United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge
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).
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.
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).
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).
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).
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).
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).
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).
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.).
Petitioner's Jury Verdict and First Sentencing
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 ¶¶
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).
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.).
Petitioner's Direct Appeal
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.
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).
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
Petitioner's Motion to Vacate
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).
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).
STANDARD OF REVIEW
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).
Claims Raised in Petitioner's Initial Motion to
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
Petitioner's Contentions that Are Not Cognizable in a
Section 2255 Proceeding (Included in Claims 1, 5, 13, 17, and
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
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).
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,  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.
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). 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