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United States v. Fennell

United States District Court, W.D. Virginia, Roanoke Division

January 8, 2018



          Hon. Glen E. Conrad Senior United States District Judge

         Samuel Lewis Fennell has filed a pro se motion to vacate, set aside, or correct his federal sentence under 28 U.S.C. § 2255. The government has filed a motion to dismiss, to which Fennell has responded, making the matter ripe for consideration. For the reasons that follow, the government's motion to dismiss will be granted, and Fennell's motion to vacate will be denied.


         Agents from the Roanoke, Virginia Office of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") suspected Quinton Germaine Tyree, a resident of Greensboro, North Carolina, of cocaine trafficking. Presentence Report 6, Docket No. 285; April 3, 2014 Suppression Hr'g 176, Docket No. 306. As part of an investigation into Tyree, ATF agents arranged for a confidential source to make a controlled purchase of a trafficking amount of cocaine from Tyree in Roanoke on July 1, 2013. April 3, 2014 Suppression Hr'g 176. Because investigators believed Tyree would travel from his residence in Greensboro to the controlled purchase in Roanoke, ATF Special Agent William Cunningham enlisted the assistance of Greensboro Detective Dwayne James to track Tyree's movements in Greensboro on July 1. Id.

         While surveilling Tyree's apartment that day, Detective James saw Tyree exit the apartment and drive to a townhome complex on Bramblegate Drive in Greensboro. Id. at 177. Tyree parked beside a blue Pontiac minivan and entered Unit E, where he remained for a brief period before exiting the unit and driving back to his apartment. Id. Shortly thereafter, Tyree and a woman, later identified as Tyree's girlfriend, left his apartment and began driving toward Roanoke in separate cars. Id. at 177-78. Investigators stopped both cars in Roanoke. Presentence Report 8. A trafficking amount of cocaine was found inside the girlfriend's car. Id. The investigators then took Tyree to an ATF office for an interview. April 3, 2014 Suppression Hr'g 179.

         During the interview, Tyree admitted to picking up a trafficking amount of cocaine from the townhome unit on Bramblegate Drive and identified the source of his cocaine as "Sam" or "Samuel." Id. By that point, Detective James had run the tags on the minivan parked outside the townhome and learned that the vehicle was registered to the defendant, Samuel Fennell. Id. at 179-80. Detective James shared this information with ATF agents, who had discovered that Fennell had a prior federal drug conviction. Id. at 180.

         Based on this information, Detective James and other officers in the Greensboro Police Department decided to further investigate Fennell. Id. On July 3, 2013, North Carolina Superior Court Judge Susan E. Bray issued to Detective James a warrant to search Fennell's residence. Id. at 185. After a "back and forth" between Fennell and Detective James, Fennell admitted to hiding cocaine in the dishwasher and a large sum of cash in an air vent. Id. at 193, 195. Police estimated that Fennell had stored approximately 14 ounces of cocaine in his residence. July 3, 2013 Report of Investigation, Docket No. 346-2, Ex. B. Police also recovered marijuana, $12, 300 in U.S. currency, a Food Saver vacuum sealer, digital scales, and other drug paraphernalia. Id. Officers did not advise Fennell of his Miranda[1] rights at any point that day. April 3, 2014 Suppression Hr'g 220.

         On February 20, 2014, a grand jury returned a multi-count superseding indictment against Fennell, Tyree, and three others. Count One charged Fennell, Tyree, and Grier Gracin with conspiring to distribute, and possess with intent to distribute, five kilograms or more of a mixture or substance containing cocaine and 280 grams or more of a mixture or substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 846. The indictment alleged that the conspiracy spanned from 2010 to 2013.

         Before trial, Fennell moved to suppress the evidence seized from his residence, arguing that probable cause did not support the warrant, and that police had interrogated him in violation of his Fifth Amendment rights. On April 3, 2014, the court held a hearing on the motion. The court denied the motion with respect to the warrant's validity, but granted it on Fifth Amendment grounds, thereby suppressing certain statements made by Fennell to police on July 3, 2013. Because some of those statements led police to the cocaine and other contraband seized from Fennell's residence, the court requested additional argument on whether the court's Fifth Amendment ruling required the suppression of the seized evidence.

         At the second suppression hearing on April 29, 2014, Detective James testified to Tyree's statements during the July 1, 2013 interview, including Tyree's statement that he purchased narcotics from Fennell at the Bramblegate townhome on an almost weekly basis starting in 2010. April 29, 2014 Suppression Hr'g 18, 32-33, Docket No. 301. Defense counsel cross-examined Detective James about Tyree's grand jury testimony that normally Fennell dropped off the cocaine at Tyree's residence rather than requiring Tyree to pick it up at Fennell's residence. Id., at 33, 35-37. The court recognized that Tyree testified after Detective James applied for the search warrant. Id. at 36. Ultimately, the court concluded that the police would have eventually discovered the seized evidence without Fennell's statements, and therefore, that the evidence was admissible under the inevitable discovery doctrine. Id. at 95.

         Fennell then proceeded to trial, where, as pertinent here, the government introduced the testimony of Officer Shane Fisher, Tyree, Agent Campbell, and Senior Forensic Chemist Erin Angerer. Officer Fisher testified about stopping Fennell for a minor traffic violation on Interstate 40 in June 2012. During the stop, Officer Fisher thought that Fennell "appeared nervous, " and believed that the presence of several air fresheners in the car indicated involvement in drug trafficking. Trial Tr. I at 209-10, Docket No. 302. Fennell denied having any drugs or a large amount of money in the car, but Officer Fisher found a bag containing $28, 000 in cash hidden in a panel in the car. Id. at 223, 226. According to Officer Fisher's testimony, Fennell offered the following contradictory explanations for the money: that Fennell intended to buy a camera with the money, that the confiscated money did not belong to Fennell, and that the money belonged to Fennell. Id. at 226-28. Defense counsel cross-examined Officer Fisher about the lack of narcotics in Fennell's car. Id. at 242. Fennell's friend, Christopher Edwards, also testified that Fennell had told Edwards he intended to use the cash for the lawful purpose of purchasing camera equipment. Trial Tr. II at 71, Docket No. 304.

         As part of a plea deal with the government, Tyree testified that, on July 1, 2013, he went to Fennell's unit at the Bramblegate townhome to pick up 13.5 ounces of cocaine, put the cocaine in a bag in his girlfriend's car, and then drove to Roanoke in his own car. Trial Tr. I at 119, 143-46. Tyree believed that he only sold cocaine hydrochloride, not cocaine base, during the course of the conspiracy. Id. at 148.

         Finally, the government introduced testimony from Agent Cunningham and Senior Forensic Chemist Angerer regarding the drug evidence seized from Fennell's townhome. Agent Cunningham testified that, on July 12, 2013, he took possession of the seized evidence from Detective James. Trial Tr. II at 140-41. Agent Cunningham explained that he brought the evidence back to his office, processed it, packaged it, numbered it, and secured it in the Roanoke ATF evidence vault. Id. at 141. The ATF then sent the evidence believed to contain narcotics to a laboratory for testing. See Id. at 133.

         After being admitted as an expert witness, Angerer testified that she received the evidence at the laboratory in a "sealed and intact condition." Trial Tr. I at 173-75. She explained that she conducted a series of tests, which are widely recognized as valid in the scientific community. Id. at 177. The test results indicated that the evidence seized from . Fennell's apartment contained 406.7 grams, or 14.3 ounces, of cocaine, most of which was determined to be cocaine base as opposed to cocaine hydrochloride. Chemical Analysis Reports, Docket No. 346-2; see Trial Tr. I at 187-190. Angerer also testified that the drugs seized from the car of Tyree's girlfriend on July 1, 2013 contained approximately 13 ounces of cocaine base. Trial Tr. I at 82, 186. According to Angerer, cocaine base can appear powdery like cocaine hydrochloride. Id. at 185-86. In such cases, as in this one, scientific testing of the substance is required to determine whether it is cocaine base or cocaine hydrochloride. Id., After the government rested its case, Fennell indicated his desire to testify in his defense. The court advised Fennell of his right to remain silent and cautioned that, although the court had issued a pretrial ruling suppressing certain of Fennell's statements, the government could ask questions related to those statements if Fennell "open[ed] the door" by addressing the subjects of the statements in his testimony. Trial Tr. II at 168-70. Fennell confirmed that he understood the potential consequences of testifying and asserted that he still wished to testify. Id. at 170.

         Fennell then testified to dealing drugs and "sell[ing] cocaine sparingly, " but denied participating in a conspiracy in which he supplied cocaine or other drugs to Tyree. Trial Tr. III at 38, Docket No. 250. Fennell admitted that the cocaine found in his residence belonged to him and that Tyree came to his residence on July 1, 2013. Id. at 14-15. However, Fennell explained that Tyree's visit concerned a fish tank that Fennell had bought from Tyree, not cocaine trafficking. Id. at 15-16.

         After hearing the foregoing evidence, the jury found Fennell guilty of conspiracy to distribute cocaine hydrochloride and cocaine base. On November 3, 2014, the court designated Fennell as a career offender and sentenced him to 360 months' imprisonment. Fennell appealed the criminal judgment to the United States Court of Appeals for the Fourth Circuit, which affirmed the judgment on July 23, 2015. Fennell then filed a petition for a writ of certiorari in the United States Supreme Court, which denied the petition on April 18, 2016.

         On April 14, 2017, the court received Fennell's instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In the motion, Fennell claims that his sister reviewed his mail after trial and found a document dated August 7, 2013 from the North Carolina Department of Revenue assessing a tax penalty for Fennell's possession of 370 grams, or approximately 13 ounces, of cocaine. North Carolina Tax Form, Docket No. 346-2 Ex D. The tax form does not indicate whether the cocaine was cocaine hydrochloride or cocaine base. Fennell further asserts that he found an undated, uauthored note in the discovery files, which states "tell me about Bramblegate. We didn't decide until today for you to testif[y]. Lying is not what you go around doing but based on circumstances, you may lie. Heat sealer. Scales." Handwritten Note, Docket No. 346-2 Ex. E.

         On July 5, 2017, the government moved to dismiss Fennell's § 2255 motion. Fennell filed a response to the government's motion on July 27, 2017. The matter is now ripe for review.


         Fennell has moved for the appointment of counsel and to vacate, set aside, or correct his sentence under § 2255.

         I. Motion for Appointment of Counsel

         There is no constitutional right to counsel during § 2255 proceedings. See Hunt v. Nuth, 57 F.3d 1327, 1340 (4th Cir. 1995) ("[T]his Court has held that the Constitution does not require counsel for defendants who attack their judgments under 28 U.S.C. § 2255."). Nonetheless, a court may provide counsel for an indigent inmate pursuing a § 2255 motion, when "the court determines that the interests of justice so require." 18 U.S.C. § 3OO6A(a)(2)(B). In addition, Rule 8 of the Rules Governing § 2255 Proceedings states that if an evidentiary hearing is warranted, counsel must be appointed to represent a moving party who qualifies for appointment of counsel under 18 U.S.C. § 3006A. Otherwise, the Fourth Circuit has limited the appointment of counsel to cases where "exceptional circumstances exist, " such as when a case is particularly complex or a litigant is unable to adequately represent himself. See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984). In this case, the record makes clear that Fennell has the ability to ...

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