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Marshall v. United States

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

June 29, 2018

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

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE

         On May 21, 2018, the Magistrate Judge filed a Recommendation that Petitioner Robert Marshall's 28 U.S.C. § 2255 motion be denied. (Doc. # 42.) Petitioner timely filed objections. (Doc. # 31.) The court has conducted an independent and de novo review of those portions of the Recommendation to which objection is made. See 28 U.S.C. § 636(b). The court finds that the objections are due to be overruled and that the Recommendation is due to be adopted.

         I. FACTS

         On May 9, 2012, Petitioner Robert Marshall was indicted along with eleven other defendants, all of whom were charged with conspiracy to distribute or to possess with intent to distribute 5 or more kilograms of powder and crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Doc. # 1 in United States v. Bledson, et al., No. 2:12-cr-87-WKW.) On August 9, 2012, a superseding indictment was filed. Count 1 of the superseding indictment charged Petitioner and the other defendants with conspiracy to distribute 5 or more kilograms of powder and crack cocaine. The superseding indictment added numerous other counts, including Count 20, which charged Petitioner and codefendant Delmond Lamar Bledson with using a cellular telephone on or about April 2, 2012, to commit or facilitate the conspiracy alleged in Count 1, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. (Doc. # 201 in United States v. Bledson, et al., No. 2:12-cr-87-WKW.)

         At trial, on Count 1 of the superseding indictment, the jury convicted a number of Petitioner's codefendants of conspiracy to distribute or possess with intent to distribute 5 or more kilograms of cocaine. However, on Count 1, the jury convicted Petitioner only of the lesser included offense of conspiracy to distribute or possess with intent to distribute 500 grams or more of cocaine powder. The jury also convicted Petitioner on Count 20. (Doc. # 528 in United States v. Bledson, et al., No. 2:12-cr-87-WKW.)

         It is not disputed that Defendants Bledson and Willie Jerome Davis were large-scale distributors of cocaine in Montgomery, Autauga, and Elmore counties, Alabama, who generally maintained separate supply sources from each other, but who purchased cocaine from each other when their own supplies were low. At trial, Defendant Rajneesh Dikka Daniels testified that she used her apartment to receive, break down, weigh, repackage, and distribute over 50 kilograms of cocaine for Davis. Daniels knew Petitioner Marshall because she was his cousin. Daniels also testified that, on at least ten occasions since 2009, she delivered two 125 gram packages of cocaine to Petitioner. Therefore, per Daniels's testimony, she sold at least 2, 500 grams of cocaine to Petitioner on Davis's behalf between March 2009 and May 2012. (Doc. # 16-7 at 52.) Unlike Daniels's other purchasers, including Defendant Bledson, [1] Petitioner did not arrange the drug purchases through Davis. Instead, he contacted Daniels directly. For each sale, Daniels would personally deliver the cocaine to Petitioner at his house or apartment; Petitioner would pay Daniels for the drugs; and Daniels would later give Petitioner's money to Davis. (Doc. # 16-7 at 52.)

         At trial, Bledson testified that he also sold cocaine to Petitioner. Through testimony of Bledson and Defendant Tony Gardner, as well as through audio recordings of telephone calls and video recordings of the event, the Government presented evidence that, on March 31, 2012, in a meeting Gardner had arranged, [2] Bledson met Petitioner for the first time to sell Petitioner 62 grams of cocaine in exchange for $2, 150.00 in cash. (Doc. # 16-10 at 4-9, 49-50.) The March 31, 2012 sale took place at a Pizza Hut in Millbrook, Alabama. (Doc. # 16-10 at 4-9.) In conjunction with the March 31, 2012 cocaine sale, Gardner collected $50 “for [his] time.” (Doc. # 16-10 at 50.)

         Two days later, on April 2, 2012, Petitioner contacted Bledson by telephone to arrange another purchase of cocaine. Although the attempted cocaine purchase failed, Petitioner gave Bledson his telephone number so that Bledson could contact Petitioner directly in the future when he had cocaine to sell to Petitioner. (Doc. # 16-10 at 9-10.)

         II. DISCUSSION

         Upon a de novo review of the record, the court finds that the portions of the Recommendation to which objections have been made are free from factual and legal error and that the Recommendation is due to be adopted.

         For the most part, Petitioner's objection merely restates arguments that were adequately and correctly addressed in the Recommendation. However, further discussion is warranted with respect to one potentially significant argument raised by Petitioner that is not a mere reassertion of matters already fully addressed in the Recommendation.[3] Specifically, Petitioner argues that the Magistrate Judge erred in denying him an evidentiary hearing to resolve factual conflicts between Petitioner's affidavit and that of his counsel. The affidavits conflict as to (1) whether Petitioner told his counsel that he wished to present a defense that he purchased the powder cocaine to support his own drug habit and to share with his friends, and (2) whether Petitioner's counsel failed to adequately advise him of his right to testify that the drugs he purchased were for his own personal use and for distribution to his friends. It is undisputed that Petitioner's counsel did not present the allegedly requested defense. Petitioner did not testify.

         Ordinarily, when a habeas petitioner and his counsel have filed conflicting, nonconclusory affidavits that create a credibility issue for determination, an evidentiary hearing is appropriate to resolve the conflict. See Blackledge v. Allison, 431 U.S. 63, 82 n.25 (1977) (“When the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive, but that is not to say they may not be helpful.” (citation and internal quotation marks omitted)); Rizo v. United States, 446 Fed.Appx. 264, 265 (11th Cir. 2011) (“[C]ontested fact[ual] issues in § 2255 cases must be decided on the basis of an evidentiary hearing, not affidavits.” (quoting Montgomery v. United States, 469 F.2d 148, 150 (5th Cir. 1972)).[4] Because of the conflicting affidavits, the Government conceded that Petitioner was entitled to an evidentiary hearing as to whether his counsel was ineffective in failing to properly advise him as to his right to testify. (Doc. # 16 at 58-59.) See Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (“[I]f the petitioner ‘alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim.'” (quoting Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 1989)).

         In this case, however, despite the conflicting affidavits and the Government's concession, an evidentiary hearing is not necessary to resolve the petition because, even if the assertions in Petitioner's affidavit are true, he is not entitled to relief. Hembree v. United States, 307 Fed.Appx. 412, 424 (11th Cir. 2009) (“Because [the petitioner] has not established that an evidentiary hearing would alter the analysis of his § 2255 motion, the district court did not abuse its discretion in denying such relief.”). To prevail on a claim of ineffective assistance of counsel, including failure to properly advise as to the right to testify, a habeas “petitioner must establish [(1) that] his or her counsel's representation fell below an objective standard of reasonableness, and (2) but for the deficiency in representation, a reasonable possibility exists that the result of the proceedings would have been different.” Fishbone v. Sec'y for Dep't of Corr., 165 Fed.Appx. 800, 801 (11th Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The conflicts between the affidavits pertain solely to the first requirement because those conflicts concern whether Petitioner's counsel rendered objectively unreasonable assistance by either (1) failing to present the defense that Petitioner purchased drugs for his ow n personal use and distribution to friends, or (2) failing to adequately advise Petitioner of his right to testify in order to present that same defense. Petitioner has failed to satisfy the second requirement: He has not demonstrated a reasonable possibility that, if he had testified regarding that defense or if his counsel had presented that defense to the jury, the outcome of the case would have been different.

         A conspiracy requires “(1) an agreement to achieve unlawful activity; (2) the defendants' knowing and voluntary participation in the conspiracy; and (3) the commission of an act in furtherance of the agreement.” United States v. Yarbrough, 260 Fed.Appx. 230, 234 (11th Cir. 2008) (quoting United States v. Brenson, 104 F.3d 1267, 1281-82 (11th Cir. 1997)). The agreement between the conspirators must have as its object the commission of an act made unlawful by the narcotics laws. United States v. Dekle, 165 F.3d 826, 829 (11th Cir. 1999). An agreement to sell or purchase drugs cannot, in and of itself, constitute a conspiracy, “for it has no separate criminal object.” Id. There must be ...


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