United States District Court, N.D. Alabama, Northeastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
case is before the court on Kingy Ossarius Holden's
motion to vacate, set aside or correct his sentence pursuant
to 28 U.S.C. § 2255. (Civ. Doc. 1). A jury found Mr. Holden
guilty of conspiracy to possess with the intent to distribute
1000 kilograms or more of marijuana, four counts of
distributing marijuana, and one count of being a felon in
possession of a firearm. In his motion to vacate, he alleges
three grounds: (1) his conviction was based on evidence
obtained through an unconstitutional search and seizure; (2)
his trial counsel was ineffective for failing to file a
motion for a new trial based on newly discovered evidence;
and (3) his appellate counsel was ineffective for failing to
present issues on appeal.
court has interpreted Mr. Holden's claims liberally
because he is not represented by counsel in this action.
See Mederos v. United States, 218 F.3d 1252, 1254
(11th Cir. 2000) (“Pro se filings, including those
submitted by [the petitioner] in the present case, are
entitled to liberal construction.”). After reviewing
Mr. Holden's motion to vacate, the Government's
response, Mr. Holden' replies, and the court record
including the trial transcript, and for the following
reasons, the court finds that his motion to vacate is due to
be DENIED on all grounds.
Government filed a twenty-six count Superseding Indictment on
December 29, 2011against Mr. Holden and fourteen other
defendants, charging crimes related to a drug distribution
ring, money laundering, and firearm offenses. Specifically,
the Superseding Indictment charged Mr. Holden with conspiracy
to possess with intent to distribute 5 kilograms or more of
cocaine hydrochloride and 280 grams or more of
“crack” cocaine (Count One); conspiracy to
possess with intent to distribute 1, 000 kilograms or more of
marijuana (Count Two); distribution of marijuana (Counts
Three through Six); felon in possession of a firearm (Count
Eleven); and money laundering (Counts Twenty-Three through
Twenty-Six). (Crim. Doc. 53).
to his trial, Mr. Holden's trial attorney, Bruce Harvey,
along with several co-defendants, moved to suppress
recordings of calls, and any evidence derived from those
calls, that the Government intercepted via wiretaps on Mr.
Holden's telephone. After a hearing on the motions to
suppress, the district court denied those motions on July 5,
2012. (Crim. Doc. 184).
drug conspiracy trial began on July 23, 2012, and lasted more
than one week. Prior to the Government resting its case, it
orally moved to dismiss Count Twenty-Four against Mr. Holden,
which the court granted. After the Government rested on
August 1, 2012, Mr. Holden's counsel moved for judgment
of acquittal under Fed.R.Civ.P. 29(a), which the district
court denied. The jury found Mr. Holden not guilty on the
conspiracy to possess with intent to distribute cocaine and
three counts of money laundering, but guilty on the
conspiracy to distribute marijuana count, four counts of
distributing marijuana, and the felon in possession count.
(Crim. Doc. 212).
district court sentenced Mr. Holden on April 15, 2013 to 365
months' imprisonment on the marijuana conspiracy count,
and to 120 months' imprisonment on the marijuana
distribution counts and felon-in-possession count,
separately, with each count to be served concurrently with
each other. (Crim. Doc. 342).
Harvey filed a notice of appeal on Mr. Holden's behalf,
but indicated in that notice that the court appointed Charles
S. Linton to represent Mr. Holden on appeal to the Eleventh
Circuit. (Crim. Doc. 337). The Eleventh Circuit affirmed the
district court's judgment on February 11, 2015 in an
unpublished opinion. United States v. Holden, et
al., 603 F. App'x 744 (11th Cir. 2015); see
also (Crim. Doc. 412). The Supreme Court denied
certiorari on January 14, 2016. (Crim. Doc. 424).
Holden filed the current habeas motion asking this court to
vacate, set aside, or correct his sentence on March 7, 2016.
(Civ. Doc. 1). The court ordered the Government to show cause
in writing why it should not grant the motion (civ. doc. 3),
and the Government filed its response on June 6, 2016 (civ.
doc. 7). Mr. Holden filed his reply to the Government's
response on June 15, 2016. After the court gave him
additional time to file any additional evidentiary materials,
he filed exhibits on November 28, 2016. (Civ. Docs. 8 &
Holden is currently incarcerated at Atlanta USP.
Holden's three grounds for his motion to vacate involve
either a claim that is procedurally defaulted or an
ineffective assistance counsel claim that has no merit. After
a discussion of the applicable law regarding procedural
default and ineffective assistance of counsel, the court will
address each ground separately.
procedural default doctrine reflects the general rule that
claims not raised on direct appeal may not be raised on
collateral review. See Massaro v. United States, 538
U.S. 500, 504 (2003). Federal courts will not review a
procedurally-defaulted claim unless the defendant can show
either (1) cause for the default and actual
prejudice from the error; or (2) that the
court's failure to consider the claim will cause a
miscarriage of justice because the defendant is ...