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Daniels v. United States

United States District Court, W.D. North Carolina, Charlotte Division

March 31, 2017



          Robert J. Conrad, Jr., United States District Judge

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, (Doc. No. 1), on Petitioner's Motion for Production of Documents, (Doc. No. 13), and on Petitioner's Motion for Leave to Amend, (Doc. No. 17).

         I. BACKGROUND

         A. Offense Conduct

         Pro se Petitioner Jermal Daniels and seven other co-defendants, including his girlfriend Toria Douglas and Adreian Jackson, were involved in a drug-trafficking conspiracy from June 2003 through June 2005. The conspiracy came to light when Jackson was arrested for selling drugs and agreed to cooperate with police. United States v. Daniels, 323 F. App'x 201, 204 (4th Cir. 2009). Jackson arranged a meeting with Petitioner, who was one of his suppliers. Id. Officers arrested Petitioner after he arrived. Id. When police searched Petitioner incident to his arrest, they found four bundles, each containing ten bags of heroin, in his underwear. Id. Jackson then took officers to a nearby apartment complex, where he identified cars belonging to Petitioner and Douglas. Id. A license check on Douglas's car revealed that her residence was 1305 Kelston Place, Apartment 106. Id. A key retrieved from Petitioner turned the lock on this apartment door. Id. Officers obtained a search warrant for the apartment and, during a search on March 5, 2005, they seized several baggies of heroin and powder cocaine, drug-packaging equipment, $63, 060 in cash, six firearms, a bulletproof vest, and ammunition. Id. at 205.

         As a result of the investigation, Petitioner was charged in a Third Superseding Indictment with conspiracy to possess with intent to distribute one kilogram or more of heroin and 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count One); possession with intent to distribute heroin and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (Count Five); possession with intent to distribute 500 grams or more of cocaine and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2 (Count Six); possession of a firearm during and in relation to a drug-trafficking offense, in violation of 18 U.S.C. § 924(c) (Count Seven); possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count Eight); and intimidating and threatening a witness, in violation of 18 U.S.C. § 1512(b) (Count Thirteen). (Crim. Case No. 3:05-cr-103-RJC-DCK-2, Doc. No. 194: Third Superseding Indictment). Because the Third Superseding Indictment expanded the time frame of the conspiracy from December 2004 through March 2005 to June 2003 through June 2005, Petitioner moved to continue his trial. (Id., Doc. No. 197). This Court denied the motion because documentation relating to the expanded time frame of the conspiracy had already been provided during discovery. (Id., Doc. No. 199).

         The Government filed a notice of intent to seek enhanced penalties under 21 U.S.C. § 851 based on Petitioner's two prior felony drug convictions: (1) a 1990 federal conviction for possession with intent to distribute cocaine base and distribution of cocaine base and (2) a 1989 New York conviction for felony criminal possession of a controlled substance. (Id., Doc. No. 9).

         After Petitioner's arrest and while he was in the Mecklenburg County Jail, he assaulted co-defendant Jackson's father, Avery Brice, causing a four-inch cut on his face and a cut requiring stitches on the back of his head. (Id., Doc. No. 308 at 516-17: Trial Tr. Vol. III). Based on this and other incidents, Petitioner was placed in solitary confinement before trial. See (Id., Doc. No. 192). Petitioner filed two motions to suppress the evidence obtained from search of his person, the use of the key in the door of the apartment, and the subsequent search of the apartment. (Id., Doc. Nos. 61, 173). In the second motion to suppress, Petitioner specifically alleged that the heroin obtained from his person had to be suppressed “as a result of an unreasonable public strip search” and that the use of the key in the lock of the door to an apartment violated the Fourth Amendment. (Id., Doc. No. 173 at 1, 5). After holding two hearings, this Court denied the motions to suppress. See (Id., Doc. Entry dated October 13, 2005; Doc. No. 227-1 at 72-78: May 23, 2006 Supp. Tr.). After the second hearing, the Court also addressed Petitioner's concerns regarding his purported lack of access to his attorney while confined. The Court stated that counsel needed to work with the U.S. Marshals and the Government to secure access to Petitioner and that counsel should inform the Court if he did not receive it. (Id., Doc. No. 227-1 at 95-96). The Court noted that the security measures were “rationale responses to legitimate law enforcement concerns.” (Id. at 96).

         At trial, Jackson testified that Petitioner supplied him with heroin, which Jackson then sold. (Id., Doc. No. 306 at 58, 64: Trial Tr. Vol. I). Jackson bought a brick of heroin from Petitioner two or three times a day. (Id. at 65). A brick of heroin was five bundles, and a bundle contained ten bags of heroin. (Id.). Jackson later began purchasing grams of heroin from Petitioner, which were packaged like fingers. (Id. at 67-68). A finger was seven grams of heroin. (Id. at 68). Jackson stated that in 2003 and 2004 he purchased heroin from Petitioner two or three times a week. (Id. at 65, 122). Jackson stated that he would later buy three bundles a day through an intermediary. (Id. at 123). Jackson stated that William Boyd (“Pooh Bear”), Raheem Williams, and Mike McFadden also purchased heroin from Petitioner and that basically everyone who was selling heroin on Beatties Ford Road was getting it from Petitioner. (Id. at 75-76, 79, 114). Jackson also testified that he had purchased powder cocaine from Petitioner and that he had seen Petitioner carrying several different firearms. (Id. at 68-70, 109).

         Charles McCombs testified that he was involved in a conspiracy with Petitioner, that he and Petitioner made three trips to New York to pick up heroin, and they obtained 300 grams of heroin on each of those trips. (Id., Doc. No. 309 at 867, 889-90). Detective Robson testified that he recovered 40 bags of heroin from Petitioner at the time of his arrest. (Id., Doc. No. 306 at 234: Trial Tr. Vol. I). Robson also testified that Petitioner had reported a vehicle stolen from 1305 Kelston Place and that he had a daughter with Toria Douglas. (Id. at 251). Robson testified that, during the search of the apartment pursuant to a warrant, officers found a shoebox containing heroin, items used to package and sell heroin, and a large quantity of cocaine. (Id. at 255). Robson also testified about the six firearms found in the apartment. (Id., Doc. No. 307 at 314-33, 336-39: Trial Tr. Vol. II).

         Petitioner's girlfriend Toria Douglas testified that she and Petitioner lived together in the apartment at 1305 Kelston Place. (Id., Doc. No. 308 at 566-67, 587-88: Trial Tr. Vol. III). Douglas testified that she purchased three of the firearms found at 1305 Kelston Place at Petitioner's direction and with funds he gave her because he could not purchase the firearms in his own name. (Id. at 556-57, 561-66, 570-73). Corey Edwards testified that Petitioner sold him an ounce of cocaine three times a week for about eight months, that Petitioner would travel to New York to get drugs and would travel to South Carolina to sell drugs, and that occasionally Edwards would sell drugs for Petitioner. (Id. at 672, 675, 683, 685). William Boyd testified that he sold heroin for Petitioner and that sometimes an intermediary would bring the drugs from Petitioner to Boyd. (Id. at 754, 760, 778-79). Boyd testified that he would buy two or three bundles of heroin every two or three days for himself, that he did this for seven or eight months, and that he would buy three to four bundles of heroin every two to three days for Jackson. (Id. at 767-69). He also testified that he saw Petitioner with firearms. (Id. at 772).

         Jennifer Mills, a forensic chemist with the Charlotte Police Department Crime Lab, testified that she analyzed the drugs found at 1305 Kelston Place and that they contained more than 500 grams of cocaine (powder). (Id., Doc. No. 309 at 1039-43). She also identified 200.68 grams of heroin that was recovered from the same location. (Id.).

         B. Petitioner's Jury Verdict and First Sentencing

         A jury convicted Petitioner on all counts. (Id., Doc. No. 232). The probation officer prepared a presentence report (“PSR”), which stated that 1, 097 grams of cocaine and 245.5 grams of heroin were found in Petitioner's apartment on the date of his arrest. (Id., PSR at ¶ 12). Based on evidence from coconspirators, the PSR recommended a finding that Petitioner was responsible for one kilogram of heroin and 1, 097 grams of cocaine, or the equivalent of 1, 219.4 kilograms of marijuana. (Id. at ¶ 21). Applying the 2006 Guidelines, the probation officer calculated Petitioner's base offense level as 32, based on the drug quantity, and applied a four-level adjustment under U.S.S.G. § 3B1.1(a), because Petitioner was the leader of the conspiracy, as well as a two-level adjustment for obstruction under U.S.S.G. § 3C1.1, based on his having threatened co-defendant Boyd to make him recant incriminating statements that he made against Petitioner, which resulted in an adjusted offense level of 38. (Id. at ¶¶ 28, 31-33).

         Petitioner had three criminal history points based on his prior convictions. Two points were added under U.S.S.G. § 4A1.1(d) because Petitioner committed the instant offense while on supervised release, and one point was added under U.S.S.G. § 4A1.1(e) because the offense was committed less than two years after his release from custody. (Id. at ¶¶ 54-63). Although the PSR recommended finding that Petitioner was an armed career criminal, defense counsel's objection to this finding was sustained at sentencing. Thus, at sentencing, this Court found that Petitioner's criminal history category was III, based on having six criminal history points. See (Id., Doc. No. 342: Statement of Reasons). The mandatory minimum sentence for Count One was life imprisonment, and Count Seven carried a mandatory consecutive sentence of at least five years. (Id., PSR at ¶ 80).

         Petitioner objected to the PSR, arguing, inter alia, that his New York offense for criminal possession of a controlled substance did not qualify as a prior felony conviction. (Id., PSR addnm.). Petitioner also objected at sentencing to the drug amounts listed in the PSR. (Id., Doc. No. 347 at 5: Sent. Tr.). This Court overruled these objections and sentenced Petitioner to life imprisonment on Count One; to 360 months of imprisonment on Counts Five and Six, to be served concurrently; to 120 months of imprisonment on Counts Eight and Thirteen, to be served concurrently; and to 60 months of imprisonment on Count Seven, to be served consecutively. (Id., Doc. No. 341: Judgment). Although the judgment states that Petitioner shall pay court appointed counsel fees, the amount to be paid is blank. (Id.).

         C. Petitioner's Direct Appeal

         Petitioner appealed, arguing that this Court erred in denying his motions to suppress, improperly found that he played a leadership role in the offense and that he had obstructed justice, and failed to instruct the jury to find the amount of drugs individually attributable to him under the conspiracy charge. Daniels, 323 F. App'x at 203-04. The Fourth Circuit held that there was probable cause for Petitioner's arrest; that there was “no clear showing that Daniels was exposed to the public” when the officers searched his underwear; that the police officers acted reasonably in conducting the search, that Petitioner's Fourth Amendment rights were not infringed by the use of his key in the apartment door; and that the search warrant was not invalid based on his argument that it omitted material information regarding the confidential informant. Id. at 208-10. The Fourth Circuit also found that the leadership role and obstruction of justice enhancements were properly applied. Id. at 211. However, the Fourth Circuit determined that, with respect to Count One, this Court had improperly instructed the jury with regard to the jury's finding as to drug quantity under United States v. Collins, 415 F.3d 304 (4th Cir. 2005). Id. at 212-17. Accordingly, the Court vacated and remanded this count, withholding judgment on this count for thirty days to allow the Government the opportunity to elect to apply the default penalty provision in § 841(b)(1)(B), or to request the reversal of the conspiracy conviction and to conduct a new trial. Id. at 217. The Court noted that Petitioner's conviction for Count One was legitimate, and that only his sentence was improper. Id. at 217 n.10.

         D. Petitioner's Resentencing

         The Government elected to resentence Petitioner. At the resentencing hearing, counsel showed the supplemental PSR to Petitioner, and this Court explained what the supplemental PSR stated and confirmed with Petitioner that he had reviewed the sentencing memorandum filed by his attorney. (Crim. Case No. 3:05-cr-103-RJC-DCK-2, Doc. No. 425 at 2-4: Resent. Tr.). Petitioner agreed that he had a sufficient understanding of the proceeding to go forward. (Id. at 4). Petitioner argued that the amount of drugs attributable to him should be limited to 254 grams of heroin, the amount found in his apartment on March 5, 2005. (Id. at 4-6). This Court determined that there was credible testimony from McCombs that he made three trips to New York with Petitioner and purchased 300 grams of heroin on each occasion; from Jackson that he would regularly buy bricks of heroin from Petitioner, that he purchased heroin two to three times a week, and that Petitioner was supplying half of Beatties Ford Road; and from Boyd that he bought three to four bundles of heroin from Petitioner every two to three days for seven to eight months. (Id. at 8-12). Accordingly, this Court overruled the objection and determined that Petitioner was responsible for 1, 219.4 kilograms of marijuana under the conversion tables. (Id. at 12). Defense counsel also showed the Court certificates evidencing courses Petitioner had completed while in prison, which the Court stated it would consider. (Id. at 14). This Court then imposed a 360-month sentence on Count One, citing Petitioner's extensive history of violent and drug-trafficking offenses, the fact that he was not deterred from committing the instant offense despite being on supervised release from two prior federal convictions, and the need to protect the public, promote respect for the law, and provide adequate deterrence. (Id. at 16-18).

         Petitioner again appealed, and the Fourth Circuit affirmed, after considering his attorney's Anders brief and the issues Petitioner raised in his supplemental pro se brief. United States v. Daniels, 493 F. App'x 442 (4th Cir. 2012). Petitioner filed a petition for a writ of certiorari, which the Supreme Court denied on February 19, 2013. Daniels v. United States, 133 S.Ct. 1297 (2013).

         E. Petitioner's Motion to Vacate

         On January 31, 2014, Petitioner filed the timely pending motion to vacate pursuant to 28 U.S.C. § 2255. In the 86-page motion to vacate, he raises numerous contentions, which he sets forth in twenty separate “claims” in his motion to vacate, as follows: (1) the Fourth Circuit should recall its mandate based on the development of new case law related to Fourth Amendment searches (Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009)) following Petitioner's resentencing and before the appeal was decided (Claim 1); violations of Alleyne v. United States, 133 S.Ct. 2151 (2013), based on the fact that the trial court, not the jury, raised Petitioner's statutory minimum sentence based on drug amounts (Claims 2 and 3); violation of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), and Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), based on Petitioner's claim of “actual innocence” of his enhanced sentence imposed under 21 U.S.C. §§ 841(b)(1) and 851, on the ground that his prior New York drug conviction does not qualify as an “aggravated felony” for purposes of the Section 851 enhancement (Claim 4); Fourth Amendment violation under Stone v. Powell, 428 U.S. 465 (1976), based on his contention that he was not given a full and fair opportunity to litigate his Fourth Amendment claims at trial, in light of the fact that the Supreme Court decision in Safford was decided before Petitioner's conviction was final (Claim 5); ineffective assistance of counsel during resentencing based on counsel's failure to show the two-page supplemental PSR to him, counsel's abandonment of Petitioner's Collins claim at re-sentencing, counsel's stipulation to the highest base offense level based on drug amounts attributable to Petitioner, counsel's failure to raise an intervening change of law (Simmons) at resentencing, counsel's failure to object to the recency points in the calculation of Petitioner's criminal history at resentencing under Amendment 742, counsel's failure to object to the PSI under Amendment 715, and counsel's failure to describe to the Court at resentencing Petitioner's extensive rehabilitation effort, for purposes of mitigation under Section 3553(a) (Claim 6); a Sixth Amendment confrontation clause violation based on the fact that Petitioner was not able to confront forensic chemist James Whiteside at trial on the fact that no fingerprints were found on the firearms related to the firearms charges against Petitioner (Claim 7); this Court's failure to continue trial based on the Government's disclosure of additional discovery, which included Brady, Giglio, and Jencks material, ineffective assistance of counsel based on counsel's failure to move to continue trial based on the additional evidence, and ineffective assistance of counsel based on counsel's failure to communicate a plea offer as to Counts 1 and 7 (Claims 8 and 9); a violation of Petitioner's constitutional right to a unanimous jury instruction for the firearms charge in Count 8 of the indictment (Claim 10); prosecutorial misconduct based on the Government's alleged false statement to the Court that the superseding indictment had expanded the date on the conspiracy charge by only about one month (Claim 11); a violation of Petitioner's Sixth Amendment rights based on the Government's intrusion in the attorney-client relationship (Claim 12); a Sixth Amendment violation during sentencing, under United States v. Booker, 543 U.S. 220 (2005), based on this Court's application of an upward adjustment of a total of seven points under the Sentencing Guidelines (Claim 13); ineffective assistance of appellate counsel based on counsel's failure to argue on appeal that the buyer-seller relationship was not shown or proved during trial (Claim 14); a violation of the right to a fair trial based on this Court's refusal to give an instruction that a buyer/seller relationship is not itself a conspiracy (Claim 15); a double jeopardy claim based on the fact that North Carolina's drug tax was assessed against Petitioner (Claim 16); error by this Court in requiring Petitioner to pay $133, 000 in restitution to the United States, without a finding as to his ability to pay (Claim 17); a clerical error in Petitioner's PSR, resulting in incorrect information regarding the drug amount attributable to Petitioner (Claim 18); prosecutorial misconduct, officer misconduct, and Brady violation, based on Petitioner's allegations that the investigating officer falsified evidence to show that Petitioner had control, dominion over, and/or resided at the apartment at 1305 Kelston Place (Claim 19); and cumulative error (Claim 20).

         The Government filed its response in opposition to the motion to vacate on October 15, 2015. (Doc. No. 8). On January 25, 2016, Petitioner filed a motion for production of documents, seeking various discovery from the Government. (Doc. No. 13). On March 18, 2017, Petitioner filed a motion for leave to amend or supplement his motion to vacate. (Doc. No. 17). The Government filed its response to the motion for leave to amend on March 22, 2017. (Doc. No. 18).


         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter and the Government's Response, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).


         A. Claims Raised in Petitioner's Initial Motion to Vacate

         As noted, Petitioner has raised a multitude of claims in his 86-page motion to vacate. For the reasons stated below, the Court denies each of Petitioner's claims on various grounds. Because Petitioner has raised numerous claims, the Court will address and dispose of them in accordance with the grounds for dismissal. That is, all of Petitioner's claims will be denied because they are either not cognizable in 2255 proceeding, are procedurally defaulted, and/or are without merit.

         1. Petitioner's Contentions that Are Not Cognizable in a Section 2255 Proceeding (Included in Claims 1, 5, 13, 17, and 18).

         The Court first finds that some of Petitioner's contentions (set forth in Claims 1, 5, 13, 17, and 18) are subject to dismissal because they are simply not cognizable in a Section 2555 action. Section 2255 provides relief for constitutional and jurisdictional errors. It does not provide relief for non-constitutional errors of federal law, unless the error involves “‘a fundamental defect which inherently results in a complete miscarriage of justice.'” See United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999) (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). “Barring extraordinary circumstances, . . . an error in the application of the Sentencing Guidelines cannot be raised in a § 2255 proceeding.” United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999). Additionally, assertions of Fourth Amendment error cannot be raised on collateral review when the applicant has had a full and fair opportunity to litigate these claims. See Stone v. Powell, 428 U.S. at 480; Boggs v. Bair, 892 F.2d 1193, 1199-1200 (4th Cir. 1989) (holding full and fair opportunity to address claim existed even where petitioner asserted a change in the law).

         Petitioner's requests for this Court to order the Fourth Circuit Court of Appeals to recall its mandate (Claim 1) and for this Court to revise the PSR (Claim 18) under Federal Rule of Criminal Procedure 36 based on a clerical error do not state constitutional claims or errors of federal law that involve a fundamental defect that would result in a complete miscarriage of justice. See (Doc. No. 1 at 15-18, 82-83). Therefore, these claims for relief are not cognizable under § 2255. Additionally, this Court lacks authority to order a higher court to recall its mandate, the Fourth Circuit has already denied two motions to recall its mandate, see Fourth Circuit Appeal No. 11-5147, and this Court has previously denied Petitioner's motion to correct the PSR. (Crim. Case No. 3:05-cr-103-RJC-DCK-2, Doc. No. 467).

         Similarly, Petitioner's assertions of error in applying the Sentencing Guidelines (Claim 13), by finding that he played a leadership role in the offense and that a three-level enhancement applied because he was on supervised release at the time of the offense, [1] is not cognizable under § 2255 because he has not shown extraordinary circumstances. The enhancement for playing a leadership role in the offense was affirmed by the Fourth Circuit and may not be re-litigated on collateral review. See United States v. Linder, 552 F.3d 391, 397 (4th Cir. 2009). Additionally, at the time of Petitioner's original sentencing, a two-point enhancement under U.S.S.G. § 4A1.1(d) applied because Petitioner was on supervised release at the time of the offense and a one-point enhancement under § 4A1.1(e) applied because the offense was committed less than two years following his release from custody. See (Crim. Case No. 3:05-cr-103-RJC-DCK-2, PSR at ¶¶ 62-63). The subsequent amendment of the Guidelines removing the additional one-point enhancement for committing the offense less than two years following release from custody does not apply under the 2006 Guidelines and was not made retroactive by the Sentencing Commission.

         Petitioner also argues that this Court erred by requiring him to reimburse the Government for court and attorney fees without making a specific finding regarding his ability to pay (Claim 17). (Doc. No. 1 at 81; see United States v. Moore, 666 F.3d 313, 322 (4th Cir. 2012).[2] A challenge to court and counsel fees is not a cognizable claim under 28 U.S.C. § 2255 because, similar to a challenge to a fine or restitution, it does not affect Petitioner's custody. See Carpenter v. United States, No. 3:15-CV-161, 2015 WL 5254185, at *4 (W.D. N.C. Sept. 9, 2015). Moreover, because “the alleged sentencing error is neither constitutional nor jurisdictional, a district court lacks authority to review it” under Section 2255 “unless it amounts to ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Foote, 784 F.3d 931, 936 (4th Cir. 2015). The concept of a miscarriage of justice is “grounded in the notion of actual innocence, ” which ordinarily does not extend to sentencing ...

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