Byrd v. USA
Filing
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ORDER granting in part 16 Limited Motion for Discovery; Attorney Randolph Lee to file 6/7/2003 letter referenced in affidavit, upon receipt Clerk shall mail a copy to petitioner. The briefing schedule shall be suspended. Signed by District Judge Max O. Cogburn, Jr on 7/19/2011. (Pro se litigant served by US Mail.) (tmg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:10cv602-MOC
(3:01cr178-1)
JAMES E. BYRD, JR.,
)
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Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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_____________________________________)
ORDER
THIS MATTER comes before the Court upon Petitioner’s letter
seeking a copy of a 2003 letter allegedly in the possession of trial counsel
in his underlying criminal case. (Doc. 16). The Court will construe
Petitioner’s letter as a limited Motion for Discovery.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner was one of four individuals indicted in a five-count bill of
indictment filed on September 10, 2001. (Case No. 3:01cr178-1, Doc. 1).
Petitioner was charged with conspiracy to possess with intent to distribute
cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count One).
(Id. at 1).1 The indictment alleged that the conspiracy involved over 50
grams of cocaine base (crack). (Id.).
After a four-day jury trial, Petitioner was found guilty on November 7,
2003, of the conspiracy charged in Count One. (Id. at Doc. 140). On
October 26, 2004, the Court sentenced Petitioner to 360 months’
imprisonment to be followed by a five-year term of supervised release. (Id.
at Doc. 154).
Petitioner filed a notice of appeal, and on September 19, 2005, the
Fourth Circuit Court of Appeals affirmed Petitioner’s conviction but vacated
his sentence and remanded for resentencing pursuant to United States v.
Booker, 543 U.S. 220 (2005). United States v. Byrd, 151 F. App’x 218,
220-21 (4th Cir. 2005).
On November 16, 2006, the Court entered an amended judgment
sentencing Petitioner to 240 months’ imprisonment, followed by five years
of supervised release. (Case No. 3:01cr178-1, Doc. 176). Petitioner
appealed, and the Fourth Circuit affirmed. United States v. Byrd, 238 F.
App’x. 948 (4th Cir. 2007). Petitioner’s petition for writ of certiorari in the
United States Supreme Court was granted; judgment was vacated, and
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Unless otherwise indicated, the page numbers in docket citations are those
assigned by CM/ECF, the Court’s electronic filing system.
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Petitioner’s case was remanded for further consideration in light of Gall v.
United States, 552 U.S. 38 (2007). Byrd v. United States, 552 U.S. 1137
(2008). The Fourth Circuit, in turn, remanded the case to the district court
for resentencing. United States v. Byrd, 278 F. App’x. 277 (4th Cir. 2008).
The Court entered an amended judgment on August 21, 2008, again
sentencing Petitioner to 240 months’ imprisonment, followed by five years
of supervised release. (Case No. 3:01cr178-1, Doc. 223). Petitioner again
appealed, and the Fourth Circuit affirmed. United States v. Byrd, 361 F.
App’x. 465 (4th Cir. 2010).
On November 22, 2010, Petitioner timely filed a Motion to Vacate,
Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1).
The Government responded on May 24, 2011 (Doc. 10) and filed a Motion
for Summary Judgment (Doc. 11). Petitioner was notified pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), of his right to respond
to the Government’s summary judgment motion and to provide certain
documentary evidence to support his motion to vacate. (Doc. 13).
Petitioner’s response currently is due by July 29, 2011. (Doc. 15).
II. DISCUSSION
Attached to the Government’s response in opposition to Petitioner’s
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motion to vacate is an affidavit from trial counsel, addressing some of the
factual allegations made in the motion to vacate. (Doc. 10-1: Aff. of
Randolph M. Lee). In his affidavit, Mr. Lee refers to a letter written by
another federal pretrial detainee to Petitioner on June 7, 2003, which,
according to Mr. Lee, contains evidence that Petitioner was involved in the
local drug trade. (Id. at ¶ 4). The letter was not filed as an attachment to
Mr. Lee’s affidavit or as an exhibit to the Government’s Response. In his
letter motion for discovery, Petitioner seeks an order requiring trial counsel
to provide him a copy of the letter. (Doc. 16).
"A habeas petitioner, unlike the usual civil litigant in federal court, is
not entitled to discovery as a matter of ordinary course." Bracy v. Gramley,
520 U.S. 899, 904 (1997). Discovery is granted only for "good cause."
Rules Governing § 2255 Proceedings, Rule 6(a), 28 U.S.C.A. foll. § 2255.
Specifically, discovery is warranted, “where specific allegations before the
court show reason to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is ... entitled to relief[.]” Bracy,
520 U.S. at 908-09 (citing Harris v. Nelson, 394 U.S. 286, 299-300 (1969).
In his Motion to Vacate, Petitioner alleges that Mr. Lee rendered
ineffective assistance of counsel by refusing to call a particular witness,
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Susan Williams, to testify. (Doc. 1 at 14). In his affidavit, Mr. Lee explains
that part of his trial strategy was to keep evidence of Petitioner’s prior drug
dealing from the jury. (Doc. 10-1 at ¶ 4). He was concerned that calling
Ms. Williams to testify would open the door for the Government to put on
rebuttal evidence of the type that he was trying to keep out. (Id.) Mr. Lee
refers to the letter at issue and its contents to demonstrate that he was
aware of at least one person in federal custody who knew of, and
potentially could have testified about, Petitioner’s involvement in the local
drug trade. (Id.) Petitioner, however, has not explained how access to the
letter will help him fully develop his claim that Mr. Lee was ineffective for
refusing to call Ms. Williams as a witness. See Rule 6(b), 28 U.S.C..A. foll.
§ 2254. Nevertheless, because the letter was cited in support of Mr. Lee’s
affidavit, the Court finds that it should be filed as an exhibit in this case.
III. CONCLUSION
Based upon the foregoing, trial counsel shall be required to file a
copy of the June 7, 2003 letter referenced in his affidavit. Upon receipt of
the letter, the Clerk of Court shall mail a copy to Petitioner. Furthermore,
the briefing schedule in this case shall be suspended pending the filing of
the letter at issue.
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IV. ORDER
IT IS, THEREFORE, ORDERED that,
1.
The Clerk of Court shall docket Petitioner’s letter request
(Doc. 16) as a limited Motion for Discovery;
2.
Petitioner’s limited Motion for Discovery (Doc. 16) is
GRANTED in part and under the following terms;
3.
Within ten (10) days of the filing of this Order, Attorney
Randolph M. Lee shall file in this Court a copy of the June
7, 2003 letter referenced in his affidavit (Doc. 10-1);
4.
Upon its receipt, the Clerk shall mail a copy of the letter to
Petitioner;
5.
The briefing schedule shall be suspended; and
6.
In addition to the parties, the Clerk shall send a copy of
this Order to Mr. Randolph M. Lee, P.O. Box 77005,
Charlotte, NC 28271.
Signed: July 19, 2011
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