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Pointer v. United States

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

April 27, 2018

ANTHONY RAY POINTER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE.

         In 2013, a jury found Anthony Ray Pointer guilty of two counts of distribution of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); one count of possession with intent to distribute cocaine hydrochloride, in violation of § 841(a)(1), (b)(1)(C); and one count of possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.. § 924(c)(1)(A)(i). (Cr. Doc. 70 at 1).[1] The court sentenced him to a total of 76 months imprisonment. (Id. at 2).

         Mr. Pointer moves to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255, contending that his trial counsel rendered ineffective assistance because (1) they failed to present evidence showing that Mr. Pointer possessed the gun for protection of his shop instead of in furtherance of a drug trafficking crime; (2) they refused to allow Mr. Pointer to testify on his own behalf; (2) they failed to call witnesses who would have “contradict[ed] and controvert[ed]” the testimony of the Government's primary witness; and (4) the cumulative effect of counsel's failure to present evidence and call witnesses prejudiced him. (Doc. 1 at 4-5, 7; Doc. 5 at 23, 26-27). He also moves for the court to hold an evidentiary hearing on his motion. (Doc. 19). This court WILL DENY Mr. Pointer's § 2255 motion and his motion for an evidentiary hearing because he cannot establish that counsel provided ineffective assistance.

         I. BACKGROUND

         In July 2012, a grand jury indicted Mr. Pointer on two counts of distribution of cocaine hydrochloride, one count of possession with intent to distribute cocaine hydrochloride, and one count of possessing a firearm in furtherance of a drug trafficking crime. (Cr. Doc. 1).

         At Mr. Pointer's trial, the Government's star witness was Mark McGuire, a confidential informant whom the police had caught dealing drugs after his release from prison on another drug charge. (Cr. Doc. 60 at 2-4, 92). In exchange for a lighter sentence, Mr. McGuire agreed to help the police by making controlled buys of drugs. (Id. at 4-6, 35, 92). Mr. McGuire testified that on November 3, 2011, and November 10, 2011, under the supervision of Agent Jamie Jarrell, he purchased cocaine from Mr. Pointer at Mr. Pointer's car stereo installation store, Service Plus. (Id. at 9, 21, 90).

         Before each controlled buy, Agent Jarrell searched Mr. McGuire and his car to make sure that he did not already have any drugs or money, and then placed on Mr. McGuire a wire that recorded audio and video. (Cr. Doc. 60 at 9-10, 21-22, 95). He gave Mr. McGuire approximately $1, 400 to purchase cocaine from Mr. Pointer, and followed him to Service Plus. (Id. at 9, 21, 28, 95, 101).

         At the November 3 buy, the wire recorded Mr. McGuire entering Service Plus, talking with Mr. Pointer in the work area of the shop, going into Mr. Pointer's office with him, and eventually leaving the store. (Gov't Exh. 1). Although the angle of the video is poor, the video shows that, while Mr. McGuire was in Mr. Pointer's office, at least two other people entered and left the office, and a listener can hear multiple people speaking. (Id.). The video does not show an exchange of drugs for money. (See id.). Similarly, the recording from the November 10 buy shows Mr. McGuire entering the store and talking to Mr. Pointer about cooking crack cocaine, but it does not show an exchange of drugs. (Gov't Exh. 4; Cr. Doc. 60 at 18, 27).

         Although the videos do not show drug sales, Mr. McGuire testified that on both occasions, Mr. Pointer sold him cocaine. (Cr. Doc. 60 at 18, 27). After each controlled buy, Mr. McGuire returned to Agent Jarrell and turned in the ounce of cocaine that he had purchased, and Agent Jarrell again searched Mr. McGuire and his car, finding no contraband. (Id. at 10-11, 23, 27, 133-34).

         After Mr. McGuire had made the two controlled buys, Agent Jarrell obtained a search warrant for Service Plus. (Cr. Doc. 60 at 90, 106). On December 2, 2011, during the search, officers found cocaine and a loaded handgun; the cocaine was in a plastic case sitting on top of a work bench, and the gun was located on a shelf under the bench, about three to five feet away from the cocaine. (Id. at 107, 112-13, 147-48, 154, 158). The officers also found approximately $900 in the work bench and another $3, 280 in Mr. Pointer's pocket and in the store till. (Id. at 121-22).

         While officers were searching the store, Mr. Pointer told Officer Jason Wigginton that “a male subject” would send people to Mr. Pointer to purchase drugs, and would occasionally show up at the store “to collect his share of the money” from those sales. (Cr. Doc. 60 at 175, 179- 80). After an officer found the cocaine on Mr. Pointer's work bench, Mr. Pointer, who had been trying to get Agent Jarrell's attention, said: “[T]hat's what I wanted to talk to you about, I forgot it was there.” (Id. at 123). And after an officer found the gun under the work bench, Mr. Pointer “said he had that for defense of the business, from people jumping the fence trying to steal stuff from him.” (Id. at 147-48, 154).

         After the Government rested, trial counsel called David Shutt, a patrolman for the City of Decatur, who testified that he had once responded to a call at Service Plus about an attempted burglary. (Cr. Doc. 60 at 208-09). They also called Mr. Pointer's employee, Derek Tapscott, who testified that he was aware of “a few” burglaries or attempted burglaries of the store. (Id. at 213-14, 229-30). Mr. Tapscott further testified that, in addition to other precautions, Mr. Pointer kept a gun for “[p]rotection of the shop.” (Id. at 230-31). A third defense witness who had been subpoenaed to testify failed to appear at trial. (Id. at 257-58).

         While the attorneys waited for the subpoenaed witness to appear, the court asked Mr. Pointer about whether he had decided not to testify; when he said that he would not testify, the court questioned him about whether he understood the consequences of that decision. (Cr. Doc. 60 at 258-60). Mr. Pointer stated that he had made his decision independently and that he was satisfied with his decision. (Id. at 259).

         After a short break, the court explained to the jury: “[I]n an effort not to detain you any longer than necessary with a missing witness, the parties have reached a stipulation” that on August 27 and 28, 2005, someone reported attempted burglaries at Service Plus. (Cr. Doc. 60 at 260). After the court read the stipulation, the defense rested. (Id. at 261).

         The jury found Mr. Pointer guilty on all charges. (Cr. Doc. 53). After the verdict, Mr. Pointer's appointed attorneys withdrew and he retained a new attorney. (Cr. Doc. 63; Cr. Doc. Minute Entry, Jan. 22, 2013). The new attorney promptly filed a motion for judgment of acquittal or for a new trial, contending that the Government had presented insufficient evidence to support any of the four charges. (Cr. Doc. 64). The court denied the motion. (Cr. Doc. 67).

         The court sentenced Mr. Pointer to concurrent 16-month sentences for each of the three drug counts, to be followed by 60 months imprisonment on the gun count. (Cr. Doc. 70).

         Mr. Pointer appealed only his conviction for possession of a firearm in furtherance of a drug trafficking crime. See United States v. Pointer, 553 Fed.Appx. 966 (11th Cir. 2014). The Eleventh Circuit affirmed his conviction, stating:

Given that Pointer's gun (.45 auto pistol) was loaded, easily accessible in the shop where he sold cocaine, and in close proximity to drugs and money that could have been drug proceeds, a reasonable jury could have found a sufficient nexus between the gun and the drug trafficking crime to establish a violation of ยง 924(c). Besides, Pointer had stated that he kept the gun to protect his business; and a reasonable jury could believe that his business included drug trafficking. Thus, the ...

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