United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE.
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
The court sentenced him to a total of 76 months imprisonment.
(Id. at 2).
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
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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 § 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 ...