Majors v. United States of America

Filing 43

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 12/27/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

HERMAN MAJORS,

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Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

Case No. 3:15-cv-0799
Judge Aleta A. Trauger

MEMORANDUM
Movant Herman Majors, a prisoner in federal custody, brings this action pursuant to 28
U.S.C. § 2255 to set aside, vacate and correct an allegedly illegal sentence and Judgment
imposed by the Honorable Senior Judge John T. Nixon of this court. See United States v.
Patterson et al., No. 3:09-cr-00047 (M.D. Tenn. June 25, 2011) (Judgment, Doc. No. 300).
(References to the criminal case record will hereafter be designated as “Crim. Doc. No. __.”) For
the reasons set forth herein, the court finds that an evidentiary hearing is not required and that the
movant is not entitled to relief.
I.

PROCEDURAL BACKGROUND
In February 2009, Majors and others were charged in an Indictment filed in this court

with conspiring to possess with intent to distribute five or more kilograms of cocaine, a Schedule
II controlled substance, in violation of 21 U.S.C. § 841(a)(1). (Crim. Doc. No. 9.) A Superseding
Indictment was issued in September 2011, adding four additional counts against other defendants
but not changing the substance of the charge against Majors. (Crim. Doc. No. 192.)
Majors was represented by appointed counsel, Jordon D. Mathies, throughout the pretrial

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and trial proceedings and on appeal. 1 The two-week jury trial on Count One of the Superseding
Indictment proceeded against Majors and one of his co-conspirators in February 2012. Judge
Nixon presided at the trial.
The jury returned a guilty verdict, and the court later sentenced Majors to 360 months of
incarceration—the bottom of the Sentencing Guidelines range. The conviction and sentence were
affirmed on direct review. United States v. Patterson, 587 F. App’x 878 (6th Cir. 2014), cert.
denied, Majors v. United States, 135 S. Ct. 1273 (March 30, 2015).
Majors filed his original Motion to Vacate in this court on July 20, 2015. (Doc. No. 1.)
The matter was originally assigned to Judge Nixon, who appointed counsel. Appointed counsel
filed an Amended Motion to Vacate on January 8, 2016. Thereafter, Judge Nixon recused
himself, and the matter was reassigned to the undersigned.
II.

FACTUAL BACKGROUND
The Sixth Circuit summarized the procedural history and the evidence presented at trial,

in relevant part, as follows:
Between 2004 and 2006, defendants [Adrian] Patterson and Majors participated in
a drug trafficking conspiracy involving the possession and distribution of more
than 150 kilograms of cocaine. Patterson purchased cocaine from dealers in Los
Angeles, and arranged for it to be transported to Tennessee. Majors and other
individuals traveled to and from Los Angeles with cash and drugs hidden in
vehicles.
The conspiracy came to light over a period of years. In late 2004, while driving to
Los Angeles, Majors and Cleo Patterson (a relative of Adrian Patterson’s) were
stopped for a traffic violation, and a search revealed 26 kilograms of cocaine in a
hidden compartment of the vehicle. Both men were arrested. [The Oklahoma
Indictment against Majors was dismissed without prejudice, but Cleo Patterson
1

The court takes judicial notice that Jordon Mathies died on April 22, 2016. See
https://law.vanderbilt.edu/alumni/class-notes/1989.php (last visited Dec. 14, 2016);
http://obits.dignitymemorial.com/dignity-memorial/obituary.aspx?n=JordonMathies&lc=4868&pid=179982813&mid=6929508 (last visited Dec. 14, 2016).

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was tried, convicted, and sentenced to 360 months.] In 2006, agents of the Drug
Enforcement Administration in Los Angeles and Nashville began collaborating on
an investigation of a multi-kilogram cocaine transaction that was to take place in
Tennessee. The Los Angeles agents had learned from a wiretap that a cocaine
supplier would be traveling from Los Angeles to meet a buyer in Clarksville,
Tennessee. The Nashville agents identified Adrian Patterson as buyer. With the
participation of officers from the Clarksville Police Department, the agents
established surveillance of the expected meeting site, which was located at 2211
Ladd Drive.
Soon thereafter, Tim Anderson of the Clarksville Police Department sought and
obtained a warrant to search for evidence of drug trafficking at Ladd Drive. The
warrant was executed the same day, and Adrian Patterson was among those
present during the search. Officers seized over $300,000 in cash, along with
approximately one kilogram of cocaine. Also seized was a Ford F–150 that had
been used to transport Herman Majors and Cleo Patterson from Los Angeles to
Tennessee in 2004.
Two months later, agents executed a search warrant in Clarksville at Patterson’s
alleged residence, 1869 West Court. Patterson was the only person in the home
when the warrant was executed. Among the items seized was a Ford Expedition
used to transport drug proceeds.
In 2009, the federal government charged Patterson and Majors with conspiracy.
The government subsequently filed a five-count superseding indictment that
included the conspiracy count (Count 1), along with four additional charges
against Patterson for other crimes (Counts 2–5). To avoid prejudice at trial, the
district court severed Count 1 from Counts 2–5.
....
In their proposed instructions to the jury, both Majors and Patterson asked the
court to incorporate a statement that a defendant’s “mere presence” could not
support a finding of guilt on the conspiracy charge. The district court denied the
request, but ultimately instructed the jury that “proof that a Defendant simply
knew about a conspiracy, or was present at times . . . is not enough, even if he
approved of what was happening or did not object to it.”
Patterson, 587 F. App’x at 880–81.
III.

THE MOTION AND AMENDED MOTION
In his original pro se motion (Doc. No. 1), Majors asserts seven grounds for relief, which

the court construes as follows:
Ground 1: The government violated Rules 3 and 4(a) of the Federal Rules of Criminal

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Procedure by failing to present an affidavit of complaint to the federal grand jury or a magistrate
judge, and it was stipulated by the Assistant United States Attorney that Majors was not present
at the “crime scene,” 2211 Ladd Drive in Clarksville, Tennessee, when law enforcement officers
executed a search warrant at that address.
Ground 2: The DEA Case Agent failed to tell the grand jury that the 2002 Mitsubishi
Montero owned by Majors did not have a hidden compartment built into it.
Ground 3: Majors was never found to be present at 1869 West Court in Clarksville,
Tennessee, the other “crime scene” identified in this case.
Ground 4: Government witness and co-conspirator Cleo Patterson lied on the stand
during trial and to law enforcement officers regarding the ownership of the vehicle he and
Majors were driving when they were stopped in Oklahoma for speeding in 2004 and officers
discovered 26 kilograms of cocaine in a hidden compartment.
Ground 5: The Assistant United States Attorney committed prosecutorial misconduct by
bringing into evidence the previously dismissed Oklahoma Indictment against Majors.
Ground 6: Majors’ sentence is unduly harsh and excessive.
Ground 7: The United States lacked probable cause to charge and arrest Majors for
conspiracy to distribute five kilograms or more of cocaine.
The Amended Motion filed by counsel expressly adopts and incorporates the seven
grounds for relief set forth in the pro se Motion. The Amended Motion also asserts fourteen
additional grounds for relief, all premised upon the ineffective assistance of counsel at trial and
on appeal, as follows:
Ground 8: Trial counsel failed to understand that a defendant may be convicted at trial in
federal court based upon uncorroborated testimony of an alleged accomplice, as a consequence

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of which he provided Majors with faulty advice concerning his options for resolving this case
and offered no viable defense at trial.
Ground 9: Counsel failed to maintain reasonable contact with his client, thereby denying
Majors adequate legal consultation regarding his case during both the trial and the appeal.
Ground 10: Counsel failed to request a legally sufficient jury instruction regarding the
defense of “mere presence.”
Ground 11: Counsel failed to request a jury instruction describing the Defense Theory.
Ground 12: Counsel failed to present a coherent closing argument.
Ground 13: Counsel failed to present factually supportable objections during sentencing
proceedings regarding the calculation of the quantity of cocaine attributable to Majors;
consequently, Majors’ sentence was based on the quantity of 150 kilograms or more of cocaine
instead of on “at least 50 but less than 150 kilograms,” or “at least 15 but less than 50
kilograms.”
Ground 14: Counsel failed to present a legally cognizable argument for a mitigating role
reduction in sentencing.
Ground 15: Counsel did not fully understand the Sentencing Guidelines applicable to a
mitigating role reduction under U.S.S.G. § 3B1.2, as a result of which he erroneously argued for
a role reduction based on the absence of factors applicable to an aggravating role enhancement
under U.S.S.G. § 3B1.1.
Ground 16: Counsel failed to support with citations to the evidentiary record his
objections to the allegations in the PSR that Majors had recruited Cleo Patterson and had
multiple vehicles titled in his name.
Ground 17: Counsel was ineffective at sentencing insofar as he failed to request that

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Majors’ sentence be reduced by 3 months for the period of time he was in pretrial detention in
Oklahoma and failed to request that Majors’ 30-year sentence be served concurrently with an
existing 10-year sentence.
Ground 18: Counsel was ineffective in his handling of a Motion to Dismiss based on an
alleged violation of the double jeopardy clause of the Fifth Amendment to the United States
Constitution.
Ground 19: Counsel was ineffective in his handling of the Motion to Suppress Evidence
under the Fourth, Fifth, Sixth, and Fourteenth Amendments.
Ground 20: Counsel filed an inadequate appellate brief, failed to file a corrected brief
when directed to do so by the Sixth Circuit, and failed to attend oral argument.
Ground 21: Counsel abandoned Majors after the issuance of the Sixth Circuit opinion
affirming the judgment and conviction by failing to file a Petition for the Writ of Certiorari in the
United States Supreme Court.
IV.

STANDARD OF REVIEW
To be entitled to relief, a prisoner who moves to vacate his sentence under § 2255 must

show that the sentence was imposed in violation of the Constitution or laws of the United States,
that the court was without jurisdiction to impose such sentence, that the sentence was in excess
of the maximum authorized by law, or that the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255. To prevail on a § 2255 motion, a movant “must demonstrate the existence of
an error of constitutional magnitude which had a substantial and injurious effect or influence on
the guilty plea or the jury’s verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir.
2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional
errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405,

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407 (6th Cir. 2000). A movant can prevail on a § 2255 motion alleging non-constitutional error
only by establishing a “fundamental defect which inherently results in a complete miscarriage of
justice, or an error so egregious that it amounts to a violation of due process.” Watson v. United
States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630
(6th Cir. 1990) (internal quotation marks and additional citation omitted)).
A § 2255 motion is not a substitute for a direct appeal. Consequently, as a general rule,
any claims not raised on direct appeal are procedurally defaulted and may not be raised on
collateral review unless the movant shows “(1) ‘cause’ excusing [the] procedural default, and (2)
‘actual prejudice’ resulting from the errors,” United States v. Frady, 456 U.S. 152, 168 (1982)
(citations omitted), or demonstrates that he is “actually innocent.” Bousley v. United States, 523
U.S. 614, 622 (1998) (citations omitted). A claim of ineffective assistance of counsel is not
subject to the procedural-default rule. Massaro v. United States, 538 U.S. 500, 504 (2003). An
ineffective-assistance claim may be raised in a collateral proceeding under § 2255 regardless of
whether the movant could have raised the claim on direct appeal. Id.
V.

DISCUSSION
A.

Whether a Hearing Is Required

A prisoner who files a motion under § 2255 challenging a federal conviction is generally
entitled to “a prompt hearing,” at which the district court is to “determine the issues and make
findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255. The hearing is
mandatory, “unless ‘the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.’” Fontaine v. United States, 411 U.S. 213, 215 (1973) (quoting
28 U.S.C. § 2255(b)). “If the record includes a factual dispute, the district court must hold a
hearing to determine the truth of the [movant’s] claims.” Ross v. United States, 339 F.3d 483,

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490 (6th Cir. 2003) (quotation marks and citation omitted). However, “no hearing is 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 v. United
States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Arredondo v. United States, 178 F.3d 778, 782
(6th Cir. 1999)).
Upon consideration of the original and amended motions, the government’s response and
the underlying record, the court finds that there are no evidentiary issues to be resolved and that
the record “conclusively show[s] that the prisoner is entitled to no relief,” 28 U.S.C. § 2255(b).
A hearing is therefore not required.
B.

Issues Raised in Original Motion

As set forth above, claims not raised on direct appeal are procedurally defaulted and
unreviewable in the context of a § 2255 proceeding unless the movant establishes “cause” for the
default and “actual prejudice” resulting from the errors, United States v. Frady, 456 U.S. at 168,
or demonstrates actual innocence. Bousley, 523 U.S. at 622 (1998) (citations omitted). Moreover,
grounds that actually were raised on direct appeal may not be relitigated in a collateral
proceeding. Jones v. United States, 178 F.3d 790,796 (6th Cir. 1999).
Each of the seven grounds for relief raised in the pro se motion either actually was or
could have been raised on direct appeal. Majors has not established cause and prejudice resulting
from the default or demonstrated actual innocence to overcome the procedural default of those
issues not raised on direct appeal, and he has not provided any basis for reconsideration of those
issues that were thoroughly litigated. Majors is not entitled to relief on the basis of Grounds 1
through 7.

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C.

Claims Raised by Counsel

The grounds for relief raised in the Amended Motion filed by counsel on behalf of
Majors are premised on the ineffective assistance of counsel. To be entitled to relief under §
2255 based on a claim of ineffective assistance of counsel, the movant must establish “that
counsel’s performance was deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In judging an attorney’s conduct,
the court must consider all of the circumstances and facts of the particular case, id. at 690, and
“indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. Prejudice requires a showing that there is “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. A defendant has the burden of making both showings; otherwise,
“it cannot be said that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.” Id. at 687.
1.

Ground 8

Majors argues that his criminal defense attorney’s performance was constitutionally
deficient insofar as he failed to understand that a defendant can be convicted based on the
uncorroborated testimony of an alleged accomplice. As a result of this error, Majors argues, the
attorney provided Majors with faulty advice concerning his options for resolving this case and
offered no viable defense at trial.
This claim is premised upon Majors’ attorney’s argument, in his appellate brief to the
Sixth Circuit Court of Appeals, that Majors’ sentence and conviction were supported by
insufficient evidence, because “statements of the government’s cooperating witnesses were not

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corroborated by independent evidence thereby rendering the statements an improper basis for
proof beyond a reasonable doubt.” Brief of Appellant at 34, United States v. Majors, No. 125726 (6th Cir. Aug. 2, 2013), Doc. No. 58. Majors asserts now that his attorney misstated the
“corroboration rule,” which actually provides that “no one may be convicted of a crime based
solely on his uncorroborated confession.” United States v. Brown, 617 F.3d 857, 860 (6th Cir.
2010). Majors does not argue that he was prejudiced by his counsel’s making a legally erroneous
argument on appeal. Rather, he appears to argue that he was prejudiced by his counsel’s lack of
understanding of the legal issues affecting his case, as demonstrated by his presentation of an
argument that, Majors contends, was clearly not supported by the law.
The court does not find that the argument was legally unsupported or so lacking in merit
that it shows that counsel misunderstood the nature of the case against his client. Rather, the
focus of the argument was that the evidence was insufficient to support the verdict, because the
testimony of Cleo Patterson and other co-conspirators, all self-interested informants, was
inherently untrustworthy and not corroborated by other evidence. The gist of his argument was
that the government had not carried its burden of proving the defendant’s guilt beyond a
reasonable doubt. The jury rejected that argument and the Sixth Circuit affirmed, finding that the
conviction was supported by sufficient evidence.

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That does not mean that counsel’s strategy

was constitutionally ineffective.
Moreover, even assuming that the argument was unsupported as a matter of law, Majors
has not shown that he was actually prejudiced by any purported error by counsel. Majors does
2

The Sixth Circuit, indeed, rejected Majors’ corroboration argument on direct appeal.
See United States v. Patterson, 587 F. App’x 878, 892 (6th Cir. 2014) (“Majors’ argument is
misplaced because the ‘corroboration rule’ to which he refers stands only for the proposition that
a defendant may not be convicted of a crime based solely on his uncorroborated confession. It
does not require corroboration of others’ testimony.” (citing Brown, 617 F.3d at 860)). The court,
however, treated the argument as asserting that the evidence was insufficient to support the
verdict. See id. (“Ample evidence supports Majors’ conviction.”).

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not assert, for instance, that he would have been more likely to consider a plea if he had known
that the uncorroborated-testimony argument would be fruitless or that, if counsel had argued the
issue differently or offered additional legal support, the outcome of the appeal would have been
different.
Majors has not shown that he was prejudiced by his attorney’s error, and he is not entitled
to relief on the basis of this claim.
2.

Ground 9

Majors argues that his trial attorney “failed to maintain reasonable contact with Mr.
Majors, thereby denying Mr. Majors adequate legal consultation regarding his case during both
the trial and appellate process.” (Doc. No. 18, at 4.) Majors asserts, in wholly conclusory fashion,
that his attorney’s failure to communicate with him denied him “the benefit of legal advice he
could trust as being accurate or in his best interests” and that the meetings he did have with
counsel “were of such poor quality that Mr. Majors did not fully understand the government’s
evidence against him and could not make a knowing decision as to how to resolve this matter.”
(Id.)
The criminal docket is replete with letters from Majors to the docket clerk requesting
information about his case and complaining about his inability to communicate with his attorney.
Attached to Majors’ reply brief are copies of dozens of letters dating from April 2011 through
September 2015 from Majors to his trial attorney, to the clerks of this court and the Sixth Circuit
Court of Appeals, and to the Tennessee Board of Professional Responsibility, all complaining
about the attorney’s lack of responsiveness to his client’s requests for information and assistance.
(See Doc. No. 40-1.)
While an attorney’s failure to communicate a plea offer has been held to constitute

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ineffective assistance, Guerrero v. United States, 383 F.3d 409, 416 (6th Cir. 2004), this court is
unaware of any case holding that an attorney’s general unresponsiveness constitutes per se
ineffective assistance of counsel. Majors never wrote to the trial judge or filed a motion
requesting that a different attorney be appointed to represent him. He has not presented any
evidence suggesting that counsel failed to keep him informed of significant developments in the
case or that he would have pleaded guilty if he had known about some particular facet of his case
that was not communicated to him. In sum, even assuming that counsel was deficient in his
communications with Majors, Majors has not established prejudice. He is not entitled to relief on
the basis of this claim.
3.

Ground 10

Majors argues that his counsel was ineffective because he failed to request a “legally
sufficient” jury instruction regarding the defense of “mere presence.” (Doc. No. 18, at 4–5.) He
argues that the instruction the attorney requested so misstated the law that the court had no
choice but to reject it, causing him prejudice.
Counsel requested the following jury instruction addressing “mere presence”:
The mere presence of the defendant [ ] at the scene of commission of a crime is
not. [sic] standing alone sufficient evidence for direct or circumstantial proof of
guilt or involvement of the defendant [ ] in the commission of the crime. Such
evidence cannot support a finding of criminal guilt.
(Crim. Doc. No. 258, at 2 (citing United States v. Spiva, No. 95-5530, 1996 U.S. App. LEXIS
24014 (6th Cir. April 4, 1996).)
The Sixth Circuit addressed on appeal Majors’ claim that the trial court had abused its
discretion in denying his request for this instruction. The Sixth Circuit rejected the claim, finding
that (1) the proposed instruction was not a substantially correct statement of the law; (2) portions
of it were covered by other instructions; and (3) the failure to give the instruction did not impair

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Majors’ theory of the case. United States v. Patterson, 587 F. App’x 878, 888 (6th Cir. 2014). As
the Sixth Circuit stated, while “mere presence alone is not enough to prove a defendant’s guilt, . .
. presence is a material and probative factor which the jury may consider in reaching its
decision.” Id. (quoting United States v. Christian, 786 F.2d 203, 211 (6th Cir. 1986)). In other
words, Majors is correct that the proposed instruction was legally erroneous or, at best,
incomplete. Counsel’s conduct was arguably unreasonable insofar as he failed to provide a
complete and legal cogent instruction on “mere presence.”
Majors has not shown, however, that he was prejudiced thereby, because, as the Sixth
Circuit noted, the instructions given by Judge Nixon substantially incorporated a correct “mere
presence” instruction:
But proof that a Defendant simply knew about a conspiracy, or was present at
times or associated with members of the group, is not enough [to prove the
Defendant joined the conspiracy], even if he approved of what was happening or
did not object to it. Similarly, just because a Defendant may have done something
that happened to help a conspiracy does not necessarily make him a conspirator.
These are all things that you may consider in deciding whether the Government
has proved that the Defendants joined a conspiracy. But without more, they are
not enough.
(Crim. Doc. No. 339, Trial Tr. Vol. XI, at 28 (emphasis added).) Under this instruction, Majors
was able to argue that he had only innocent and coincidental associations with other members of
the conspiracy.
Majors is not entitled to relief on the basis of this claim.
4.

Ground 11

Majors also argues that his trial attorney was constitutionally deficient because he failed
to request a jury instruction describing the Defense Theory, particularly in light of the court’s
rejection of his proposed “mere presence” instruction. He suggests that the defense theory was
that he could not be a knowing or willful participant in the conspiracy if he lacked knowledge

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that he was transporting contraband and insists that this theory was not adequately spelled out for
the jury. (Doc. No. 18, at 7.) He relies on the underlying record as a whole in support of his
claim that counsel never requested such an instruction, and he asserts as a matter of law that “a
defendant is entitled to an instruction regarding his theory of the case whenever the theory has
some support in the facts and the law.” (Doc. No. 18, at 6 (citing United States v. Duncan, 850
F.2d 1104, 1117 (6th Cir. 1988), overruled on other grounds by Schad v. Arizona, 501 U.S. 624
(1991)).)
The Sixth Circuit has held that a trial court errs in rejecting a proposed jury instruction
where the denial “usurp[s] the function of the jury by depriving [the defendant] of his
opportunity to present his theory of the defense.” Duncan, 850 F.2d at 1117. As the Duncan
court stated, “when a theory of defense finds some support in the evidence and in the law, a
defendant is entitled to some mention of that theory in the instructions.” Id. (quoting United
States v. Garner, 529 F.2d 962, 971 (6th Cir. 1976)). Both Duncan and Garner, however, were
rendered in the context of a direct appeal in which the appellant argued that the trial court had
erred in rejecting a specifically requested instruction. Trial counsel here did not specifically
request a “theory of the case” instruction, and this court is not aware of any authority supporting
the proposition that failure to request such an instruction amounts to per se ineffective assistance.
Moreover, the instruction the court did give on presence and participation in a conspiracy, quoted
in full above, is entirely consistent with Majors’ theory of the defense, as the Sixth Circuit held.
And defense counsel was able to—and did—argue in closing that Majors was not a knowing
participant in the drug conspiracy. The jury obviously rejected that argument.
Majors has not established that counsel’s conduct was constitutionally ineffective or that
he was prejudiced by the purported error.

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5.

Ground 12

Majors argues that his trial attorney failed to present a coherent closing argument and that
an “effective” attorney would have focused his closing argument “on evidence supporting the
mere presence defense.” (Doc. No. 18, at 7.) He also characterizes the attorney’s argument as
consistent with his “mistaken belief that the uncorroborated testimony of an accomplice is
insufficient evidence for conviction.” (Id.)
This argument is closely related to those set forth in Grounds 10 and 11, and it fails for
largely the same reasons. Counsel, in fact, argued cogently in closing that the testimony of Cleo
Patterson and other government witnesses was inherently unbelievable and that the jury should
view these witnesses’ self-serving statements with skepticism. He also pointed out that his client
was not implicated by any of the wiretaps, that he was not found at either of the properties that
were the target of search warrants, and that he was never under surveillance. Majors’ insistence
that counsel did not adequately emphasize the “mere presence” defense amounts simply to a
disagreement over trial strategy, which is not grounds for a claim of ineffective assistance of
counsel. See Strickland, 466 U.S. at 689 (“Because of the difficulties inherent in making the
evaluation [of counsel’s conduct], 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 trial strategy.” (quotation marks and citation omitted)).
Majors has not established that counsel’s strategy was unreasonable or that he was
prejudiced by the failure to adopt a different strategy.
6.

Ground 13

Majors contends that his attorney failed to present “factually supportable objections in the

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sentencing proceedings regarding the calculation of the quantity of cocaine attributable to
Majors,” as a result of which, Majors’ sentence was based on the quantity of 150 kilograms or
more of cocaine instead of on “at least 50 but less than 150 kilograms,” or “at least 15 but less
than 50 kilograms.” (Doc. No. 18, at 8.)
The gist of Majors’ argument is that his attorney should have provided reasonable
arguments in support of his claim that he should not be sentenced based on a drug quantity of at
least 150 kilograms. He argues that he was prejudiced by this failure, because, if his attorney had
explained to the judge why he should be credited with less, his Base Offense Level would have
been either 36 (for 50 to 150 kilograms) or 34 (for 15 to 50 kilograms), and the resulting
Sentencing Guidelines range would have been either 324 to 400 months or 262 to 327 months of
imprisonment, instead of the 360 months to life yielded by a Base Offense Level of 38. 3
Majors posits two alternative arguments that his attorney could have made. The first is
that he should have argued that Majors’ involvement in the conspiracy ended when he was
arrested in Oklahoma in December 31, 2004. If this argument had been made, he contends, the
attorney could have argued credibly to the court that he should not be held responsible for any
amount of cocaine that was trafficked after that date. Even crediting the testimony of Cleo
Patterson and Bassim Fardos, Majors argues, the testimony showed that he traveled to California
no more than five times and was only involved with the transport of substantially less than 150
kilograms of cocaine. Second, he argues that, because the Government argued that the
conspiracy involved 150 kilograms of cocaine over a three-year period, and Majors was only
involved during the first year, he should only be charged with involvement in one-third of the
3

The Guideline range for 15 to 50 kilograms of cocaine has subsequently been reduced
to Level 32. Given a Criminal History Category of VI, the range would now be 210 to 262
months of imprisonment.

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150 kilograms, or 50 kilograms, for purposes of sentencing.
The court finds that, even assuming that counsel’s performance in failing to challenge the
amount of drugs attributed to Majors was deficient, Majors cannot establish prejudice. The law is
clear that, for sentencing purposes, “[w]here a defendant is part of a ‘jointly undertaken criminal
activity’ involving drugs, ‘the defendant is accountable for all quantities of contraband with
which [he] was directly involved and . . . all reasonably foreseeable quantities of contraband that
were within the scope of the criminal activity that [he] jointly undertook.’” United States v.
Begley, 602 F. App’x 622, 626 (6th Cir. 2015) (quoting U.S.S.G. § 1B1.3 cmt. 2 4). A “jointly
undertaken criminal activity” includes a conspiracy. United States v. Watson, 620 F. App’x 493,
513 (6th Cir. 2015); U.S.S.G. § 1B1.3 cmt. 3 (2016).
Here, the proof was that Majors himself was directly involved in the transport of
hundreds of thousands of dollars of cash from Tennessee to California and dozens of kilograms
of cocaine from California to Tennessee. Bassim Fardos testified that the conspiracy organized
by him and Adrian Patterson involved, during 2004, four different vehicles that Fardos had
modified by having built into them special hidden compartments to carry cash and drugs: a Ford
F–150, a Mitsubishi Montero, a Volkswagen Eurovan, and a Ford Expedition. (Crim. Doc. No.
328, Trial Tr. Vol. V, at 14.) According to Fardos, the Expedition was used two or three times; it
carried from $100,000 to $300,000 in cash from Tennessee to California each time and returned
to Tennessee carrying 8 to 10 kilos of cocaine each time. (Id. at 25, 40.) The Montero, which was
titled in Herman Majors’ name, was used only once before it was stolen, and it carried
approximately $275,000 in cash intended to purchase approximately 20 kilos of cocaine. (See id.

4

The Application Notes were amended in 2016. The language previously found at Note 2
is now in Note 3.

18

at 37 (estimating bulk price of cocaine at that time).) 5 The Ford F–150 carried approximately 20
kilos each trip and was used two or three times. The Volkswagen Eurovan held 26 kilos and was
used twice for transport. Majors was implicated as the driver on at least three and as many as five
of these trips.
In 2005, after the Eurovan and its 26 kilograms of cocaine were seized in Oklahoma, the
conspiracy began employing tractor-trailers to transport the drugs. This method was used twice,
carrying 25 to 35 kilos on each run. Although Majors was not alleged to have been directly
involved in the conspiracy at that point, the quantities involved after December 2004 were
consistent with the quantities involved prior to that date and thus were reasonably foreseeable.
The figures from 2004 and 2005 add up, based on this court’s calculations, to at least 178
kilograms of cocaine, all of which were reasonably attributable to Majors as a knowing and
willing participant in the conspiracy. 6
The court finds it somewhat troubling that neither the United States nor the Probation
Office ever spelled out precisely how they reached the figure of “more than 150 kilograms” of
cocaine. (See Crim. Doc. No. 310, at 6.) The trial attorney, while he did attempt to argue that
Majors should only be sentenced based on the 26 kilograms confiscated in Oklahoma, did not
raise a specific objection based on the computation of 150 kilograms, and the trial judge did not
articulate how he reached that figure or the basis for attributing all of it to Majors for sentencing
purposes. Notwithstanding, the judge had heard all the testimony and is presumed to be
5

The Montero was stolen from Fardos at gunpoint while it was loaded with cash, so
Majors did not return it to Tennessee loaded with $275,000-worth of cocaine that was meant to
replace the cash in the hidden compartment. But the conspiracy encompassed an intent to
transport that amount of cocaine to Tennessee.
6

Majors does not attempt to argue that he withdrew from the conspiracy or that his
attorney should have raised a withdrawal defense.

19

knowledgeable of the applicable law. This court therefore finds that any objection based on the
drug quantity that might have been raised by trial counsel would have been futile. The sentence
based on Majors’ involvement in a conspiracy to distribute more than 150 kilograms of cocaine
was supported by the evidence, and the judge would not have been likely to depart from the
recommendation in the Presentence Investigation Report, regardless of what additional
arguments defense counsel might have raised.
The court will deny relief on this claim on the basis that Majors has failed to establish
prejudice. The court will, however, grant a Certificate of Appealability on this issue.
7.

Grounds 14 and 15

In Ground 14, the movant argues that trial counsel “failed to understand and failed to
present a legally cognizable argument for a mitigating role reduction in the sentence.” (Doc. No.
18, at 10.) In Ground 15, he argues, similarly, that counsel “failed to understand the Sentencing
Guidelines applicable to a mitigating role reduction under U.S.S.G. § 3B1.2. (Doc. No. 18, at
11.)
Majors acknowledges that his attorney asked for a sentence reduction based on Majors’
minor role in the offense but argues that he erred in suggesting that such a finding would affect
Majors’ Criminal History points rather than the Offense Level, reducing the Criminal History
Category from VI to V. In addition, although he referred to a mitigating role adjustment, he
made an argument based on the law pertaining to the imposition of an upward adjustment for
playing a leadership role. (See Crim. Doc. No. 294, at 28.)
The court agrees that the Sentencing Memorandum is somewhat confusing and that
defense counsel’s argument at the sentencing hearing, presumably attempting to show that his
client was entitled to a sentencing reduction based on his mitigating role in the conspiracy, was

20

largely incoherent. Like the Sentencing Memorandum, it confused the law concerning an
enhancement for a leadership role and a reduction based on a minor or mitigating role. Counsel
stated:
So I think, your Honor, that the proof under the – first off, under the mitigating
role test for the Sixth Circuit shows that if you don’t have aggravating factors,
then the absence of those aggravating factors is a consideration for the Court and
sentencing or finding or determining that the Defendant’s range is within a role of
minor or minimal leadership. And the leadership is the disqualifier for the points
in a range of 4 to 2 levels – of 2 to 4 points for that adjustment.
(Crim. Doc. No. 342, at 65–66.) Nonetheless, although he could have framed the argument more
cogently, the attorney did argue that Majors was a minor or minimal participant in the conspiracy
and that, as such, he was entitled to a reduction in his base offense level. (Crim. Doc. No. 294, at
16–17.) More importantly, nothing in the record suggests that the court would have granted an
adjustment based on a mitigating role, even if the trial attorney had articulated the argument
more clearly.
Section 3B1.2 of the Sentencing Guidelines authorizes a 4-level decrease in the offense
level if the defendant is a “minimal participant in any criminal activity” and a 2-level decrease if
he was a “minor participant.” “[T]he critical question in whether to grant a ‘mitigating role’
reduction is what role the defendant played in relation to others involved in the criminal
enterprise.” United States v. Skinner, 690 F.3d 772, 783 (6th Cir. 2012) (quoting Henderson, 307
F. App’x at 983). The Sixth Circuit has recognized that the role of courier in a drug distribution
conspiracy is “critical” to the success of the conspiracy. Id.; see also United States v. Williams,
505 F. App’x 426, 428 (6th Cir. 2012) (“Defendant’s role in the enterprise was not minor or
minimal. Defendant repeatedly acted as a courier for Victor Ray Thomas, a Memphis-based
dealer of methamphetamine. She carried up to two pounds of methamphetamine, by both plane
and bus, on several occasions. Courts in this Circuit have found that a defendant’s ‘role as

21

courier was critical to the success of the drug trafficking and money laundering conspiracies.’”
(quoting Skinner, 690 F.3d at 783)).
Here, the evidence established that Majors made at least three or four trips between
Nashville and Los Angeles, carrying hundreds of thousands of dollars in cash or dozens of kilos
of cocaine on each leg of the trip. Thus, although the sentencing judge would have had the
discretion to entertain a coherent request for a reduction based on a minor or minimal role in the
conspiracy, it is highly unlikely that he would have concluded that Majors’ role was either minor
nor minimal. In addition, the judge did not make a finding that Majors occupied a leadership role
in the conspiracy and did not increase the base offense level based on any such finding. Thus,
while it is clear that the attorney’s performance in attempting to argue for a sentencing reduction
left something to be desired, Majors has not shown that he was prejudiced by his attorney’s
failure to articulate a mitigation argument more clearly.
8.

Ground 16

Majors argues that his trial attorney was constitutionally ineffective insofar as he failed to
support with citations to the evidentiary record his objections to the allegations in the PSR that
Majors had recruited Cleo Patterson into the conspiracy and had multiple vehicles titled in his
name. Even assuming that counsel was ineffective in this regard, Majors has not shown that he
suffered prejudice as a result. His sentence was not enhanced on the basis of a leadership role in
the conspiracy. It was clear from the record that there was only one vehicle used in the
conspiracy that was titled in his name, and, in any event, there is no evidence either that Majors’
sentence was enhanced as a result of an erroneous finding to the contrary by the sentencing judge
or that the judge declined to reduce the base offense level based on such a finding.

22

9.

Ground 17

Majors argues that his defense counsel was ineffective at sentencing because he failed to
request that Majors’ sentence be reduced by 3 months for the period of time he was in pretrial
detention in Oklahoma and failed to request that Majors’ 30-year sentence be served
concurrently with an existing 10-year sentence.
With regard to the three months spent in detention in Oklahoma, the court notes, first,
that the Bureau of Prisons is responsible for computing sentencing credits. See 18 U.S.C. §
3585(b)(2). Second, Majors has not actually established that the Bureau of Prisons has not
credited the period of detention in Oklahoma to his current sentence. And third, Majors has not
presented any law suggesting that he would have been entitled to sentence credits for the time he
was incarcerated on prior charges in a different jurisdiction, even though the charges were
related. Finally, the court did order that the Bureau of Prisons give Majors jail credit for the time
he had been incarcerated pending sentencing. (Judgment, Crim. Doc. No. 300, at 2.) Majors has
not shown that his attorney was deficient or that he was prejudiced by any alleged deficiency
relating to jail credit for the three months spent incarcerated in Oklahoma in 2005.
Regarding his attorney’s failure to request that his federal sentence run concurrently with
a ten-year state sentence, according to the PSR, Majors was charged with aggravated assault in
April 2008. He pleaded no contest to the charge in February 2009 and was sentenced to 10 years,
suspended to community corrections. (Crim. Doc. No. 310, at 18.) He was arrested in March
2009 on a community corrections violation warrant. Community corrections was revoked, and
his sentence was placed into effect in September 2009, presumably as a result of his arrest on the
federal conspiracy charge. That sentence is scheduled to expire in February 2018. (Id.)
Even assuming that counsel’s performance was deficient, Majors has not established

23

prejudice in connection with his attorney’s failure to request concurrent sentences. First, Majors
has not articulated in his Amended Motion in this court what factors under 18 U.S.C. § 3553(a)
would have favored imposition of concurrent sentences. See 18 U.S.C. § 3584(b). Moreover, the
sentencing judge was presumably aware of the state sentence based on the information in the
PSR and aware of his authority to grant concurrent sentences without a request being made by
defense counsel. Cf. Johnson v. United States, No. 12-15227, 2016 WL 1259354, at *5 (E.D.
Mich. March 31, 2016) (denying relief in § 2255 proceeding on the movant’s argument that
counsel was ineffective for failing to request concurrent sentences, noting that “the Court was
well aware of its authority to impose a concurrent sentence . . . and did not need a reminder from
the defense counsel about its authority to do so.”). Thus, the court finds it highly unlikely that the
sentencing judge would have granted such a request, if one had been made.
Majors has not established that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984). The court will therefore deny relief on this claim. The
court will, however, grant a Certificate of Appealability on this issue.
10.

Ground 18

Majors contends that his trial attorney was ineffective for filing a Motion to Dismiss the
Indictment for Violation of the Double Jeopardy Clause of the U.S. Constitution (Crim. Doc. No.
220). The motion was denied based on longstanding federal jurisprudence establishing that
double jeopardy does not attach until a jury is sworn and empaneled, and the defendant is “put to
trial before the trier of facts.’” Serfass v. United States, 420 U.S. 377, 388 (1975) (quoting
United States v. Jorn, 400 U.S. 470, 479 (1971)). (See Order, Crim. Doc. No. 224, at 1–2.)
Majors acknowledges that the Motion to Dismiss was clearly unsupported by the law. He argues

24

that he was prejudiced by its filing because (1) it “demonstrated his [attorney’s] fundamental
misunderstanding of double jeopardy jurisprudence”; and (2) the filing of an essentially frivolous
motion “invited the Court to find that Mr. Majors was deceptive.” (Doc. No. 18, at 16.)
While the Motion to Dismiss lacked merit, this court is unaware of any authority
suggesting that counsel is constitutionally ineffective for asserting an unsuccessful argument.
Nor has Majors shown actual prejudice resulting from the unsuccessful motion. Accord United
States v. Samuels, No. 08-CV-0677-CVE-FHM, 2009 WL 3756556, at *10 (N.D. Okla. Nov. 6,
2009) (“The Court has not found any authority suggesting that appellate counsel is
constitutionally ineffective for asserting unsuccessful arguments on appeal and, even if appellate
counsel were ineffective, it is not clear how asserting unsuccessful arguments causes any
prejudice to a defendant.”). He is not entitled to relief on the basis of this claim.
11.

Ground 19

Majors argues that his counsel was ineffective in his handling of a Motion to Suppress
Evidence under the Fourth, Fifth, Sixth, and Fourteenth Amendments. The gist of this claim is
that the motion was patently without merit as a matter of law, and counsel’s decision to file the
motion reflected his lack of understanding of the Federal Rules of Evidence and prejudiced
Majors by “undermining the reliability of every action taken on his behalf.” (Doc. No. 18, at 17.)
Majors further argues that he was prejudiced when counsel “inexplicably and unnecessarily”
called Majors himself to testify at the hearing on the motion. Majors was not prepared to testify
and ultimately found it necessary to invoke his Fifth Amendment right not to incriminate himself
in order to terminate cross-examination.
Again, counsel is not per se ineffective for pursuing a non-meritorious motion, and
Majors has not shown actual prejudice resulting either from the filing of the Motion to Suppress

25

or from calling Majors to testify at the hearing. The jury was not apprised of the matter and
Majors’ testimony was not used against him.
Majors is not entitled to relief on the basis of this claim.
12.

Ground 20

Majors argues generally that his counsel was ineffective during the appellate phase of his
representation for failing to file a corrected brief when directed to do so by the Sixth Circuit,
“failing to attend oral argument” (Doc. No. 18, at 17), and failing to raise substantive issues that
might have had merit. “Most strikingly,” Majors argues, “the appeal brief fails to challenge the
Guideline calculation concerning the drug quantity for which Mr. Majors would be held
responsible.” (Id. at 18.)
The underlying record reflects that Majors’ attorney did not actually fail to attend oral
argument. Instead, he waived oral argument by failing to file a corrected brief that complied with
6th Circuit Rule 34. 7 Majors, however, does not argue now that counsel was deficient for failing
to request oral argument or show how he might have been prejudiced by such failure.
7

Counsel left blank the space in his brief below the heading, “Statement Regarding Oral
Argument.” See Brief of Appellant at 9, United States v. Majors, No. 12-5726 (6th Cir. Aug. 2,
2013), Doc. No. 58. The Sixth Circuit had previously notified the parties that, pursuant to 6th
Circuit Rule 34(a), any party desiring oral argument “must include a statement in the brief setting
forth the reason(s) why oral argument should be heard. If the docket entry for your brief
indicates that you have requested oral argument but the statement itself is missing, you will be
directed to file a corrected brief.” Briefing Letter at 2, Majors, No. 12-5726 (6th Cir. May 14,
2013), Doc. No. 51. Because counsel omitted the statement from his brief, the Sixth Circuit
indeed alerted him to that fact and directed him to file a corrected brief. Briefing Letter (Aug. 6,
2013), Doc. No. 59. After counsel failed to do so, the Sixth Circuit considered the original,
uncorrected brief instead. See Letter to Counsel (Aug. 26, 2013), Doc. No. 72 (“The ‘corrected
brief’ has not been filed. Therefore, when this appeal is submitted for a decision on the merits,
the brief shall be submitted to the court as filed, without correction.”). And, according to the
court clerk’s notation at docket entry no. 58, the court deemed the appellant to have waived oral
argument.

26

As to whether counsel was ineffective for failing to challenge on appeal the computation
of the drug quantity attributed to Majors for purposes of sentencing, the court finds that it is
unlikely that making this argument would have changed the outcome of the proceedings, for the
same reasons as those discussed in connection with Ground 13, above. Because Majors has not
established that there is a “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different,” Strickland, 466 U.S. at 694, he is not
entitled to relief. The court will grant a certificate of appealability as to this claim, however.
13.

Ground 21

Finally, Major argues that his counsel was constitutionally ineffective insofar as he
abandoned Majors without filing a petition for the writ of certiorari in the United States Supreme
Court. This claim, too, is without merit.
First, counsel’s failure to petition for certiorari does not amount to ineffective assistance.
“As the Supreme Court has made clear, the Constitution does not entitle a criminal defendant to
the assistance of counsel for the filing of a petition for certiorari, so counsel’s failure to file that
petition cannot amount to constitutionally ineffective assistance.” Nichols v. United States, 563
F.3d 240, 249–50 (6th Cir. 2009) (citations omitted).
Second, Majors cannot show he was prejudiced by the purported failure, because he
himself filed a timely petition. This claim is without merit.
VI.

CONCLUSION
For the reasons set forth herein, the court finds that Majors is not entitled to post-

conviction relief. The court will, however, grant a certificate of appealability on the grounds that
his criminal defense attorney was constitutionally ineffective in that he failed to (1) present
factually supportable objections to the Probation Office’s calculation of the quantity of cocaine

27

attributable to Majors for sentencing purposes (Ground 13); (2) request concurrent sentencing
(Ground 17); and (3) to challenge the Guideline calculation concerning the drug quantity for
which Majors would be held responsible for sentencing purposes (Ground 20).
An appropriate Order is filed herewith.

____________________________________
ALETA A. TRAUGER
United States District Judge