United States District Court, E.D. Virginia, Richmond Division.
(DENYING 28 U.S.C. § 2255 MOTION)
HENRY E. HUDSON, District Judge.
Ray Prosise, a federal inmate proceeding pro se, filed this motion under 28 U.S.C. § 2255 ("§ 2255 Motion, " ECF No. 96) to vacate, set aside, or correct his sentence. In his § 2255 Motion, Prosise raises the following grounds for relief:
Claim One: Counsel rendered ineffective assistance when he refused to allow Prosise to testify on his own behalf. (§ 2255 Mot. 4; Mem. Supp. § 2255 Mot. 9-11.)
Claim Two: Counsel rendered ineffective assistance by failing to object to the prosecutor's improper questions to witnesses which deprived Prosise of the presumption of innocence. (§ 2255 Mot. 4; Mem. Supp. § 2255 Mot. 12-13.)
Claim Three: Counsel failed to raise on appeal that insufficient evidence existed to convict Prosise of assault on a federal law enforcement officer. (§ 2255 Mot. 4; Mem. Supp. § 2255 Mot. at 14-17.)
On July 21, 2011, Prosise filed a Motion to Amend ("First Motion to Amend, " ECF No. 101) in which he raises the following claim for relief:
Claim Four: The United States engaged in prosecutorial misconduct by threatening a witness with prosecution if he failed to provide certain testimony. (First Mot. Amend 2.)
The Government has responded. (ECF No. 103.) Prosise has replied. (ECF No. 104.) The § 2255 Motion is ripe for disposition.
I. Procedural History
A grand jury charged Prosise with conspiracy to distribute five kilograms or more of cocaine hydrochloride and fifty grams or more of cocaine base (Count One), possession of a firearm in furtherance of a drug trafficking crime (Count Two), possession of a firearm by a convicted felon (Count Three), assault on a federal officer (Count Four), and use of a communication facility in commission of a felony (Count Seven). (Second Superseding Indictment 1-4, ECF No. 36.) On April 1, 2008, a jury convicted Prosise of all five counts. (ECF No. 64) The Court sentenced Prosise to life plus sixty months in prison. (J. 2, ECF No. 80.) Prosise appealed. The United States Court of Appeals for the Fourth Circuit affirmed the judgment of this Court. United States v. Prosise, 367 F.App'x 423, 425 (4th Cir. 2010).
II. Evidence of Prosise's Guilt
Because several of Prosise's claims necessarily require a review of the evidence presented at trial, the Court now summarizes the evidence of Prosise's guilt. During trial, several cooperating witnesses testified about purchasing cocaine from Prosise. James Phillips testified that he purchased approximately seven grams of cocaine powder from Prosise about seven or eight times (Mar. 31, 2008 Tr. 51) and approximately 12 grams three or four times. (Mar. 31, 2008 Tr. 56.)
James Miles testified that he met Prosise through Javon Lee, an individual through whom he purchased cocaine. (Mar. 31, 2008 Tr. 67-69.) Miles stated that he purchased three grams of cocaine from Lee at least "every other day" for approximately three or four years. (Mar. 31, 2008 Tr. 68.) Miles testified that he began to purchase cocaine from Prosise in 2006. (Mar. 31, 2008 Tr. 67.) Miles first accompanied Lee to Prosise's house to purchase cocaine, and Miles gave Lee money to buy the three grams of cocaine from Prosise. (Mar. 31, 2008 Tr. 71-72.) Lee also purchased a quarter ounce of cocaine using his own money. (Mar. 31, 2008 Tr. 72.) For approximately one month, Miles obtained cocaine from Prosise through Lee at least three times a week. (Mar. 31, 2008 Tr. 73-74.) After that month, Miles began to purchase cocaine from Prosise directly. (Mar. 31, 2008 Tr. 74.)
The first time Miles purchased three grams from Prosise, Prosise took the three gram bag out of a larger bag that contained a kilogram of a combination of powder cocaine and cocaine base. (Mar. 31, 2008 Tr. 74-75.) Miles explained that, generally, he observed Prosise with approximately three kilograms in his possession. (Mar. 31, 2008 Tr. 76.) Miles testified that he purchased three grams of cocaine from Prosise between fifteen and twenty times. (Mar. 31, 2008 Tr. 77.) Other times, Miles would pool his money with Lee and others to buy larger quantities. (Mar. 31, 2008 Tr. 78-79.) On approximately three occasions, he purchased one ounce quantities of cocaine base, and on four occasions, he purchased one ounce quantities of powder cocaine. (Mar. 31, 2008 Tr. 79.) On six or seven occasions, Miles purchased half-ounce quantities of a mix of cocaine base and powder cocaine, and on ten or fifteen occasions, Miles purchased seven gram quantities of an unspecified type of cocaine. (Mar. 31, 2008 Tr. 79-80.) Lee and Prosise discussed cooking the powder cocaine in front of Miles, and after Lee agreed that he knew how to cook powder into cocaine base, Lee and Miles began to purchase only powder cocaine. (Mar. 31, 2008 Tr. 81.) Miles twice observed Prosise sell kilogram quantities of cocaine to other people. (Mar. 31, 2008 Tr. 82-83.) Miles testified that he observed Prosise with a firearm in his car "dozens of times" during drug sales. (Mar. 31, 2008 Tr. 86-87.)
Sean Netzel, a special agent with the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), testified that he and other agents had been investigating Prosise for drug trafficking for "some time." (Mar. 31, 2008 Tr. 147.) Netzel received information from a confidential informant ("CI") that on August 17, 2007, Prosise would be traveling from North Carolina through Emporia with a large amount of cocaine. (Mar. 31, 2008 Tr. 100-01, 151.) The agents received updates about Prosise's whereabouts throughout the night and located Prosise's green Suburban at an address on Mansion Church Road in McKinney. (Mar. 31, 2008 Tr. 101.) Eight or nine undercover vehicles set up surveillance of the house. (Mar. 31, 2008 Tr. 104.)
Prosise left the house driving the green Suburban, and traveled on Lew Jones Road behind a vehicle driven by Special Agent Michael Blackwood, of the Drug Enforcement Administration ("DEA"). (Mar. 31, 2008 Tr. 107-08, 198-99.) Two other vehicles had set up further down the road to create a roadblock, and Special Agent Sean Montgomery began to follow in his vehicle directly behind Prosise. (Mar. 31, 2008 Tr. 107-08, 198-99.) Agent Blackwood activated his lights and siren and slowed down his vehicle before he approached the roadblock vehicles in an effort to make Prosise slow down. (Mar. 31, 2008 Tr. 111, 199.) Prosise began to weave back in forth in the road in an attempt to pass Agent Blackwood's vehicle. (Mar. 31, 2008 Tr. 111, 199-200.) Three officers stood outside of their vehicles fully clothed in police uniforms and vests. (Mar. 31, 2008 Tr. 200.) At this point, three undercover law enforcement vehicles in front of Prosise and two behind had their lights and sirens activated. (Mar. 31, 2008 Tr. 112.)
As Agent Blackwood stopped his car and blocked the road, Prosise appeared to be stopping. (Mar. 31, 2008 Tr. 112, 200.) Prosise instead gunned his engine and smashed into Agent Blackwood's vehicle with Blackwood inside. (Mar. 31, 2008 Tr. 112, 121, 200.) Agent Blackwood then reversed into Prosise's vehicle (Mar. 31, 2008 Tr. 216-17), and Prosise drove over an embankment and into a ditch on the left side of Lew Jones Road. (Mar. 31, 2008 Tr. 112-13, 217.) Prosise began to gun the engine and drive down the ditch. (Mar. 31, 2008 Tr. 112-13.) The ditch ended at a driveway where Officer Michael Talbert stood in front of Prosise's vehicle. (Mar. 31, 2008 Tr. 116-17, 203.) Talbert and another agent wore vests identifying themselves as law enforcement and began to yell at Prosise that they were law enforcement and to exit the vehicle. (Mar. 31, 2008 Tr. 117-19, 203.) Agent Blackwood, believing that Prosise's vehicle was stuck in the ditch (Mar. 31, 2008 Tr. 218), approached the front passenger side of the vehicle. (Mar. 31, 2008 Tr. 204.) Prosise gunned the engine again and the car rose out of the ditch in the direction of Officer Talbert. (Mar. 31, 2008 Tr. 116-17, 203.) Officer Talbert stood with his police vehicle behind him and had no avenue of retreat. (Mar. 31, 2008 Tr. 205.) Officer Talbert fired four rounds at the back rear tire as the vehicle approached him. (Mar. 31, 2008 Tr. 118, 203.) Prosise then turned to the left into the driveway. (Mar. 31, 2008 Tr. 203.)
Prosise continued at a high rate of speed down the gravel driveway into the yard. (Mar. 31, 2008 Tr. 118.) Agents Blackwood and Montgomery pursued Prosise in their vehicles and observed Prosise drive his vehicle into a pond. (Mar. 31, 2008 Tr. 124-25, 207.) While stopped in the pond, Prosise ignored the verbal commands of approximately eight to ten agents, with drawn weapons, to get out of the vehicle. (Mar. 31, 2008 Tr. 125, 127, 208.) Officers then observed Prosise ripping open little plastic bags of white powder and dumping them out his car window. (Mar. 31, 2008 Tr. 208, 211.) Prosise stayed in his vehicle for approximately five minutes until the vehicle began to sink. (Mar. 31, 2008 Tr. 126, 208.) Prosise eventually exited the car and came ashore where officers arrested him. (Mar. 31, 2008 Tr. 127, 209.) After Prosise's arrest, Agent Blackwood took a paddle boat out to the vehicle, and observed approximately ten or twelve bags containing dissolving white powder floating in the water around the vehicle. (Mar. 31, 2008 Tr. 209-11.) A police diver recovered plastic baggies and a.40 caliber Glock pistol with a scope from outside the driver's side of the vehicle. (Mar. 31, 2008 Tr. 128-29.)
A later search of the Mansion Church Road house yielded a digital scale that tested positive for cocaine residue. (Mar. 31, 2008 Tr. 175-76, 182-83.)
Bertha Prosise, Prosise's mother and co-defendant, testified that Prosise called her from jail on August 22, 2007, and asked her to go look in her vehicle, a red Galant, for what she suspected to be drugs. (Mar. 31, 2008 Tr. 230-31.) Bertha Prosise had previously observed her son and Prosise's brother, Trevawn Prosise, remove a white towel in the car, that she believed contained drugs. (Mar. 31, 2008 Tr. 238.) He left with the towel and returned to give her a portion of $4000 to $7000. (Mar. 31, 2008 Tr. 238-39.)
Trevawn Prosise testified that Prosise called him from jail on August 22, 2007 to ask him to look in their mother's car. (Mar. 31, 2008 Tr. 260.) Trevawn Prosise testified that Prosise never told him what he was looking for but "[i]t was wrapped in a towel." (Mar. 31, 2008 Tr. 261.) Trevawn Prosise testified that another person told him that the towel contained drugs. (Mar. 31, 2008 Tr. 262.) Trevawn Prosise testified that he gave the towel to "Bird, " who he "guess[ed]" made his money from selling drugs. (Mar. 31, 2008 Tr. 262.) Bird gave Trevawn Prosise $14, 000 in exchange for the towel. (Mar. 31, 2008 Tr. 266-67.) Trevawn Prosise gave the cash to his mother. (Mar. 31, 2008 Tr. 266-67.) Trevawn Prosise also testified that Prosise made money from selling drugs and had not held a job for "a couple years." (Mar. 31, 2008. Tr. 262-63.) Trevawn Prosise also observed Prosise "cooking crack" on six occasions. (Mar. 31, 2008 Tr. 265-66.)
Michael Matthews was incarcerated with Prosise while Prosise awaited trial. (Mar. 31, 2008 Tr. 274.) Prosise told him about the day of his arrest, including that he had been tipped off that "there [were]... a lot of police around. And there was a roadblock around." (Mar. 31, 2008 Tr. 277.) Prosise told Matthews that "when the police tried to stop him[, ] he didn't stop, he kept going. They banged up the car Tried to shoot at the tires and all that. But he kept going. He drove into a pond." (Mar. 31, 2008 Tr. 277.) Prosise stated that he knew that the people trying to stop him were police, but that he refused to stop because "he was dirty." (Mar. 31, 2008 Tr. 280.) Prosise also told Matthews that he had half a kilogram of cocaine and a.40 caliber Glock that he dumped in the water. (Mar. 31, 2008 Tr. 277-78.) Prosise told Matthews that he had been selling drugs for a long time and "one time" he sold twenty kilograms that he obtained from North Carolina. (Mar. 31, 2008 Tr. 279.) Prosise also stated that agents had searched a car at his mother's home, but failed to find the drugs hidden in it. (Mar. 31, 2008 Tr. 281-82.)
Crystal Cruz testified for the defense that she was babysitting at a home next to Prosise's home on Lew Jones Road the day of his arrest. (Mar. 31, 2008 Tr. 298.) She testified that she saw a car slow down and a man "popped out of the car and started shooting." (Mar. 31, 2008 Tr. 298.) She heard no yelling or sirens and saw no lights, but noticed that the man wore a vest. (Mar. 31, 2008 Tr. 299.) As the green SUV pulled into the driveway, she saw no one standing outside the car except for the man shooting the gun. (Mar. 31, 2008 Tr. 300-01.) She testified that she observed cars pull into the yard, but she observed no markings identifying them as police. (Mar. 31, 2008 Tr. 300.)
III. Alleged Ineffective Assistance of Counsel
To demonstrate ineffective assistance of counsel, a convicted defendant must show first, that counsel's representation was deficient and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, a convicted defendant must overcome the "strong presumption' that counsel's strategy and tactics fall within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ...