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Hollis v. United States

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

January 23, 2019

SHEDRICK D. HOLLIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.

         Before the court is petitioner Shedrick D. Hollis's (“Hollis”) pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. Doc. No. 1.[1]

         I. INTRODUCTION

         In March 2013, a jury found Hollis guilty of two counts of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Counts 1 and 2); one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count 3); and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e) (Count 4). Doc. No. 15-26. After a sentencing hearing on August 6, 2013, the district court sentenced Hollis to 420 months in prison, consisting of concurrent terms of 360 months on Counts 1, 2, and 4 and a consecutive term of 60 months on Count 3. Doc. No. 15-27; Doc. No. 1-7 at 1-2.

         Hollis appealed, arguing that (1) the district court erred in denying his motion to suppress the drug and firearm evidence found in the apartment where he was arrested; and (2) the district court abused its discretion by excluding testimony from the defense's forensic expert regarding the sufficiency of a latent fingerprint for comparison. See Doc. No. 15-29. On March 12, 2105, the Eleventh Circuit issued an opinion affirming Hollis's convictions and sentence. United States v. Hollis, 780 F.3d 1064 (11th Cir. 2015); Doc. No. 15-30. Hollis filed a petition for writ of certiorari in the United States Supreme Court, which that court denied on October 5, 2015. Doc. No. 15-31.

         On May 5, 2016, Hollis filed this § 2255 motion asserting the following claims:

1. His counsel rendered ineffective assistance by failing to (a) investigate the defense's forensic expert to determine if he was qualified as an expert in latent fingerprint analysis; (b) object on Confrontation Clause grounds to testimony by the Government's expert in latent fingerprint analysis; (c) cross-examine the Government's fingerprint expert about deficiencies in the FBI system of fingerprint analysis; and (d) call as a witness a second examiner who analyzed fingerprint evidence in the case.
2. His counsel rendered ineffective assistance by failing to (a) object to the § 924(c) count in the indictment on grounds that (i) it was duplicitous, and (ii) it did not include as an element that the firearm possession had to be in furtherance of, or in aid of, the drug trafficking crime; and (b) object to the district court's jury instruction on the § 924(c) count on grounds that (i) it criminalized two separate offenses, and (ii) it did not inform the jury that the firearm possession had to be in aid of the drug trafficking crime.
3. His counsel rendered ineffective assistance by failing to (a) move to suppress the seized evidence on grounds that law enforcement conducted an unlawful search incident to arrest under the standard of Chimel v. California, 395 U.S. 752 (1999), and for failing to request a suppression hearing on this same theory; (b) move to suppress on grounds that the evidence was fruit of the poisonous tree obtained through police misconduct; and (c) file a motion in limine or to suppress the drug evidence on grounds it was mishandled by law enforcement.
4. His counsel rendered ineffective assistance by failing to impeach various witnesses regarding inaccuracies, conflicts, and inconsistencies in their testimony.
5. His counsel rendered ineffective assistance by failing to have the drug evidence reweighed and reanalyzed.
6. His counsel rendered ineffective assistance by failing to request a jury instruction on possession of small amounts of a controlled substance under 21 U.S.C. § 844(a) and allowing the court to instruct the jury on a § 841(a)(1) offense.
7. His counsel at his first trial was ineffective for requesting a mistrial.
8. His counsel rendered ineffective assistance by failing to request a reduction in his offense level based on acceptance of responsibility under U.S.S.G. § 3E1.1.
9. His counsel rendered ineffective assistance by failing to argue he was actually innocent of all criminal conduct except for possession of marijuana.
10. His counsel rendered ineffective assistance by failing to argue that his prior drug convictions could not be used to enhance his sentence under the career offender guideline and under the Armed Career Criminal Act.
11. His counsel rendered ineffective assistance by failing to request a two-level reduction to his offense level based on Amendment 782 to the Sentencing Guidelines.
12. His appellate counsel rendered ineffective assistance by failing to (a) raise various claims of ineffective assistance of trial counsel; (b) pursue the issue that the district court abused its discretion by excluding testimony from the defense's forensic expert regarding the sufficiency of a latent fingerprint for comparison; and (c) argue that the evidence was insufficient to sustain his convictions.

Doc. No. 1 at 4-10; Doc. No. 1-1 through 1-3; Doc. No. 2 at 2-20.[2]

         For the reasons that follow, the court concludes that Hollis's § 2255 motion should be denied without an evidentiary hearing and this action be dismissed with prejudice. Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts.[3]

         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 will “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).

         A criminal defendant's right to effective assistance of counsel continues through direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Ineffective assistance of appellate counsel may be shown if the movant can “establish . . . that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker[.] Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).

         1. Ineffective-Assistance Claims Related to Fingerprint Analysis

         a. Failure to investigate defense's own expert

         Hollis claims his trial counsel was ineffective for failing to investigate the defense's forensic expert to determine if he was qualified as an expert in latent fingerprint analysis. Doc. No. 1 at 4; Doc. No. 2 at 2-5.

         In a search of the apartment where Hollis was arrested, officers discovered about a pound of cocaine, large amounts of marijuana, crack cocaine, ecstasy, scales, and about $5, 000 in cash. One scale had a latent fingerprint on it attributed to Hollis by the Government's expert in latent fingerprint analysis. Hollis's counsel hired a forensic expert, Lawden Yates, Jr., with the purpose of presenting testimony from Yates that the latent fingerprint found on the scale was not sufficiently clear for examination and comparison. As summarized by the Eleventh Circuit in its opinion in Hollis's direct appeal:

Before trial, the government moved to exclude the testimony of Hollis's fingerprint expert, Lawden Yates, Jr. The government requested a hearing to confirm Yates's qualifications under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court held a hearing and ruled that Yates could not testify “as to fingerprint comparison.” But the district court reserved judgment on whether Yates could testify about whether the latent fingerprint was of sufficient quality to make a comparison. Yates later testified that there “shouldn't be any” difference between the expertise required to compare fingerprints and the expertise used to judge the sufficiency of a latent fingerprint for comparison. He also testified that when in doubt, a technician should send a print to the laboratory to see if an identification can be made. Because the district court had already ruled that Yates was not qualified to testify about fingerprint comparisons and the same expertise was required to judge the sufficiency of a latent print for comparison, the district court ruled that Yates could not testify about the sufficiency of the print taken from the scale.

United States v. Hollis, 780 F.3d 1064, 1067 (11th Cir. 2015).

         In an affidavit addressing Hollis's present claim of ineffective assistance, Hollis's trial counsel Richard M. Kemmer, Jr. avers:

I employed Lawden Yates as an expert to assist me in the trial of the Hollis case. Mr. Yates is the former lab director for the Alabama Department of Forensic Sciences and was familiar with the general science of fingerprint analysis. I did not have the funds to employ fingerprint analysts to assist me in this trial. Mr. Yates was primarily an expert regarding firearms, and the fact that no prints were found on the firearms seized from the residence was a main point in our defense. I fully investigated Yates and he came highly recommended from other criminal defense lawyers within the state. He has since assisted me in two major felony trials, one of which resulted in an acquittal based primarily upon Mr. Yates' testimony.
The issue regarding the court disallowing Yates' testimony was appealed to the Eleventh Circuit Court of Appeals and the Appeals Court affirmed the ruling of [District Court] Judge Watkins.
I was not aware as trial counsel, nor was Mr. Shelnutt, [4] of any additional fingerprint experts who were willing to assist Mr. Hollis.
It should be noted that Mr. Yates provided valuable insight and support which allowed me to cross-examine the government expert with regard to fingerprint analysis.

Doc. No. 4 at 1-2 (numbering of paragraphs omitted; footnote added).

         Hollis does nothing to substantiate his cursory allegation that his counsel failed to investigate Yates to determine if he was qualified as an expert in latent fingerprint analysis. That the district court ultimately ruled that Yates was not qualified to testify about the sufficiency of the latent fingerprint for comparison does not establish that Hollis's counsel performed unreasonably in attempting to use Yates-a forensic scientist familiar with the general science of fingerprint analysis-as an expert in the field, particularly when there appeared to be no other experts willing to testify that the latent print was insufficient to be used for comparison. Moreover, Hollis identifies no other expert who would have testified that the fingerprint found on the scale was insufficiently clear for purposes of comparison, or who would have testified that the fingerprint on the scale attributed to Hollis by the Government's expert was not actually Hollis's.

         Hollis has not shown that his counsel's representation “fell below an objective standard of reasonableness, ” Strickland, 466 U.S. at 689, or that there is a reasonable probability that “but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different, ” id. at 694. Consequently, he is entitled to no relief on this claim of ineffective assistance of counsel.

         b. Failure to object to Government's fingerprint expert on Confrontation Clause grounds

         Hollis contends that his trial counsel was ineffective for failing to object on Confrontation Clause grounds to testimony by Joe Maberry, the Government's expert in latent fingerprint analysis. Doc. No. 1 at 5; Doc. 1-1; Doc. No. 2 at 5-6. He also argues that his appellate counsel was ineffective for failing to raise this issue on appeal. Id.

         Maberry, a senior fingerprint specialist with DEA South Central Laboratory in Dallas, Texas, testified at trial that he found Hollis's right thumbprint on one scale seized during a search of the residence where Hollis was arrested. According to Hollis, Maberry's testimony should have been challenged on Confrontation Clause grounds because, he says, Maberry did not actually conduct the comparison analysis that determined that Hollis's print was found on the scale. Hollis maintains that another fingerprint analyst, who was not called to testify, conducted the comparison.

         Hollis's claim notwithstanding, testimony at trial established that Maberry-and not another fingerprint analyst-conducted the comparison analysis that determined it was Hollis's print on the scale. See Doc. No. 16-4 at 107-18. Thus, there is no merit to Hollis's claim that his trial counsel was ineffective for failing to challenge Maberry's testimony on Confrontation Clause grounds. For the same reasons, Hollis cannot show that his counsel was ineffective for failing to raise this issue on appeal.

         c. Inadequate cross-examination of Government's fingerprint expert

         Hollis argues that his trial counsel was ineffective for failing to cross-examine Maberry about deficiencies in the FBI's ACE-V system of fingerprint analysis. Doc. No. 2 at 4 & 6. The record, however, reflects that Hollis's counsel thoroughly questioned Maberry about flaws in the FBI system of print analysis, pointing out specific mistakes made in other cases. See Doc. No. 15-23 at 35-43. Hollis presents nothing to suggest what additional cross-examination of Maberry about these matters would have yielded beneficial to his defense.

         Where a court can only speculate on whether the outcome of a proceeding would have been different had defense counsel conducted further cross-examination of a witness, there is an insufficient showing of prejudice under Strickland. See Poindexter v. Mitchell, 454 F.3d 564, 572-73 (6th Cir. 2006). Hollis proves neither deficient performance nor prejudice. He is entitled to no relief on this claim.

         d. Failure to call second analyst as witness

         Hollis contends that his trial counsel was ineffective for failing to call as a witness a second forensic examiner who analyzed fingerprint evidence. Doc. No. 1-1; Doc. No. 2 at 5-7.

         The Government's expert, Maberry, testified that a second analyst with the DEA tested other scales seized after Hollis's arrest, which were not tested by Maberry, and found no latent fingerprints on those scales. Doc. No. 15-23 at 27. This testimony indicated that Hollis's fingerprint was found only on the scale tested by Maberry. Hollis suggests nothing about which the uncalled second analyst might have testified that was not made known to the jury through Maberry's testimony. Hollis proves neither deficient performance by counsel in failing to call the second analyst to testify nor prejudice resulting from counsel's actions. Therefore, he is entitled to no relief on this claim of ineffective assistance of counsel.

         2. Ineffective-Assistance Claims Related to § 924(c) Count

         a. Section 924(c) count (Count 3) in indictment.

         Hollis claims his trial and appellate counsel were ineffective for failing to object to the § 924(c) count (Count 3 in the indictment) on grounds that (i) it was duplicitous (Doc. No. 2 at 19-20; Doc. 23 at 5-8); and (ii) it did not include as an element that the firearm possession had to be ...


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