United States District Court, W.D. Virginia, Abingdon Division
Jordan E. McKay, Special Assistant United States Attorney, Charlottesville, Virginia, for United States; Charles Jermaine King, Pro Se Defendant.
JAMES P. JONES, District Judge.
Defendant Charles Jermaine King filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, alleging several grounds for relief, including his classification as a career offender and ineffective assistance by counsel at trial and on appeal. The United States responded, requesting that the motion be denied and King has replied, making the issues ripe for disposition. After review of the record, I will deny the defendant's 2255 motion.
A grand jury of this court returned a twelve-count Indictment charging King and fifty other persons with conspiracy to possess with intent to distribute and to distribute 50 grams or more of cocaine base and 500 grams or more of cocaine (Count One) (Case No. 1:08CR00024). King was represented by court-appointed counsel, Thomas E. Wray. On September 12, 2008, I dismissed the Indictment as to King without prejudice after the government conceded violations of King's rights under the Interstate Agreement on Detainers ("IAD").
On September 24, 2008, the grand jury returned a new Indictment against King, charging him with conspiracy to possess with intent to distribute and to distribute 50 grams or more of cocaine base. King twice moved unsuccessfully to dismiss this Indictment, first on double jeopardy grounds and later, after attorney David S. Saliba had been appointed his counsel in December of 2008, on the ground that coconspirator Paul Vaughn had recanted his prior testimony about the conspiracy.
B. THE TRIAL.
King, Reginald Darwin Morton, and Tyson Anderson were tried together before a jury on May 26-29, 2009, on the conspiracy charges contained in King's second Indictment and the original Indictment in Case No. 1:08CR00024. On appeal, the Fourth Circuit summarized the trial evidence as follows:
Morton and King were involved in a large drug trafficking conspiracy which operated in the Bristol, Virginia area. The conspiracy was orchestrated in large part by Derrick Evans, Kerry Lee, Bryant Kelly Pride, and Oedipus Mumphrey, all of whom were affiliated with Evans' music label, "Kan't Stop Records." Evans, Lee, Pride, and Mumphrey recruited several other participants, including Morton and King, to help sell cocaine and crack from area hotels, mobile homes, and locations controlled by Evans.
Morton's involvement began in April 2006 when he traveled to Bristol with Mumphrey to sell between 500 and 1, 000 grams of cocaine. Thereafter, Morton continued to sell crack cocaine to Bristol residents, several of whom testified against him at trial. The evidence also showed that Morton was present when Bristol police officers discovered baking soda, a hot plate, and other equipment used to prepare crack cocaine in a vehicle belonging to one of Mumphrey's associates.
King's involvement was of a similar nature. He purchased large quantities of crack cocaine from Lee and Pride and then resold the drugs to third parties. At least six individuals testified that they bought crack cocaine from King, often on a recurring basis. One of these individuals executed a controlled purchase of crack cocaine from King in April 2007, which ultimately led to King's arrest and conviction in state court. Other witnesses linked King to Kan't Stop Records and several key members of the conspiracy, including Pride and Mumphrey.
United States v. Morton, 443 F.Appx. 775, 777 (4th Cir. 2011) (unpublished), cert. denied, 133 S.Ct. 220 (2012).
On May 29, 2009, the jury found that King was guilty of the drug trafficking conspiracy and should be held accountable for "[l]ess than 50 grams but at least 5 grams" of cocaine base. (Verdict Form, ECF No. 104.)
As charged by the government in a Sentencing Enhancement Information (ECF No. 24) and admitted by King at sentencing, King had four prior North Carolina convictions for drug trafficking crimes, one in 1993 and three in 1998. The 1998 convictions all resulted in sentences of less than one year of incarceration, and the 1993 conviction (for conspiracy to sell or deliver cocaine and possession with intent to sell or deliver cocaine) resulted in a sentence of two years imprisonment, with execution suspended and placement on three years of supervised probation. (Gov't Ex. 1, Oct. 19, 2009, ECF No. 134-1.)
As a result of these prior convictions, King faced a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B), as well as a Career Offender enhancement under U.S. Sentencing Guidelines Manual ("USSG") § 4B1.1. At the sentencing hearing, although King's attorney Saliba did not object to the Career Offender finding, he argued that because King received "sentences shorter than one year" for his North Carolina convictions, "[t]o preserve the record for appeal, [King] would object to the court's consideration of those convictions as felony convictions." (Tr. 7-8, Oct. 19, 2009, ECF No. 221.) I overruled the objection under the then-controlling precedent, United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005) (finding that prior North Carolina conviction was for a crime punishable by imprisonment for a term exceeding one year if any defendant charged with that crime could receive a sentence of more than one year).
Attorney Saliba also challenged the PSR's finding that King should be accountable for 419.8 grams of crack cocaine, resulting in a Base Offense Level of 32. Because I found that King was properly considered as a Career Offender, I ruled that it was "not necessary for me to determine the quantity of drugs attributable to [King] in order to calculate the proper guideline range." (Tr. 33, Oct. 19, 2009, ECF No. 221.) As a Career Offender, King had a Total Offense Level of 37 and a Criminal History Category of VI, which translated to an advisory custody range of 360 months to life in prison.
The government argued for a sentence within the guideline range, given King's criminal history and his level of involvement in and profit from the drug conspiracy. Saliba requested a sentence below that range to the mandatory minimum of 10 years, based upon the jury's drug amount finding and a comparison to the coconspirators' sentences. I varied downward from the Career Offender guideline range and sentenced King to 180 months in prison. I also directed that his sentence run concurrently with a 35-month Virginia drug trafficking sentence imposed in March of 2008.
D. POSTJUDGMENT PROCEEDINGS.
King and Morton both appealed, and the two appeals were consolidated by the court of appeals. On King's behalf, Saliba argued that this court had erred in failing to dismiss the first Indictment with prejudice and in failing to dismiss the second Indictment based on Vaughn's allegedly false grand jury testimony; in denying a change of venue; and in denying judgment of acquittal based on alleged insufficiency of the evidence. Morton, 443 F.Appx. at 779-80. Morton's appellate counsel argued, among other things, that Morton's prior North Carolina drug offense did not qualify as a felony predicate to increase his mandatory minimum sentence under § 841(b)(1)(A) because the offense was not punishable by any more than 10 months' imprisonment. Saliba did not raise a similar appellate challenge concerning the use of King's prior North Carolina offenses to determine that he was a Career Offender.
On August 18, 2011, the court of appeals denied relief as to King's claims. The court expressly found that "the petit jury's guilty verdict, which was not based on any testimony from Vaughn, as he did not testify at [King's] trial, rendered any error in the grand jury proceeding connected with the charging decision... harmless beyond a reasonable doubt.'" Morton, 443 F.Appx. at 778 (quoting United States v. Mechanik, 475 U.S. 66, 70 (1986)). The court reversed the judgment as to Morton, however, and remanded his case for resentencing in light of its day-old decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). 443 F.Appx. at 780.
King learned in January of 2012 that Saliba had not filed a petition for rehearing or a petition for a writ of certiorari on King's behalf. In February of 2012, King filed in the court of appeals a pro se Motion to Recall the Mandate. According to King, after Morton's case had been remanded for resentencing under Simmons, Saliba "assured that he would include the Simmons [challenge to King's Career Offender designation] in a Rehearing Petition or petition for writ of Certiorari, " but failed to do so. (2255 Mem. Ex. I-1, at 5-6, ECF No. 206-14.)
Saliba filed a response to King's pro se motion, stating that King had no valid Simmons claim under § 841(b)(1)(B), because he had one prior conviction for which he had been sentenced to more than one year. Saliba also moved to withdraw as counsel. The government then filed a brief, arguing that a recall of the mandate was not warranted because Saliba had not "conceded" that King asked him to seek certiorari and that valid tactical arguments existed in favor of foregoing such review. ( Id. Ex. I-4, at 2.) The government asserted, however, that "since the predicate offenses resulting in career offender status under U.S.S.G. § 4B1.1 no longer qualify as felonies [in light of Simmons ], it appears King was incorrectly characterized as a career offender for Guideline purposes." ( Id. at 1.) However, on April 4, 2012, the court of appeals issued an order stating that "[u]pon consideration of submissions relative to the motion to recall the mandate, the court denies the motion." ( Id. Ex. I-5.)
On June 6, 2012, King filed a pro se petition for a writ of certiorari. By letter dated June 13, 2012, the clerk of the Supreme Court informed King that his petition had been docketed with "a notation as to its untimeliness, " because the petition had been due on November 16, 2011. ( Id. Ex. H-3, ECF No. 206-13.) The Supreme Court ultimately denied the petition. King v. United States, 133 S.Ct. 220 (2012).
E. 2255 CLAIMS.
In his § 2255 motion as supplemented by his later submissions,  King asserts repetitive, haphazardly numbered and unnumbered claims for relief. For clarity's sake, I will refer to and address his allegations under three general headings: court error (Claim A), prosecutorial misconduct (Claim B), and ineffective assistance of counsel (Claim C), and assign numbers to individual subclaims.
King's Claim A includes allegations that the court erred by: (1) calculating King's advisory guideline range under the Career Offender provision, in violation of Simmons; (2) denying King's Fifth Motion for Continuance filed so that Saliba could interview codefendant Paul Vaughn; (3) denying King favorable witnesses in his defense; (4) submitting the case to the jury using a defective verdict form which included a drug amount option that did not apply to King; (5) engaging in ex parte communications with jurors regarding the amended verdict form and jurors' request for certain pieces of evidence; and (6) exhibiting racial bias against King.
Claim B alleges that the prosecutor committed misconduct by (1) eliciting testimony from Nicole Perez about her prior interactions with government officials that he knew to be false; (2) eliciting testimony from Perez that conflicted with her earlier out-of-court statements; (3) improperly vouching for and bolstering Oedipus Mumphrey's credibility; and (4) stating facts not in evidence during closing argument.
In Claim C, King alleges various acts of ineffective assistance by attorney Wray (pretrial) and attorney Saliba (before, during and after trial).
King has also filed several motions regarding discovery, expediting disposition of certain claims, and appointment of counsel. I do not find that the pendency of these motions, which I will address separately, affects the ripeness of his present claims for consideration.
A. CLAIMS A AND B.
A collateral attack under § 2255 may not substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982). Claims that could have been, but were not, raised on direct appeal are procedurally barred from review under § 2255, unless the defendant demonstrates cause for his default and actual prejudice or demonstrates a miscarriage of justice because he is actually innocent. See Bousley v. United States, 523 U.S. 614, 622 (1998). To establish actual prejudice in this context, the defendant must show that the errors he alleges caused not just the "possibility of prejudice"; he must show that they "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Fraley, 456 U.S. at 170. This prejudice standard is a "significantly higher hurdle than would exist on direct appeal" under the plain error standard. Id. at 166 (footnote omitted).
King did not raise Claims A (court errors) and B (prosecutorial misconduct) on direct appeal. Therefore, they are procedurally defaulted from federal habeas review, unless he demonstrates cause and prejudice or a miscarriage of justice. King argues that he can establish ineffective assistance of counsel as cause to excuse his default of all claims of court error and prosecutorial misconduct. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000). If King fails to establish actual prejudice resulting from these alleged errors, I need not determine whether he has shown adequate cause for the defaults. Frady, 456 U.S. at 168.
1. Actual Prejudice.
I agree with the government that, given the strength of the evidence against King, the errors he alleges in Claims A(2) through A(6) and B lack the scope necessary to infect the entire trial with error as required to show actual prejudice under Frady. In addition, several of these errors have no factual basis in the record. Because I find that King fails to establish actual prejudice resulting from these alleged errors, I need not determine whether he has shown adequate cause for the defaults. Id.
The errors King alleges in Claims A(2)-(6) did not infect his entire trial. King and his attorney had ample time to prepare his defense without the fifth continuance he requested. Moreover, King has not offered evidence that his inability to interview Vaughn before trial or to call him and other recanting codefendants as defense witnesses deprived King of credible, exculpatory evidence or otherwise caused him any prejudice. Indeed, after conducting an evidentiary hearing on the issue of Vaughn's credibility, I noted "abundant corroboration of [Vaughn's] deep involvement in this conspiracy" and found that much of his post-recantation testimony was "simply preposterous [and] incredible on its face." (Tr. 106, Aug 4, 2009, Case No. 1:08CR00024, ECF No. 2479.)
I also cannot find any likelihood that King was prejudiced by the defect in the initial verdict form provided to jurors. This form included an option for the jurors to state whether 500 grams or less of cocaine was attributable to King, a charge not made against King in his second Indictment. On the corrected verdict form, the jury found King guilty of distributing less than 50 but at least 5 grams of cocaine base. Indeed, the jurors' finding reflects that they were not adversely influenced by the higher amount of cocaine listed on the initial verdict form. Similarly, King has not shown that I influenced the jury against King's case in any way by correcting the verdict form and providing it to jurors outside the defendant's presence. United States v. Parsons, 993 F.2d 38, 41-42 (4th Cir. 1993) ("Even if [defendant's] right of presence was violated, reversal is not required unless the error was harmful.")
Finally, I find no factual basis for King's Claim A(6) that I showed racial bias against him. In denying his request to call the recanting codefendants as defense witnesses against his counsel's advice, I was merely applying established law. See, e.g., Sexton v. French, 163 F.3d 874, 887 (4th Cir. 1998) ("The decision concerning what evidence should be introduced [in criminal trial proceedings] is best left in the hands of trial counsel, and reasonable tactical decisions by trial counsel in this regard are binding on the defendant."). Moreover, as already discussed, given the compromised credibility of these witnesses, I cannot find that King's inability to present their testimony harmed his defense in any respect.
Similarly, King does not show actual prejudice he suffered from the prosecutorial misconduct alleged in Claim B. The testimony of Perez and Mumphrey was not the only evidence offered during the government's case to establish that King was involved in the Kan't Stop Records drug conspiracy and that he regularly sold crack cocaine. Kerry Lee, the main supplier of cocaine to Derrick Evans, testified that King had purchased distribution amounts of crack cocaine from Lee and from Bryant Pride. Susie Garrett and Tim Norton testified that they purchased crack from King, and Tammy Stallworth testified that she had bought crack from King and knew him to sell drugs. Their testimony about King's drug dealing was corroborated by the controlled purchases of crack cocaine from King to which he had pleaded guilty. All of these witnesses testified about pleading guilty and cooperating with the government in the hope of a less severe ...