KELLY v. USA
Filing
1
MEMORANDUM OPINION re Motion to Vacate Under 28 U.S.C. 2255 (see 2:07-cr-00163-003). Signed by Judge Alan N. Bloch on 2/9/2012. (kmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
)
)
vs.
)
)
RAY KELLY,
Criminal No. 07-163
See Civil Action No. 10-1289
}
)
Defendant/petitioner. )
MEMORANDUM OPINION
BLOCH, District J.
Petitioner, on October 1, 2010, filed a pro se "Motion to
Vacate under 28 U.S.C.
§
support thereof (Id.).
2255/1
(Doc. No. 168) and memorandum in
Upon consideration of this motion, and
upon further consideration of the Government's response thereto
(Doc. No. 173), filed on November 29, 2010, and Petitioner's
reply to the Government's response (Doc. No. 178), filed on
February 17, 2011, the Court denies Petitioner's motion for the
reasons set forth below.
I .
Background
On June 5, 2007, a grand jury sitting in the Western
District of Pennsylvania returned a six-count superseding
indictment.
Count One charged Petitioner, Marlin Kimbrew,
William Shannon, Casee Kelly ("Casee") , and Jacynta Jordan, with
knowingly, intentionally, and unlawfully conspiring to
distribute and possessing with intent to distribute five
kilograms or more of a mixture and substance containing a
detectable amount of cocaine, from in or around March 2003, to
on or about January 25, 2007, in violation of 21 U.S.C.
(Doc. No. 30).
§
On November 28, 2007, the Government filed an
information pursuant to 21 U.S.C.
§
851.
(Doc. No. 110).
Petitioner pled guilty to Count One on November 29, 2007.
No. 113).
846. 1
(Doc.
He subsequently filed a motion to dismiss the
indictment on double jeopardy grounds on February 26, 2008, and
a motion to withdraw his guilty plea on March 12, 2008.
Nos. 124, 126).
(Doc.
On March 27, 2008, Petitioner filed his
position with respect to sentencing factors and an objection to
the Section 851 information filed by the Government.
(Doc. Nos.
128, 130).
The Court issued its tentative findings on April 10, 2008,
and on April 17, 2008, a hearing was held on Petitioner's
motions.
(Doc. Nos. 135, 140).
The Court denied both motions
and sentenced Petitioner to a term of 240 months'
followed by ten years' supervised release.
imprisonment
(Id. at 140).
The
Court ordered the sentence to be served concurrently with
Petitioner's sentence imposed at Case No. IP 04-00106-CR-2 in
the Southern District of Indiana.
Counts Two through Six charged Kimbrew with various money
laundering offenses.
2
Petitioner appealed from the Court's final judgment on
April 25, 2008, challenging his conviction and sentence.
No. 144).
(Doc.
The United States Court of Appeals for the Third
Circuit ("Third Circuit") affirmed Petitioner's conviction and
sentence on October 21, 2009. 2
(Doc. No. 156).
Petitioner
subsequently filed a motion to reduce/adjust sentence pursuant
to 18 U.S.C.
§§
3584 & 3585 on December 7, 2009, arguing that
the Court failed to adjust his sentence pursuant to United
States Sentencing Guidelines ("USSG")
158).
§
5Gl.3(b).
(Doc. No.
The Court found that the adjustment was unwarranted and
denied the motion on December 30, 2009. 3
(Doc. No. 159).
On
October I, 2010, Petitioner, acting pro se, filed the present
motion to vacate his sentence pursuant to 28 U.S.C.
§
2255 (Doc.
No. 168).4
2
The Third Circuit also granted counsel's motion to
withdraw.
(Doc. No. 156).
The Court found that USSG § 5Gl.3(a) applied but
nevertheless chose to exercise its discretion to vary from the
guidelines and impose a concurrent sentence pursuant to 18
U.S.C. § 3584. The Court's decision to vary, however, did not
change its ruling that USSG § 5Gl.3(b) was inapplicable.
3
4
On October 4, 2010, in accordance with United States v.
Mille~, 197 F.3d 644 (3d Cir. 1999), the Court issued an Order
advising Petitioner that the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA") prohibits consideration of a
second or successive habeas petition absent certification from
the Third Circuit that certain very specific and rare
circumstances exist. With that in mind, Petitioner was ordered
3
II.
Discussion
Pro se pleadings are held to less stringent standards than
formal pleadings drafted by lawyers.
Haines v. Kerner, 404 U.S.
519, 520 (1972) i Hurd v. Romeo, 752 F.2d 68, 70 (3d Cir. 1985).
However, even a pro se plaintiff must be able to prove a "set of
facts in support of his claim which would entitle him to
relief./I
Haines, 404 U.S. at 520-21 (quoting Conley v. Gibson,
355 U.S. 41, 45-46 (1957)).
Petitioner brings his pro se motion pursuant to 28 U.S.C.
§
2255. 5
An evidentiary hearing is not required on a Section
2255 motion if "the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief./I
28 U.S.C. § 2255(b).
to advise the Court as to how he wished to proceed in this case,
specifically, whether he wished to have his motion ruled upon as
filed and lose the ability to file successive petitions absent
Third Circuit certification, or whether he wished to withdraw
the motion and file one all-inclusive Section 2255 petition
within the one-year statutory period of the AEDPA. (Doc. No.
169).
Petitioner informed the Court that he wished to proceed
on his motion as filed.
5
This statute permits a "prisoner in custody under sentence
of a court established by Act of Congress claiming the right to
be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States .
[to] move the court which imposed the sentence to vacate, set
aside or correct the sentence." 28 U.S.C. § 2255(a).
4
Petitioner's motion is based on a claim of ineffective
assistance of counsel.
Indeed, the proper and preferred vehicle
for advancing claims of ineffective assistance of counsel is
through a Section 2255 motion.
United States v. Nahodil, 36
F.3d 323, 326 (3d Cir. 1994).
In order to prevail on a claim of ineffective assistance,
a defendant:
must show both that: (1) counsel's representation fell
below an objective standard of "reasonableness under
prevailing professional normsi" and (2) [he] suffered
prejudice as a result - that is, there is a reasonable
probability that, but for the counsel's deficient
performance, the result of the proceeding would have
been different.
Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996)
(citing
Stric:~land
(emphasis
added).
v. Washington, 466 U.S. 668, 694 (1984»
Where the claim of ineffectiveness arises in the guilty
plea context, the United States Supreme Court ("Supreme Court")
has held that "in order to satisfy the 'prejudice' requirement,
the defendant must show that there is a reasonable probability
that, but for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial."
474 U.S. 52, 59 (1985)
(emphasis added).
Hill v. Lockhart,
If "the alleged error
of counsel is a failure to advise the defendant of a potential
affirmative defense to the crime charged, the resolution of the
5
'prejudice' inquiry will depend largely on whether the
affirmative defense likely would have succeeded at trial."
Id.
Although Strickland requires a successful demonstration of
both ineffectiveness and prejudice,
"a court need not determine
whether counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies.
Strickland, 466 U.S. at 697.
,,6
Petitioner's claim arises out of his counsel's failure to
challenge the superseding indictment ("Pennsylvania indictment")
on double jeopardy grounds prior to advising him to plead
guilty.
Petitioner contends that a 2005 drug conspiracy
conviction in the Southern District of Indiana barred
prosecution for the drug conspiracy charged in the 2007
Pennsylvania indictment because the Pennsylvania conspiracy was
part of the same over-arching drug conspiracy.
that follow,
For the reasons
the Court finds that Petitioner's claim of
ineffective assistance lacks merit because he has failed to
establish a colorable claim of double jeopardy.
A.
Indiana drug conspiracy
6
Indeed, the Third Circuit has endorsed "the practical
suggestion in Stricklan~ to consider the prejudice prong before
examining the performance of counsel prong 'because this course
of action is less burdensome to defense counsel. '" United
States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005) (quoting
Uni1::ed States v. McCoy, 410 F.3d 124, 132 n.6 (3d Cir. 2005).
6
Petitioner's conviction was the product of a superseding
indictment that was filed in the Southern District of Indiana
("Indiana indictment") on July 28, 2004. 7
and Eddie L. Thomas, Jr.
It charged Petitioner
("Thomas") with conspiring to possess
with intent to distribute and distributing five kilograms or
more of a mixture or substance containing a detectable amount of
cocaine, in violation of 21 U.S.C. § 846.
The indictment
alleged that Petitioner and Thomas conspired to distribute
cocaine throughout the Southern District of Indiana from January
to March of 2004.
During this time frame, Petitioner lived in
San Francisco while Thomas lived in Indiana.
They had agreed
that Petitioner would ship cocaine in packaged Frito Lay bags
from San Francisco to Thomas and that Thomas would send the drug
proceeds back to Petitioner in packaged cereal boxes.
The investigation that led to the Indiana indictment was
conducted by an Indiana drug task force that gathered
information through confidential informants, controlled
purchases, and a consensually recorded phone call placed in
Indiana.
The informants bought cocaine from Thomas either
directly or through people he had supplied.
After three
controlled purchases and the seizure of a package containing
7
A second superseding indictment with additional forfeiture
allegations was filed on October 19, 2004.
7
drug money, Thomas was arrested.
He told the police that
Petitioner was his supplier and they had first been introduced
in Indianapolis.
Petitioner's arrest came a few months after he
was recorded discussing a specific drug transaction on a
telephone call placed by Thomas.
He pled guilty to the
conspiracy on June 10, 2005, and on September 16, 2005, he was
sentenced to 70 months' imprisonment.
He began serving his
sentence at FeI La Tuna in Texas that fall.
B.
Pennsylvania drug conspiracy
Petitioner was indicted for the Pennsylvania conspiracy in
June of 2007, while he was serving his sentence for the Indiana
conspiracy.
The investigation leading to the indictment
revealed that prior to Petitioner's arrest for the Indiana drug
conspiracy, he was involved in a conspiracy to distribute
cocaine throughout the Western District of Pennsylvania.
During
that time, Petitioner and Shannon, his supplier, lived in San
Francisco and Kimbrew, his distributor, lived in Pittsburgh.
Information received through confidential informants revealed
that Petitioner directly supplied Kimbrew with cocaine for
distribution in Pittsburgh through numerous shipments using
Federal Express.
After Petitioner was arrested in August of
2004, the Pittsburgh operation took a hiatus because Kimbrew was
left without a supplier.
In January of 2006, however,
8
Petitioner was contacted by Shannon who expressed interest in
resuming distribution in Pittsburgh.
Recorded telephone calls
from prison between January and December of 2006 documented
Petitionerls attempt to "reactivate
the Pennsylvania conspiracy
ll
by facilitating the creation of a new distribution agreement
between Shannon I
wife Casee
l
Kimbrew l and himself.
With the help of his
Petitioner notified Kimbrew that Shannon wanted to
take Petitionerls place as Kimbrew/s direct supplier and Kimbrew
agreed.
The new arrangement consisted of Shannon shipping
cocaine directly to Kimbrew in Pittsburgh and Kimbrew sending
the proceeds in packages back to Shannon.
Records indicated
that Kimbrew flew to San Francisco in March of 2006 to meet with
Shannon and that Shannon met with Kimbrew in Pittsburgh later
that December.
The group was indicted on the drug conspiracy
charge approximately one year after a package containing drug
money was seized. 8
C.
Analysis
Petitioner thus contends that he twice was put in jeopardy
for the same conduct because both the Pennsylvania and Indiana
The package was sent by Kimbrew and was addressed to \\J.
Jordanll in San Francisco.
It was intercepted on June 151 2006 1
by employees at a mail facility in Pennsylvania and $255 / 770 was
discovered in the package following the execution of a search
warrant.
9
indictments alleged the same general criminal behavior and
charged him with violating the same statute. 9
He insists that
there was only one illegal agreement, which was to distribute
cocaine in various places for profit.
He does not contest his
factual guilt, but instead, argues that prosecution for the
Pennsylvania drug conspiracy was barred by his Indiana
conviction because the two conspiracies were the same "in law
and in fact."
The Government contends that the Pennsylvania indictment
alleged a separate and distinct drug conspiracy and that
Petitioner is unable to show that he twice was prosecuted for an
offense that was the same "in fact."
The Court agrees.
- - - - - - - - - - - - -------------------In support of his contention that only one conspiracy
existed, Petitioner cites to the fact that seven kilos of
cocaine from the Indiana conspiracy constituted relevant conduct
in the sentencing calculation for the Pennsylvania conspiracy.
This argument must fail in light of Witte v. United States, 515
U.S. 389, 397 (1995), where the Supreme Court held that
"consideration of uncharged conduct in arriving at a sentence
within the statutorily authorized punishment range" did not
constitute punishment for that conduct for purposes of double
jeopardy. See also id~ at 403-04 (finding that a guideline
sentence that includes past relevant criminal conduct
"constitutes punishment only for the offense of conviction for
purposes of the double jeopardy inquiry").
Furthermore, the
same argument was rejected in United States v .Castellar, 2011
WL 6425493, at *3 (3d Cir. 2011), where the Third Circuit cited
Witte to hold that the inclusion of past relevant criminal
conduct at sentencing did not run afoul of the Double Jeopardy
Clause.
9
10
The Double Jeopardy Clause guarantees that no person shall
"be subject for the same offense to be twice put in jeopardy of
u.s. Const. amend. V.
life or limb."
Double jeopardy is an
affirmative defense that attaches when it is "shown that the two
offenses charged are in law and in fact the same offense."
United States v. Felton, 753 F.2d 276, 278 (3d Cir. 1985).
It
"prohibits repeat trials for the same offense, not for the same
conduct."
2010)
United
El!:~_tes~
(rehearing en banc).
Riga::;, 605 F.3d 194, 204 (3d Cir.
Its central purpose is to preclude
"the government from 'splitting one conspiracy into several
prosecutions.'"
Id. at 212 (quoting United State::; v. Becker,
892 F.2d 265, 268 (3d Cir. 1989)).
It "serves the function of
preventing both successive punishment and successive
prosecution."
United States v. Dixon, 509 U.S. 688, 704
(1993).
In the context of successive conspiracy prosecutions, the
Third Circuit applies a "totality of the circumstances test to
evaluate the merits" of a double jeopardy claim.
v. Liotard, 817 F.2d 1074, 1078 (3d Cir. 1987).
United States
Under the
framework set forth in Liotard:
[A] conspiracy defendant will make out a
non-frivolous showing of double jeopardy if
he can show that (a) the "locus criminis" of
the two alleged conspiracies is the same
. (b) there is a significant degree of
temporal overlap between the two
conspiracies charged
(c) there is an
11
overlap of personnel between the two
conspiracies (including unindicted as well
as indicted coconspirators) . . . and
(d) the overt acts charged and the role
played by the defendant according to the two
indictments are similar.
Id. at 1078.
"The ultimate goal of the totality-of-the
circumstances test is to determine 'whether there are two
agreements or only one.'"
Rigas, 605 F.3d at 213 (quoting
United States v. Smith, 82 F.3d 1261, 1267 (3d Cir. 1996).
After considering the totality of the circumstances, the Court
concludes that two separate and factually distinct agreements to
distribute cocaine existed.
First, the "locus criminis" of the two conspiracies is
different.
"Locus criminis" is defined as "the locality of a
crime; the place where a crime was committed."
at 1268.
Smith, 82 F.3d
Here, the locus criminis alleged in the 2004
indictment is the "Southern District of Indiana and elsewhere,"
whereas the locus criminis alleged in the 2007 indictment is the
"Western District of Pennsylvania and elsewhere."
The point of
distribution that resulted in Petitioner's first conviction was
Indiana, whereas the point of distribution that resulted in his
second conviction was Pennsylvania.
To be sure, the facts
underlying the Indiana indictment clearly demonstrate that it
was predicated upon Petitioner's conduct in conspiring with
12
Thomas to distribute cocaine in Indiana because the evidence
gathered in the course of that investigation would have been
insufficient to warrant a drug conspiracy conviction in
Pennsylvania. 10
The facts surrounding the Pennsylvania indictment likewise
show that it was predicated on Petitioner's conduct in
conspiring with Shannon and Kimbrew to distribute cocaine in
Pennsylvania.
Indeed, the Government's summary of evidence
recited at Petitioner's change of plea hearing contained only
two sentences that referenced the Indiana drug conspiracy.11
The
10
The Court is mindful that the "totality of the
circumstances" approach is the applicable framework as opposed
to the "same evidence test." The Court, however, still views
this factor as relevant to the determination of whether one or
two agreements existed. The Court notes that the primary reason
for adopting the totality of the circumstances test in the
context of successive conspiracy prosecutions arose from the
concern that the same evidence test would result in courts
placing "undue emphasis upon the evidence used to prove the
commission of the overt acts alleged." SITl~th, 82 F.3d at 1267
(internal quotations and citations omitted). As this case
involves a drug conspiracy, no overt acts are alleged in the
indictment and therefore the concern with analyzing whether "the
evidence required to support a conviction upon one of [the
indictments] would have been sufficient to warrant a conviction
upon the other" is not presented. United States v._Young, 503
F.2d 1072, 1075 (3d Cir. 1974).
11
The two sentences are as follows: "And that in
approximately the summer of 2004 that this witness was advised
that Mr. Kimbrew's supplier had been arrested based on cocaine
that had been seized in Indianapolis, Indiana. Records show in
approximately 2004, Mr. Ray Kelly was arrested on drug charges
in Indianapolis, Indiana and began serving a 70 month sentence
13
sole purpose of this reference, however, was to demonstrate that
certain information received from a particular witness was
corroborated by court records.
Thus, the evidence supporting
the Pennsylvania conspiracy would have been insufficient to
warrant a drug conspiracy conviction in Indiana.
In addition to the lack of mutually supporting evidence,
Petitioner cannot show that any important acts done in
furtherance of the Pennsylvania conspiracy took place in Indiana
and vice versa.
See Smith, 82 F.3d at 1268.
Any important acts
done in furtherance of the Indiana conspiracy took place in San
Francisco and the Indianapolis area, and any important acts done
in furtherance of the Pennsylvania conspiracy took place in San
Francisco, Los Angeles, Texas, and the Pittsburgh area.
The
record strongly supports the conclusion that two separate and
factually distinct crimes were committed in two different
states.
Accordingly, the Court finds that the locus criminis of
the Indiana conspiracy was Indiana and the locus of the
Pennsylvania conspiracy was Pennsylvania. 12
at FCI La Tuna in the fall of 2005."
(Doc. No. 173-1 at 15) .
Change of Plea Transcript
Petitioner mistakenly asserts that the locus criminis for
the Indiana conspiracy was San Francisco where he, his wife, and
Shannon were located, and that Indiana and Pittsburgh merely were
the "spokes" of the San Francisco "hub".
Petitioner, however,
has failed to establish the existence of a "hub and spoke
12
14
Second, the degree of temporal overlap between the two
conspiracies is minimal.
While there is some overlap,
"such
temporal overlap by itself [does] not prove one conspiracy."
Smith, 82 F.3d at 1267 (citing Becker, 892 F.2d at 268
(overlapping time periods "does not indicate that only one
conspiracy existed.")).
Indeed, the Third Circuit has
recognized that "a party can be involved in more than one
conspiracy at one time."
Becker, 892 F.2d at 268.
Here, the
overlapping time period does not extend beyond two months, a
level of overlap that the Third Circuit already has held does
not rise to the level of presenting a double jeopardy claim.
See id.
(first indictment alleged a conspiracy from "Spring of
1981 until July 27, 1981 and second alleged conspiracy from "in
or about 1981" to "November 13, 1987)
i
see also United States v.
Daniels, 857 F.2d 1392, 1393 (lOth Cir. 1988)
(finding separate
offenses even when second conspiracy was completely subsumed in
time by first conspiracy).
Third, while there may have been some overlap in personnel,
such a factor is "not indicative of only one conspiracy."
Becker, 892 F.2d at 268i see Cedeno v. United States, 2010 WL
2682173, at *5 (D.N.J. 2010)
(overlap in personnel "does not
automatically signal a single conspiracy").
Petitioner's
conspiracy" for the reasons set forth under the third "overlap
in-personnel" prong.
15
assertion that this was the quintessential \\hub and spoke
conspiracy" is misguided.
He claims that he, his wife, and
Shannon served as the San Francisco \\hub", while Thomas and
Kimbrew served as the Indiana and Pennsylvania \\spoke
participants."
Petitioner argues that he and Shannon were
connected to each of the spokes by virtue of the drug supplier
drug dealer relationship.
A similar argument was raised and
rejected in United States v. Kemp, 500 F.3d 257 (3d Cir. 2007),
where the government had charged a single conspiracy but the
evidence failed to demonstrate sufficient interdependence
between the coconspirators.
The government argued that a single
conspiracy had been proved because the two core conspirators
dealt with everyone of the spoke participants both individually
and together.
Id. at 291.
The Third Circuit disagreed, stating
that \\[t]his could be said for any hub-and-spokes style
conspiracy" and that "Kotteakos.. and its progeny make clear that
there must be overlap among the spokes, not just between the hub
and the various spokes.
II
Id.
(emphasis added) .
In Kotteakos v. United States, 328 U.S. 750 (1946), several
different individuals fraudulently obtained loans through Brown,
the central figure.
Although the spokes were all connected to
Brown, there was no evidence of any connection between the
spokes themselves.
Id. at 754.
The Supreme Court found that a
16
"hub and spoke" conspiracy had not been established and
characterized the conspiracy as a "rimless wheel because there
[wa]s no rim to connect the spokes into a single scheme.
at 755.
1I
Id.
Kotteakos, therefore, directs the finding of multiple
conspiracies "where the spokes of a conspiracy have no knowledge
of or connection with any other (spoke],
independently with the hub conspirator .
[and are] dealing
II
v. Chandler, 388 F.3d 796, 807 (11th Cir. 2004)
United States
(citing
Kotteakos, 328 U.S. at 754-55 (no connection between spokes
means "there is not a single conspiracy, but rather as many
conspiracies as there are spokes.
II
)).
In order to establish interdependence between the spokes,
it must be shown that their "combined efforts" were "required to
insure the success of the venture."
Chandler, 388 F.3d at 811.
If the spokes did not depend on each other, aid each other, or
share any interest in the others' success, merely having the
"same goal" is insufficient to establish interdependence.
Id.
It must be shown that "the activities of the spoke participants
were, to some degree, interdependent or mutually supportive."
Smith, 82 F.3d at 1271.
The inquiry, therefore, must focus on
the "character of the agreements" between the spoke
participants, and not on the relationship between the hub and
spoke members.
Id. at 1272.
17
In light of the above, Petitioner clearly has failed to
establish the existence of a "hub and spoke" conspiracy. The
record is devoid of evidence that suggests that Thomas and
Kimbrew were committed to the same illegal agreement.
Petitioner has not demonstrated that they were "engaged in any
common activities or that their respective schemes were
interdependent."
Smith, 82 F.3d at 1271.
While they may have
been aware of each others' activities and objectives, there is
nothing to indicate that they "had [any shared] interest in the
[other person's] accomplishment of those objectives."
Id.
It
is clear that Thomas and Kimbrew were disconnected distributors
who "deal[t] independently with the hub conspirators.
Chandler, 388 F.3d at 811.
1I
This is highlighted by the fact that
there was a split in pricing for the cocainej Petitioner charged
Thomas $20,000 per kilogram and only charged Kimbrew $17,000 per
kilogram.
Petitioner's Memorandum (Doc. No. 168 at 14).
While Petitioner maintains that Thomas and Kimbrew had the
same goal, which was to earn a profit through the distribution
of cocaine, the evidence fails to establish that this was a
common goal that required their combined efforts to accomplish.
See Chandler, 388 F.3d at 811 ("[A]lthough each of these alleged
spoke conspiracies had the same goal, there was no evidence that
this was a common goal") (emphasis added).
18
To the contrary,
there can be no common goal to distribute cocaine where one of
the spoke participants did not want Petitioner to distribute to
the other spoke participant.
By Petitioner's own admission,
Kimbrew cautioned him against setting up an Indiana operation
and attempted to dissuade him from doing so because he felt it
would jeopardize the Pittsburgh operation.
Memorandum (Doc. No. 168 at 14)
Petitioner's
("Kimbrew was concerned about
the distribution in Indiana and elsewhere. He felt it was too
risky. If) •
Kimbrew's concern about the Indiana conspiracy further
evinces the lack of interdependence and overlap between Kimbrew
and Thomas, as they did not depend on each other, aid each
other, or have any interest in the success of the other.
Chandler, 388 F.3d at 811.
Nor did they "derive[]
See
[any]
benefit, financial or otherwise," from the others' success in
their respective schemes.
Smith, 82 F.3d at 1271.
Petitioner,
therefore, has "failed to provide a basis for inferring that all
of the conspirators were tied together into one conspiracy."
Smith, 82 F.3d at 1268.
He likewise has not established any
interdependence between the two distribution schemes because
"one could fail, while the other continued."
Cedeno v. United
States, 2010 WL 2682173, at *6 (D.N.J. 2010) i Smith, 82 F.3d at
1271 ("[N]or was the success of the conspiracy in one state
19
contingent on the success of the conspiracy in the other."}.
This conveniently is illustrated by the present facts, as the
Indiana conspiracy failed in 2004 upon Petitioner's arrest while
the Pittsburgh conspiracy remained intact until 2007.
Finally, the "role" played by Petitioner in each conspiracy
was different.
During the Indiana conspiracy, Petitioner lived
in San Francisco and acted as the main supplier to Thomas in
Indiana and Kimbrew in Pennsylvania.
The role he played in the
Pennsylvania conspiracy changed once he was arrested for the
Indiana conspiracy, and his role transformed to that of a
"middleman" who broke red cocaine transactions between Shannon
and Kimbrew from prison in Texas.
Regardless, even if he played
identical roles in each conspiracy, an individual "may playa
similar role in multiple, unrelated conspiracies."
F.3d at 1269i see also Uni
Smith, 82
States v. Robinson, 774 F.2d 261,
273-75 (8th Cir. 1985).
Petitioner is mistaken in his assertion that just because
both indictments involved "the exact same charge" in violation
of the same statute, he was being charged with participating in
the same illegal agreement.
168 at 8).
Petitioner's Memorandum (Doc. No.
He fails to realize that the "mere fact that the
crimes were of the same type does not instantly afford [him] a
double jeopardy argument."
Cedeno, 2010 WL 2682173, at *5.
20
Indeed,
"[t]he guarantee against double jeopardy does not
insulate a criminal from punishment for subsequent offenses
merely because he chooses to continue committing the same type
of crime."
Smith, 82 F.3d at 1273.
Against this backdrop, the totality of the circumstances
leads us to conclude that Petitioner was involved in two
separate and factually distinct conspiracies to distribute
cocaine to different distributors in different states. 13
The
13
Even assuming for the sake of argument that only one drug
conspiracy existed, the principles of double jeopardy still
would not bar prosecution for the Pennsylvania indictment
because Petitioner "re-entered" the Pennsylvania conspiracy
after it carne to a halt as a result of his 2004 arrest.
In
Petitioner's own words, he wanted to "reactivate" the Pittsburgh
drug conspiracy and he accomplished his goal through various
recorded telephone calls from prison and the help of his wife.
See Petitioner's Memorandum (Doc No. 168 at 11).
Case law in
this area makes clear that "one who insists that the music stop
and the piper be paid at a particular point must at least have
stopped dancing himself before he may seek such an accounting."
Garrett v. United
, 471 U.S. 773, 789 (1985) i see also
United States v. Asher, 96 F.3d 270, 274 (7th Cir. 1996) (" [The
defendant] 's reentry into the conspiracy was a distinct act that
could, consistently with the Double Jeopardy Clause, expose him
to a new prosecution despite his prior conviction for
participating in the same conspiracy.") i United States v. Dunn,
775 F.2d 604, 607 (5th Cir. 1985) ("[F]urther [participation in
an] 'old' conspiracy after being charged with that crime becomes
a new offense for purposes of a double jeopardy claim.") i United
States v. Lopez, 153 F.3d 723, 1998 WL 476788, at *2 (4th Cir.
1998) (the defendant's involvement in a conspiracy ended with
his arrest and conviction and he is "subject to another
conspiracy prosecution for any further involvement in the
conspiracy.") i United States v. Sharpe, 193 F.3d 852, 864 (5th
Cir. 1999), cert. denied, 528 U.S. 1173 (2000) (person's
21
fact that Petitioner was charged with violating the same statute
in two different states is irrelevant because the charges stem
from two unrelated agreements to distribute cocaine and thus are
not the same "in fact./I
Even if Petitioner1s counsel had
challenged the indictment on double jeopardy prior to advising
him to plead guiltYI it would not have changed the outcome of
the proceedings because the Court would have found such a claim
to be meritless for the reasons set forth above.
U.S. at 59.
See Hilll 474
As a result l Petitioner is unable to satisfy the
"prejudice ll prong required under Strickland.
AccordinglYI
Petitioner1s counsel was not constitutionally ineffective l as
the failure to raise meritless legal arguments does not
constitute a Sixth Amendment deprivation of the right to
effective counsel. 14
United States v. Sanders
1
165 F.3d 248
1
253
(3d Cir. 1999).
participation in a conspiracy ends upon arrest and further
participation in old conspiracy becomes a new offense) .
14
Petitioner1s contention that his guilty plea was rendered
involuntary by his counsel/s ineffective assistance is moot
because counsel/s performance was not constitutionally
ineffective.
See Boyd v. Waymart 1 579 F.3d 330 1 349 (3d Cir.
2009) (collecting cases) (voluntariness of guilty plea hinges on
whether the defendant received ineffective assistance from his
counsel at the plea stage and whether the deficient performance
itself rendered the plea involuntary) .
22
III. Conclusion
For all of the above-stated reasons, Petitioner's motion is
denied in its entirety.15
Further, this Court will not issue a
certificate of appealability in this case.
A certificate of
appealability may issue under 28 U.S.C. § 2255 "only if the
applicant has made a substantial showing of the denial of a
constitutional right."
28 U.S.C. 2253(c) (2).
For the reasons
set forth above, Petitioner has not made a substantial showing
of the denial of a constitutional right and a certificate of
appealability should not issue in this action.
s/Alan N. Bloch
United States District Judge
Dated:
February 9, 2012
ecf:
Counsel of record
cc:
Ray Kelly, #94266-011
FCl Lompac
3600 Guard Road
Lompac, CA 93436
15
An evidentiary hearing is not necessary because the record
conclusively shows that Petitioner is not entitled to relief
under Section 2255. See Brown v. United States, 556 F.2d 224,
227 (3d Cir. 1977).
23
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