Stallard v. USA
Filing
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MEMORANDUM OPINION. Signed by District Judge R Leon Jordan on 3/6/19. (copy mailed to Austin Michael Stallard at Petersburg Medium) (JBR, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
AUSTIN MICHAEL STALLARD
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.
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Case No. 2:15-cv-335
District Judge R. Leon Jordan
Mag. Judge Christopher H. Steger
MEMORANDUM OPINION
I.
Introduction
Petitioner Austin Michael Stallard ("Petitioner") filed a pro se motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255 (the “2255 Motion”) [Doc. 1]. 1 On September
18, 2014, Petitioner—pursuant to a plea agreement—pleaded guilty to conspiracy to distribute and
possess with intent to distribute a mixture and substance containing a detectable amount of a-PVP,
a Schedule I controlled substance analogue as defined by 21 U.S.C. § 802(32), knowing the
substance was intended for human consumption as provided in 21 U.S.C. § 813, in violation of 21
U.S.C. §§ 846 and 841(a)(1). 2 On January 14, 2015, the Court sentenced Petitioner to sixty-one
months' imprisonment [Doc. 162 in Case No. 2:14-cr-20, Judgment]. In his 2255 Motion,
Petitioner asserts his counsel was ineffective in violation of the Sixth Amendment when counsel
incorrectly advised him as to the knowledge requirement for the conspiracy to distribute a
Schedule I controlled substance analogue. Petitioner contends that, if he had received the correct
information and advice from his attorney, he would not have pleaded guilty. He also asserts he is
1
2
The underlying criminal case is United States v. Stallard, 2:14-cr-20-RLJ-CHS-5.
Petitioner was also charged in Case No. 2:14-cr-71 with separate drug crimes to which he also pleaded guilty.
[See Doc. 8, Case No. 2:14-cr-71, Plea Agreement.] That case is not implicated by this 2255 Motion.
innocent because he did not have the mens rea 3 required to be guilty of conspiracy to distribute a
controlled substance analogue.
II.
Background
A.
Factual Basis for Petitioner's Guilty Plea
Pursuant to his plea agreement, Petitioner stipulated to the following facts:
•
•
Petitioner’s father was “one of the largest dealers of a-PVP . . . in the Kingsport, Tennessee
area,” and Petitioner and his cousin David Michael Stallard, sold a-PVP for him [Id. ¶
3(b)]. Other co-defendants accompanied Petitioner’s father to obtain a-PVP from an outof-state supplier; still others stored a-PVP at their residence [Id.].
•
On April 12, 2013, after Petitioner’s father, Johnny Michael Stallard, had been arrested,
Johnny Stallard called Petitioner from jail and told him in a recorded conversation to “keep
this going for me,” and Petitioner replied that he had to keep it going for himself too; they
discussed drug dealing, drug debts, and profit [Id. ¶ 3(d)].
•
In another recorded conversation the next day, Petitioner’s father told him to be careful
when dealing a-PVP because it would not do any good for them both to be in jail [Id.].
Petitioner reassured his father by saying he had “good instincts” [Id.].
•
In a recorded call on April 18, 2013, Petitioner told his father that he had been robbed of
$2,000 worth of a-PVP [Id. ¶ 3(e)].
•
On May 3, 2013, Petitioner’s father promised that, once released on bond, he would take
Petitioner to meet their main a-PVP source so Petitioner could deal with him directly but
warned that doing so required a lot of responsibility [Id.].
•
3
From approximately December 2012 to February 2014, Petitioner conspired with at least
one other person to distribute and possess with intent to distribute approximately 1,200
grams of alpha-pyrrolidinopentiophenone (“a-PVP”), a Schedule I controlled substance
analogue known as “gravel” [Doc. 95 in Case No. 2:14-cr-20-RLJ-CHS-5, Plea
Agreement ¶ 3(a)].
In another recorded jail call on June 23, 2013, Petitioner’s father provided the phone
number of a drug supplier and told Petitioner to be very careful with it, to call the number,
and to identify himself as his father’s son [Id. ¶ 3(f)]. Petitioner’s father warned him that
if anyone were to “get[] caught . . . they’re going to get 12 years at 100 percent . . . and . .
. end up doing about ten and a half of that solid straight through . . . that’s if you get caught
with a little bit” [Id.]. Petitioner’s father said it was because of a new law that would make
a-PVP a Schedule I narcotic [Id.].
Mens rea: the intention or knowledge of wrongdoing that constitutes part of a crime.
2
•
On July 8, 2013, Petitioner led law enforcement officers on a lengthy high-speed chase
from Tennessee into Virginia, during which Petitioner tossed various baggies from his
vehicle [Id. ¶ 3(c)]. Petitioner did not stop until after a front tire on Petitioner’s vehicle
had exploded [Id.]. Officers thereafter searched the vehicle and found approximately one
gram of a-PVP, numerous pills (oxycodone, hydromorphone, and diazepam),
miscellaneous drug paraphernalia, digital scales, and a stun gun [Id.].
•
Cell phones recovered from Petitioner and his passenger showed “consistent patterns of
drug usage and drug dealing,” including text messages from individuals seeking to buy aPVP and photographs of Petitioner holding drug paraphernalia used to smoke a-PVP [Id.].
B.
Procedural History
In February 2014, Petitioner and five co-defendants, including Petitioner's father, were charged
with conspiracy to distribute and possess with intent to distribute a-PVP, in violation of 21 U.S.C. §§
846 and 841(a)(1) [Doc. 3 in Case No. 2:14-cr-20-RLJ-CHS-5, Indictment]. Petitioner pleaded
guilty to that offense pursuant to the written plea agreement. During the plea hearing in September
2014, Petitioner was specifically advised of his constitutional rights and of the nature and
possible consequences of his plea, including the penalties for his offenses; he stipulated to the
factual basis set forth in the plea agreement; and the Court questioned Petitioner about his physical
and mental condition to ensure that the plea was entered knowing and voluntary [Doc. 11, Tr. of
Sept. 18, 2014 Plea Hearing]. The Assistant United States Attorney ("AUSA") advised Petitioner
that the elements of conspiracy to which he was pleading were: "an agreement to violate the drug
laws, knowledge with intent to join the conspiracy and participation in the conspiracy" [Id. at 9].
The AUSA also advised Petitioner that the elements of Count One to which he was pleading guilty
were: "defendant knowingly, intentionally and without authority conspired with at least one other
person to distribute and possess with the intent to distribute approximately 1,200 grams of APVP,
a Schedule I controlled substance analogue. The street name for that substance is Gravel." [Id. at
10]. The Court read Petitioner the factual basis for his plea set forth in the Plea Agreement [Id. at
10-13]. Petitioner agreed under oath to this factual basis and further stipulated that "he conspired
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to distribute and is accountable for a conservative estimate of 1,200 net grams total of APVP" [Id.
at 15]. The Court asked Petitioner, "Now are you offering to plead guilty because you are, in fact,
guilty?" to which Petitioner responded, "Yes, Your Honor" [Id. at 16].
On January 14, 2015, the Court sentenced Petitioner to a sixty-one-month term of
imprisonment [Doc. 162 in Case No. 2:14-cr-20-RLJ-CHS-5, Judgment]. Petitioner did not file a
direct appeal but, on December 17, 2015, filed this timely § 2255 motion [Doc. 222, § 2255
Motion].
III.
Standards of Review
A.
Threshold Standard
Under 28 U.S.C. § 2255(a), a federal prisoner may make a motion to vacate, set aside, or
correct his judgment of conviction and sentence if he claims that the sentence was imposed in
violation of the Constitution or laws of the United States; or that the court lacked jurisdiction to
impose the sentence; or that the sentence is in excess of the maximum authorized by law, or is
otherwise subject to collateral attack. As a threshold standard, to obtain post-conviction relief
under Section 2255, a motion must allege: (1) an error of constitutional magnitude; (2) a sentence
imposed outside the federal statutory limits; or (3) an error of fact or law so fundamental as to
render the entire criminal proceeding invalid. Mallett v. United States, 334 F.3d 491, 496–97 (6th
Cir. 2003); Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003).
A petitioner bears the burden of demonstrating an error of constitutional magnitude which
had a substantial and injurious effect or influence on the criminal proceedings. Reed v. Farley,
512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993). In order to obtain
collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist
on direct appeal. United States v. Frady, 456 U.S. 152 (1982).
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Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District
Courts requires a district court to summarily dismiss a Section 2255 motion if “it plainly appears
from the face of the motion, the attached exhibits, and the record of the prior proceedings that the
movant is not entitled to relief.” See also Pettigrew v. United States, 480 F.2d 681, 684 (6th Cir.
1973) (“A motion to vacate sentence under § 2255 can be denied for the reason that it states “only
bald legal conclusions with no supporting factual allegations.”) (quoting Sanders v. United States,
373 U.S. 1, 19 (1963)). If the motion is not summarily dismissed under Rule 4(b), Rule 8 requires
the court to determine, after a review of the answer and the records of the case, whether an
evidentiary hearing is required. If a petitioner presents a factual dispute, then “the habeas court
must hold an evidentiary hearing to determine the truth of the petitioner’s claims.” Huff v. United
States, 734 F.3d 600, 607 (6th Cir. 2013) (quoting Valentine v. United States, 488 F.3d 325, 333
(6th Cir. 2007)). An evidentiary hearing is not required “if the petitioner’s allegations cannot be
accepted as true because they are contradicted by the record, inherently incredible, or conclusions
rather than statements of fact.” Valentine, 488 F.3d at 333 (quoting Arredondo v. United States,
178 F.3d 778, 782 (6th Cir. 1999)).
B.
Standard for Ineffective Assistance of Counsel
Ineffective assistance of counsel is a recognized constitutional violation that, when
adequately shown, warrants relief under § 2255. The two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984), governs claims of ineffective assistance of counsel raised
pursuant to 28 U.S.C. § 2255. Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013). Under
this test, to demonstrate a violation of the Sixth Amendment right to effective assistance of counsel,
“a defendant must establish that his attorney’s performance was deficient and that the deficient
performance prejudiced the defense.” Id. (citing Strickland, 466 U.S. at 687).
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The first prong of the Strickland test requires a petitioner to show his attorney’s
performance was deficient by demonstrating that counsel’s “representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688. Stated another way, the petitioner must
show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687. The Supreme Court “has declined
to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that
the proper measure of attorney performance remains simply reasonableness under prevailing
professional norms.” Huff, 734 F.3d at 606 (alterations in original) (quoting Wiggins v. Smith, 539
U.S. 510, 521 (2003)). A reviewing court must be “highly deferential” to counsel’s performance,
because
[a] fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the difficulties inherent
in making the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action “might be considered sound . . .
strategy.”
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Even if a petitioner is successful in overcoming that presumption, he must still satisfy the
second prong of the Strickland test, i.e., prejudice. Thus, a petitioner must show not only that his
counsel’s representation was objectively unreasonable, but also that he was prejudiced by
counsel’s deficiency because there exists “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” McPhearson v.
United States, 675 F.3d 553, 563 (6th Cir. 2012) (quoting Strickland, 466 U.S. at 694).
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Although the Strickland Court emphasized that both prongs must be established in order
for the petitioner to meet his burden, it held there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order or even to address both components of
the inquiry. Strickland, 466 U.S. 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.” Id.
IV.
Analysis
Petitioner asserts that his counsel was ineffective under Sixth Amendment standards
because he was "'misinformed' by counsel that his knowledge that state authorities were
'criminalizing' the distribution of 'bath salts' and 'gravel' was enough to meet or satisfy the
knowledge element of 21 U.S.C. § 841" [Doc. 1, 2255 Motion at 5]. Accordingly, the argument
continues, he did not knowingly, voluntarily, and intelligently enter his guilty plea. Petitioner
asserts that had he been correctly advised as to the mens rea element of a Section 841(a)(1)
violation with a controlled substances analogue, he would not have pleaded guilty but would have
proceeded to trial. He also argues he is innocent because he did not have the requisite mens rea to
be convicted under 21 U.S.C. § 841(a)(1) for possession with intent to distribute a controlled
substances analogue such as a-PVP.
Under 21 U.S.C. § 841(a)(1), it is illegal for a person to "knowingly or intentionally . . .
possess with intent to . . . distribute a controlled substance . . ." 21 U.S.C. § 841(a)(1). The
Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of
substances substantially similar to those federal controlled substances, see 21 U.S.C. § 802(32)(A),
and requires that they be treated as controlled substances for purposes of federal law if they are
intended for human consumption. 21 U.S.C. § 813; McFadden v. United States, 135 S. Ct. 2298,
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2302 (2015).
In McFadden, the Supreme Court addressed the "knowledge necessary for
conviction under § 841(a)(1) when the controlled substance at issue is in fact an analogue."
McFadden, 135 S. Ct. at 2302. The government argued in McFadden that the knowledge
requirement was met if the defendant knew that he was dealing with a substance that was illegal
or regulated under any law. Id. at 2306. Any law would, of course, include state criminal laws.
The Supreme Court rejected this broad interpretation explaining that
Section 841(a)(1) . . . requires that a defendant knew he was dealing with a
"controlled substance." That term includes only those drugs listed on the federal
drug schedules or treated as such by operation of the Analogue Act. . . . It is not
broad enough to include all substances regulated by any law.
Id. The Supreme Court held, instead, that the mens rea element can be established in one of two
ways.
•
First, it can be established by evidence that a defendant knew that the
substance with which he was dealing is some controlled substance—that is,
one actually listed on the federal drug schedules or treated as such by
operation of the Analogue Act—regardless of whether he knew the
particular identity of the substance.
•
Second, it can be established by evidence that the defendant knew the
specific analogue he was dealing with, even if he did not know its legal
status as an analogue.
Id. at 2305.
The McFadden decision was issued five months after Petitioner was sentenced in this case
and six months before he filed this 2255 Motion. Petitioner's co-defendant and father, Johnny
Michael Stallard, who also pleaded guilty to conspiracy to distribute and possess with intent to
distribute a-PVP, filed a 2255 Motion raising the same grounds as does his son in this 2255 Motion.
The district court denied Johnny Stallard's 2255 Motion, and the Sixth Circuit Court of Appeals
affirmed the district court's decision in an opinion which serves as persuasive authority for the
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Court's decision in this case. See Stallard v. United States, No. 17-6188, 2018 WL 1442984 (6th
Cir. Mar. 15, 2018).
The factual basis for Petitioner's plea agreement belies Petitioner's assertion that he did not
have the requisite mens rea to be convicted under Section 841(a)(1). In the factual basis, Petitioner
admitted that he and his father discussed selling a-PVP and that Petitioner's father told him to be
careful with a-PVP because it would not do any good for them both to be in jail. Petitioner also
told his father he had been robbed of a quantity of a-PVP valued at $2,000. His father promised
to introduce Petitioner to his supplier for a-PVP after his (father's) release. In these conversations,
Petitioner referred to the identity of the drug he was distributing, making it clear that Petitioner
knew the specific analogue he was dealing with, even if he did not know its legal status as an
analogue for a federally controlled substance.
At the plea hearing, the Court read aloud the factual basis for Petitioner's guilty plea.
Petitioner agreed under oath to this factual basis and further stipulated that "he conspired to
distribute and is accountable for a conservative estimate of 1,200 net grams total of APVP" [Id. at
15]. The Court asked Petitioner, "Now are you offering to plead guilty because you are, in fact,
guilty?" to which Petitioner responded, "Yes, Your Honor" [Id. at 16].
In Blackledge v. Allison, the Supreme Court explained the importance and weight of
representations made during the plea hearing, stating:
[t]he representations of the defendant, his lawyer, and the prosecutor at such a
hearing, as well as any findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings. Solemn declarations
in open court carry a strong presumption of verity. The subsequent presentation of
conclusory allegations unsupported by specifics is subject to summary dismissal,
as are contentions that in the face of the record are wholly incredible.
Blackledge, 431 U.S. 63, 73-74 (1977). Absent clear and convincing evidence to the contrary, a
defendant is bound by his or her plea agreement and representations made under oath during a plea
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colloquy. Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986) (“where the court has
scrupulously followed the required procedure, the defendant is bound by his statements in response
to that court’s inquiry”) (internal punctuation and citations omitted); see also United States v.
Brenner, 726 F. App'x 433, 438 (6th Cir. 2018) (same).
Petitioner's sworn testimony at the plea hearing attesting to the accuracy of the factual basis
in the plea agreement gives rise to a strong presumption of verity. Petitioner has come forward
with no basis for this Court to conclude otherwise. As previously discussed, the factual basis is
evidence that Petitioner knew the identity of the specific analogue he was distributing, and such
knowledge is sufficient to satisfy the mens rea requirement for distribution of an analogue in
violation of Section 841(a)(1) and the Analogue Act. McFadden, 135 S. Ct. at 2305; Stallard,
2018 WL 1442984, at *2. As the Sixth Circuit found in Stallard, 2018 WL 1442984, at *2, this
Court also concludes "[j]urists of reason therefore could not debate . . . that counsel did not
misinform Stallard with respect to the knowledge element of the crime to which he pleaded
guilty." 4 Nor could a reasonable jurist debate that Petitioner is actually guilty since he voluntarily
and knowingly admitted at his plea hearing that he knowingly distributed and possessed with intent
to distribute a-PVP, the specific identity of which he was fully aware. See id. at *3. On the basis
of the record before it, the Court finds there is no merit to Petitioner's 2255 Motion.
4
See also Stallard, 2018 WL 1442984, at *2 n. 1 wherein the Sixth Circuit stated,
As noted above, [Johnny] Stallard claims that his counsel was wrong to tell him that his knowledge
that the distribution of bath salts and gravel was illegal under state law was sufficient to meet the
knowledge requirement. This claim is technically true on its face insofar as it does not comport with
the definition of knowledge set forth in McFadden. However, so long as Stallard knew that the
substance that he was dealing was gravel—which, as set forth above, he did—he satisfied the
knowledge requirement regardless of whether he knew that dealing gravel was illegal under state
law. His ineffective-assistance claim therefore does not deserve encouragement to proceed further.
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V.
Conclusion
For the reasons stated herein, the Court finds no evidentiary hearing for this 2255 Motion
is necessary, and the Court concludes on the basis of the record before it that Petitioner is not
entitled to relief. His 2255 Motion is therefore DENIED.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge
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