Ivory v. United States of America
Filing
103
MEMORANDUM OPINION AND ORDER: For the foregoing reasons, Ivory's Motion for Leave to Conduct Discovery (Civ. Dkt. No. 91 ) is denied. It is so ordered. Signed by Judge Marvin E. Aspen on 1/5/23. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ln)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
GEORGE IVORY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 3:18-cv-00537
Judge Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
In this proceeding brought under 28 U.S.C. § 2255, Petitioner George Ivory moves for
leave to conduct discovery into an alleged material misrepresentation of fact made by the
Assistant U.S. Attorney who prosecuted his criminal case. (Petitioner’s Motion for Leave to
Conduct Discovery (“Mot.”) (Civ. Dkt. No. 91).) 1 For the following reasons, we deny the
motion.
BACKGROUND
I.
Ivory’s Criminal Case
In July 2015, the Government obtained a seven-count superseding indictment against
Ivory and another individual, Anthony Coleman. (Superseding Indictment (Crim. Dkt. No. 17).)
The superseding indictment charged Ivory in connection with incidents that took place on March
23, 2015, and May 1, 2015. (Id.) With respect to the March 2015 incident, the superseding
indictment charged Ivory with being a felon in possession of a firearm (Count 5), Coleman with
1
Citations to “Civ. Dkt. No.” refer to Ivory’s § 2255 case, Case No. 3:18-cv-00537 (M.D.
Tenn.), and citations to “Crim. Dkt. No.” refer to Ivory’s criminal case, Case No. 3:15-cr-000751 (M.D. Tenn.). For ECF filings, we cite to the page number(s) set forth in a document’s ECF
footer.
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possession of cocaine with intent to distribute (Count 6), and both Ivory and Coleman with using
a firearm during and in relation to a drug trafficking offense (Count 7). (Id. at 3–4.) The
remaining four counts related to the May 2015 incident, which arose out of an encounter
involving Ivory, a rival drug dealer referred to as “White Boy,” and two people seeking to buy
crack cocaine from White Boy, Cecil Grissette and Laquinta Thomas. (Id. at 1–2; January 20,
2017 Revised Presentence Report for George Ivory (“Revised PSR”) (Civ. Dkt. No. 83-1) ¶¶ 4–
9.) During the encounter, Grissette told Ivory that he was not going to buy drugs from him; in
response, Ivory brandished a loaded firearm, intending to rob Grissette of the $60 he was going
to use to buy crack cocaine from White Boy. (Revised PSR ¶¶ 7–8.) After Thomas told Ivory to
leave Grissette alone, Ivory struck her in the head with his gun and hit Grissette with the gun as
well. (Id. ¶ 8.) Ivory’s cousin Donta Waggoner and others tried to stop Ivory, but to no avail, as
Ivory then shot Grissette multiple times. (Id. ¶¶ 4, 8; October 12, 2022 Declaration of Kathleen
Morris (“Oct. 12 Morris Decl.”) (Civ. Dkt. No. 91-1) ¶ 9.) In connection with these actions, the
Government charged Ivory with possession of cocaine with intent to distribute (Count 1); Hobbs
Act robbery and extortion and attempted robbery and extortion (Count 2); using a firearm during
and in relation to a crime of violence and a drug trafficking crime (Count 3); and being a felon in
possession of ammunition (Count 4). (Superseding Indictment at 1–2.) Judge Campbell 2
thereafter severed trial on Counts 1–4 from trial on Counts 5–7. (Crim. Dkt. No. 147 at 3.) Trial
on Counts 5–7 was set for November 15, 2016, and trial on Counts 1–4 was set for March 28,
2017. (Id.; Crim. Dkt. No. 148 at 1.)
After reviewing the evidence provided by the Government in discovery, Ivory’s attorney,
Kathleen Morris, decided that the charges related to the May 2015 incident (Counts 1–4)
2
Judge Todd Campbell and Chief Judge Kevin Sharp oversaw Ivory’s criminal case before it
was transferred to us in February 2017. (See Crim. Dkt. Nos. 164, 199.)
2
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“presented a greater risk of conviction” to Ivory than those related to the March 2015 incident
(Counts 5 and 7). (Oct. 12 Morris Decl. ¶¶ 2–3.) Even so, Morris’s recollection is that there was
no physical evidence tying Ivory to the crimes charged in connection with the May 2015
incident, nor was there any incriminating statement from Ivory. (Id. ¶ 4.) Rather, the
Government’s only evidence seemed to be potential witness statements. (Id.) Although Morris
was unsure who the Government might call to testify against Ivory, she expected it would be
Thomas and White Boy. (Id. ¶ 7.) Morris further believed that she could impeach Thomas at
trial with various inconsistent statements she had made. (Id. ¶¶ 5–6.)
The pretrial conference for the trial on Counts 5–7 was set for November 7, 2016. (Crim.
Dkt. No. 114 at 1; Crim. Dkt. No. 147 at 3.) Four days before this conference, former Assistant
U.S. Attorney Sunny Koshy told Morris that his witnesses with respect to the May 2015 incident
were Waggoner, White Boy, and “someone else,” who Morris took to mean Thomas. (Oct. 12
Morris Decl. ¶ 7.) Koshy also told Morris that “White Boy had ‘made quite an impression’ on
the grand jury.” (Id.)
On November 7 (the day of the pretrial conference), Koshy showed Morris one or two
pages from the transcript of Waggoner’s grand jury testimony. (Id. ¶ 8.) According to Morris,
these “pages showed that Waggoner essentially told the same story as Thomas ultimately told,
which made him a very important witness.” (Id.) Koshy also told Morris “that he ‘had
Waggoner in Kentucky.’” (Id.) At the time, federal detainees were held in at least two jails in
Kentucky, so Morris understood this statement to mean “that Waggoner was in one of the
Kentucky jails, being held as a material witness for the trial, or perhaps was being held on
undisclosed federal charges.” (Id.) Koshy then “offered a binding plea agreement of 25 years to
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resolve the case.” (Id.) This offer came after prior discussions in which Koshy “had rejected
more favorable terms.” (Id.)
The next day, Morris met with Ivory in jail and recommended that he accept the
Government’s plea offer. (Id. ¶ 9.) Morris made this recommendation, in part, because the
evidence against Ivory “was significant and likely compelling to a jury.” (November 16, 2022
Declaration of Kathleen Morris (“Nov. 16 Morris Decl.”) (Civ. Dkt. No. 99-1) ¶ 5.) Specifically,
the Government “had three witnesses—Thomas, Waggoner, and White Boy—available who
would tell the same story.” (Oct. 12 Morris Decl. ¶ 9.) Morris was particularly concerned that
Waggoner’s familial relationship to Ivory “would carry significant weight with the jury” and that
his expected corroboration of Thomas’s and White Boy’s testimony would undercut Morris’s
impeachment of these two witnesses. (Id.) Thus, “[i]t was important to [Morris] that Waggoner
was apparently certain to appear as a witness as he was being detained in Kentucky.” (Id.)
Nonetheless, Morris “would have made the same recommendation even if” Koshy had not said
that Waggoner was in Kentucky because she “would have fully expected the government to
compel Waggoner’s appearance and testimony at trial, just as it had compelled his testimony
before the grand jury.” (Nov. 16 Morris Decl. ¶ 6.) The 25-year sentence offered by the
Government also factored into Morris’s decision to recommend taking the plea offer, as this
sentence was, according to Morris’s calculations, below the bottom of Ivory’s advisory
Guidelines range. (Id. ¶ 5.) Ultimately, Morris’s “review of the discovery materials, [her]
investigation, and [her] overall understanding of the expected testimony of the other government
witnesses caused [her] to believe that it was in Mr. Ivory’s best interests to accept the
government’s offer.” (Id. ¶ 6.)
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Ivory followed Morris’s recommendation, and he pled guilty to Counts 1–4 of the
Superseding Indictment on November 10, 2016. (Id. ¶ 7; Crim. Dkt. Nos. 180–81.) Under
Federal Rule of Criminal Procedure 11(c)(1)(C), the parties agreed that Ivory’s sentence would
include 25 years in custody and 5 years of supervised release. (Crim. Dkt. No. 182 at 11.) The
parties also agreed that the Government would move to dismiss Counts 5 and 7 once a sentence
had been imposed. (Id. at 2.)
In February 2017, Morris moved to withdraw as Ivory’s counsel due to a non-waivable
conflict of interest. (Crim. Dkt. Nos. 191, 193.) Chief Judge Sharp granted the motion and
appointed Cynthia Sherwood as Ivory’s new counsel. (Crim. Dkt. Nos. 195–96.) In September
2017, we sentenced Ivory to 25 years of imprisonment and 5 years of supervised release. (Crim.
Dkt. Nos. 223–24.) Ivory later filed a pro se notice of appeal, but the Sixth Circuit dismissed the
appeal as untimely. (Crim. Dkt. Nos. 229, 231.)
II.
Ivory’s § 2255 Case
On June 8, 2018, Ivory moved pro se to vacate his sentence under 28 U.S.C. § 2255,
alleging that Sherwood failed to render effective assistance by failing to file a timely notice of
appeal. (Civ. Dkt. No. 1 at 4, 9–10.) We ordered an evidentiary hearing to be held on Ivory’s
claim and directed the federal defender’s office to appoint counsel for Ivory. (Civ. Dkt. No. 14.)
In May 2019, Ivory, now represented by his current counsel, Michael Holley, moved to amend
his § 2255 petition to add a claim that Morris provided ineffective assistance in advising him to
plead guilty. (Civ. Dkt. No. 21.) We granted the motion. (Civ. Dkt. No. 22.) Ivory then moved
to expand the evidentiary hearing to include his claim against Morris. (Civ. Dkt. No. 26.) We
granted this motion as well. (Civ. Dkt. No. 33.)
In April 2021, we granted Ivory’s motion to withdraw his claim against Sherwood (Civ.
Dkt. Nos. 59–60), which left his claim against Morris as the only claim at issue in this § 2255
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proceeding. This claim alleges that Morris unreasonably advised Ivory to plead guilty pursuant
to a binding Rule 11(c)(1)(C) plea bargain with a 25-year sentence. (See Civ. Dkt. No. 37 at 2.)
Ivory contends that there was no physical proof against him, and that Morris had developed
useful impeachment evidence against the putative witnesses, as well as useful mitigation
evidence from a doctor’s evaluation of Ivory. (Civ. Dkt. No. 38 at 2.) Accordingly, Ivory
claims, Morris should have sought to dismiss the charges or advised Ivory to go to trial based on
the lack of evidence. (Civ. Dkt. No. 21 at 2.) Instead, Morris failed to adequately investigate the
evidence against him and unreasonably advised him to accept a 25-year sentence, which is
“commensurate with a sentence for murder.” (Civ. Dkt. No. 37 at 2.) This deficient
performance prejudiced him, Ivory continues, because absent Morris’s advice, he would have
proceeded to trial. (See Civ. Dkt. No. 38 at 4–5.)
After continuing the evidentiary hearing multiple times, we set the date of the hearing for
October 13, 2022. (Civ. Dkt. No. 80.) The night before the hearing, at 10:18 p.m., Ivory filed
the present motion. In view of Ivory’s motion, we continued the evidentiary hearing until March
2023 and ordered briefing on the motion. (See Civ. Dkt. Nos. 92–94, 96.)
LEGAL STANDARD
“Courts have the discretion to grant discovery in collateral challenges upon a showing of
‘good cause’ under Rule 6 of the Rules Governing 28 U.S.C. § 2255 cases.” Poulsen v. United
States, 717 F. App’x 509, 517–18 (6th Cir. 2017). Good cause exists “where specific allegations
show reason to believe that the [petitioner] may, if the facts are fully developed, be able to
demonstrate entitlement to relief.” Id. at 518 (quotation marks omitted). The petitioner bears the
burden of demonstrating that the requested discovery is material, i.e., that the “requested
discovery could ‘resolve any factual disputes that could entitle him to relief.’” Williams v.
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Bagley, 380 F.3d 932, 974–75 (6th Cir. 2004) (quoting Stanford v. Parker, 266 F.3d 442, 460
(6th Cir. 2001)).
ANALYSIS
According to Ivory, former Assistant U.S. Attorney Koshy implied that a key witness—
Donta Waggoner—was in federal custody when he told Morris that he “had Waggoner in
Kentucky.” (See Mot. at 3–6.) But recently discovered evidence, Ivory continues, indicates that
this implication was false. (Id. at 1, 4–6.) In connection with this purportedly material
misrepresentation, Ivory requests (1) the production of all of the Government’s records regarding
Waggoner’s and White Boy’s potential service as witnesses against Ivory, including all
statements made by these witnesses, each fact useful for impeaching them, and each record
showing their availability to testify; (2) leave to serve interrogatories asking what Koshy said and
knew regarding Waggoner’s availability to testify in October and November 2016; and (3) leave
to depose Koshy if the first two requests do not resolve the underlying issue. (Id. at 8.)
Ivory has not shown “good cause” for obtaining this discovery. As an initial matter,
Ivory’s discovery requests are much too broad. Ivory’s only specific allegations arising out of
the recently discovered evidence that is the basis for his motion are that Koshy told Morris that
Waggoner was in federal custody when, in fact, he was not. These allegations, however, provide
no basis for Ivory to obtain information about Waggoner that is unrelated to his whereabouts at
the time, such as witness statements and impeachment evidence. Nor do they provide a basis to
obtain similar information about White Boy, a different witness altogether. Ivory’s attempt to
obtain information untethered to his specific allegations amounts to an inappropriate fishing
expedition. See Stanford, 266 F.3d at 460.
Moreover, although some of the requested discovery could possibly support his
allegations, Ivory has not shown how these allegations, if proven, demonstrate Morris’s allegedly
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ineffective assistance of counsel, which is the only basis for Ivory’s § 2255 claim at this time.
See id. (habeas petitioner was not entitled to discovery where it “would not resolve any factual
disputes that could entitle him to relief, even if the facts were found in his favor”). Citing
Strickland v. Washington, 466 U.S. 668, 686 (1984), in which the Supreme Court recognized that
the “Government violates the right to effective assistance [of counsel] when it interferes in
certain ways with the ability of counsel to make independent decisions about how to conduct the
defense,” Ivory appears to contend that proving his allegations would help support his ineffective
assistance claim against Morris “because the fact pattern would show the government unethically
induced ineffective plea-bargain advice from defense counsel.” (Mot. at 6–7 (emphasis in
original).) We do not read Strickland as endorsing Ivory’s ineffective counsel-by-inducement
theory, but even if it did, any assertion by Koshy about Waggoner’s custodial status could not
have “induced” any aspect of Morris’s advice because, as set forth in her November 16, 2022
declaration, Morris would have provided the same advice even if Koshy had not told her that he
had Waggoner in Kentucky. (Nov. 16 Morris Decl. ¶ 6.) Notably, Ivory fails to explain how the
discovery he seeks could establish his ineffective assistance claim against Morris in light of this
declaration. (See generally Defendant’s Reply to Response to His Motion for Leave to Conduct
Discovery (Civ. Dkt. No. 100).) In fact, Ivory’s reply seemingly abandons his initial contention
that the discovery he seeks will support his ineffective assistance claim against Morris, as the
filing argues that the requested discovery is relevant to a different type of § 2255 claim—an
involuntary plea claim under Brady v. United States, 397 U.S. 742 (1970). 3 (See id.)
3
Ivory has moved separately to add this claim to his § 2255 petition, and the parties are currently
briefing this motion. (See Civ. Dkt. Nos. 101–02.) We express no opinion at this time regarding
whether this claim should be added to this proceeding and, if so, whether the discovery Ivory
seeks is material to this claim.
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Because Morris would have advised Ivory to take the Government’s plea offer even if
Koshy had not told her that Waggoner was in Kentucky, whether Koshy misrepresented
Waggoner’s custodial status had no bearing on the advice Morris gave to Ivory, which is the only
basis for Ivory’s current § 2255 claim. We therefore deny Ivory’s request for discovery. See
Williams, 380 F.3d at 976 (district court did not abuse its discretion in denying discovery where
the petitioner failed to show “that the requested discovery could yield evidence enabling
Williams to prevail on his ineffective assistance [of counsel] claim”).
CONCLUSION
For the foregoing reasons, Ivory’s Motion for Leave to Conduct Discovery (Civ. Dkt. No.
91) is denied. It is so ordered.
_______________________________
Marvin E. Aspen
United States District Judge
Dated: January 5, 2023
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