United States District Court, W.D. Virginia, Charlottesville Division
GLEN E. CONRAD, Chief District Judge.
Dewayne Roy Wilson, a federal inmate proceeding pro se, has moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has filed a motion to dismiss, and Wilson has responded, making this matter ripe for consideration. Upon review of the record, the court concludes that Wilson's claims lack merit and that the government's motion to dismiss must be granted.
On December 12, 2012, a grand jury charged Wilson and a codefendant in a four-count superseding indictment with: (1) conspiring to distribute one hundred grams of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 846; (2) distributing a mixture or substance containing a detectable amount of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C); (3) possessing with intent to distribute a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C); and (4) possessing with intent to distribute a mixture or substance containing a detectable amount of cocaine base (or "crack"), in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C).
On February 15, 2013, Wilson's counsel filed a motion to suppress, claiming that Wilson had been arrested without a warrant and without probable cause. The motion was not accompanied by a memorandum in support. On March 11, 2013, the court held a hearing on the motion. A detective testified that a confidential informant had made a controlled drug buy from Wilson on September 26, 2012 and that on October 24, 2012, Joseph Walker, a different confidential informant, set up another controlled drug buy from Wilson. Police arrested Wilson without a warrant after Walker identified him at the gas station where the second controlled buy was to take place. A video-camera at the convenience store filmed the arrest. Defense counsel cross-examined the detective and elicited testimony that the police did not see any drugs or weapons on Wilson or witness him committing any illegal activity before arresting him. The court denied the motion, concluding that probable cause existed to arrest Wilson without a warrant based on the police's prior contact with Wilson involving drug sales and the fact that Walker identified Wilson as the intended seller when he arrived at the designated location for the controlled buy. (Evid. Hearing at 40-41, ECF No. 135.)
On May 7, 2013, Wilson proceeded to trial. During its case-in-chief, the government presented testimony from Jonathan Hartline, who stated that he frequently bought heroin from Wilson and, on three separate occasions, had purchased heroin from Wilson for someone who turned out to be a confidential informant for the government. (Tr. Trans. at 27-28, 33, ECF No. 122.) Wilson's counsel cross-examined Hartline, underscoring inconsistencies between his testimony and prior statements he had made to police regarding the quantity of drugs that he had bought from Wilson. (Id. at 56.) In addition, counsel highlighted that Hartline was hoping to receive a reduced sentence as a result of testifying. (Id. at 61.) The government also presented testimony from numerous officers involved in the investigation of Wilson. Tim Aylor, a sergeant with the Albemarle County Police Department, testified that he drove Walker, the confidential informant, to the gas station for the second controlled buy. (Tr. Trans. at 51, ECF No. 123.) Aylor testified that Walker identified Wilson, and Aylor relayed that information to the officers who arrested Wilson. In addition, the government presented testimony from three forensic scientists who tested and weighed the drugs attributed to Wilson. Defense counsel cross-examined two of them rigorously to highlight the margin of error inherent in the weighing process.
Finally, Ashley Powell, Wilson's girlfriend and codefendant, testified that she accompanied Powell during both controlled buys; her five-year-old son was also present during the first controlled buy; and that she used Wilson's phone and rented cars for him with money that he provided to her. (Tr. Trans. at 3, 10 ECF No. 123.) Powell testified that Wilson gave her money to rent a storage unit, where he stored a cardboard box that was later discovered to contain heroin and crack. (Id. at 30-31.) She testified that they went to the storage unit, and then drove to the gas station where Wilson had arranged to meet Walker. (Id. at 39). Defense counsel did not cross-examine Powell. (Id. at 48.)
Following the government's case, defense counsel moved for judgment of acquittal, arguing that the government had presented insufficient evidence of a conspiracy and that even if a conspiracy did exist, the evidence did not establish that it involved 100 grams of heroin. (Id. at 130.) The court denied the motion, concluding that the government had made out a case sufficient to go to the jury as to the conspiracy and the threshold quantity required under Count One. (Id. at 133.).
The jury returned a guilty verdict on all four counts. In anticipation of sentencing, the Probation Department prepared a presentence investigation report ("PSR"). It provided for a total offense level of 30, which included two enhancements: a two-level enhancement for maintaining a premises for the purpose of manufacturing and distributing a controlled substance, pursuant to USSG § 2D1.1(b)(12); and a two-level enhancement for being an organizer or leader in the conspiracy, pursuant to USSG § 3B1.1(c). (PSR at ¶¶ 22, 24, 29, ECF No. 130.) The PSR also provided for a criminal history category of VI, resulting in a guideline range of 168 to 210 months' imprisonment. (Id. at ¶ 75.)
Defense counsel filed objections to the enhancements but later withdrew them. (Sent. Tr. at 6, ECF No. 121.) At the sentencing hearing, the court adopted the PSR. Defense counsel raised the enhancement issues in arguing for a variance, claiming that Wilson had very little control over Powell in the conspiracy and used the storage unit only once to store drugs. The court agreed with counsel's arguments but concluded that a sentence below the advisory range was not appropriate because Wilson conducted some of his drug business with Powell's five-year-old son in the car. (Sent. Tr. at 16, ECF No. 121.) Accordingly, the court sentenced Wilson to 168 months' incarceration. (Judgment at 3, ECF No. 104.)
Wilson appealed. He challenged only the sentencing enhancement for his leadership role in the offense. United States v. Wilson, 570 F.Appx. 341 (4th Cir. 2014). The Fourth Circuit concluded that Wilson had waived his right to appeal because defense counsel withdrew his objections to the PSR. Id. at 341-42.
In his § 2255 motion, Wilson argues that counsel provided ineffective assistance by (1) failing to file a brief in support of the motion to suppress; (2) allegedly excluding Wilson from participating in jury selection; (3) failing to object to certain testimony and to cross-examine certain witnesses; and (4) withdrawing an objection to the sentencing enhancement for maintaining a premises for drug-related activities. Wilson also argues that he was subject to an unconstitutional search and seizure, that his Sixth Amendment confrontation clause rights were violated, that the sentencing enhancement for maintaining a drug-premises was improperly applied, and that he was subjected to sentencing entrapment by the police.
To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such a sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Wilson bears the burden of proving grounds for a ...