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Blackburn v. United States

United States District Court, S.D. Alabama, Southern Division

January 14, 2015

TASHA MICHELLE BLACKBURN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent Criminal No. 08-00256-WS-B

Tasha Michelle Blackburn, Petitioner (1:11-cv-00727-WS-B), Pro se, TALLAHASSEE, FL.

For Tasha Michelle Blackburn, Defendant (1:08-cr-00256-WS-B All Defendants): Neil L. Hanley, LEAD ATTORNEY, Mobile, AL.

For USA, Plaintiff (1:08-cr-00256-WS-B All Defendants): Gloria A. Bedwell, Richard H. Loftin, Steven E. Butler, LEAD ATTORNEYS, Adam Wayne Overstreet, U.S. Attorney's Office, Mobile, AL.

REPORT AND RECOMMENDATION

SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE.

This matter is before the Court on Petitioner Tasha Michelle Blackburn's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 195).[1] In her motion, Blackburn raises a number of claims of ineffective assistance of counsel by her trial and appellate counsel. Upon review of Blackburn's petition and supporting memorandums and documents (Docs. 195, 201, 214), and the United States responses in opposition (Docs. 198, 211), the undersigned determined that an evidentiary hearing was required to resolve Blackburn's claim that her former trial counsel failed to communicate to her a favorable plea offer that had been extended by the Government. Counsel was appointed to represent Blackburn for the evidentiary hearing, which was conducted before the undersigned Magistrate Judge on July 8, 2014. Based upon the evidence presented at the hearing and upon consideration of Blackburn's petition, supporting memorandums and documents, the United States responses in opposition, and all other pertinent portions of the record, it is recommended that Blackburn's petition be DENIED.

I. BACKGROUND

A federal grand jury returned an indictment against Blackburn and her co-Defendant Barry Jay Sullivan in July 2008. (Doc. 1). Blackburn was charged in count one of the indictment with conspiring to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846, and in count two, she was charged with possession of pseudoephedrine with knowledge that it would be used to manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2). (Id.). The Court initially appointed Fred Tiemann, an assistant federal defender, to represent Blackburn; however, Tiemann requested permission to withdraw on the ground that a colleague in his office was representing an individual who was expected to provide testimony against Blackburn. (Docs. 16, 46). As a result, Tiemann was permitted to withdraw and Paul Murray was appointed to represent Blackburn on September 28, 2008. (Doc. 49). Less than a month later, on October 16, 2008, Murray filed a motion to withdraw on the ground that Blackburn had retained Thomas Haas to represent her. (Doc. 62). Murray's motion was granted and Haas assumed representation of Blackburn. Following a jury trial, Blackburn was convicted of conspiring to distribute 50 grams or more of methamphetamine[2], and on August 3, 2009, she was sentenced to 300 months in prison.[3] (Doc. 143). Haas requested and was granted permission to withdraw and Gregory Hughes was appointed to represent Blackburn on appeal. (Docs. 173, 175).

On appeal, Blackburn argued that the trial court erred by denying her motion to suppress evidence seized from her bedroom, and by permitting a police officer, Jeffrey Stone, " to provide his opinions regarding the significance of certain items - a gas torch, digital scales, crystal methamphetamine and a piece of paper with the figure '1700' written on it - that were seized from the bedroom shared by Blackburn and her boyfriend and co-defendant Sullivan. The Eleventh Circuit rejected both of Blackburn's claims, and affirmed her conviction and sentence in an unpublished opinion and judgment that was entered on September 30, 2010. (Doc. 190).

With respect to Blackburn's claim regarding officer Jeffrey Stone, the appellate court held that although Stone's testimony was expert in nature, " the [district] court did not abuse its discretion in denying Blackburn and [her co-defendant's] motions to strike [Stone's] testimony on the ground that it invaded the province of the jury, or amounted to improper speculation." [4] (Id. at 32). The Eleventh Circuit's mandate issued on November 9, 2010. (Doc. 190). Blackburn did not seek further review by the Supreme Court.

Proceeding pro se, Blackburn timely filed the instant petition on December 8, 2011.[5] (Doc. 195). Blackburn seeks to have her conviction and sentence set aside on the grounds of ineffective assistance rendered by Brad Murray, her former trial counsel, Tom Haas, her trial counsel, and Greg Hughes, her counsel on appeal. Blackburn's ineffective assistance claims are based on the following grounds:

1) her trial counsel was " wholly unprepared for trial (Doc. 195 at 4);
2) her trial counsel " failed to properly preserve objections in the suppression hearing" (Id.);
3) her trial counsel " failed to investigate defense claims raised by his client" (Id.);
4) her trial counsel " failed to locate potential witnesses" ...

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