John Matthew Cockrell v. USA

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE for 26 Report and Recommendations. ORDERED that Movant's objections (Civ. Dkt. 30) are OVERRULED. It is further ORDERED that the Report and Recommendation (Ci v. Dkt. 26) is ADOPTED. It is further ORDERED that the above-styled Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1) is DENIED and that the case is hereby DISMISSED WITH PREJUDICE. It is further ORDERED that any motion not previously ruled on is DENIED. Signed by Judge Richard A. Schell on 3/22/2017. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JOHN MATTHEW COCKRELL
v.
UNITED STATES OF AMERICA

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CIVIL ACTION NO. 4:14CV175
CRIMINAL NO. 4:07CR42(1)

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge (the “Report”) (Civ. Dkt. 26), 1
which contains her findings, conclusions, and recommendation for the disposition of this action,
has been presented for consideration. The Report recommends that the above-styled Motion to
Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1) be denied and
the case dismissed with prejudice. Petitioner has filed written objections (Civ. Dkt. 30). Having
made a de novo review of the objections, the court concludes that the findings, conclusions, and
recommendation of the Magistrate Judge are correct.
I.

The Magistrate Judge Did Not Err When Relying on Both the Trial Record and
Undisputed Factual Findings from the Fifth Circuit to Establish the Factual
Background of the Case
Movant objects, first, to the Magistrate Judge’s citation of the Fifth Circuit’s factual

findings on direct appeal, arguing that it was improper for the Magistrate Judge to rely solely on
the Fifth Circuit’s findings to establish the factual background for her Report. See Civ. Dkt. 30 at
2-3. The court finds it readily apparent from the Report that the Magistrate Judge considered and
cited relevant portions of the trial record in her resolution of each of Movant’s substantive claims.

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When referencing the docket, the court will designate references to the Civil Action No.

4:14CV175 as “Civ.” and Criminal No. 4:07CR42(1) as “Crim.”
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See Civ. Dkt. 26 at 8, 10, 11. Moreover, the portion of the Fifth Circuit opinion cited in the Report
sets forth a narrative account of the facts related to the underlying criminal investigation, trial
testimony, and ambulance records introduced at trial. See Civ. Dkt. 26 at 2 (citing United States v.
Cockrell, 587 F.3d 674, 677 (5th Cir. 2009)). The Government set forth a substantially similar,
albeit more detailed, version of these facts in its response to the § 2255 motion. See Civ. Dkt. 16
at 2-4. Movant has conceded that this recitation of the facts of the case is accurate. See Civ. Dkt.
21 at 3 (“The AUSA correctly sets out most of the underlying criminal proceedings as to
Petitioner’s charging and trial proceedings.”). The court, therefore, finds Movant’s objection to
this version of the facts of the case without merit.
II.

Movant’s Allegations of Conflict of Interest and Violation of Attorney-Client
Privilege are Entirely Speculative and Do Not Support His Ineffective Assistance
Claim
Next, Movant objects to the Magistrate Judge’s determination that his trial counsel did not

render ineffective assistance when cross-examining Government witness, Jonathan Kollman.
Kollman was represented by Thomas G. Pappas, whose partner, Michael P. Gibson, purportedly
represented Movant in an earlier, unrelated criminal matter. See Civ. Dkt. 21 at 12. Movant claims
Pappas also appeared on Movant’s behalf “at a minimum of one court appearance” in the earlier
proceedings. See id. According to Movant, this earlier representation created a conflict of interest
and a violation of the attorney-client privilege, which prejudiced Movant at trial. See Civ. Dkt. 30
at 3-5. Movant claims that trial counsel should have further cross-examined Kollman as to the
nature of his representation by Pappas or otherwise raised the issues of conflict of interest and
attorney-client privilege at trial. See Civ. Dkt. 1 at 4; Civ. Dkt. 21 at 12-14; Civ. Dkt. 30 at 5.
Movant has made no factual allegations and offered no evidence to support the conclusion
that the earlier criminal matter was in any way related to the events underlying his conviction in

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the current case. That the earlier criminal case purportedly involved “a drug charge . . . in a
different jurisdiction” is not enough to establish that the earlier matter was substantially related to
the present one. Civ. Dkt. 30 at 5. Movant has also failed to show that either Pappas or Gibson
appeared in the present case adverse to him or represented a party with interests adverse to his
own. Thus, Movant has made only conclusory allegations of a conflict of interest.
Similarly, Movant has offered only speculation that knowledge Pappas and Gibson could
have acquired during the earlier representation was somehow beneficial to Pappas’ client Kollman.
Movant has insinuated that Kollman could have used information related to the earlier criminal
matter to glean favor from the Government in the current, albeit unrelated, case. And, without so
much as one factual allegation, Movant has conjectured that Pappas violated the rules of
professional conduct and suborned perjury by “coach[ing Kollman] on the manner and means of
the defendant against which he was testifying . . .” and “ask[ing] suggestive questions to help the
witness ‘remember’ facts that are not necessarily the true set of facts.” Civ. Dkt. 21 at 12. These
purely speculative arguments are not well taken and, as the Magistrate Judge concluded, do not
sustain a constitutional claim on collateral review. See Sayre v. Anderson, 238 F.3d 631, 635-36
(5th Cir. 2001); United States v. Johnson, 679 F.2d 54, 58-59 (5th Cir. 1982).
III.

Movant’s Complaint that Defense Counsel Did Not Engage Medical Experts or
Obtain a Toxicology Report Does Not Raise a Constitutional Claim
In his final objection, Movant raises two arguments. First, he argues the only way the

Government could bear its burden of proving causation was by presenting toxicology reports and
expert witnesses identifying heroin as the only drug in the victims’ systems in injury-causing
quantities at the time of their overdoses. He contends that since no such evidence was presented,
the Government failed to carry its burden of proof. The court construes this argument as a
challenge to the sufficiency of the evidence supporting his conviction. Because Movant failed to
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raise this insufficient evidence claim on direct appeal, it is only subject to the court’s federal habeas
review upon a showing of cause for the procedural default and actual prejudice. See Engle v. Isaac,
102 S. Ct. 1558, 1572-73 (1982). Movant has made no such showing and, moreover, his claim
lacks merit.
Movant was charged with conspiracy to possess with intent to distribute heroin, resulting
in serious bodily injury, in violation of 21 U.S.C. §§ 841 and 846. See Crim. Dkt. 887. To obtain
a conviction on the “serious bodily injury” penalty enhancement provision pursuant to 21 U.S.C.
§ 841(b)(1)(C), the Government bore the burden of proving that heroin supplied by Movant was
an independently sufficient or “but-for” cause of the victims’ serious bodily injury—here, the
victims’ overdoses and related injuries. See Burrage v. United States, 134 S. Ct. 881, 892 (2014).
In some cases involving drug overdose, establishing but-for causation might, as Movant
suggests, require the Government to employ toxicology reports and experts to interpret them. For
example, in cases where the victim dies or sustains serious injury after ingesting multiple drugs,
medical testing, reports, or expert opinion might be necessary to establish that the victim’s death
or injury resulted from one drug as opposed to another. See, e.g., id. (where evidence established
that victim died following an extended drug binge that lasted approximately twenty-four (24) hours
and involved ingestion of multiple narcotics, expert testimony was necessary to determine which
drug or drugs caused death and the likelihood that each drug contributed to death); U.S. v. Ford,
750 F.3d 952, 954-55 (8th Cir. 2014) (where evidence established the victim died from polydrug
toxicity, evidence that the mixture of heroin defendant distributed to the victim was merely a
contributing factor, with methamphetamine being the major contributing drug, was not sufficient
to establish that distribution of the mixture of heroin was the but-for cause of victim's death);
United States v. Houston, 406 F.3d 1121, 1125-26 (9th Circuit 2005) (sufficient evidence

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supported defendant’s conviction under § 841(b)(1)(C) for distribution of methadone resulting in
death where testimony of medical examiner established that victim, who had multiple illicit
substances in her system at time of death, died specifically from methadone toxicity). Moreover,
where tests and reports are inconclusive, such that a jury might reasonably conclude the victim
died or was injured as a result of ingesting multiple narcotics, including the one distributed by the
defendant, a defendant may not be convicted under the penalty enhancement provision of
§ 841(b)(1)(C). See Burrage, 134 S.Ct. at 892; Ford, 750 F.3d at 955.
However, there is no bright-line rule requiring toxicology reports or expert testimony to
prove but-for causation in every case that involves drug overdose. Where the evidence clearly
establishes the victim’s death or serious injury results solely from ingestion of the drug supplied
by the defendant, toxicology reports and expert testimony, while persuasive, are not necessary.
As the Magistrate Judge observed:
In this case, the record shows that [the two victims] Baca and Schubert, each fell
unconscious almost immediately after injecting heroin purchased from Cockrell.
There was no significant time lapse which might have attenuated the effects of the
heroin on the user. And the medical personnel who treated Baca and Schubert
following their overdoses testified that the overdoses could be attributed solely to
the effects of heroin. See Trial Transcript 474-75, 486-87; see also Reply at 16.
Civ. Dkt. 26 at 10. Thus, unlike in Burrage, where the evidence proved the victim was under the
influence of multiple drugs, ingested over a period of many hours before his overdose, here the
evidence suggested only one injury-causing instrumentality—the heroin supplied by Movant and
ingested by the victims immediately before their overdoses. Accordingly, Movant’s claim that the
Government was required to present additional evidence to make the causal link lacks merit.
Movant also renews his argument that in order to render effective assistance under the twoprong standard in Strickland v. Washington, 466 U.S. 668 (1984), defense counsel was required to
counter the Government’s evidence with medical expert testimony and reports favorable to the
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defense. He claims that he was prejudiced by counsel’s failure to do so and objects to the
Magistrate Judge’s contrary conclusion.
In analyzing Movant’s claim, the Magistrate Judge correctly explained:
Complaints of uncalled witnesses are disfavored in federal habeas corpus review
because allegations of what the witness would have testified to is speculative. Evans
v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002). For Cockrell to show the requisite
Strickland prejudice, he would have to show that not only that the testimony of the
prospective witness be favorable but that the witness would have testified. Id.
(citing Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).
Civ. Dkt. 26 at 9. A petitioner’s “conclusional statements about that which someone else might
have said” are not sufficient to establish prejudice. Adams v. Quarterman, 324 F. App'x 340, 350
(5th Cir. 2009). However, “[w]hen a petitioner comes forward with affidavits from those nontestifying witnesses attesting under oath as to (1) what they would have said at trial and (2) that in
fact they would have testified at trial if they had been asked, we are chary to reject the uncalled
witnesses' statements.” Id.
To date, Movant has provided no affidavits of prospective expert witnesses or any other
factual indication that an expert witness would have testified at trial favorably to the defense. Nor
has he established that a toxicology report commissioned by defense counsel would have revealed
a substance present in the victims’ systems in injury-causing quantities other than the heroin he
supplied. Movant’s conclusory allegations regarding the victims’ multi-drug use and the
availability of favorable experts is not sufficient to establish prejudice under Strickland. Thus, his
ineffective assistance claim fails.
In light of the foregoing, it is ORDERED that Movant’s objections (Civ. Dkt. 30) are
OVERRULED.
It is further ORDERED that the Report and Recommendation (Civ. Dkt. 26) is
ADOPTED.
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It is further ORDERED that the above-styled Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1) is DENIED and that the case is hereby
DISMISSED WITH PREJUDICE.
It is further ORDERED that any motion not previously ruled on is DENIED.

.

SIGNED this the 22nd day of March, 2017.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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