffective
assistance of counsel and a violation of the Petitioner’s due process rights.
[CV Doc. 1-1 at 21-24]. The Petitioner specifically identifies three pieces of
evidence that the Government allegedly failed to disclose: (1) a text
conversation between co-conspirator Wesley Hargett and the Petitioner in
which Hargett offered to sell the Petitioner a gun and the Petitioner refused;
(2) a recorded phone call between Hargett and the Petitioner in which
Hargett offered to pay the Petitioner to go and pick up money from someone
and the Petitioner refused; and (3) a letter that the Petitioner wrote to Taylor
in March or April 2011 while the Petitioner was still incarcerated on his
kidnapping charge in which he encouraged Taylor not to engage in illegal
activities. [See CV Doc. 1-1 at 23-24].
The Petitioner’s Brady claim is without merit. In order to establish a
Brady violation, a petitioner must demonstrate that: (1) the evidence was
suppressed by the prosecution; (2) such evidence was favorable to the
defendant, whether because it was directly exculpatory or it had
29
impeachment value, and (3) it was material. Spicer v. Roxbury Corr. Inst.,
194 F.3d 547, 555 (4th Cir. 1999). The Brady rule does not apply, however,
“if the evidence in question is available to the defendant from other sources,
either directly or via investigation by a reasonable defendant.” United States
v. Brother Constr. Co. of Ohio, 219 F.3d 300, 316 (4th Cir. 2000) (internal
citations omitted). Here, by his own admission, the Petitioner was the
recipient of both the text message and the phone call from Hargett, and he
was the author of the letter to Taylor. Thus, the substance of this evidence
was equally available to the Petitioner as it was to the Government.
Therefore, the Petitioner has not established that the Government violated
Brady by failing to provide this evidence to him, nor has he shown that his
counsel was ineffective in failing to compel such discovery from the
Government.
Further, the Petitioner has not demonstrated how this
evidence was in any way material to the determination of his guilt or
innocence of the crimes to which he pleaded guilty. For these reasons, the
Petitioner’s fifth ground for relief as stated in his Memorandum of Law is
dismissed.
D.
Motion for Discovery
By way of a separate motion, the Petitioner seeks leave to conduct
discovery with respect to his claims. [CV Doc. 6]. The Rules Governing
30
Section 2255 Proceedings provide that the Court may authorize discovery
upon a showing of “good cause.” See Rule 6(a), Rules Governing Section
2255 Proceedings for the United States District Courts, 28 U.S.C. § 2255.
The Petitioner has failed to demonstrate good cause to invoke the discovery
process in this case. Accordingly, the Petitioner's request for discovery is
denied.
V.
CONCLUSION
For the foregoing reasons, the Petitioner’s motion to vacate is denied
and dismissed, and his motion for discovery is denied.
The Court further
finds that Petitioner has not made a substantial showing of a denial of a
constitutional right. See generally 28 U.S.C. § 2253(c)(2); see also Miller-El
v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a
“petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong”) (citing
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)). The Petitioner has failed
to demonstrate both that this Court’s dispositive procedural rulings are
debatable, and that the motion to vacate states a debatable claim of the
denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). As a result, the Court declines to issue a certificate of appealability.
31
See Rule 11(a), Rules Governing Section 2255 Proceedings for the United
States District Courts, 28 U.S.C. § 2255.
ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody [CV Doc. 1] is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion for PostConviction Discovery Pursuant to Rule 6 of the Rules Governing 2255
Habeas Proceedings [CV Doc. 6] is DENIED.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed: March 7, 2017
32
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