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Holden v. United States

United States District Court, N.D. Alabama, Northeastern Division

November 9, 2017

KINGY OSSARIUS HOLDEN, Petitioner,
v.
UNITED STATES OF AMERICA,

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         This 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.[1] (Civ. Doc. 1).[2] 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.

         The 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.

         I. BACKGROUND

         The 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).

         Prior 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).

         The 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).

         The 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).

         Appeal

         Bruce 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).

         Habeas Case

         Mr. 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 & 14).

         Mr. Holden is currently incarcerated at Atlanta USP.

         II. DISCUSSION

         Mr. 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.

         Applicable Law:

         Procedural Default

         The 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 ...


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