Irving v. USA

Filing 16

OPINION AND ORDER by Judge Ronald A. White granting petitioner's motion to supplement his habeas motion ( 10 MOTION to Supplement ) and denying petitioner's habeas motion on all grounds (Re: 1 Motion to Vacate, Set Aside or Correct Sentence (2255) ) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

RONALD KEITH IRVING,
Petitioner/Defendant.
v.

Case No. CIV-13-141-RAW
(Underlying Case No. CR-09-036)

UNITED STATES OF AMERICA,
Respondent/Plaintiff,

ORDER & OPINION
Before the court is Ronald Keith Irving’s motion pursuant to 28 U.S.C. § 2255 to vacate,
set aside or correct sentence [Docket No. 1]. On July 23, 2009, Petitioner was found guilty on
Count 1 of the Indictment, charging him with possession with intent to distribute cocaine base,
also known as crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). The
jury found the amount of cocaine base to be in excess of 5 grams. Petitioner and his codefendant, Deandre Laron Washington, were also found guilty on Count 2 of the Indictment,
charging him with conspiring to shoot a law enforcement officer to prevent his attendance or
testimony in federal court proceedings against a co-conspirator in violation of 18 U.S.C. §§
1512(a)(1)(A) and (a)(2).
On February 17, 2010, Petitioner was sentenced to 360 months in prison, followed by
eight years of supervised release. The Judgment was entered on February 22, 2010. Petitioner
appealed his conviction. On November 29, 2011, the Tenth Circuit affirmed his conviction.
Petitioner filed a petition for a writ of certiorari with the Supreme Court on February 24, 2012.

The Supreme Court denied the petition on April 2, 2012. Petitioner’s motion is timely.1
Petitioner initially raised four ineffective assistance of counsel claims for relief in his
habeas motion. On July 8, 2013, Petitioner filed a motion to supplement his habeas motion to
add the Supreme Court decision in Alleyne v. United States, 133 S.Ct. 2151 (2013) [Docket No.
10]. The court hereby grants the motion to add Alleyne.
For the reasons set forth below, the habeas motion is denied on all grounds. In his habeas
motion, Petitioner requests an evidentiary hearing and appointed counsel. As the motion and the
files and records of the case conclusively show that the prisoner is entitled to no relief, no
evidentiary hearing is necessary. The motion for appointment of counsel is denied as well.2

FACTUAL AND PROCEDURAL HISTORY
In February 2009, Petitioner was arrested after a successful narcotics sting orchestrated by
Lieutenant Bryan Stark, the head of the Muskogee Police Department’s Special Investigations

1

“A one-year period of limitation applies to [a] habeas petition. 28 U.S.C. § 2255. The
limitation period runs from the date on which the judgment of conviction becomes final . . . .”
United States v. Ramos, 150 Fed.Appx. 752, 753 (10th Cir. 2005) (citations omitted). In this
case, the judgment of conviction became final when the Supreme Court denied the petition for a
writ of certiorari on April 2, 2012. See Clay v. United States, 537 U.S. 522, 527 (2003); United
States v. Prows, 448 F.3d 1223, 1227 (10th Cir. 2006). As this action was filed on April 1, 2013,
less than a year after the judgment became final, it is timely.
2

“[T]here is no right to counsel in collateral proceedings.” United States v. Prows, 448
F.3d 1223, 1229 (10th Cir. 2006). Pursuant to § 2255(g) and 18 U.S.C. § 3006A(a)(2)(B), the
court may appoint counsel if it determines the interests of justice so require. “The decision to
appoint counsel is left to the sound discretion of the district court.” Engberg v. Wyoming, 265
F.3d 1109, 1122 (10th Cir. 2001). As the court has determined that an evidentiary hearing is not
required in this case and that the interests of justice do not so require appointment of counsel, in
its discretion, the court declines to appoint counsel.
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Unit (hereinafter “SIU”).3 The SIU primarily handled narcotics investigations. Under Officer
Stark’s leadership, the SIU dramatically increased its number of search warrants and arrests,
drawing media interest. Officer Stark handled the media for the SIU and became the face of the
SIU for the public.
Shortly after Petitioner’s arrest, Officer Stark received a note from a Muskogee County
inmate, Durrell Collins, stating that someone was trying to have Officer Stark killed. When
interviewed, Mr. Collins told authorities that Petitioner had contacted him in jail about arranging
to have Officer Stark killed.
Mr. Collins also told authorities that Petitioner had first announced at a party in 2006 that
he would pay up to $50,000 to anyone who would kill Officer Stark.4 The likely motivation for
Petitioner’s desire to kill Officer Stark was the fact that Officer Stark had been involved in an
investigation and prosecution of Petitioner in 2005. At the 2006 party, Mr. Collins suggested
Mr. Washington might be interested, but nothing came of it at that time.
Later when both Mr. Collins and Petitioner were in jail in February 2009, Petitioner sent a
note to Mr. Collins suggesting they move forward with the plan.5 Mr. Collins and Petitioner then
spoke about the plan on cell phones that had been smuggled into the jail. The cell phones were
in the possession of Milton Warrior and Sean Warrior, cousins, who were also in the jail. Sean
Warrior was Petitioner’s cell mate. Milton Warrior was in a cell close to Mr. Collins. The

3

As all of Petitioner’s claims relate to his conviction on Count 2 of the Indictment, the
court does not include the facts leading to his arrest and conviction on Count 1 of the Indictment.
4

Nathan Simmons’ testimony at trial corroborated this fact.

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The note was introduced at trial.
3

Warrior cousins allowed Petitioner and Mr. Collins to use their phones to speak to each other.
After speaking to federal investigators, Mr. Collins agreed to work with them and go
along with Petitioner’s plan. Petitioner supplied money to bond Mr. Collins out of jail. After
Mr. Collins was released from jail, the FBI provided him with a cell phone that he used to remain
in contact with Petitioner. Petitioner and Mr. Collins spoke about the arranged hit on Officer
Stark several times. The FBI monitored the calls.6
Mr. Collins then contacted Mr. Washington. Mr. Collins and Mr. Washington met on
March 9, 2009 to discuss details. Mr. Collins informed Mr. Washington that he would be paid
$50,000 to kill Officer Stark and that $25,000 would be paid up front. Mr. Collins did not
inform Mr. Washington that Petitioner was behind the offer. Mr. Washington agreed to kill
Officer Stark for the payment. They agreed that they would travel to Muskogee together on
March 11, 2009. Mr. Collins was to acquire a gun upon their arrival in Muskogee, and Mr.
Washington was to shoot Officer Stark the same day. On March 11, 2009 as they entered
Muskogee, Mr. Washington and Mr. Collins were stopped by law enforcement. Mr. Washington
was arrested.
On March 18, 2009, the Government filed a two count Indictment against Petitioner and
Mr. Washington. Count 1 of the Indictment charged Petitioner with possession with intent to
distribute crack cocaine. Count 2 charged both Petitioner and Mr. Washington with conspiring to
shoot a law enforcement officer to prevent his attendance or testimony in federal court
proceedings in violation of 18 U.S.C. §§ 1512(a)(1)(A) and (a)(2).
At trial, the jury heard testimony from, among several others, Officer Stark, Mr. Collins,
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During the trial, the jury heard recordings of those conversations.
4

Milton Warrior, Sean Warrior, Ike Alexander, Mike Beaver, Nathan Simmons, Mr. Washington,
and Petitioner. Petitioner claimed that he was set up in the murder-for-hire plot. He claimed that
he had given the cell phone to another inmate and that the voice on the recorded calls with Mr.
Collins was not his. He also claimed that the handwriting on the note to Mr. Collins was not his.
On July 23, 2009, both Petitioner and Mr. Washington were found guilty of the charges against
them in the Indictment.
On appeal, Petitioner argued: (1) the indictment failed to charge a crime; (2) the
indictment was duplicitous; (3) there was insufficient evidence introduced at trial to support his
convictions; (4) the district court abused its discretion in excluding the testimony of a defense
witness who was present in the courtroom during trial in violation of the Rule of Sequestration;
and (5) the district court abused its discretion in admitting testimony from the target of the
murder-for-hire scheme regarding his role in an earlier investigation and prosecution of
Petitioner. The Tenth Circuit affirmed Petitioner’s convictions.

PETITIONER’S MOTION
Petitioner argues that his attorney was ineffective for failing to: (1) obtain the testimony
of Lakesha Garrett; (2) consult a voice analyst; (3) obtain a handwriting expert; and (4)
independently lodge objections and motions regarding the exclusion of the testimony of Terry
Warrior. Petitioner also adds the recent Supreme Court decision in Allyne v. United States, 133
S.Ct. 2151 (2013).

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INEFFECTIVE ASSISTANCE CLAIMS
In order to prevail on his claims of ineffective assistance of counsel, Petitioner must
satisfy the two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984). Under this
test, Petitioner must show both that his counsel’s performance was deficient and that the
deficiency prejudiced his defense. Id. at 687.
He must show that his counsel’s “representation fell below an objective standard of
reasonableness.” Id. at 688. “Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689 (emphasis added).
A reviewing court must make every effort “to evaluate the conduct from counsel’s
perspective at the time.” Id. Moreover, a convicted defendant “must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’”
Id. (citation omitted) (emphasis added). “There are countless ways to provide effective
assistance in any given case. Even the best criminal defense attorneys would not defend a
particular client in the same way.” Id.
To prevail, a Petitioner must also show that the error had an effect on the judgment in his
case. “An error by counsel, even if professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691.
Even if an error had some conceivable effect, that is not enough to set aside a judgment. Id. at
693. Instead, a defendant “must show that there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
While a defendant must prove both deficient performance and prejudice before he is
entitled to relief, the court need not address the elements in that order. Id. at 697. “If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed. Courts should strive to ensure that
ineffectiveness claims not become so burdensome to defense counsel that the entire criminal
justice system suffers as a result.” Id. Moreover, “the presumption that a criminal judgment is
final is at its strongest in collateral attacks on that judgment.” Id.

Ground 1 – Lakesha Garrett Testimony
Petitioner argues that his counsel was ineffective for failing to subpoena Lakesha Garrett
and then resting without her testimony. Petitioner states that Lakesha Garrett would have
testified about a conversation she had with Ike Alexander, about her statement to the FBI in
March of 2009, and ultimately would have identified the voice on the audio recordings with Mr.
Collins as Ike Alexander and not Petitioner.
Petitioner did not suffer prejudice from the absence of Lakesha Garrett’s testimony. As
noted above, at trial, the jury heard the recordings of conversations that were alleged to be
between Mr. Collins and Petitioner. The jury also heard live testimony from Petitioner and from
Ike Alexander, so heard their voices live. Thus, the jury members were able to decide for
themselves whether the voice on the recordings belonged to Petitioner or Ike Alexander.
Additionally, at trial, Special Agent Mike Beaver of the FBI testified that he interviewed Lakesha
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Garrett. Mr. Beaver testified that Lakesha Garrett told him she spoke on the phone with Durrell
Collins and with Ike Alexander, but not Petitioner. Id. Additionally, as the Tenth Circuit held in
his appeal, there was substantial, independent evidence of Petitioner’s guilt, including
Petitioner’s statement at a party in 2006 that he would pay $50,000 to anyone who would kill
Officer Stark.
Further, Petitioner’s counsel avers that Ms. Garrett told him numerous time she was
willing to testify at trial. Counsel also avers that he was unable to get Ms. Garrett to meet with
him prior to trial and that he questioned whether once she was on the stand she might listen to the
recordings and deny it was Ike Alexander’s voice. Counsel’s decision not to subpoena Ms.
Garrett and to rest without was not ineffective. Instead, it was sound trial strategy.

Ground 2 – Voice Analyst
Petitioner also argues that his counsel was ineffective for failing to consult a voice analyst
to determine whether the voice on the audio tapes belonged to Petitioner. As noted above, the
jury had the opportunity to hear and decide for itself whether the voice on the recordings
belonged to Petitioner or Ike Alexander. There was also substantial, independent evidence of
Petitioner’s guilt. Petitioner suffered no prejudice by the lack of a voice analyst.
Moreover, Petitioner’s counsel questioned FBI Special Agent Mike Beaver who testified
that he was not familiar with any such technology and had not used it in his 20 years of service.
Id. at 829. Counsel researched the existence of the technology and experts, but Petitioner did not
have the financial resources to pursue it. Counsel was not ineffective.

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Ground 3 – Handwriting Expert
Petitioner argues that his counsel was ineffective for failing to obtain a handwriting
expert to verify whether the handwriting on the note that Durrell Collins testified was from
Petitioner was in fact from Petitioner. Again, Petitioner did not suffer prejudice and his counsel
was not ineffecient. As his counsel avers, the science is not definitive. Moreover, there was
substantial, independent evidence of Petitioner’s guilt, including his announcement at a party in
2006 that he would pay $50,000 to anyone who would kill Officer Stark.

Ground 4 – Terry Warrior Testimony
Petitioner argues that his counsel was ineffective for failing to independently lodge
objections and motions regarding the exclusion of testimony of Terry Warrior. At the beginning
of the trial, the court invoked the Rule of Sequestration and ordered anyone except the parties
who would potentially be a witness to remove themselves from the courtroom. Terry Warrior
remained and watched her son Sean Warrior testify about the phone calls between Petitioner and
Mr. Collins. Sean testified that Petitioner barely knew Mr. Collins and that his cousin Milton
Warrior was dishonest.
On cross-examination, the government asked Sean whether he had been a victim of
witness intimidation by Mr. Washington and whether his mother had been held at gunpoint. Mr.
Washington’s attorney sought to have her testify. The court excluded her testimony based on the
Rule of Sequestration.
The court need not reach whether his counsel was deficient, as Petitioner did not suffer
prejudice from the exclusion of Ms. Warrior’s testimony. As the Tenth Circuit held in
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Petitioner’s appeal, there was substantial, independent evidence of Petitioner’s guilt, including
multiple tape-recorded conversations between Petitioner and Mr. Irving about killing Officer
Stark and evidence that Petitioner wanted to kill Officer Stark as far back as 2006. Additionally,
there were inconsistencies in Sean Warrior’s testimony. Petitioner did not suffer prejudice from
the exclusion of Terry Warrior’s testimony.

ALLYNE
With no argument, Petitioner moves to supplement his habeas motion with the recent
Supreme Court decision in Allyne v. United States, 133 S.Ct. 2151 (2013). The court grants the
motion. In Allyne, the Supreme Court held that any finding of fact that aggravates the legally
allowed range of possible punishment “constitutes an element of a separate, aggravated offense
that must be found by the jury.” Allyne, 133 S.Ct. 2162. Allyne is not applicable in this case.
As noted above, the jury found that Petitioner possessed with the intent to distribute an amount
of cocaine in excess of 5 grams. As to both counts of conviction, all elements affecting the
statutory maximum and mandatory minimum were charged in the Indictment, submitted to the
jury and found beyond a reasonable doubt. Accordingly, Petitioner’s motion is denied on this
ground as well.

CONCLUSION
As stated above, Petitioner’s motion to supplement his habeas motion [Docket No. 10] is
GRANTED. For the reasons stated above, Petitioner’s habeas motion is DENIED on all
grounds. An evidentiary hearing is not necessary in this matter, and thus Petitioner’s request for
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one is denied. Petitioner’s request for appointed counsel is also denied.
It is so Ordered this 9th day of December, 2014.

Dated this 9th day of December, 2014.

J4h4i0

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