Mobley v. USA
Filing
23
ORDER denying and dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by District Judge Robert J. Conrad, Jr on 12/7/15. (Pro se litigant served by US Mail.)(ssh)
DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13CV571-RJC
(3:09CR189-RJC-DCK-3)
MARVIN SUNTATE MOBLEY,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent. )
____________________________________)
ORDER
THIS MATTER is before the Court on Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255, (Doc. No. 1), on the Government’s Response in
Opposition to Petitioner’s Motion to Vacate, (Doc. No. 15), and on Petitioner’s Reply, (Doc. No.
21).
I.
BACKGROUND
A. Indictment and Pre-Trial Background
On October 20, 2009, the Grand Jury for the Western District of North Carolina indicted
Petitioner Marvin Suntate Mobley and his father, Silas Junior Mobley, on two drug trafficking
counts. (Crim. Case No. 3:09-cr-189-RJC-DCK-3, Doc. No. 1: Indictment). Count One charged
both Mobleys with conspiring with one another, with Jeremy Williams, and with others known
and unknown to the Grand Jury, from early 2004 to the issuance of the indictment, to distribute
cocaine and to possess cocaine with intent to distribute, said offense involving 5 kilograms or
more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A); and Count Three charged
both Mobleys with the attempted possession of 500 grams or more of cocaine on June 1, 2009, in
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violation of 21 U.S.C. §§ 846 and 841(b)(1)(B), and aiding and abetting the same, in violation of
18 U.S.C. § 2. (Id.). On December 9, 2009, attorney Harold Bender was appointed to represent
Petitioner. (Id., Doc. Entry dated 12/9/2009). Counsel Bender represented Petitioner until the
Court granted his motion to withdraw as counsel on April 9, 2010. (Id., Doc. No. 45). On April
12, 2010, attorney Richard Brown was appointed to represent Petitioner. (Id., Doc. No. 46). On
July 26, 2010, Brown filed a motion to withdraw as counsel. (Id., Doc. No. 67). On July 28,
2010, the Court denied Brown’s motion to withdraw as counsel. (Id., Doc. No. 70).
B. Petitioner’s Trial
1. Background
Following two continuances by the Court, Petitioner’s jury trial began on August 6, 2010.
See (Id., Doc. Nos. 39; 56). The day before the trial started, the Government filed a notice,
pursuant to 21 U.S.C. § 851, informing the Court of Petitioner’s prior federal felony conviction
of conspiracy to distribute and possess with intent to distribute cocaine and his multiple prior
South Carolina felony drug convictions, including convictions for possession of crack cocaine,
manufacture and distribution of crack cocaine near a school, possession of crack cocaine and
marijuana, and possession of marijuana.1 (Id., Doc. No. 83: Section 851 Notice).
At trial, the Government presented direct evidence of Petitioner’s participation in the charged
offenses through (1) testimony and corroborating wiretap conversations relating to the years-long
conspiracy among Silas Mobley, Petitioner, and others to distribute multiple kilograms of
cocaine and to possess multiple kilograms with the intent to distribute; and (2) a final attempt by
the Mobleys to acquire another kilogram of cocaine from one of their co-conspirators, unaware
1
The Government also filed prior Section 851 Notices on December 9, 2009, March 16, 2010,
and July 25, 2010. (Id., Doc. Nos. 14; 34; 36; and 65).
2
that he had just begun to cooperate with law enforcement. In that final overt act, the Mobleys
brought the cash amounting to the pre-arranged purchase price, $30,500, but the cooperator told
them that the deal could not be completed that day. (Id., Doc. No. 104 at ¶¶ 9; 10: PSR). As the
Mobleys drove away, law enforcement officers performed a traffic stop and, in a subsequent
search of their vehicle, recovered $30,500. (Id. at ¶ 10).
2. Evidence of the Conspiracy Presented at Trial
Kenneth Patterson testified that he had conspired with Silas Mobley, Petitioner, and
others to traffic in drugs. (Id., Doc. No. 150 at 214-15). His first transaction with Silas Mobley
was in 2002 or 2003, when Silas Mobley supplied him with a kilogram of cocaine. (Id. at 21516). The next deal with Silas Mobley involved Patterson’s purchase from him of two more
kilograms of cocaine. (Id. at 216). In total, Patterson testified that he had engaged in at least 50
cocaine deals with Silas Mobley, in quantities varying from kilograms down to half-ounces. (Id.
at 217). Patterson also engaged in five or six cocaine deals with Petitioner, always in kilogram
quantities. (Id. at 217-18). Patterson shifted from doing the deals with Silas Mobley to doing
them with Petitioner because of an incident in which Silas had shorted him $1,000 for a kilogram
of cocaine. (Id. at 224-25). Patterson’s testimony was corroborated by wiretap recordings of
four conversations he had with Silas Mobley in late February and early March 2009 in which
they discussed their cocaine trafficking activity, including the problem of the recent $1,000
shortfall. (Id. at 110-12). Another co-conspirator, Darryl Harrison, first served as a middleman
for Silas Mobley to purchase a kilogram of cocaine from a Hispanic male, known to Harrison as
“Moses,” in late April 2009. (Id. at 142-43). Silas Mobley told Harrison that he (Mobley) would
have to get part of the purchase money from his partner. (Id. at 145). During that deal, Harrison
acted as the go-between, taking the cocaine from Moses’ vehicle to Mobley’s vehicle, a white
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GMC. (Id. at 144). Mobley reached behind the seat and grabbed a bag of money that he handed
to Harrison, who walked it back to Moses. (Id. at 142-43). The bag held either $30,500 or
$31,000, of which Harrison got $500 for his services. (Id. at 143).
A few days later, in early May 2009, Silas Mobley called Harrison and told him he
wanted to buy another kilogram of cocaine and 20 pounds of marijuana, and Harrison arranged
for the deal to happen at his own residence. (Id. at 146-47). The cocaine cost $31,000 and the
marijuana cost $14,000. (Id. at 147). Moses and another Hispanic male, whom Harrison only
knew as “The Boss,” met at Harrison’s place with both Silas Mobley and Petitioner. (Id.).
Moses displayed the cocaine, which Petitioner examined and verified. (Id. at 148). Petitioner
discussed the possibility of a later multi-kilogram cocaine purchase, saying that the singlekilogram price was a little high, based on his knowledge, and he asked if Moses could give him a
better price for a three-kilogram deal. (Id. at 148-49). Moses said they could work something
out, and Mobley should let him know when he was ready to do that. (Id.). Meanwhile, Silas
Mobley took one of the pounds of marijuana, left the residence briefly, and returned, saying the
marijuana was okay. (Id. at 150). All the drugs were then put into a box and loaded into an
SUV. (Id.).
In their next deal, Harrison arranged for a meeting among Silas Mobley, Moses, and
himself at a shopping center parking lot, where Harrison again acted as the go-between, carrying
a kilogram of cocaine from Moses to Silas, and the cash from Silas to Moses. (Id. at 151).
Petitioner was not present for that deal. (Id.). On May 28, 2009, Harrison and Silas Mobley
arranged for the purchase of another kilogram of cocaine, and Moses and The Boss arrived at
Harrison’s apartment with that kilogram as well as five more kilograms intended for another
purchaser. (Id. at 152). That other purchaser obtained his cocaine, but Harrison was unable to
4
reach Silas Mobley while the suppliers were there. (Id. at 153). Later that day, however,
Immigration and Customs Enforcement (ICE) Special Agent James Bryant and other agents
detained Harrison at his apartment, and Harrison agreed to cooperate. (Id. at 154-55).
Agent Bryant testified that his office had received a telephone call on May 28, 2009,
from ICE’s Charleston, South Carolina, office, leading them to conduct surveillance at an
apartment where several Hispanic males were residing, as well as at Harrison’s apartment
complex, where multiple kilograms of cocaine were supposed to be delivered. (Id. at 36-38).
They observed several people going in and out of the complex and then, as a result of further
information received from the Charleston office, they arrested seven people, including Moses
Valencia, and seized approximately 15 kilograms of cocaine from a car. (Id.). The Hispanics
whom they arrested cooperated immediately against Harrison, prompting Agent Bryant to go to
Harrison’s apartment to detain him and to seek his cooperation that day. (Id. at 42-43). Harrison
agreed to cooperate, and told the agent that Moses and The Boss had brought six kilograms of
cocaine to his apartment that day, five for Jeremy Williams and one for Silas Mobley and
Petitioner. (Id. at 152-53).
While the agent and Harrison were speaking at Harrison’s apartment, Silas Mobley called
about the kilogram of cocaine, but said that he wanted to get together later because of the rainy
weather. (Id. at 156). Harrison called him back to make arrangements for a later date for the
deal. (Id.). Eventually, Harrison and Mobley agreed, in another telephone conversation, to meet
at a restaurant parking lot in Charlotte on June 1, 2009. (Id. at 158-59). The recordings of those
conversations were played for the jury. Agent Bryant also identified the telephone number used
by Silas Mobley in these conversations with Harrison as being the same number used by Silas
Mobley in his wiretapped conversations with Patterson in late February and early March 2009.
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(Id. at 137).
3. The June 1, 2009, Seizure of $30,500
On June 1, 2009, Agent Bryant participated in the surveillance of Harrison’s pre-arranged
meeting with Silas Mobley and Petitioner at a Charlotte Burger King parking lot, as they
attempted to purchase the kilogram of cocaine. (Id. at 48). As ICE had told him to do, Harrison
delayed the deal by telling the Mobleys that he was waiting on Moses and The Boss to arrive
with the cocaine. (Id.). In actuality, however, there would be no cocaine arriving that day, and
the agents hoped to observe a traffic violation so that they could perform a traffic stop on the
Mobleys’ vehicle and positively identify them. Officer Chris Newman, a canine officer with the
Charlotte-Mecklenburg Police Department testified that, at the direction of Agent Bryant, he and
his partner Officer Raby participated in the traffic stop, based on an expired tag, of a white SUV
that had been heading south on I-77 in Charlotte. (Id. at 97-102). Silas Mobley was driving the
SUV and Petitioner was in the front passenger seat. (Id. at 102-03).
While Officer Raby was running the Mobleys’ information, Officer Newman walked his
drug-sniffing police dog around the outside of the SUV, and the dog positively alerted to the
back doors on both sides of the vehicle. (Id. at 103-04). Officer Newman asked Petitioner if
there was anything illegal in the vehicle. Petitioner appeared to be searching for an answer
before he eventually said that there was $30,000 in the car. (Id. at 104-05). Officer Newman
retrieved a plastic bag from under the back seat on the driver’s side. (Id. at 105-06). The officer
immediately noticed that the bag had the strong odor of cocaine about it, so he put it to his face
and smelled, then looked to Officer Raby and asked him to smell it. (Id. at 106-07). Petitioner,
seeing this, said words to the effect of: “That don’t mean nothing. There’s nothing wrong.” (Id.
at 107). The drug dog alerted on the cash after Officer Newman laid it out on the hood of the
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patrol car. (Id.). All the cash, totaling $30,500, was in bundles: thirty bundles of $1,000 and one
bundle of $500. (Id.). Officer Newman had seen this method of bundling previously, associated
with the drug trade. (Id. at 108). Agent Bryant, too, described this method of bundling cash as
being common among drug dealers. (Id. at 31).
C. Presentence Report and Sentencing
The trial concluded on August 9, 2010, with the jury convicting Petitioner on both counts as
alleged in the indictment. (Id., Doc. No. 93: Jury Verdict). The probation office thereafter
submitted a Presentence Report (“PSR”) in preparation for Petitioner’s sentencing hearing. In
the PSR, the probation officer determined that the base offense level was 34, based on
Petitioner’s being responsible for 29 kilograms of powder cocaine and 5800 kilograms of
marijuana. (Id., Doc. No. 104 at 6-7: PSR). The probation office cited Petitioner’s 1997 South
Carolina York County conviction and a 2004 federal conviction for conspiracy to possess
cocaine with the intent to distribute, among others, in calculating a criminal history score of IV,
yielding an advisory range of 210 to 262 months. (Id. at 8; 10; 14). Because of Petitioner’s two
prior felony drug convictions, however, the mandatory minimum for Count One (the conspiracy
involving 5 or more kilograms of cocaine) was life, and the statutory range for Count Three
(involving the attempted possession of 500 grams or more of cocaine with the intent to
distribute) was 10 years to life. (Id. at 14).
Petitioner objected that the § 851 notice did not contain two qualifying convictions that
would trigger a mandatory life sentence for Count One, although he did not specify in what way
the notice or the convictions were inadequate. (Id., Doc. No. 112: Objection). The Probation
Office disagreed with the objection. (Id., Doc. No. 114 at 17: Final PSR). At the sentencing
hearing, Petitioner’s trial counsel, Richard Brown, renewed the objection, specifying that the
7
1997 York County conviction had resulted in a sentence under South Carolina’s Youthful
Offender Act, that Petitioner had not been subject to imprisonment for a term exceeding one
year, and therefore as a result of Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), that prior
conviction was not a “felony” as to Petitioner. (Id., Doc. No. at 157 at 6-7: Sentencing Tr.). The
prosecutor responded that he had not been prepared to address this issue due to a lack of notice
that this was the basis for the objection, but that his previous research had indicated that
convictions under the Youthful Offender Act qualified as prior felony drug convictions. (Id. at
8; 9). The Court overruled the objection, finding that the offense was punishable by up to six
years, that Petitioner had received a sentence of imprisonment up to five years, and that this met
the statutory definition of a felony drug conviction. (Id. at 9-10). The Court imposed a sentence
of life imprisonment on Count One, and 10 years on Count Three, to be served concurrently.
(Id., Doc. No. 158: Judgment).
D. Appeal and Pending Motion to Vacate
Petitioner appealed, arguing that the Court improperly denied his motion for new counsel,
filed shortly before trial was scheduled to commence; that the Court plainly erred in its
instructions to the jury as to its responsibility to find the drug quantity reasonably foreseeable to
each defendant; and that Petitioner’s prior conviction under South Carolina’s Youthful Offender
Act did not qualify as a felony drug offense sufficient to support a sentence enhancement under
21 U.S.C. §§ 841(b)(1) and 851. The Fourth Circuit affirmed this Court’s judgment on May 14,
2012, finding that this Court properly determined that the 1997 conviction was a predicate felony
drug offense under § 841(b)(1). See United States v. Mobley, 482 F. App’x 766 (4th Cir. 2012).
Petitioner filed a petition for writ of certiorari, which petition was denied by the Supreme Court
on October 9, 2012. Mobley v. United States, 133 S. Ct. 464 (2012).
8
Petitioner placed the instant motion to vacate in the prison mailing system on October 8,
2013, and it was stamp-filed in this Court on October 10, 2013. On May 21, 2014, the
Government filed a Response to the motion to vacate, and on October 21, 2014, Petitioner filed a
Reply. (Doc. Nos. 15; 21). Petitioner brings the following claims of ineffective assistance of
counsel in the petition: (1) counsel was ineffective for failing to advise Petitioner that he would
face a mandatory life sentence if Petitioner were found guilty at trial; (2) counsel was ineffective
for failing to conduct an adequate investigation; (3) counsel was ineffective for failing to object
to prosecutorial misconduct; (4) counsel was ineffective for stipulating to one of Petitioner’s
prior drug convictions; (5) Petitioner’s first counsel Harold Bender denied Petitioner his right to
a speedy trial under the Speedy Trial Act; (6) counsel was ineffective for failing to move to sever
the trial from Petitioner’s co-Defendant Silas Mobley; (7) appellate counsel was ineffective for
failing to present stronger arguments on appeal; and (8) Petitioner’s Sixth Amendment rights
were violated under Alleyne v. United States, 133 S. Ct. 2151 (2013).
In support of his allegations, Petitioner has submitted an affidavit by Petitioner’s mother
Marjorie Mobley, in which Marjorie Mobley attests that Petitioner’s trial counsel Richard Brown
assured her before trial that Petitioner’s prior convictions would not subject him to a life
sentence. (Doc. No. 4). Petitioner has also submitted an affidavit by Courtney Blake, who is the
mother of Petitioner’s three children, in which Blake asserts that, on some unspecified date in
2010, Mr. Brown told her in the presence of Marjorie Mobley that, if found guilty at trial,
Petitioner would be facing a minimum of 20 years, but not a mandatory life sentence. (Doc. No.
5 at ¶ 4: Courtney Blake Aff.). Blake also asserts in the affidavit that when agents visited her
father’s home after Petitioner’s arrest they intimated and threatened Blake’s family members and
told Blake’s father it would not be good for Blake to testify at Petitioner’s trial. (Id. at ¶ 14).
9
The Government requested and obtained an affidavit responsive to those claims from Petitioner’s
trial counsel Richard Brown. (Doc. No. 15-1). Additionally, because of the allegations of police
misconduct asserted by Blake in her affidavit, ICE Special Agent James Bryant has also
provided the Government with an affidavit responsive to those allegations. (Doc. No. 15-2).
II.
STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to
promptly examine motions to vacate, along with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the
claims set forth therein. After examining the record in this matter, the Court finds that the
arguments presented by Petitioner can be resolved without an evidentiary hearing based on the
record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
III.
DISCUSSION
A. Ineffective Assistance of Counsel
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions,
the accused has the right to the assistance of counsel for his defense. See U.S. CONST. amend.
VI. To show ineffective assistance of counsel, Petitioner must first establish a deficient
performance by counsel and, second, that the deficient performance prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In making this determination, there is
“a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689; see also United States v. Luck, 611 F.3d 183, 186 (4th Cir.
2010). Furthermore, in considering the prejudice prong of the analysis, the Court “can only grant
relief under . . . Strickland if the ‘result of the proceeding was fundamentally unfair or
unreliable.’” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell,
10
506 U.S. 364, 369 (1993)). Under these circumstances, the petitioner “bears the burden of
affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the
petitioner fails to meet this burden, a “reviewing court need not even consider the performance
prong.” United States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on other
grounds, 218 F.3d 310 (4th Cir. 2000).
The Strickland framework applies to claims of ineffective assistance in the plea bargaining
process. See Lafler v. Cooper, 132 S. Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399 (2012).
In Lafler, the Supreme Court held that “[i]f a plea bargain has been offered, a defendant has the
right to effective assistance of counsel in considering whether to accept it.” 132 S. Ct. at 1387.
The Court further stated that the petitioner
must show that but for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the court (i.e., that the
defendant would have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence, or both, under the offer’s
terms would have been less severe than under the judgment and sentence that in
fact were imposed.
Id. at 1385.
1. Counsel’s Failure to Advise Petitioner that He Would Face a Mandatory Life
Sentence if Convicted at Trial
In his first ground for relief, Petitioner contends that trial counsel Richard Brown was
ineffective because counsel advised Petitioner that, if convicted at trial, Petitioner would not
receive a mandatory life sentence because his prior conviction under South Carolina’s Youthful
Offender Act could not be counted as a “felony drug offense” sufficient to support an enhanced
sentence. As noted, Petitioner supports this assertion with affidavits from both the mother of
three of his children and his own mother, both of whom state that Brown told them that, even if
11
convicted at trial, Petitioner would not face a mandatory life sentence. See (Doc. No. 5 at ¶¶ 4;
6-7: Courtney K. Blake Aff.; Doc. No. 4 at ¶¶ 3-4: Marjorie Mobley Aff.). Petitioner further
contends that, on some unspecified date, counsel Brown:
assured me that if I were convicted that my prior 1997 drug conviction could not
be used to enhance my sentence in the event I was convicted . . . . Mr. Brown
informed that the sentence of probation that had been imposed on April 24, 1997,
under South Carolina’s Youthful Offender Act, could not be used under 851 and
could not be counted as a prior “felony drug offense” to enhance my sentence to a
mandatory life sentence. He said that the prior conviction in Criminal Case No.
6:03-cr-237, which was a cocaine conspiracy conviction, was the only prior
conviction that could legally be used by [the Court] to impose an enhanced
sentence. Mr. Brown told me that I could exercise my right to a jury trial without
having to worry about a mandatory life sentence as a consequence if I were
convicted.
(Id. at 29-30). Plaintiff asserts that “a plea offer of 20 years was rejected after counsel
misadvised [Petitioner] that a ‘mandatory’ life sentence was not statutorily possible because the
1997 South Carolina [Youth Offender Act] conviction and sentence could not be used.” (Id. at
6). Petitioner further notes that at his sentencing hearing, Mr. Brown stated to the Court that he
had talked to Petitioner “about the Youth Offender Act, and did some research on the Youth
Offender Act, and for the record, I’ll just put this there for the record, I would argue that the
Youth Offender Act conviction should not qualify.” (Id.). Petitioner contends that “[c]learly, the
record supports [Petitioner’s] argument that counsel’s misadvice, based on not knowing or
interpreting the law correctly, led to [Petitioner] rejecting a favorable plea compared to the
unknowing mandatory life sentence he faced by exercising his right to a jury trial.” (Id. at 7-8).
Petitioner insists that he “would have definitely taken the plea offer had he known, through
counsel’s advice, that a life sentence was mandatory if convicted at trial.” (Id. at 8).
In response, Mr. Brown unequivocally rejects Petitioner’s contentions, explaining that he
advised Petitioner that if he was convicted at trial, he would receive a sentence of life
12
imprisonment and that, because of this possibility, he “literally begged [Petitioner] to accept the
[Government’s] plea offer, which would have only proceeded on one 851 notice.” (Doc. No. 151 at ¶ 1: Richard L. Brown Aff.). Mr. Brown has also attached to his affidavit a letter he sent to
Petitioner on April 19, 2010, in which he advised Petitioner that “if [he is] found guilty (without
any other agreement from the government) of the charges in the indictment, [he would] face
mandatory life imprisonment” based on his prior felony drug convictions and 21 U.S.C. § 841.
See (Id., Doc. No. 17-1 at 1 (emphasis added)). Mr. Brown has also attached to his affidavit an
excerpt from the transcript from the hearing on Mr. Brown’s motion to withdraw as counsel,
dated July 28, 2010, nine days before Petitioner’s trial began, in which Mr. Brown references the
fact that Petitioner was facing a life sentence if convicted at trial, noting for the Court the
importance of a strong attorney-client relationship because of the severity of the sentence faced
by Petitioner. See (Id. at 2). Specifically, Mr. Brown stated to the Court at the hearing on the
motion to withdraw:
We [Petitioner and counsel] have a core philosophical difference that just is not
allowing fruitful communications to come forth. And if I can’t communicate with
him back and forth, more so coming this way, than I cannot be an effective
advocate. If this, Your Honor, were a case where we were looking at a 10-year
case, you know, or maybe even a 20-year case, perhaps the severity of it would
not be as bad. I want to take extra care with this, Your Honor, because this is a
life sentence, no parole case. It’s two 851s. And if I cannot get from him what I
need to be effective—and your Honor, I will say, he’s not been adversarial
towards me. . . . . We’ve tried, but philosophically we are just different, in terms
of certain things, and I don’t—I don’t think that I can be as effective as I have
historically, and as I need to be, to give him the advocacy he needs on a life case. .
. .. And I just—again--, I just want to be careful on this, because it is a –it’s a
very, very serious matter. I know that we hear the word, you know, life
imprisonment, two 851s, all the time. But on the defense side of things, that life
is real.
(Crim. Case No. 3:09-cr-189-RJC-DCK-3, Doc. No. 156 at 6-7) (emphases added)). Following
Brown’s statement at the motion to withdraw hearing, Government counsel put on the record the
13
fact that the Government’s plea offer “of 20 years” remained open until the following day, which
offer was based on the Government’s offer to withdraw all but one of Petitioner’s prior
convictions noticed in the § 851 notice. (Id. at 16). In the Court’s subsequent order denying
counsel’s motion to withdraw, the Court noted that “Mr. Brown suggests that, given the possible
life sentence that Defendant faces if convicted, this poor communication interferes with his
ability to mount an appropriate defense.” (Id., Doc. No. 70: Order Denying Motion to
Withdraw).
Petitioner has failed to show that counsel was ineffective with regard to his advice to
Petitioner regarding Petitioner’s likely sentence if he were convicted at trial, as the record clearly
demonstrates that counsel Brown asserted and took the position, and Petitioner knew or should
have known, that Petitioner was facing a possible mandatory life sentence if he were found guilty
at trial. Although both Ms. Blake and Ms. Mobley assert that Mr. Brown assured them that
Petitioner could not possibly receive a sentence of life sentence if convicted following a jury
trial, the record of the hearing on Mr. Brown’s motion to withdraw, just a week before trial
started, makes clear that Mr. Brown took the position, in front of both Petitioner and the Court,
that Petitioner would, indeed, be subject to a mandatory life sentence if he were convicted at
trial. Petitioner was present during the hearing on Mr. Brown’s motion to withdraw as counsel,
and at no time did Petitioner object to Mr. Brown’s assertion that Petitioner’s was a “life” case,
nor did Petitioner express confusion at the motion to withdraw hearing about the Government’s
plea offer of a mandatory minimum of 20 years, rather than life. Here, even assuming that, at
some point in his representation of Petitioner, Mr. Brown expressed his belief to Petitioner, Ms.
Blake, and Ms. Mobley that Petitioner would not face a life sentence if convicted at trial, the
record makes clear that, on the eve of the trial, Mr. Brown believed and communicated to the
14
Court in Petitioner’s presence, and while Petitioner could still accept a plea offer by the
Government, that Petitioner was, indeed, facing a life sentence because of his prior convictions.2
Although a court must “view[] the evidentiary proffers, where credible, and the record in the
light most favorable to the petitioner,” the court “need not assume the credibility of factual
assertions . . . where the assertions are contradicted by the record in the underlying proceeding.”
Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009). Here, Petitioner’s assertion that
counsel Brown told him he could not possibly receive a mandatory life sentence if convicted at
trial is clearly contradicted by the record. In sum, Petitioner has failed to show that Mr. Brown
misadvised him as to the sentence he would face if convicted at trial, and his first claim of
ineffective assistance of counsel, therefore, fails.3
In sum, Petitioner’s first ground for relief is without merit.
The fact that Mr. Brown argued at Petitioner’s sentencing hearing that the 1997 South Carolina
conviction did not count as a prior conviction does not negate the fact that Mr. Brown took the
position, in the presence of Petitioner just a week before trial, that Petitioner was, indeed, facing
a life sentence based on two prior convictions, with one of them being the 1997 South Carolina
conviction. Mr. Brown had a duty to advocate zealously for his client, and counsel was doing
that at Petitioner’s sentencing when he presented what he acknowledged was a weak argument.
See (Crim. Case No. 3:09-cr-189-RJC-DCK-3, Doc. No. 157 at 6) (“I’ll just put this there for the
record, I would argue that the Youth Offender Act conviction should not qualify. Although I
believe that it was—the South Carolina statute states that the punishment shall not exceed six
years. And I understand that under Carachuri, I understand the standard. . . . And I’ll put that
out for appellate purposes, Your Honor. But I understand the standard [under Carachuri].”).
3 To the extent that Petitioner complains in his Reply that his first counsel Bender was also
ineffective for, among other things, failing to inform Petitioner of the Section 851 notices against
him before Bender was removed as counsel, this claim fails. Petitioner claims that if he had
known about the Section 851 notices, he would have considered accepting a plea offer from the
Government earlier in the case. See (Doc. No. 1-1 at 23-24). Petitioner has not shown, however,
that any such plea offer had been made between Bender’s appointment of counsel on December
7, 2009, and April 9, 2010, when the Court granted Bender’s motion to withdraw as counsel.
Furthermore, to the extent that Petitioner has cited alleged instances of ineffective assistance of
counsel against Bender in Petitioner’s affidavit attached to his petition, Bender withdrew as
counsel well before Petitioner’s trial, and Petitioner fails to show how he was prejudiced by any
alleged deficient performance by Bender.
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2
2. Counsel’s Failure to Conduct an Adequate Investigation
In his second ground for relief, Petitioner contends that counsel Brown failed adequately
to investigate the Government’s case against Petitioner or potential witnesses who could
exonerate Petitioner. In his affidavit, Brown states that he investigated each of the witnesses
against Petitioner by familiarizing himself with their prior verbal and written statements and their
criminal records, and he notes that he was able to cross-examine these witnesses at trial. (Doc.
No. 15-1 at ¶ 2). Although Brown does not specifically respond to Petitioner’s assertion that he
should have investigated other potential witnesses, Petitioner does not explain what these
witnesses would have said or how they could have exonerated him. Based on the evidence
summarized above, the Government’s case against Petitioner was overwhelming and included
the testimony of at least two persons who engaged in prohibited drug transactions with
Petitioner, and this evidence was corroborated by recorded telephone conversations. In light of
Petitioner’s failure to produce evidence, rather than mere assertions, that further investigation
could have exonerated him, and in light of Mr. Brown’s statement that he reviewed all discovery
and prepared an adequate defense of Petitioner, Petitioner has not shown either deficient
representation or prejudice.
In sum, Petitioner’s second ground for relief is without merit.
3. Counsel’s Failure to Object to Prosecutorial Misconduct
In his third ground for relief, Petitioner contends that Mr. Brown acted in collusion with
federal agents and prosecuting attorneys by participating in a pretrial interview, during which
Petitioner was unable to refute any of the Government’s evidence. According to Petitioner, this
interview “interfered with the attorney/client privilege and [Petitioner’s] constitutional right to
prepare a defense with counsel only.” (Doc. No. 1-1 at 10: Pet. Mem. Supp. Mot. to Vacate). As
16
part of his claim related to prosecutorial misconduct, Petitioner asserts that a federal agent
intimidated Courtney Blake and her father in order to prevent Blake from testifying as a witness
on Petitioner’s behalf. Mr. Brown responds to these assertions by stating unequivocally that he
observed neither prosecutorial misconduct nor intimidation of witnesses, and he denies that there
was any collusion. (Doc. No. 15-1 at ¶ 3). Brown states further in his affidavit that, while agents
may have interviewed Blake, he had no knowledge or evidence that it was done in an
intimidating manner and that he “neither allowed nor witnessed any intimidation of [Petitioner]
during a pretrial meeting.” (Id.). Brown notes that he offered Petitioner the opportunity to meet
with Government counsel before his trial to listen to the evidence they had against him, and
Brown has attached a letter in which he references that meeting. (Doc. No. 17-1 at 4).
Petitioner has also submitted an affidavit from Ms. Blake, in which she asserts that a
federal agent threatened to take her parents’ home and confiscate her father’s SUV if she
testified on Petitioner’s behalf. (Doc. No. 5 at ¶ 14). Blake stated that this occurred after
Petitioner notified Brown that Blake would testify on his behalf. (Id.). In response to Blake’s
assertions, the Government has presented an affidavit by Agent Bryant, in which Bryant
describes his visit to Ms. Blake’s father’s home, explaining that he went to the residence to serve
Ms. Blake with a subpoena. When Ms. Blake’s father reported that Ms. Blake was not home and
failed in his attempt to reach her by telephone, Agent Bryant left his business card and simply
asked him to have Ms. Blake call her. (Doc. No. 15-2 at ¶ 10). Agent Bryant states in his
affidavit that Ms. Blake’s father was “cordial and helpful, as well as we were to him.” (Id. at ¶
11). Bryant denies that any threats were made toward Ms. Blake or her father, noting that he has
never personally spoken to Ms. Blake; that he spoke to her father only on that one occasion; and
that the agents did not leave the living room/kitchen area or look into the garage or in any other
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room of the residence. (Id.). Agent Bryant also details the evidence the agents had of
Petitioner’s guilt and he asserts that Ms. Blake’s willingness to testify had no bearing on the
strength of the Government’s evidence against Petitioner. See (Id. at ¶¶ 12-16). Consistent with
Agent Bryant’s assertion that he did not intimidate Ms. Blake, Mr. Brown’s affidavit makes clear
that he was not aware of any intimidation. Because Petitioner has not produced any evidence
that Mr. Brown, in fact, colluded with Government counsel or any federal agent to intimidate a
witness or deny him a fair trial, his claim fails.
In sum, Petitioner’s third ground for relief is without merit.
4. Counsels’ Stipulation to Prior Drug Convictions
In his fourth ground for relief, Petitioner claims that both of his trial counsels (Richard
Brown and earlier counsel, Harold Bender) improperly agreed to the admission of a stipulation
as to Petitioner’s prior convictions that was unduly prejudicial and did not contemplate the
balancing test required by Federal Rule of Evidence 403. The Government has attached as an
exhibit a stipulation in which counsel Brown agreed to stipulate, on Petitioner’s behalf, that
Petitioner had previously been convicted of conspiracy to distribute and to possess with intent to
distribute at least five kilograms of cocaine in the United States District Court for the District of
South Carolina. (Doc. No. 17-1 at 6). In the stipulation Petitioner reserved his right to contest
the admission of evidence of his prior conviction under Rule 403. (Id.). Mr. Brown explains
that his decision to stipulate to this conviction was a strategy decision, and that in exchange the
Government agreed not to present testimonial evidence of that prior conviction.4 (Doc. No. 15-1
4
Indeed, as Mr. Brown notes in his affidavit, this strategy was actually listed in the footnote of
the actual stipulation.
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at 2). Counsel’s decision to stipulate to Petitioner’s prior conviction, while reserving the right to
object under Rule 403, was unquestionably sound, and Petitioner’s claim of ineffective
assistance of counsel on this basis fails.
In sum, Petitioner’s fourth ground for relief is without merit.
5. Counsel Bender’s Denial of Petitioner’s Right to a Speedy Trial under the Speedy
Trial Act
In his fifth ground for relief, Petitioner asserts that his first counsel, Mr. Bender, denied
Petitioner the right to a speedy trial by working with prosecutors to delay his trial while he
“languished in detention.” (Doc. No. 1-1 at ¶ 11: Pet. Aff.). According to Petitioner, he had
been detained for 123 days by the time Mr. Bender withdrew as counsel. (Id.). Petitioner’s
claim is without merit. The Speedy Trial Act provides generally that “[i]n any case in which a
plea of not guilty is entered, the trial of a defendant charged in an information or indictment with
the commission of an offense shall commence within seventy days” from the filing of the
indictment or the defendant’s first appearance, whichever is later. 18 U.S.C. § 3161(c)(1). In
computing the time within which a trial must occur, consistent with the Act, “[a]ny period of
delay resulting from a continuance granted by any judge . . . at the request of the defendant or his
counsel” is excluded, as long as the court finds that the ends of justice served by continuing the
matter outweigh the best interest of the public and the defendant in a speedy trial. Id. §
3161(h)(7)(A). Additionally excluded is “[a] reasonable period of delay when the defendant is
joined for trial with a codefendant as to whom the time for trial has not run and no motion for
severance has been granted.” Id. § 3161(h)(6). Here, the record reflects that this Court granted
two motions to continue filed by Silas Mobley’s counsel before Mr. Bender withdrew as counsel
on April 9, 2010. See (Crim. Case No. 3:09-cr-189-RJC-DCK-3, Doc. Nos. 26; 39). This Court
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made the findings necessary to exclude these periods of time from the Speedy Trial Act, and
Petitioner does not complain about any other periods of delay. Because there was no Speedy
Trial Act violation or a Sixth Amendment speedy trial violation, Petitioner has not shown either
deficient performance or prejudice as a result of any inaction on the part of Mr. Bender.
In sum, Petitioner’s fifth ground for relief is without merit.
6. Counsel’s Failure to Move for a Severance
In his sixth ground for relief, Petitioner asserts that trial counsel should have “procured a
severance” for his trial from Silas Mobley’s trial and the failure to do so deprived him of a fair
trial. (Doc. No. 1-1 at 16). This claim fails. Rule 14 of the Federal Rules of Criminal Procedure
provides that “[i]f the joinder of . . . defendants in an indictment, an information, or a
consolidation for trial appears to prejudice a defendant or the government, the court may . . .
sever the defendants’ trials . . . .” FED. R. CRIM. P. 14. However, the Supreme Court has
recognized that “[t]here is a preference in the federal system for joint trials of defendants who are
indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993). This is because “joint
trials play a vital role in the federal criminal system and promote efficiency while avoiding the
possibility of inconsistent verdicts.” United States v. Allen, 491 F.3d 178, 189 (4th Cir. 2007).
Thus, “a district court should grant a severance under Rule 14 only if there is a serious risk that a
joint trial would compromise a specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539. Joinder is
specifically favored in conspiracy cases, United States v. Montgomery, 262 F.3d 233, 244 n.5
(4th Cir. 2001), and “[a] defendant seeking severance pursuant to Rule 14 ‘has the burden of
demonstrating a strong showing of prejudice,’” United States v. Mir, 525 F.3d 351, 357 (4th Cir.
2008) (quoting United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984)). It is not enough
20
that a defendant may have a better chance of acquittal in a separate trial or that his defense
“conflicts with or is antagonistic to a codefendant’s defense.” Allen, 491 F.3d at 189. Here,
Petitioner and his father were indicted together on conspiracy charges, and the evidence at trial,
credited by the jury, established that they conducted their drug business together, sometimes
conducting drug transactions together. Additionally, the evidence of Petitioner’s guilt was
strong. In short, Petitioner cannot show that the joinder of his trial with his father’s prevented
the jury from making a reliable judgment about guilt. Accordingly, trial counsel did not provide
deficient representation in declining to seek a severance, and because this Court properly would
have denied any such motion, he also cannot show prejudice.
In sum, Petitioner’s sixth ground for relief is without merit.
7. Appellate counsel’s failure to present stronger arguments
In his seventh ground for relief, Petitioner claims that appellate counsel “failed to bring
forth more favorable and meritorious arguments on direct appeal.” (Doc. No. 1-1 at 17).
Although Petitioner mentions the arguments raised on appeal in his affidavit and suggests that
those could have been better presented, he identifies no meritorious argument that could have
resulted in the vacatur of this Court’s judgment. Petitioner has not shown either deficient
representation or prejudice as a result of appellate counsel’s representation.
In sum, Petitioner’s seventh ground for relief is without merit.
8. Petitioner’s Sixth Amendment Claim Based on Alleyne v. United States
In his eighth ground for relief, Petitioner argues that the Supreme Court’s decision in
Alleyne v. United States, 133 S. Ct. 2151 (2013), requires this Court to vacate his sentence
because the fact of his prior convictions should have been determined by the jury beyond a
reasonable doubt. This claim fails. The Court in Alleyne held that any fact that increases a
21
mandatory minimum sentence for a crime is an essential element of the crime and must be
submitted to the jury and proven beyond a reasonable doubt. (Id.). The Court in Alleyne
declined, however, to disturb the exception to the general rule that facts that increase the
prescribed range of penalties must be submitted to the jury and found by a reasonable doubt for
the fact of a prior conviction, an exception first established in Almendarez-Torres v. United
States, 523 U.S. 224 (1998). As Petitioner’s claim falls squarely within the Almendarez-Torres
exception, his Sixth Amendment claim under Alleyne is without merit. Moreover, courts
addressing the issue have determined that Alleyne does not apply retroactively to cases on
collateral review. See, e.g., United States v. Stewart, 540 F. App’x 171 (4th Cir. 2013); United
States v. Redd, 735 F.3d 88, 91-92 (2d Cir. 2013); Simpson v. United States, 721 F.3d 875, 876
(7th Cir. 2013); In re Payne, 733 F.3d 1027, 1029-30 (10th Cir. 2013). Finally, as the
Government argues in its response brief, Petitioner’s Alleyne claim is also procedurally barred
because Petitioner failed to raise the claim on direct appeal, and he has failed to show cause or
prejudice to excuse the default. Alleyne was decided after Petitioner’s direct appeal. Although
the Supreme Court has held that a claim that is so novel that its legal basis is not reasonably
available to counsel may constitute cause for procedural default, Bousley v. United States, 523
U.S. 614, 622 (1998), an Alleyne-type argument is not sufficiently novel to show cause for
procedural default. See Bakhtiari v. United States, No. 4:13cv1344, 2014 WL 988450, at *4
(E.D. Mo. Mar. 13, 2014).
In sum, Petitioner’s eighth ground for relief is without merit.
IV.
CONCLUSION
For the reasons stated herein, the Court will deny and dismiss the § 2255 petition.
IT IS, THEREFORE, ORDERED that:
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1.
Petitioner’s § 2255 motion to vacate, (Doc. No. 1), is DENIED and
DISMISSED.
2.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, this Court
declines to issue a certificate of appealability as Petitioner has not made a
substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2); 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).
Signed: December 7, 2015
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