Jones v. USA

Filing 76

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. The Magistrate Judge's 64 Report and Recommendation is affirmed and adopted and the Petitioner's 1 Motion (2255) is denied. Further , the Petitioner's 67 Objections are overruled. Petitioner's 74 Motion to file a sur-reply is denied as hybrid and this case is dismissed with prejudice. The Clerk is directed to enter a separate judgment order in this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/8/19. (Copy Petitioner via cert. mail)(mh) (Additional attachment(s) added on 8/8/2019: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KOFIE AKIEM JONES,
Petitioner,
v.

Civil Action No. 1:13CV267
(Criminal Action No. 1:03CR47-01)
(STAMP)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

In December 2013, the pro se1 petitioner, Kofie Akiem Jones,
filed a motion to vacate under 28 U.S.C. § 2255 (“§ 2255”), wherein
he asserts three arguments.2
received

ineffective

defense attorney.

First, the petitioner claims that he

assistance

of

counsel

from

his

ECF No. 1 at 4-27/ECF No. 308 at 4-27.3

original
Second,

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
2

The petitioner was convicted by a jury trial of
conspiracy to rob banks and interfere with commerce by threats
violence, (2) attempted bank robbery, (3) armed bank robbery,
possession of a firearm in furtherance of a crime of violence,
interference with commerce by threats and violence, and
possession of a firearm in furtherance of a crime of violence.
No. 64 at 1/ECF No. 437 at 1.
3

(1)
and
(4)
(5)
(6)
ECF

The first ECF number refers to the petitioner’s civil docket
in which the instant petition is pending (Civil Action No.
1:13CV267). The second ECF number refers to the criminal docket of
the petitioner’s original criminal action (Criminal Action No.
1:03CR47).

the petitioner believes he is entitled to relief pursuant to the
holding of Alleyne v. United States, 133 S. Ct. 2151 (2013).
at 29.

Id.

Third, the petitioner asserts that his due process rights

were violated because the jury received incorrect instructions.
Id. at 32.

For relief, the petitioner requests that (1) his

conviction and sentence be vacated and set-aside or (2) the
sentence of his second § 924(c) offense be vacated.
at 39/ECF No. 308 at 39.
attorney

Jason

T.

Gain

petitioner’s counsel.

ECF No. 1

After the pro se motion was filed,
entered

a

notice

of

ECF No. 51/ECF No. 414.

appearance

as

The government

filed a response in opposition to the motion to vacate under
§ 2255.

ECF No. 5/ECF No. 312.

The action was referred to United States Magistrate Judge
Robert W. Trumble for initial review and report and recommendation
pursuant to Local Rule of Prisoner Litigation Procedure 2.
States

Magistrate

recommendation.
recommendation,

Judge

Trumble

then

entered

ECF No. 64/ECF No. 437.
the

magistrate

judge

a

United

report

and

In the report and

recommended

that

the

petitioner’s § 2255 motion be denied and the civil action be
dismissed with prejudice because the petitioner’s claims were
procedurally defaulted or without merit.

Id. at 1.

Counsel for petitioner filed a motion for an extension of time
to

file

objections

to

the

magistrate

2

judge’s

report

and

recommendation.

ECF No. 438.4

an extension of time.

This Court granted the motion for

ECF No. 65 at 1/ECF No. 439 at 1.

The order

directed the petitioner to file objections on or before May 21,
2018

and

directed

the

government

to

file

a

response

petitioner’s objections on or before June 4, 2018.

to

the

Id.

The petitioner filed two primary objections through counsel.
ECF No. 67/ECF No. 441.

The petitioner first objects to the

magistrate judge’s finding that his counsel was not ineffective by
failing to communicate a plea deal because no plea deal was ever
offered by the government. Id. at 1. The petitioner contends that
“testimony elicited at the evidentiary hearing shows that counsel
for the government would most certainly have extended an offer to
the Petitioner — and in fact had prepared a written plea document
for that purpose — but was precluded from even making an offer by
the actions of Petitioner’s trial counsel.”

Id.

Petitioner cites

to the similarities between the facts of the instant case and
Lafler v. Cooper,5 in which the Supreme Court ruled that the State
must re-offer the plea agreement to a defendant who originally
turned it down, based on what the Court deemed to be deficient
advice from counsel.

Id.

Next, the petitioner objects to the

magistrate judge’s finding of procedural default as to the second

4

This motion has one ECF citation because it was only docketed
in the criminal action (Criminal Action No. 1:03CR47).
5

Lafler v. Cooper, 566 U.S. 156, 163-164 (2012).
3

and third grounds.

With respect to the Alleyne claim, petitioner

argues that he has demonstrated “cause” or actual “prejudice” or
actual innocence under Bousely6 “because the petitioner in Alleyne
was ultimately successful, the theory was not novel.”

Id. at 2.

With respect to the jury instruction claim, the petitioner notes
that

his

“underlying

instruction,”

and

conviction

that

“a

suffered

further

from

a

conviction

faulty

under

§

jury

924(c)

requires specificity as to whether or not the petitioner was
convicted under an aiding and abetting theory or a Pinkerton7
theory.”
The

Id.
government

failed

to

respond

to

the

petitioner’s

objections by the ordered date. On April 1, 2019, this Court again
entered an order directing the government to file a response to
petitioner’s objections.
The

government

objections.

ECF

No.

ECF No. 70/ECF No. 455.

then

filed

72/ECF

No.

a

response

410.

In

to

petitioner’s

response

to

the

petitioner’s claim that his attorney offered inadequate assistance
of counsel because he failed to communicate a plea offer, the
government cites to the three-prong test presented in Lafler v.
6

In Bousley v. United States, the Supreme Court held that in
order to pursue a defaulted habeas claim, the petitioner must
demonstrate “cause and actual prejudice” or that he is “actually
innocent.” 523 U.S. 614, 622 (1998).
7

In Pinkerton v. United States, the Supreme Court determined
that when a defendant is part of a conspiracy, any substantive
crimes to further the conspiracy can be charged to all defendants.
This is known as the Pinkerton Doctrine. 328 U.S. 640 (1946).
4

Cooper, where the first prong requires “a reasonable probability
that the plea offer would have been presented to the court (i.e.,
that the defendant would have accepted the plea).”

Id. at 2.

The

government states that petitioner’s maintained innocence throughout
the trial and the appeals is an indication that he would not have
accepted a plea deal, had it been offered.

Id.

For this reason,

the government maintains that petitioner’s claim for ineffective
assistance of counsel should be dismissed.

Id.

As to petitioner’s objection to the magistrate judge’s finding
of procedural default on petitioner’s original second and third
claims for relief, the government’s response reiterates support for
the conclusions of the magistrate judge.
Alleyne

claim

(petitioner’s

second

With respect to the

ground

for

relief),

the

government states that the “claim was procedurally defaulted, and
even if not, then factually the claim fails” because the jury found
that the petitioner’s second § 924(c) conviction was later in time
than his first.

Id.

As to the petitioner’s third ground for

relief, regarding the jury instructions to determine whether he was
convicted under an aiding and abetting theory or under a Pinkerton
Doctrine liability theory, the government again asserts that the
claim was procedurally defaulted because the issue was not raised
in

the

direct

appeal

or

intervening

judgment.

Id.

at

3.

Furthermore, the government contends that even if petitioner’s
claim is not procedurally defaulted, the claim is meritless because
5

the jury was permitted to convict on either prong, and the jury was
not required to designate upon which one they chose to convict.
Id.
The petitioner then filed a pro se “hybrid motion” seeking
permission to file a sur-reply to the government’s response (ECF
No. 74/ECF No. 458) and then, soon after, filed a sur-reply (ECF
No. 75/ECF No. 459).

In this hybrid motion, the petitioner again

claims that he should not receive the enhanced sentence because
“when there are two § 924(c) counts in the same indictment, neither
is a second or subsequent conviction, because neither has become
final.”

Id. at 3.

For the reasons set forth below, the magistrate judge’s report
and recommendation is adopted and affirmed in its entirety and the
petitioner’s objections are overruled.
II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s report and
recommendation to which an objection is timely made.

Because the

petitioner filed objections to the report and recommendation, the
magistrate judge’s recommendation will be reviewed de novo as to
those findings to which the petitioner objected.

As to those

findings to which objections were not filed, all findings and
recommendations will be upheld unless they are “clearly erroneous
or contrary to law.”

28 U.S.C. § 636(b)(1)(A).
6

III.
A.

Discussion

Ineffective Assistance of Counsel
Petitioner

first

objects

to

the

magistrate

judge’s

determination that counsel was not ineffective for failing to
communicate a plea offer because one was never offered. ECF No. 67
at 1/ECF No. 441 at 1.

Petitioner maintains that but for the

actions of his trial counsel, the government would have made a plea
offer and that counsel was ineffective for interfering. Id.
novo

review,

magistrate

this

judge

Court
and

agrees

the

with

position

the
of

conclusion

the

On de

of

government

the
that

petitioner’s attorney did not provide constitutionally ineffective
assistance of counsel for not communicating a plea deal to the
petitioner, as one was never offered.
B.

Claims Regarding Alleyne Holding and Jury Instruction
Petitioner’s remaining objection argues that his second and

third ground for relief are not procedurally defaulted.

Id. at 2.

This Court affirms the findings of the magistrate judge that both
claims are procedurally defaulted and without merit.
In

the

report

and

recommendation,

the

magistrate

judge

determined petitioner’s Alleyne claim to be procedurally defaulted
because it was not raised in his direct appeal or intervening
judgment.

ECF No. 64 at 27/ECF No. 437 at 27.

According to

Bousley,8 petitioner’s claim is procedurally barred unless he
8

Bousley v. United States, 523 U.S. 614, 622 (1998).
7

demonstrates “cause” or actual “prejudice” or actual innocence.
The

magistrate

judge

determined

that

petitioner

“has

not

demonstrated ‘cause,’ and he fails to allege actual innocence.”
Id.

On de novo review of the petitioner’s objections and the

report and recommendation, this Court finds the petitioner failed
to demonstrate “cause” or allege actual innocence, and thus affirms
the

conclusions

of

the

magistrate

judge

and

overrules

the

petitioner’s objection.
In the report and recommendation, the magistrate determined
that

even

if

the

petitioner’s

claim

were

defaulted, it is nevertheless without merit.

not

Id.

procedurally

In his original

claim, petitioner argues that according to Alleyne, the Court
cannot impose the mandatory minimum sentence of 25 years unless a
jury found that one of his two charged § 924(c) counts constituted
a second convicted offense.

ECF No. 1 at 29/ECF No. 308 at 29.

The magistrate judge determined this was not the case, citing
Almendarez-Torres,9 which held that the Sixth Amendment does not
require the government to set forth in the indictment and prove
beyond a reasonable doubt the fact of prior conviction. This Court
agrees with the magistrate judge’s determination that the jury was
not required to find that one of petitioner’s charged § 924(c)
counts was a second conviction and that two separate § 924(c)
counts is enough to impose the heightened mandatory minimum.
9

Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998).
8

For petitioner’s third ground for relief, he takes issue with
the jury instructions that permitted him to be convicted on “aiding
and

abetting”

or

Pinkerton

“conspiracy.”

In

petitioner’s

objections, he claims he was denied his right to a unanimous jury
verdict because the jury did not determine under which one of the
two theories he was convicted.

ECF No. 1 at 33/ECF No. 308 at 33.

On de novo review of this issue, this Court affirms the magistrate
judge’s

determination

that

this

defaulted and without merit.

claim

is

also

procedurally

ECF No. 64 at 29/ECF No. 437 at 29.

Under the requirements of Bousley, the magistrate judge found that
petitioner fails to demonstrate “cause” and actual “prejudice,” or
actual innocence regarding the jury instruction claim.

On de novo

review, this Court finds that this claim is procedurally defaulted
because it was not raised on direct appeal of petitioner’s original
or intervening judgment.
Even though the magistrate judge determined that petitioner’s
third

claim

recommendation

was
also

procedurally
analyzed

the

defaulted,
merit

of

the
the

report
claim.

and
The

magistrate judge cited Nye & Nissen v. United States,10 where the
Supreme

Court

held

that

aiding

and

abetting

and

Pinkerton

conspiracy are alternative theories by which the government may
prove

criminal

liability.

Accordingly,

the

magistrate

judge

properly determined that the jury was free to convict under either
10

Nye & Nissen v. United States, 336 U.S. 613, 620 (1949).
9

theory.

ECF No. 64 at 29/ECF No. 437 at 29.

In addition the

magistrate judge noted that the petitioner “must demonstrate that
the erroneous instruction given resulted in his conviction, not
merely that it was impossible to tell under which [theory] the jury
convicted.” United States v. Robinson, 627 F.3d 941 (4th Cir.
2010).

This Court agrees with the finding of the magistrate judge

that this claim is without merit.
C.

Petitioner’s Sur-Reply
This Court notes that petitioner filed a pro se hybrid motion

seeking permission to file a sur-reply to the government’s response
(ECF No. 74/ECF No. 458) and then filed a sur-reply (ECF No. 75/ECF
No. 459). As petitioner was represented by counsel at the time the
motion for leave to file a sur-reply was filed, this Court denies
petitioner’s

motion

for

leave

to

file

a

sur-reply

as

an

impermissible “hybrid motion” and declines to consider the contents
of the sur-reply.
D.

Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 and Section

2255 cases provides that the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to the applicant” in such cases. This memorandum opinion and order
is a final order adverse to the applicant in a case in which 28
U.S.C.

§

2253(c)(1)

requires

issuance

appealability to take an appeal.
10

of

a

certificate

of

This

Court

finds

that

it

is

inappropriate

certificate of appealability in this matter.

to

issue

a

Specifically, the

Court finds that the petitioner has not made a “substantial showing
of

the

denial

§ 2253(c)(2).

of

a

constitutional

right.”

See

28

U.S.C.

A prisoner satisfies this standard by demonstrating

that reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or wrong
and that any dispositive procedural ruling by the district court is
likewise debatable.
38 (2003).

See Miller-El v. Cockrell, 537 U.S. 322, 336-

Upon review of the record, this Court finds that the

petitioner has not made the requisite showing.
petitioner

is

district court.

DENIED

a

certificate

of

Accordingly, the

appealability

by

this

The petitioner may, however, request a circuit

judge of the United States Court of Appeals for the Fourth Circuit
to issue the certificate of appealability.
IV.

Conclusion

For the reasons stated, the magistrate judge’s report and
recommendation (ECF No. 64/ECF No. 437) is AFFIRMED AND ADOPTED.
Accordingly, the petitioner’s motion under 28 U.S.C. § 2255 (ECF
No. 1/ECF No. 308) is DENIED. Further, the petitioner’s objections
(ECF No. 67/ECF No. 441) are OVERRULED. Petitioner’s motion to
amend objections (ECF No. 448)11 and petitioner’s motion to file a

11

This motion has one ECF citation because it was only docketed
in the criminal action (Criminal Action No. 1:03CR47).
11

sur-reply (ECF No. 74/ECF No. 458) are DENIED as hybrid, and the
case is DISMISSED WITH PREJUDICE.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of the judgment order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

August 8, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

12