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 under 28
U.S.C. § 2255, (Doc. No. 1), and supplemental §
2255 motion to vacate, (Doc. No. 11).
was indicted in a marijuana trafficking conspiracy involving
numerous co-conspirators including the co-defendant with whom
he was tried, Kyle Corsi. (Crim. Case No. 3:09-cr-203, Doc.
No. 102). The counts pertaining to Petitioner are: Count (1),
conspiracy to possess with intent to distribute a mixture and
substance containing a detectable amount of marijuana (100
kilograms or more) in violation of 21 U.S.C. § 846,
841(a)(1), 841(b)(1)(B); Count (2), conspiracy to commit
money laundering in violation of 18 U.S.C. §
1956(a)(1)(A)(i), (a)(1)(B)(ii), 1956(h); Count (3),
conspiracy to structure a currency transaction to evade
reporting requirements in violation of 18 U.S.C. § 371,
31 U.S.C. § 5324(a)(3); Counts (4) and (6), possession
of a firearm in furtherance of a drug trafficking crime in
violation of 21 U.S.C. § 924(c); Count (5), possession
with intent to distribute a mixture and substance containing
a detectable amount of marijuana in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(D), 18 U.S.C. § 2; and Counts
(7) and (8), possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). (Id., Doc.
No. 102 at 4).
facts of the case, as summarized by the Fourth Circuit Court
of Appeals, are as follows:
Giles and Corsi were members of a marijuana distribution ring
operating in Chapel Hill and Charlotte, North Carolina. As
the ring-leader, Giles would travel to California to procure
“high-grade” marijuana. Giles would then send
packages containing several pounds of marijuana through the
mail from a fictitious business-Norcal Athletics-to Corsi and
other distributors back in North Carolina. When a package
arrived, Giles would send a text message that “the
eagle has landed” to notify a given distributor that
the package was ready for pickup and distribution. To finance
the purchases, the distributors made large cash deposits into
bank accounts that Giles managed. However, pursuant to
Giles' instructions, the distributors kept their
individual deposits under $10, 000 to avoid federal reporting
requirements. Over its three years of operation, the
distribution ring sold over one hundred kilograms of
marijuana and made deposits totaling several hundred
thousands of dollars.
On October 26, 2009, after over a year tracking the operation
and intercepting packages containing marijuana en route from
“Norcal Athletics” to North Carolina, federal
agents arrested Giles in Charlotte. With Giles' consent,
agents searched his vehicle and confiscated his cellular
phone and approximately one pound of marijuana. At that time,
Giles identified his source of marijuana in California, but
stated that any packages sent by Norcal Athletics contained
only athletic gear, and denied knowledge of the contents of
the package of marijuana seized from his car. That same day,
agents searched Giles' residence, and discovered receipts
and other documentation linking him to shipments from
California to North Carolina.
On the evening of Giles' arrest, six federal agents and
two uniformed police officers went to Corsi's residence
to attempt to speak with him about the marijuana distribution
ring….. Agent Morgan informed Corsi that the officers
had information that there might be narcotics in the
residence, and hoped to talk with him and obtain his consent
for a search. Corsi became agitated and denied the officers
consent to enter the house.… After several minutes,
Corsi shouted … that he knew why the officers were
there and that he was ready to talk and “be a man about
… Corsi .. admitted that he had been receiving
high-grade marijuana from California through the mail. He
explained that his supplier would send text messages
indicating when the packages had arrived in North Carolina
and were ready for pickup. Corsi also explained that other
members of the ring would deposit money into the drug
supplier's bank account to prepay for the marijuana, but
stated that he had never done so. However, after Agent Morgan
showed Corsi bank surveillance photographs of him and an
unidentified woman (who Corsi then identified as his
girlfriend) making cash deposits, Corsi admitted to making
several deposits into the drug supplier's account. After
approximately thirty minutes, the agents concluded the
interview and left the residence without arresting Corsi.
A week later, on November 3, several agents and officers
returned and arrested Corsi at his residence…. Agent
Morgan ascertained from the officer that Corsi had been
informed of his Miranda rights, and then asked Corsi several
clarifying questions regarding his October 26 statements.
Corsi confirmed several statements from his earlier
interview, including that packages he received from Norcal
Athletics had contained marijuana.….
United States v. Giles, 518 Fed.Appx. 181, 183-85
(4th Cir. 2013).
to trial, the Government raised a potential
Bruton problem due to its intent to introduce
co-Defendant Corsi's statement mentioning Petitioner. It
proposed using neutral pronouns “drug supplier”
or “source of supply” in place of
Petitioner's name. (Id., Doc. No. 242 at 5);
see also (Id., Doc. No. 118).
Petitioner's counsel objected that the proposed pronouns
are not neutral because they imply wrongdoing, and that the
jury would “certainly realiz[e]” that these
pronouns refer to Petitioner. (Id., Doc. No. 242 at
5-6). The Court overruled the objection and found that the
use of pronouns “allows the jury to understand the
confession in context, but avoids the constitutional issue in
an appropriate way and in a way that's been approved by
the Fourth Circuit.” (Id., Doc. No. 242 at 6).
Government called numerous unindicted
co-conspirators at trial who testified that Petitioner was
the head of a marijuana distribution organization that lasted
for three years and brought hundreds of pounds of marijuana
into North Carolina from California, and transferred over one
million dollars of marijuana sale revenue from North Carolina
back to California to fund additional marijuana purchases.
Government presented evidence that police found a firearm in
the home Petitioner shared with his girlfriend in December
2007. (Id., Doc. No. 268 at 141).
Petitioner's girlfriend gave police permission to search
the home when they arrived to investigate a domestic dispute.
Police discovered a firearm on the top shelf of a cabinet
within inches of marijuana, money, and a bong. (Id.,
Doc. No. 268 at 147-49). The Government argued that this gun
possession violated § 922(g) because Petitioner had a
1991 conviction for assault with great bodily injury in
violation of California Penal Code Section 245(a)(1), which
is a felony offense punishable by more than a year in prison.
Defense counsel refused to stipulate that the California
conviction is a felony, arguing that it is a misdemeanor
conviction under a “wobbler” statute. The Court
ruled that the California conviction is a prior felony
conviction for purposes of § 922(g), and the only issue
for the jury in that regard is whether Petitioner is the same
person who was convicted in the California case.
(Id., Doc. No. 269 at 8-10).
Government introduced co-Defendant Corsi's pre-arrest
statement to police during DEA Agent Christopher Morgan's
direct testimony, with the Bruton modifications it
had proposed pre-trial. During this testimony there were
approximately 14 references, both by the prosecutor and Agent
Morgan, to co-Defendant's “drug supplier” or
“source of supply.” (Id., Doc. No. 270
addition to the numerous unindicted co-conspirators'
testimony, the Government also introduced evidence of
packages that Petitioner sent from California to various
North Carolina addresses that corresponded to marijuana
shipments, some of which were intercepted by United States
Postal Inspectors, bank account activity by Petitioner and
the co-conspirators in amounts just under the $10, 000
reporting limit that corresponded to marijuana purchases in
California and shipments to North Carolina, and surveillance
images of Petitioner in California banks and post offices
corresponding to drug transactions and shipments.
chose not to testify at trial or present a defense case.
(Id., Doc. No. 270 at 201).
jury found Petitioner not guilty of Count (4), and guilty of
the remaining counts with the special findings that 100
kilograms or more of a mixture or substance containing a
detectable amount of marijuana was reasonably foreseeable to
Petitioner in Count (1), and that the objects of the
conspiracy in Count (2) were to violate 18 U.S.C. §
1956(a)(1)(A)(i) (with intent to promote) and 18 U.S.C.
§ 1956(a)(1)(B)(ii) (with intent to avoid a transaction
reporting requirement). (Id., Doc. No. 159).
filed a pro se motion for new trial prior to
sentencing in which he attached “newly discovered
evidence, ” i.e., a 1998 California court
document containing a crossed-out entry stating “17(b)
REDUCE FELONY TO MISD.” (Id., Doc. No. 201).
Petitioner argued that this entry shows that his 1991 assault
conviction was reduced from a felony to a misdemeanor. The
Government filed a California court official's
declaration that no motion to reduce was filed in
Petitioner's case, but that such a motion was filed in
his co-defendant's case, and the crossed-out entry
appeared to correct a human error. (Id., Doc. No.
212). The Court denied the pro se motion for new
trial because Petitioner was not diligent in uncovering the
proffered evidence, and that it would not likely alter the
verdict because the crossed-out entry refers to a
co-defendant. United States v. Giles, 2011 WL
13152579, *1-2 (Aug. 15, 2011). The Fourth Circuit affirmed
on June 17, 2016, because, after reviewing the record, it
found no abuse of discretion in either of bases for the
Court's ruling. United States v. Giles, 652
Fed.Appx. 210 (4th Cir. 2016). The United States Supreme
Court denied certiorari on March 20, 2017. Giles v.
United States, 137 S.Ct. 1359 (2017).
presentence investigation report (“PSR”) grouped
together Counts (1), (2) and (5) and used the base offense
level of for violation of 18 U.S.C. § 1956, for an
underlying offense from which the laundered funds were
derived, conspiracy to possess with intent to distribute
marijuana, based on the quantity of drugs for which
Petitioner is responsible (at least 100 but less than 400
kilograms of marijuana). (Id., Doc. No. 237 at
¶ 30-31). Two levels were added because Petitioner was
convicted of violating 18 U.S.C. § 1956. (Id.,
Doc. No. 237 at ¶ 32). Four levels were added because
Petitioner was a leader/organizer of the offense.
(Id., Doc. No. 237 at ¶ 34). The resulting
adjusted offense level subtotal for that group was 32.
(Id., Doc. No. 237 at ¶ 36).
base offense level for Count (3) is the base offense level of
six plus the number of offense levels corresponding to the
value of the funds (14 levels) resulting in a base offense
level of 20. (Id., Doc. No. 237 at ¶ 20). Two
levels were added because Petitioner knew the funds were
proceeds of unlawful activity. (¶ 38). Two more levels
were added because Petitioner was convicted of violating 31
U.S.C. § 5324 and he committed the offense as part of a
pattern of unlawful activity involving more than $100, 000 in
a 12-month period. (¶ 39). This resulted in an adjusted
offense level subtotal of 24 for Count (3). (Id.,
Doc. No. 237 at ¶ 43).
base offense level for Counts (7) and (8) was 20 because
Petitioner violated 18 U.S.C. § 922(g)(1) after
sustaining a felony conviction for a controlled substance
offense. (Id., Doc. No. 237 at ¶ 43-44). Two
levels were added because the offense involved three
firearms. (¶ 45). Four levels added because Petitioner
used or possessed the weapon in connection with the felony
offense of distributing marijuana. (Id., Doc. No.
237 at ¶ 46). The adjusted offense level for Counts (7)
and (8) was 26. (Id., Doc. No. 237 at ¶ 50).
offense guideline that produces the highest offense level is
the one for Counts (1), (2) and (5), and therefore, the
adjusted offense level subtotal for that group of 32 was
used. (Id., Doc. No. 237 at ¶ 51, 52);
see USSG § 3D1.3(b). No Chapter Four
enhancements applied, so the resulting total offense level
was 32, plus the statutory minimum sentence for Count (6)
pursuant to § 924(c). (Id., Doc. No. 237 at
¶ 53, 55, 56). Petitioner had two criminal history
points and a criminal history category of II. (Id.,
Doc. No. 237 at ¶ 65). The resulting guidelines
imprisonment range was 135 to 168 months plus a mandatory
consecutive five-year sentence for Count (6). (Id.,
Doc. No. 237 at 103).
Court sentenced Petitioner in the middle of the advisory
guideline range to a total of 196 months' imprisonment
(136 months as to Counts (1) and (2), 120 months as to Counts
(3), (7) and (8), 60 months as to Count (5), all concurrent,
and 60 months as to Count (6), consecutive), followed by a
total of four years of supervised release. (Id.,
Doc. No. 250); (Id., Doc. No. 272 at 55-57).
argued on direct appeal that the Court erred by admitting
text messages obtained from Petitioner's cellular phone
as party admissions under Fed. R. Ev. 801(d)(2)(A), rather
than statements between co-conspirators under Fed. R. Ev.
801(d)(2)(E). The Fourth Circuit affirmed on April 12, 2013.
It rejected Petitioner's claim as refuted by the record.
Further, considering the defendants' failure on appeal to
demonstrate that any of the admitted text messages were not
sent “in the course and furtherance of the conspiracy,
” it was unable to conclude that the Court abused its
discretion by admitting the text messages. United States
v. Giles, 518 Fed.Appx. 181, 189 (4th Cir. 2013)
(quoting Bourjaily v. United States, 483 U.S. 171,
186 (1987)). The Fourth Circuit further found that
Petitioner's un-briefed argument that the Court used the
wrong evidentiary standard when determining whether a
conspiracy existed at the time the text messages at issue
were sent, even if preserved, was meritless. Id.
23, 2015, counsel filed a motion for sentence reduction
pursuant to 18 U.S.C. § 3582, guidelines Section 1B1.10
and Amendment 782. (Id., Doc. No. 296). The Court
granted the motion on July 13, 2016, and reduced the sentence
to 109 months for Counts (1), (2), (3), (7) and (8), or time
served if less than that figure, and the sentence remained
unchanged for Counts (5) and (6).
Petitioner filed the instant § 2255 motion to vacate on
November 14, 2014, raising a number of claims of ineffective
assistance of trial and appellate counsel, and several other
claims of constitutional error. (Doc. No. 1). The Government
filed a Response addressing each of Petitioner's claims.
(Doc. No. 6). Petitioner filed a reply. (Doc. No. 10). On
June 23, 2016, Petitioner filed a “Motion to Vacate
Supplement (Johnson Claim), ” in which he raises a new
claim based on Johnson v. United States, 135 S.Ct.
2551 (2015). (Doc. No. 11).
SECTION 2255 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, 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).
Sixth Amendment to the U.S. Constitution guarantees that in
all criminal prosecutions, the accused has the right to the
assistance of counsel for his defense. See U.S.
Const. Amend. VI. To show ineffective assistance of counsel,
Petitioner must first establish a deficient performance by
counsel and, second, that the deficient performance
prejudiced him. See Strickland v. Washington, 466
U.S. 668, 687-88 (1984). The deficiency prong turns on
whether “counsel's representation fell below an
objective standard of reasonableness ... under prevailing
professional norms.” Id. at 688. A reviewing
court “must apply a ‘strong presumption' that
counsel's representation was within the ‘wide
range' of reasonable professional assistance.”
Harrington v. Richter, 562 U.S. 86, 104 (2011)
(quoting Strickland, 466 U.S. at 689). The
Strickland standard is difficult to satisfy because
the “Sixth Amendment guarantees reasonable competence,
not perfect advocacy judged with the benefit of
hindsight.” See Yarborough v. Gentry, 540 U.S.
1, 8 (2003). The prejudice prong inquires into whether
counsel's deficiency affected the judgment. See
Strickland, 466 U.S. at 691. A petitioner must
demonstrate “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. In
considering the prejudice prong of the analysis, a court
cannot grant relief solely because the outcome would have
been different absent counsel's deficient performance,
but rather, it “can only grant relief under . . .
Strickland if the ‘result of the proceeding
was fundamentally unfair or unreliable.'”
Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998)
(quoting Lockhart v. Fretwell, 506 U.S. 364, 369
(1993)). Under these circumstances, the petitioner
“bears the burden of affirmatively proving
prejudice.” Bowie v. Branker, 512 F.3d 112,
120 (4th Cir. 2008). If the petitioner fails to meet this
burden, a reviewing court need not even consider the
performance prong. Strickland, 466 U.S. at 697.
establish prejudice in the context of appellate
representation, a petitioner must show a “reasonable
probability ... he would have prevailed on his appeal”
but for his counsel's unreasonable failure to raise an
issue. Smith v. Robbins, 528 U.S. 259, 285-86
(2000); see also United States v. Mannino,
212 F.3d 835, 845-46 (3d Cir. 2000) (“The test for
prejudice under Strickland is not whether
petitioners would likely prevail upon remand, but whether we
would have likely reversed and ordered a remand had the issue
been raised on direct appeal.”).
Claims of Ineffective Assistance of Trial Counsel
Government argues that Petitioner's claims ineffective
assistance of trial counsel fail on the merits. For the
following reasons, the Court agrees.
Petitioner contends that trial counsel was ineffective for
failing to argue he is actually innocent of violating §
922(g) because his 1991 California conviction for assault
with great bodily injury is a misdemeanor, not a felony. He
appears to argue that counsel was ineffective for failing to
present at trial a 1998 document which demonstrates that the
California court converted his assault conviction into a
misdemeanor. (Crim. Case No. 3:09-203-RJC-DCK, Doc. No. 201-1
922(g)(1) makes it unlawful for a person “who has been
convicted in any court of, a crime punishable by imprisonment
for a term exceeding one year” to, inter alia,
“possess in or affecting commerce, any firearm or
is considered a felony under California law if it is
punishable by death, imprisonment in state prison, or
imprisonment in county jail for 16 months, or two or three
years. Cal. Penal Code §§ 17(a), 1170(h). When a
crime is punishable at the court's discretion either by
state prison or county jail, it is a misdemeanor “for
all purposes” if, inter alia, “the
prosecuting attorney files in a court having jurisdiction
over misdemeanor offenses a complaint specifying that the
offense is a misdemeanor, unless the defendant at the time of
his or her arraignment or plea objects to the offense being
made a misdemeanor, in which event the complaint shall be
amended to charge the felony and the case shall proceed on
the felony complaint.” Cal. Penal Code § 17(b)(3).
Section 245 is a so-called “wobbler” statute
because it can result in imprisonment in a state prison
greater than a year or imprisonment in a county jail for less
than a year, and therefore wobbles between a felony and a
misdemeanor. United States v. Adams, 716 F.3d 1066,
1070 (8th Cir. 2013).
claim of ineffective assistance is refuted by the record
insofar as counsel argued at trial that Petitioner's 1991
California assault conviction is a misdemeanor that cannot
support a § 922(g) violation. Counsel's failure to
discover, obtain, and present the 1998 California document at
trial was not ineffective assistance because it does not
demonstrate that the California conviction is, in fact, a
misdemeanor and thus would not have probably changed the
outcome of trial. Petitioner raised this issue in his pro
se motion for a new trial, at which time the Court
examined the 1998 California document and found that it did
not demonstrate that Petitioner's 1991 conviction had
been converted to a misdemeanor. The Court found that the
crossed-out notation purportedly converting the felony
conviction to a misdemeanor resulted from human error and
actually referred to the co-defendant. The Fourth Circuit
affirmed the Court's ruling on this issue,
Giles, 652 Fed.Appx. at 210, and it need not be
reconsidered here. See generally Pepper v. United
States, 562 U.S. 476, 506 (2011) (law of the case
doctrine generally provides that, “when a court decides
upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case”)
(quoting Arizona v. California, 460 U.S. 605, 618
(1983)); Carlson v. Boston Sci. Corp., 856 F.3d 320,
325 (4th Cir. 2017).
Court has already determined that the 1998 document did not
refer to Petitioner's case and would not have resulted in
a different trial outcome, and the Fourth Circuit affirmed.
It is impossible for Petitioner to demonstrate ineffective
assistance of counsel under these circumstances.
Petitioner contends that counsel was ineffective for allowing
the Government to characterize him as a “drug
supplier” and “source of supply” before the
jury heard co-Defendant's redacted confession using those