Saldana v. USA

Filing 8

ORDER denying and dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by Chief Judge Frank D. Whitney on 4/11/2018. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:18-cv-5-FDW
(5:12-cr-49-FDW-DSC-1)
MARTIN MARTINEZ SALDANA,

)
)
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 under 28 U.S.C. § 2255, (Doc. No. 1).
I.

BACKGROUND

A. Petitioner participates in selling crystal methamphetamine.
Between 2007 and 2012, Petitioner Martin Martinez Saldana sold large quantities of
crystal methamphetamine to customers in Ashe County, North Carolina and Western Virginia.
By 2012, law enforcement officers were investigating Petitioner as part of a larger investigation
into methamphetamine trafficking in the region. United States v. Saldana, 664 F. App’x 326,
328 (4th Cir. 2016), cert. denied, 137 S. Ct. 1353 (2017). After employing confidential
informants to make purchases of crystal methamphetamine from two of Petitioner’s customers,
Danny Eller and Bobby Shore, investigators obtained a search warrant for the men’s residences,
where the investigators found methamphetamine and firearms. Id. Eller and Shore agreed to
cooperate in the investigation. Id. Eller informed investigators that Petitioner was his source for
methamphetamine and that Jose Pina, who rented a trailer from Petitioner and lived on
Petitioner’s property, worked for Petitioner as a courier and conducted methamphetamine
1

transactions on Petitioner’s behalf when Petitioner was in Mexico. (Crim. Case No. 5:12-cr-49FDW-DCK-1, Trial Tr. at 98, 288-90, 405-06, 410, 444).1
After he began cooperating with investigators, Eller twice bought crystal
methamphetamine from Pina. Saldana, 664 F. App’x at 328. Following the second controlled
buy, Pina stopped responding to Eller’s attempts to reach him, prompting investigators to send
Eller to Petitioner’s property on December 11, 2012, to try to buy methamphetamine from either
Petitioner or Pina. Id. Eller was unable to buy methamphetamine from Petitioner, but he was
able to record a conversation with him, in which Petitioner told him that it was “too hot” and that
Eller should “lay low.” Id.
The next day, Shore recorded a conversation with Petitioner. Id. During this
conversation, Petitioner, who traveled frequently to Mexico, told Shore that he would be
returning to Mexico the following day because it was “too hot” as a result of law enforcement
seizures and arrests and directed Shore not to tell anyone he was leaving. Id. Concerned that
Petitioner would not return from Mexico, investigators immediately obtained a search warrant
for Petitioner’s home and an adjacent property that Petitioner also owned. Id.; see also United
States v. 148 Ervin Houck Dr., No. 3:12MJ327 (W.D.N.C. Dec. 20, 2012), Doc. Nos. 1 (148
Ervin Houck Dr.) and 2 (178 Ervin Houck Dr.). During their search, investigators found four
firearms, including an unregistered, short-barreled shotgun; ammunition; electrical tape,
cellophane, and dryer sheets used in packaging methamphetamine; latex gloves; and cell phones,
two of which were on Petitioner’s person. Saldana, 664 F. App’x at 328-29.

1

Because all four volumes of the trial transcript are numbered consecutively, see Doc. Nos.
131-34, references to the transcript are to “Trial Tr.” followed by the relevant page numbers.
2

In February 2013, Harmon interviewed Pina, who told the agents where Petitioner had
hidden money and methamphetamine on his property. (Id. at 329; Crim. Case No. 5:12-cr-49FDW-DCK-1, Trial Tr. at 76-77). Based on this new information, agents obtained state search
warrants to search Petitioner’s property. (Crim. Case No. 5:12-cr-49-FDW-DCK-1, Trial Tr. at
76-77; see also Civ. Doc. No. 3-1, 3-2: Gov. Civ. Exs. 1 & 2, Search Warrants, In re 148 and 178
Ervin Houck Road (N.C. Sup. Ct. Feb. 12, 2013) (Yearick, Etoyle, M.J.)). During this search,
investigators found nearly $50,000 in cash contained in PVC pipes buried in the ground, several
ounces of methamphetamine wrapped in electrical tape and cellophane with a dryer sheet, PVC
tubes used for stashing controlled substances or currency, magazines for a sub-machine gun, and
ammunition. Saldana, 664 F. App’x at 329; see also (Crim. Case No. 5:12-cr-49-FDW-DCK-1,
Trial Tr. at 78, 240-48).
B. A jury convicts Petitioner of participating in a methamphetamine-trafficking
conspiracy and a firearm offense, and this Court imposes a within-Guidelines term of life
in prison.
On December 13, 2012, a federal grand jury indicted Petitioner and charged him with
conspiracy to distribute and to possess with intent to distribute methamphetamine, in violation of
21 U.S.C. § 846 (Count One); possession of a firearm in furtherance of a drug-trafficking
offense, in violation of 18 U.S.C. § 924(c) (Count Two); possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (Count Three); possession of a firearm as a person
convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9)
(Count Four); and possession of a short-barreled shotgun that was not registered to him, in
violation of 26 U.S.C. §§ 5841, 5861(c) and (d), and 5871 (Count Five). (Crim. Case No. 5:12cr-49-FDW-DCK-1, Doc. No. 50: First Superseding Bill of Indictment). The Government later

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dismissed without prejudice the charges under 18 U.S.C. § 922(g) (Counts Three and Four). (Id.,
Doc. Nos. 62-63).
On December 26, 2012, and on January 29, 2013, this Court sua sponte issued orders to
continue the matter because it had been joined for trial with a co-defendant who had not been
severed and as to whom the time for trial had not run. (Id., Doc. Nos. 12, 19). On March 19,
2013, June 4, 2013, and July 31, 2013, Petitioner’s counsel moved for continuances, citing the
voluminous discovery in the case and the additional time needed to prepare for trial. (Id., Doc.
Nos. 39, 45, 47). This Court granted each motion, specifically stating in each order that the ends
of justice outweighed the best interest of the public and the defendant to a speedy trial. (Id., Doc.
Nos. 12, 19, 40, 46, 48).
On August 20, 2013, a grand jury returned a first superseding indictment, which charged
Petitioner with the same offenses, but did not name Pina in the charges. (Id., Doc. No. 50). On
September 23, 2013, Petitioner’s counsel moved for another continuance. (Id., Doc. No. 53).
This Court denied the motion. (Id., Doc. No. 56). On October 8, 2013, counsel filed a sealed
motion for a continuance, which this Court granted. (Id., Doc. Nos. 58, 59). On November 22,
2013, Petitioner’s counsel filed another sealed motion for a continuance, which this Court also
granted. (Id., Doc. Nos. 60, 61). Again, the Court stated in both orders granting these two
continuances that the ends of justice outweighed the best interest of the public and the defendant
to a speedy trial. (Id., Doc. Nos. 59, 61).
The day before trial, this Court issued a sequestration order, prohibiting witnesses from
talking with anyone who was or might become a witness “about any subject matter related to this
trial.” (Id., Doc. No. 77). Trial began on March 4, 2014. (Id., Doc. No. 131). During the trial,

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the Government presented testimony from law enforcement officers and five cooperating
witnesses about methamphetamine transactions conducted with or on Petitioner’s behalf.
Clara Jean Caudell testified that she and Petitioner were friends and that he had sold her
at least half an ounce of methamphetamine for about five years before her arrest. (Id., Trial Tr.
at 327, 330-34). Caudell testified that Petitioner had several couriers who worked for him and
that she had picked up drugs from Petitioner’s house on one occasion. (Id. at 335-36). On crossexamination, Caudell admitted that she cooperated by taking responsibility for her part in the
offense conduct and that whether she received a reduction in her sentence was up to the judge.
(Id. at 344). On redirect, she identified her plea agreement, and the Government moved it into
evidence. (Id. at 346-47; Gov. Trial Ex. 24).
Eller testified that he had pleaded guilty to his involvement in the methamphetaminetrafficking conspiracy and that Petitioner had been a co-conspirator. (Id., Trial Tr. at 394). Eller
stated that he began buying half an ounce of methamphetamine every two or three weeks from
Petitioner, but he eventually worked up to buying about an ounce every three or four weeks. (Id.
at 402-03, 445). Eller would use some of the methamphetamine and sell some of it. (Id. at 407).
Eller also testified about his visit to Petitioner while wearing a wire, when Petitioner told him
that it had been “hot” and that he should “lay low.” (Id. at 411, 415-17). Eller testified on crossexamination that he had a plea agreement, but that he had not been promised anything for
testifying. (Id. at 431-32). He admitted that he was hoping that he would receive “[s]ome kind
of help.” (Id. at 433). The Government moved to admit Eller’s plea agreement on redirect, id. at
447, and Eller testified that the plea agreement required him to tell the truth and that it would be
up to the judge to decide what sentence to impose, id. at 448-49; Gov. Tr. Ex. 20.

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James Hawkins also testified that he sold methamphetamine for Petitioner. (Id., Trial Tr.
at 494). On cross-examination, he stated that he was hoping to “get a little time off” for
cooperating, but he had not been sentenced yet. (Id. at 503-04, 509). On re-direct, Hawkins
testified that he had not been promised anything for his cooperation, that he was required to tell
the truth, and that the judge would decide his sentence. (Id. at 509, 511).
Shore also identified Petitioner as a co-conspirator in his methamphetamine-trafficking
activities. (Id. at 456). Shore testified that he bought half an ounce of methamphetamine from
Petitioner once a month for about a year before he increased his monthly purchases to one ounce.
(Id. at 458-59). He later bought four to six ounces a month. (Id. at 459).
Pina testified that he worked for Petitioner and that Petitioner told him where to hide
Petitioner’s money, including where to bury it. (Id. at 480-82, 488). Pina identified April
Blevins as his girlfriend. (Id. at 489). He admitted telling her where she could find some of the
money on Petitioner’s property and that she took money that she believed was Petitioner’s and
used it to buy a truck. (Id. at 488-89).
Petitioner did not present any evidence in his defense. (Id. at 529). The jury convicted
Petitioner of conspiracy to distribute methamphetamine and possession of a firearm made in
violation of the National Firearms Act, but acquitted him of possessing a firearm in furtherance
of a drug-trafficking offense (Count Two). (Id., Doc. No. 81: Jury Verdict). This Court
sentenced Petitioner to life imprisonment for the conspiracy offense and to a concurrent sentence
of 120 months of imprisonment for the firearm offense and ordered him to pay a $200 special
assessment. (Id., Doc. No. 113: Judgment).
Petitioner appealed, challenging the denial of his motion for a judgment of acquittal and
his life sentence. Saldana, 664 F. App’x at 328. The Fourth Circuit affirmed his conviction and

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sentence. Id. The Fourth Circuit held that there was “more than sufficient evidence to convict
Saldana” of the conspiracy offense, citing his leadership of the drug-trafficking operation, the
testimony at trial, as well as the recorded conversations with Petitioner and the evidence found
during the searches of his property. Id. at 331.
Petitioner timely filed the present motion to vacate, correct, or set aside his sentence
pursuant to 28 U.S.C. § 2255, arguing that this Court lacked subject-matter jurisdiction, that his
speedy trial, double jeopardy, and Fourth Amendment rights were violated, that the Government
engaged in prosecutorial misconduct, and that he received ineffective assistance of counsel. The
Government filed its Response on March 12, 2018, and Petitioner filed his Reply on April 2,
2018, in which he asserts essentially the same arguments made in his original motion to vacate
and supporting memorandum. (Doc. Nos. 3, 6).
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. Petitioner’s Contentions that this Court lacked jurisdiction over Petitioner’s
offenses.
Petitioner first contends that the Controlled Substances Act is unconstitutional and that
this Court lacked subject-matter jurisdiction over the case because there was no evidence that the

7

drug offense had any effect on interstate commerce. See (Civ. Doc. No. 1-1 at 7-9, 12-28). This
first claim is without merit, as it is well settled that the Controlled Substances Act’s regulation of
interstate and intrastate drug-related activities is constitutional under the Commerce Clause. See
Gonzales v. Raich, 545 U.S. 1, 15, 19, 22 (2005) (upholding use of Controlled Substances Act to
regulate even intrastate activities).
Petitioner also contends that this Court lacked jurisdiction because he was deprived of his
Sixth Amendment right to counsel during his initial appearance. (Civ. Doc. No. 1-1 at 10-11
(citing Johnson v. Zerbst, 304 U.S. 458, 467-68 (1938)). The Court also rejects this claim. The
docket entry for Petitioner’s initial appearance reflects that he requested and was granted the
appointment of counsel Emily Marroquin at his initial appearance. (Crim. Case No. 5:12-cr-49FDW-DCK-1, Doc. Entry dated Dec. 13, 2012). Because Petitioner was represented by counsel
throughout the proceedings below, he was not deprived of his right to counsel, and this Court
maintained jurisdiction over the proceedings. Thus, his challenges to this Court’s jurisdiction are
denied.
B. Petitioner’s Fourth Amendment claim.
Petitioner next contends that his Fourth Amendment rights were violated when he was
arrested without a warrant or probable cause and two cell phones were taken from him. (Civ.
Doc. No. 1-1 at 29-32). He maintains that no incriminating evidence was found on the cell
phones, but the fact that he had two phones was used to show his involvement in drug
trafficking. (Id. at 29). He also contends that officers exceeded the scope of the search warrant
for his property, by searching connected properties for which they did not have a warrant. (Id. at
31).

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Petitioner’s argument is without merit. Where a movant has had a full and fair
opportunity to litigate his Fourth Amendment claims, he may not assert a Fourth Amendment
claim on collateral review. See Stone v. Powell, 428 U.S. 465, 481-82 (1976); Boggs v. Bair,
892 F.2d 1193, 1199-1200 (4th Cir. 1989) (holding full and fair opportunity to address claim
existed even where petitioner asserted a change in the law). Petitioner could have raised these
claims in this Court or on appeal. Because he had a full and fair opportunity to raise these
claims, but he did not do so, he is barred from raising these claims on collateral review. See
Stone, 428 U.S. at 481-82.
Even if this Court could consider these claims, they are without merit. Law enforcement
officers obtained search warrants for Petitioner’s property at 178 Ervin Houck Drive and 148
Ervin Houck Drive. These search warrants specifically authorized seizing any “cellular
telephones” found at the property, and the application for the warrants noted that cell phones
often contained evidence of drug trafficking, such as pictures. (Crim. Case No. 5:12-cr-49FDW-DCK-1, Federal search warrants (see esp. Doc. No. 1 & 1-2 at 3, 13; Doc. No. 2 & 2-2 at
3, 13)). Petitioner was at his residence when officers executed the search warrants, and officers
seized the two cell phones that Petitioner was carrying. Officers arrested Petitioner, and this
Court issued an arrest warrant the following day. See (Id., Doc. No. 2).
After Pina subsequently revealed that Petitioner had hidden more cash and drugs on his
property, officers obtained state search warrants for the two properties that they had previously
searched, as well as the curtilage of these properties. (Id., Trial Tr. at 76-78; State Search
Warrants). It was during this subsequent search on February 12, 2013, that the officers found
additional cash, drugs, and ammunition. (Id., Trial Tr. at 78).

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Officers had probable cause to arrest Petitioner given the information on which the search
warrants were issued, namely that he was involved in drug trafficking. Petitioner has not shown
that any evidence obtained during the original search was not located on the two properties
covered by the search warrants. Furthermore, the additional state search warrants that officers
obtained before the second search of Petitioner’s properties included the curtilage of those
properties. See (Id., State Search Warrants). Accordingly, Petitioner’s contention that the
officers exceeded the scope of the warrants lacks merit. Because the searches were made
pursuant to valid warrants and there was probable cause to arrest Petitioner, there was no Fourth
Amendment violation. Moreover, even if any areas outside the scope of the search warrants
were searched, Petitioner has not shown that such a search infringed on his Fourth Amendment
rights. See United States v. Dunn, 480 U.S. 294, 299-304 (1987) (holding that the Fourth
Amendment protects the curtilage of a home, but not open fields).
C. Petitioner’s claims of a speedy trial violation, double jeopardy violation, and
prosecutorial misconduct.
1. Procedural Bar
Petitioner next brings claims of a speedy trial violation, double jeopardy violation, and
prosecutorial misconduct. A § 2255 motion is not a substitute for a direct appeal. See United
States v. Frady, 456 U.S. 152, 165 (1982). Claims of error that could have been raised on direct
appeal, but were not, are procedurally barred unless the petitioner shows both cause for the
default and actual prejudice, or demonstrates that he is actually innocent of the offense. See
Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Bowman, 267 F. App’x
296, 299 (4th Cir. 2008). “[C]ause for a procedural default must turn on something external to
the defense, such as the novelty of the claim or a denial of effective assistance of counsel.”

10

United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999). As the Fourth Circuit has made
clear, futility does not establish cause to excuse a procedural default. See Whiteside v. United
States, 775 F.3d 180, 185 (4th Cir. 2014) (en banc) (noting that “alleged futility cannot serve as
‘cause’ for a procedural default in the context of collateral review”).
To show actual prejudice, a petitioner must demonstrate that errors in the proceedings
“worked to his actual and substantial disadvantage” and were of constitutional dimension. See
Frady, 456 U.S. at 170. To show actual innocence, a petitioner must demonstrate that he “has
been incarcerated for a crime he did not commit.” United States v. Jones, 758 F.3d 579, 584 (4th
Cir. 2014), cert. denied, 135 U.S. 1467 (2015). Actual innocence is based on factual innocence
and “is not satisfied by a showing that a petitioner is legally, but not factually, innocent.” See
Mikalajunas, 186 F.3d at 494.
Petitioner has not previously argued that his speedy trial and double jeopardy rights were
violated, nor has he previously asserted that there was prosecutorial misconduct at trial.
Although he contends that he received ineffective assistance of counsel, which could establish
cause, because his claims have no merit he cannot show ineffective assistance. He also has not
made a showing of actual prejudice or actual innocence. Therefore, he cannot overcome the
procedural bar.
2. Merits of Petitioner’s claims of a speedy trial violation, double jeopardy violation,
and prosecutorial misconduct.
The Court further finds that, even if Petitioner’s claims were not procedurally barred,
they would fail on the merits. Petitioner first argues that he was denied his statutory and
constitutional right to a speedy trial because this Court granted seven continuances, but failed to
put findings on the record regarding why the continuances were warranted. (Civ. Doc. No. 1-1 at

11

37). Petitioner contends that this resulted in the Court losing jurisdiction over his case. (Id. at
38).
Because Petitioner did not move to dismiss the indictment before his trial, he has waived
the right to bring a Speedy Trial Act challenge. See 18 U.S.C. § 3162(a)(2) (providing that
where a defendant fails to move to dismiss an indictment prior to trial, he waives the right bring
a Speedy Trial Act claim). Even if Petitioner had not waived this right, he cannot show a
violation of the Speedy Trial Act because, in every motion granting a continuance, this Court
determined that the ends of justice outweighed the best interest of the public and the defendant to
a speedy trial. Id. § 3162(h)(7)(A). Accordingly, the time during which the continuances ran
was excludable, and Petitioner’s trial commenced well under the 70-day period provided for in
the Speedy Trial Act.
Under the Sixth Amendment to the Constitution, a defendant has a due process right to a
speedy trial. To establish a constitutional speedy trial violation, a defendant must show that a
balance of four factors weighs in his favor: (1) whether there was an uncommonly long delay
before trial; (2) whether the defendant or the government is more to blame for any delay; (3)
whether the defendant asserted the right to a speedy trial; and (4) whether the defendant was
prejudiced by the delay. United States v. Thomas, 55 F.3d 144, 149 (4th Cir. 1995). Here,
Petitioner cannot show that the factors weigh in his favor. The trial commenced less than a year
and three months after Petitioner’s indictment. The Court ordered the first two continuances, but
Petitioner requested all of the other continuances. He never asserted his right to a speedy trial to
the Court, and he does not allege any prejudice from the delay in his trial. Rather, the defense
motions for a continuance show that it was in Petitioner’s best interests for the trial to be
continued so that his defense could be properly prepared and presented. See (Crim. Case No.

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5:12-cr-49-FDW-DCK-1, Doc. Nos. 39, 45, 47, 58, 60). Because Petitioner has not shown that
the speedy trial factors weigh in his favor, he cannot show that he was denied his right to a
speedy trial.
Next, as to Petitioner’s double jeopardy claim, Petitioner argues that his double jeopardy
rights were violated because this Court sentenced him to a term of imprisonment and to pay a
special assessment. (Civ. Doc. No. 1-1 at 38-39). He contends that this subjected him to
multiple punishments for the same offense and that, because he paid the special assessment, this
Court should vacate his sentence of imprisonment. (Id. at 39).
The Double Jeopardy Clause protects a defendant against a court imposing multiple
punishments for the same offense in a single proceeding. Jones v. Thomas, 491 U.S. 376, 381
(1989). In examining whether multiple punishments have been imposed, a court looks to what
punishment the legislature has authorized. (Id.). If the punishment imposed does not exceed that
authorized by the legislature, there is no double jeopardy violation. (Id.). The Supreme Court
has recognized that where a legislature authorizes punishment by both imprisonment and a fine,
“it could not be seriously argued that the imposition of both a fine and a prison sentence in
accordance with such a provision constituted an impermissible punishment.” Whalen v. United
States, 445 U.S. 684, 688 (1980). Here, Petitioner’s term of imprisonment was authorized by 21
U.S.C. §§ 846, 841(b) and 26 U.S.C. § 5871, and the special assessment was authorized under 18
U.S.C. § 3013(a)(2)(A). Accordingly, his punishment was authorized by statute and does not
violate the Double Jeopardy Clause.
Next, as to Petitioner’s prosecutorial misconduct claim, Petitioner asserts that the
Government engaged in prosecutorial misconduct by misrepresenting to the jury that the search
that uncovered the weapons was lawful. (Civ. Doc. No. 1-1 at 33-34). To establish prosecutorial

13

misconduct, a defendant must demonstrate: (1) that the conduct of the prosecutor was improper,
and (2) that the improper conduct prejudicially affected his substantial rights so as to deprive him
of a fair trial. See United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). “[I]t ‘is not enough
that the prosecutors’ remarks were undesirable or even universally condemned.’” Darden v.
Wainwright, 477 U.S. 168, 180 (1986) (quoting the lower court’s opinion). Improper remarks by
a prosecutor violate the Constitution only if the remarks “so infected the trial with unfairness as
to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (quoting
Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). “Courts must conduct a fact-specific inquiry
and examine the challenged comments in the context of the whole record.” Bennett v. Stirling,
842 F.3d 319, 323 (4th Cir. 2016). Here, because officers found the weapons during the
execution of the first search warrants at Petitioner’s residence, the search was lawful, and this
argument lacks merit.
Petitioner also alleges that the Government presented false evidence or failed to correct
false testimony from cooperating witnesses. In particular, he contends that Claudell falsely
testified that she was not promised a reduced sentence for her cooperation; that Hawkins misled
the jury as to the scope of the incentives that he was receiving, which Petitioner contends
included immunity from a mandatory life sentence pursuant to Section 851; and that Eller falsely
testified that he had not been promised anything for his testimony. (Id. at 34-35). Petitioner
contends that this prejudiced how the jury viewed the testimony of these witnesses. (Id.).
Petitioner presents no evidence to support his claims that the witnesses testified falsely.
Therefore, these claims will be dismissed as conclusory. See United States v. Dyess, 730 F.3d
354, 359-60 (4th Cir. 2013) (holding it was proper to dismiss Section 2255 claims based on
vague and conclusory allegations). As the record shows, the testimony of these witnesses and

14

their plea agreements are consistent. See (Crim. Case No. 5:12-cr-49-FDW-DCK-1, Trial Tr. at
344, 346-47, 431-33, 447-49, 503-04, 509; Gov. Tr. Exs. 20, 24; Plea Agrmt., United States v.
Hawkins, No. 5:13cr27 (W.D.N.C. June 10, 2013), Doc. No. 9: Hawkins Plea Agrmt.). Namely,
the witnesses could potentially receive a reduction of sentence for substantial assistance, but no
promise of such a reduction had been made, and the final determination of each sentence was left
to the Court. Hawkins’s plea agreement also notes that he had no prior felony drug convictions,
so his statutory range of punishment was ten years to life. (Crim. Case No. 5:13cr27, Doc. No. 9
at ¶ 4). Moreover, the record also establishes that it was the defense that aggressively solicited
testimony regarding any incentives for testifying and that the Government responded by
admitting the plea agreements for Caudell and Eller, which showed the parameters of their
agreements. (Crim. Case No. 5:12-cr-49-FDW-DCK-1, Trial Tr. at 344, 346-47, 431-33, 44749, 503-04, 509). The prosecutor’s conduct was proper and did not prejudicially affect
Petitioner’s substantial rights.
Petitioner also argues that the Government ignored the sequestration order and allowed
witnesses who were incarcerated to be housed and transported together, which provided them
with the opportunity to collaborate regarding their testimony. (Civ. Doc. No. 1-1 at 36).
Because Petitioner presents no evidence that any witnesses violated the Court’s sequestration
order, this argument fails. See Dyess, 730 F.3d at 359-60.
In sum, because Petitioner has not shown cause and prejudice for his procedural default
of his speedy trial, double jeopardy, and prosecutorial misconduct claims, these claims will be
dismissed.2 Alternatively, these claims are denied on the merits.

In addition to being waived and without merit, Petitioner’s Fourth Amendment claim also is
procedurally barred.
2

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D. Petitioner’s ineffective assistance of counsel claims.
Petitioner next argues that his attorney provided ineffective assistance by not challenging
alleged Fourth Amendment violations; by not investigating or calling April Blevins as a witness;
and by not requesting a buyer-seller instruction. He also asserts that appellate counsel was
deficient for not raising these issues on appeal and that counsels’ errors were cumulative.
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,
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).
1. Petitioner’s contention that counsel was ineffective for failing to file a motion to
suppress.

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Petitioner first contends that counsel was ineffective for failing to file a motion to
suppress. Specifically, Petitioner argues that counsel should have challenged his arrest, the
search of his property, and the search of his cell phone. (Civ. Doc. No. 1-1 at 29-31). To
establish ineffective assistance based on counsel’s failure to file a motion to suppress, a
defendant must show both deficient performance and prejudice. There is no deficient
performance where counsel’s determination not to litigate a motion to suppress is reasonable.
See Walker v. United States, No. RWT-14-0536, 2015 WL 4638069, at *2 (D. Md. July 31,
2015) (unpublished). Further, a petitioner cannot establish prejudice unless he proves that the
“Fourth Amendment claim is meritorious and that there is a reasonable probability that the
verdict would have been different absent the excludable evidence.” Kimmelman v. Morrison,
477 U.S. 365, 375 (1986).
As discussed above, law enforcement officers had probable cause to arrest Petitioner
when they executed the search warrants. The search warrants provided probable cause to search
Petitioner’s property. Accordingly, it was objectively reasonable for counsel not to challenge
Petitioner’s arrest or the searches of his property. Nor has Petitioner shown that a motion to
suppress would likely have succeeded. Thus, he has not shown deficient performance or
prejudice with respect to the first two claims.
When Petitioner was arrested, officers seized his phone and examined it for evidence. He
contends that this search was not within the scope of the warrant and, therefore, his attorney was
deficient for not challenging it. (Civ. Doc. No. 1-1 at 41). The search warrants authorized law
enforcement officers to seize “cellular telephones.” In addition, when Petitioner’s phone was
seized, law enforcement officers did not need a warrant to obtain information from a phone
seized incident to an arrest. See United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009)

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(holding contents of cellular telephone seized pursuant to an arrest could be searched without a
warrant). Although Riley v. California, 134 S. Ct. 2473 (2014), overruled Murphy, that decision
was not issued until a year and a half after Petitioner’s arrest and several months after his trial.
Searches before Riley are admissible under the good-faith exception to the exclusionary rule.
See United States v. Hall, 629 F. App’x 504, 506 (4th Cir. 2015). Therefore, Petitioner cannot
establish deficient performance or prejudice, because he cannot show that there is a reasonable
probability that a challenge to the search of his cell phone would have succeeded. See
Fernandez-Gradis v. United States, No. 3:14CV575, 2016 WL 5660346, at *7 (W.D.N.C. Sept.
28, 2016) (unpublished) (denying ineffective assistance claim based on counsel’s failure to move
to suppress evidence taken from a cell phone where Riley had not been decided at the time of
trial).
2. Petitioner’s contention that counsel was ineffective for failing to call Pina’s
girlfriend as a witness.
Petitioner next contends that counsel failed to investigate and call Pina’s girlfriend, April
Blevins, as a witness at trial. (Civ. Doc. No. 1-1 at 42). He asserts that Blevins could have
provided exculpatory evidence by testifying that Pina had “control” of the drugs and money
found during the searches. (Id.). Complaints of ineffective assistance based on uncalled witness
are disfavored because the presentation of witness testimony is a matter of strategy and the
nature of such testimony is speculative. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir.
1985). To demonstrate prejudice based on a claim of uncalled witnesses, a petitioner “must
show not only that this testimony would have been favorable, but also that the witness would
have testified at trial.” Id.; see Howard v. Lassiter, No. 1:12cv453, 2013 WL 5278270, at *3
(M.D.N.C. Sept. 18, 2013) (unpublished) (holding claim of uncalled witnesses failed where

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petitioner did not specify the identity of the witnesses, the substance of their anticipated
testimony, or how this testimony would have produced a different outcome at trial). A defendant
claiming ineffective assistance of counsel based on an uncalled witness should make a proffer of
testimony from the uncalled witness. See Bassette v. Thompson, 915 F.2d 932, 940-41 (4th Cir.
1990).
Petitioner’s claim is without merit. Petitioner does not argue that Pina owned the drugs
or money, nor has he provided a statement from Blevins. Even if Blevins had testified that Pina
controlled the drugs and money found during the searches, this would not have impacted the
jury’s finding of Petitioner’s guilt as to the offenses. Petitioner does not contend that Pina had
control of the firearms found in Petitioner’s residence. Furthermore, since Pina was a coconspirator, Petitioner still would have been responsible for the drugs and money found on his
property, even if Pina controlled these items. Additionally, the co-conspirators testified that Pina
was working for Petitioner. Accordingly, Petitioner cannot show that counsel was deficient or
that there is a reasonable probability that calling Blevins as a witness would have changed the
result at trial. See Strickland, 466 U.S. at 687-88, 694.
3. Petitioner’s contention that counsel was ineffective for failing to request a buyerseller instruction.
Petitioner next argues that his attorney should have requested a buyer-seller instruction
because the evidence did not support finding a conspiracy. (Civ. Doc. No. 1-1 at 39-40). He
contends that he was prejudiced by the failure to request this instruction because there is a
reasonable probability that the outcome would have been different had this instruction been
given to the jury. (Id. at 40).

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A district court does not err in refusing to give a buyer-seller defense instruction where
the facts show that a relationship went beyond a buy-sell transaction. United States v. Mills, 995
F.2d 480, 485 (4th Cir. 1993). Here, several witnesses testified to their ongoing agreements to
buy methamphetamine from Petitioner, including some who resold the drugs to other people, and
others testified that they sold methamphetamine for Petitioner. The quantities involved in the
offense also supported a finding of distribution. As the Fourth Circuit determined, ample
evidence supported Petitioner’s involvement in a conspiracy, so counsel was not deficient for
failing to request a buyer-seller instruction, nor can Petitioner show prejudice where it would not
have been proper to give such an instruction. See Saldana, 664 F. App’x at 331; Mills, 995 F.2d
at 485.
Finally, Petitioner’s catch-all assertion that counsel provided ineffective assistance by not
raising his jurisdictional, speedy trial, double jeopardy, or prosecutorial misconduct challenges
also fails. See (Doc. No. 1-1 at 34, 43-44). As previously shown, none of these claims have
merit, so counsel was not deficient and Petitioner was not prejudiced by the failure to raise these
issues.
4. Petitioner’s claim of ineffective assistance of appellate counsel.
Petitioner contends that he received ineffective assistance of appellate counsel for failing
to raise various issues on appeal. Courts should ordinarily only find ineffective assistance for
failure to raise claims on appeal when “ignored issues are clearly stronger than those presented.”
Smith v. Robbins, 528 U.S. 259, 288 (2000) (internal citation and quotation omitted). Appellate
counsel is not required to assert all non-frivolous issues on appeal. Griffin v. Aiken, 775 F.2d
1226, 1235 (4th Cir. 1985). Rather, it “is the hallmark of effective appellate advocacy” to
winnow out weaker arguments and to focus on more promising issues. Smith v. Murray, 477

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U.S. 527, 536 (1986). Thus, “[a] decision with respect to an appeal is entitled to the same
presumption that protects sound trial strategy.” Pruett v. Thompson, 996 F.2d 1560, 1568 (4th
Cir. 1993). Additionally, the petitioner still bears the burden to show that there is a reasonable
probability that but for counsel’s failure to raise an issue on appeal, the result of the proceeding
would have been different, i.e., he would have prevailed on appeal. See Robbins, 528 U.S. at
285-86.
Because none of Petitioner’s claims have merit, he cannot show that his appellate counsel
was deficient for failing to raise these issues on appeal, nor can he show prejudice. Accordingly,
his claim of ineffective assistance of appellate counsel is dismissed.
5. Petitioner’s claim of cumulative error.
Finally, Petitioner argues that the combined effects of alleged errors by counsel require a
new trial. (Doc. No. 1 at 43-44). Because Petitioner has not shown that any of his claims have
merit, there was no cumulative error. Moreover, his claims of ineffective assistance are not
subject to cumulative error review. Cf. Fisher v. Angelone, 163 F.3d 835, 852-53 (4th Cir. 1998)
(claims of ineffective assistance of counsel must be evaluated individually, not cumulatively).
Therefore, this claim is denied.
IV.

CONCLUSION

For the foregoing reasons, the Court denies and dismisses Petitioner’s Section 2255
petition.
IT IS, THEREFORE, ORDERED that:
1.

Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255, (Doc. No. 1), is DENIED and DISMISSED.

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2.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 and Section 2255 Cases, this Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 338 (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); Slack v. McDaniel, 529 U.S. 473,
484 (2000) (when relief is denied on procedural grounds, a petitioner must
establish both that the dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a constitutional right).

Signed: April 11, 2018

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