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Marshall v. United States

United States District Court, M.D. Alabama, Northern Division

May 21, 2018

ROBERT MARSHALL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE.

         Before the court is Robert Marshall's (“Marshall”) motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. Doc. # 1.[1] For the reasons that follow, the court concludes that Marshall's § 2255 motion should be denied without an evidentiary hearing and that this case should be dismissed with prejudice. Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts.

         I. INTRODUCTION

         In February 2013, a jury found Marshall guilty of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 846 & 841(a)(1), and using a communication facility (a cell phone) to facilitate the conspiracy, in violation of 21 U.S.C. § 843(b). After a sentencing hearing on June 4, 2013, this court sentenced Marshall to 300 months in prison on the conspiracy count and one year in prison on the use-of-a-communication-facility count, the terms to run concurrently.

         Marshall appealed, arguing that (1) the court erred in granting the Government's “reverse Batson[2] challenge”; (2) the evidence against him was insufficient to establish he was guilty of either conspiracy to distribute cocaine or using a cell phone to facilitate the conspiracy and established only that he engaged in buy-sell transactions; and (3) the court erred in allowing the Government to introduce Fed.R.Evid. 404(b) evidence that he was convicted in 1999 of the sale of a controlled substance. See Doc. # 16-22.

         On June 1, 2015, the Eleventh Circuit affirmed Marshall's convictions and sentence. United States v. Reese, 611 Fed.Appx. 961 (11th Cir. 2015); Doc. # 16-23. Marshall filed a petition for writ of certiorari in the United States Supreme Court, which that court denied on November 2, 2015. Doc. # 16-25.

         On June 17, 2016, Marshall, acting pro se, filed this § 2255 motion asserting claims that his trial counsel rendered ineffective assistance by (1) failing to present a defense that he was in merely a buyer/seller relationship with his codefendants, that he bought cocaine for his personal use and the use of his friends (and not for resale), and that he was a drug addict, not a drug distributor; (2) failing to challenge the accuracy of the Government's organizational chart depicting the structure of the drug ring and the roles of the various coconspirators; (3) failing to challenge the admission of Fed.R.Evid. 404(b) evidence of his prior drug-sale conviction on the ground the court made no finding that the probative value of such evidence outweighed its prejudicial value; (4) failing to advise him of his right to testify and preventing him from testifying in his own defense; (5) failing to argue that a cell phone call he made to codefendant Delmond Bledson was to buy drugs for his personal use only, and thus he could not be guilty of the 21 U.S.C. § 843(b) count in the indictment; (6) failing to move for a severance of his trial from that of his codefendants; and (7) failing to investigate one of the prior convictions used to classify him as a career offender at sentencing. Doc. # 1 at 4-10; Doc. # 2 at 4-57. Marshall also asserts claims that he is actually innocent of the offenses of which he was convicted, see Doc. # 1 at 4; Doc. # 2 at 4-8, and that his guidelines sentence enhancement as a career offender violates the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015), see Doc. # 2 at 53-56.

         On February 13, 2017, Marshall amended his § 2255 motion to add a claim that under Mathis v. United States, 136 S.Ct. 2243 (2016), his prior Alabama convictions for cocaine distribution should not have been used to classify him as a career offender because the convictions were obtained under a statute, § 13A-12-211, Ala. Code 1975, that defines a controlled substance offense more broadly than the definition of the offense contained in the career offender guideline at U.S.S.G. § 4B1.2(b). Doc. # 24.

         II. DISCUSSION

         A. General Standard of Review

         Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner may have relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted).

         B. Claims of Ineffective Assistance of Counsel

         A claim of ineffective assistance of counsel is evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 689. Second, the petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).

         Scrutiny of counsel's performance is “highly deferential, ” and the court indulges a “strong presumption” that counsel's performance was reasonable. Chandler, 218 F.3d at 1314 (internal quotation marks omitted). The court must “avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance.” Id. (internal quotation marks and brackets omitted). “Given the strong presumption in favor of competence, the petitioner's burden of persuasion-though the presumption is not insurmountable-is a heavy one.” Id.

         As noted, under the prejudice component of Strickland, a petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (“[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.”). “Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Id. at 372.

         Unless a petitioner satisfies the showings required on both prongs of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Once a court decides that one of the requisite showings has not been made, it need not decide whether the other one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

         1. Failure to Present Different Defense to Conspiracy Count

         Marshall claims that his trial counsel, James R. Cooper, Jr., rendered ineffective assistance of counsel by failing to present a defense that Marshall was merely in a buyer/seller relationship with his codefendants, that he bought cocaine for his personal use and the use of his friends (and not for resale), and that he was a drug addict, not a drug distributor. Doc. # 1 at 4; Doc. # 2 at 4-9. Marshall maintains that “a cursory investigation” by Cooper would have revealed evidence that Marshall was “a known drug user” who had been forced to enroll in a drug treatment program and had failed several state-ordered drug tests during the DEA's investigation of the drug ring. Doc. # 2 at 6-9. The presentation of such evidence, he says, would have countered the Government's evidence that he was involved in the conspiracy to distribute cocaine. Id.

         In an affidavit addressing Marshall's allegations, Cooper avers that Marshall never told him he was chemically dependent or that he was only buying cocaine for his personal use. Doc. # 11 at 1. According to Cooper, in order to make the most of such a defense, Marshall would have had to testify, but Marshall chose not to testify after he was advised his prior drug convictions could be used to impeach him. Id. at 1-2. Cooper states he also advised Marshall that his codefendants Delmond Bledson, Tony Gardner, and Dikka Daniels could testify in rebuttal about Marshall's drug buys if he testified. Id. at 2.

         The trial transcript reflects that Cooper presented a defense, through his arguments and witness cross-examination, that there was little evidence to connect Marshall to the conspiracy as compared to his codefendants; that there was no evidence connecting Marshall to the conspiracy until close to its end in late March or early April 2012; and that the Government's cooperating witnesses (particularly Tony Gardner and Dikka Daniels) were motivated to falsely incriminate Marshall because of favorable plea deals they had made. Cooper also emphasized that Bledson, a kingpin in the drug conspiracy, professed to have little familiarity with Marshall. See, e.g., Doc. # 16-6 at 17 & 50-53; Doc. # 16-7 at 73-75; Doc. # 16-10 at 41-42 & 51-52; Doc. # 16-13 at 12; Doc. # 16-14 at 24-27. It was not professionally unreasonable for Cooper to choose this defense strategy over a strategy rooted in the claim that Marshall was merely in a buyer/seller relationship with his codefendants and that he bought cocaine only for his personal use.

         Strategic choices of counsel made after investigation of the law and facts relevant to plausible options are virtually unchallengeable. Strickland, 466 U.S. at 690-91. Even if in retrospect the strategy to pursue one line of defense over another appears to have been wrong, the decision will be held ineffective only if it was so patently unreasonable that no competent lawyer would have chosen it. Adams v. Wainwright, 709 F.2d 1443, 1145 (11th Cir. 1983); see also United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987) (reviewing courts are “not [to] second-guess trial counsel's defense strategy simply because the chosen strategy has failed”). Accordingly, tactical or strategic choices by counsel generally cannot support a collateral claim of ineffective assistance. United States v. Costa, 691 F.2d 1358, 1364 (11th Cir. 1982); Coco v. United States, 569 F.2d 367, 371 (5th Cir. 1978). The line of defense chosen by Cooper was not “so patently unreasonable that no competent lawyer would have chosen it.” Adams, 709 F.2d at 1145.

         Moreover, Marshall demonstrates no reasonable likelihood that Cooper would have succeeded by pursuing a different line of defense. The Eleventh Circuit rejected Marshall's argument on direct appeal that the evidence was insufficient to convict him of the conspiracy and established only that he engaged in buy-sell transactions. In rejecting the argument, the Eleventh Circuit held:

Viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences and credibility determinations in the Government's favor, there was sufficient evidence for a reasonable jury to convict Marshall. Marshall's knowledge of and knowing participation in the conspiracy could reasonably be inferred from his repeated purchases from Rajneesh Dikka Daniels of [Willie] Davis's cocaine and from his relationship with Tony Gardner, who could reasonably be construed as a middle man between Marshall and Bledson; it could also be inferred from his meeting with Bledson, the drug purchase associated with that meeting, and his subsequent telephone conversation with Bledson arranging for further transactions. The jury was free to discount as unreliable Bledson's statement that Marshall was not a member of the conspiracy. See [United States v.] Reeves, 742 F.3d [487, ] at 500 [(11th Cir. 2014)].

611 Fed.Appx. at 966.

         “While the existence of a simple buyer-seller relationship alone does not furnish the requisite evidence of a conspiratorial agreement, an agreement to distribute drugs may be inferred when the evidence shows a continuing relationship that results in the repeated transfer of illegal drugs to a purchaser.” United States v. Thompson, 422 F.3d 1285, 1292 (11th Cir. 2005) (internal quotations omitted). Here, the evidence of Marshall's repeated purchases of large amounts of cocaine demonstrated both “a prior or contemporaneous understanding, ” United States v. Beasley, 2 F.3d 1551, 1560 (11th Cir. 1993), and a “continuing relationship, ” as opposed to a simple buyer-seller relationship, Thompson, 422 F.3d at 1292. See United States v. Johnson, 889 F.2d 1032, 1035 (11th Cir. 1989) (regularity of purchases of cocaine by defendant from his supplier viewed as a refutation that the evidence only showed a buyer-seller relationship). Given the evident weakness of such a defense, Marshall demonstrates no prejudice resulting from Cooper's failure to pursue a defense that he was in a mere buyer/seller relationship with his codefendants and bought cocaine for his personal use only.

         Marshall also fails to demonstrate that Cooper performed deficiently in failing to investigate his alleged drug use and failing to present a defense that he was a drug addict and not a drug distributor. As noted above, Cooper avers that Marshall never told him he was chemically dependent or that he was buying cocaine only for his personal use. See Doc. # 11 at 1. Such a defense would have required testimony from Marshall who, as explained more fully below, chose not to testify. Id. at 1-2. As the Government argues, Cooper's defense strategy emphasizing the lack of evidence tying Marshall to the conspiracy was “a much more reasonable strategy than painting Marshall as a drug addict.” Doc. # 16 at 52. “[P]resenting evidence of a defendant's drug addiction to a jury is often a ‘two-edged sword': while providing a mitigating factor, such details may alienate the jury[.]” Pace v. McNeil, 556 F.3d 1211, 1224 (11th Cir. 2009). Marshall's admission to buying cocaine, even if for personal use for his alleged drug addiction, would have constituted additional evidence that he purchased cocaine from his codefendants on numerous occasions-evidence that could bolster an inference that he was actually involved in the conspiracy. As the Government observes, Daniels testified that Marshall would pick up two packages of 125 grams of cocaine from her at a time. A claim that such purchases were for mere personal use would have been implausible and as weak as a “mere buyer/seller” defense.

         Finally, Marshall demonstrates no reasonable likelihood that the outcome of his trial would have been different had Cooper investigated his drug addiction and used his alleged addiction in a defense. As noted above, evidence of Marshall's drug addiction would have provided further evidence that he purchased cocaine regularly from his codefendants. And an argument that Marshall was buying cocaine for his own use would not be dispositive of his noninvolvement in the conspiracy. See United States v. Burgos, 518 Fed.Appx. 728, 729-30 (11th Cir. 2013) (where methamphetamine addict asserted that he joined a drug conspiracy to feed his own addiction).

         Marshall has not demonstrated that Cooper's decision to present the defense he did, instead of the one Marshall now favors, was professionally unreasonable. Nor does he demonstrate prejudice resulting from Cooper's decision to eschew other defenses. Therefore, Marshall is not entitled to any relief on this claim of ineffective assistance of counsel.

         2. Failure to Challenge Organizational Chart

         Marshall contends that Cooper rendered ineffective assistance of counsel by failing to challenge the accuracy of the Government's organizational chart depicting the structure of the drug ring and the roles of the various coconspirators. Doc. # 1 at 5; Doc. # 2 at 14- 17. Marshall maintains that the chart was inaccurate and prejudicial and that Cooper should have objected to its admission.[3] Doc. # 2 at 14-17.

         The trial judge instructed the jury that the organizational chart was valid only to the extent it reflected the underlying evidence and that jurors should give the chart only so much weight as they believed it deserved. Doc. # 16-14 at 38. Although Marshall argues that the chart was inaccurate, the alleged inaccuracies he cites were supported by evidence presented at trial. Marshall objects to lines drawn on the chart connecting him to Willie Davis and Delmond Bledson, maintaining there was no actual connection between him and these two members of the conspiracy. See Doc. # 2 at 16. However, the Government presented testimony from witnesses connecting Marshall to both Davis and Bledson regarding activities to further the conspiracy. See Doc. # 16-7 at 52; Doc. # 6-10 at 4-10 & 49-50. Therefore, Marshall fails to identify any apparent inaccuracies on the chart to which Cooper might have successfully objected. As the district court instructed the jury, the weight to assign the chart was up to the jurors. Thus, an objection to admission of the chart on grounds it was inaccurate would not have been successful. See Cape v. Francis, 741 F.2d 1287 (11th Cir. 1984) (Where evidence is admissible, counsel's failure to object does not constitute ineffective assistance of counsel). Consequently, Marshall is entitled to no relief on this claim of ineffective assistance of counsel.

         3. Failure to Challenge 404(b) Evidence

         Marshall contends that Cooper was ineffective for failing to challenge admission of Fed.R.Evid. 404(b) evidence that he was convicted in 1999 of the sale of a controlled substance, on the ground the court made no finding that the probative value of the evidence outweighed its prejudicial value.[4] Doc. # 1 at 6; Doc. # 2 at 18-22.

         The record reflects that, before ruling that evidence of Marshall's 1999 conviction was admissible, the court heard and weighed arguments from both Cooper and the Government regarding the probity of the conviction and its potential for creating undue prejudice. Doc. # 16-13 at 4-7. By ruling that the evidence was admissible, the court found that the probative value of the evidence outweighed its prejudicial value. Further, on direct appeal, Marshall argued that the district court erred in allowing the Government to introduce evidence of his 1999 conviction, and the Eleventh Circuit held that the district court did not abuse its discretion in admitting the prior conviction. See 611 Fed.Appx. at 966-67. The Eleventh Circuit's opinion indicates that the appellate court considered the court to have assessed the probative versus prejudicial value of the evidence. Id.

         Marshall does not demonstrate deficient performance in Cooper's failure to object to the district court's ruling admitting Marshall's prior conviction based on the argument that the court failed to determine if the probative value of the evidence outweighed its prejudice. Nor does Marshall demonstrate any resulting prejudice from Cooper's failure to object on this ground. Consequently, Marshall is entitled to no relief on this claim of ineffective assistance of counsel.

         4. Right to Testify

         Marshall claims that Cooper rendered ineffective assistance of counsel by failing to advise him of his constitutional right to testify and preventing him from testifying in his own defense. Doc. # 1 at 4 & 8; Doc. # 2 at 23-25. Besides alleging that Cooper never told him he had a right to testify, Marshall maintains that he informed Cooper “he would like to testify, ” but Cooper told him to “just hold on if that's what you want to do” and then did not call him to the stand. Doc. # 2 at 23-24.

         The Sixth Amendment right of a defendant to testify at his criminal trial is both fundamental and personal to him.

Even more fundamental to a personal defense than the right of self-representation, which was found to be “necessarily implied by the structure of the [Sixth] Amendment, ” . . ., is an accused's right to present his own version of the events in his own words. A defendant's opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.

Rock v. Arkansas, 483 U.S. 44, 52 (1987). See also United States v. Teague, 953 F.2d 1525, 1532 (1992). When counsel prevents a defendant from exercising this fundamental right, counsel's actions fall “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688; Gallego v. United States, 174 F.3d 1196, 1197 (11th Cir. 1999). Even in the context of a denial of the right to testify, a defendant who establishes the performance prong of the Strickland analysis must still demonstrate prejudice by showing there is a reasonable probability that the results of the ...


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