United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
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.
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.
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.
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.
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 rights at any
point that day. April 3, 2014 Suppression Hr'g 220.
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.
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
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.
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.
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.
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
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
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.
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.
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.
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.
has moved for the appointment of counsel and to vacate, set
aside, or correct his sentence under § 2255.
Motion for Appointment of Counsel
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 ...