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Spence v. United States

United States District Court, E.D. North Carolina, Northern Division

December 8, 2017

DEMETRIUS SPENCE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES C. DEVER III, DISTRICT JUDGE

         On November 20, 2017, the court held an evidentiary hearing concerning Demetrius Spence's ("Spence") remaining claim in his 28 U.S.C. § 2255 motion [D.E. 116]. In that claim, Spence contends that his trial counsel, A. Patrick Roberts ("Roberts"), was constitutionally ineffective in advising Spence regarding a proposed plea agreement. Spence argues that, with proper advice, he would have accepted the plea agreement, pleaded guilty to one count, and received a sentence of no more than 240 months' imprisonment. Instead, Spence went to trial, was convicted on four counts, and is now serving a 324-month prison sentence. The court has evaluated the record, the evidence, and the credibility of the witnesses. As explained below, the court concludes that Roberts provided constitutionally effective advice to Spence concerning the plea agreement. Alternatively, the court concludes that Spence would not have accepted the plea agreement even if Roberts provided the advice that Spence now contends Roberts should have provided. Thus, Spence has not proven prejudice. Accordingly, the court denies Spence's section 2255 motion and denies a certificate of appealability.

         I.

         On February 9, 2011, a federal grand jury charged Spence with conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base (crack) (count one), distribution of a quantity of cocaine base (crack) (counts two and three), and distribution of five grams or more of cocaine base (crack) (count four). See [D.E. 1]. The conspiracy allegedly occurred from on or about January 2000 through on or about February 9, 2011. See Id. The individual transactions allegedly occurred on or about March 16, 2009 (count two), March 19, 2009 (count three), and March 30, 2009 (count four). See id When indicted, Spence had a 1999 conviction for possession with intent to sell or deliver cocaine. See id.

         According to the government, Spence distributed large quantities of cocaine base (crack) in and around Elizabeth City, North Carolina from on or about January 2000 through on or about February 9, 2011. Spence's alleged co-conspirators included Daniel Bowser, Walter Allen Norman, Marcel Duram Bowe, Deroca Johnson, Willie Garcia Warren, and Brandon Clarence Skinner. See Presentence Investigation Report ("PSR") [D.E. 91] ¶¶ 10-12 (Gov't Ex. 9).

         On February 20, 2011, Neil Morrison ("Morrison") entered a notice of appearance as appointed counsel for Spence [D.E. 11]. Morrison received the discovery in the case and reviewed it with Spence. Morrison also engaged in plea negotiations with Assistant United States Attorney Denise Walker ("AUSA Walker"). According to Spence, Morrison presented a proposed plea agreement in which Spence would plead guilty to the conspiracy count, face a potential sentence of 120 months' imprisonment to life imprisonment, and the government would dismiss counts two, three, and four. Spence told Morrison that he did not conspire with anyone, that he was innocent, and to reject the proposed plea agreement. Morrison complied with Spence's instructions.

         On October 18, 2011, Morrison moved to withdraw as Spence's counsel and told the court that Spence had retained attorney A. Patrick Roberts to represent him [D.E. 34]. On that same date, Roberts filed bis notice of appearance as Spence's retained counsel [D.E. 33]. On October 19, 2011, the court granted Morrison's motion to withdraw [D.E. 35].

         Spence's arraignment (which already had been continued four times [D.E. 20, 23, 28, 30]) was scheduled for November 29, 2011. See [D.E. 36]. On November 21, 2011, Spence moved to continue the arraignment. See [D.E. 37]. On November 28, 2011, the court granted the motion and continued the arraignment until January 9, 2012. See [D.E. 38]. On December 27, 2011, Spence again moved to continue his arraignment [D.E. 40]. On December 28, 2011, the court granted Spence's motion and continued the arraignment until March 2012 [D .E. 41 ]. On February 22, 2012, Spence again moved to continue his arraignment [D.E. 43]. On that same date, the court continued Spence's arraignment until March 19, 2012 [D.E. 44].

         After thoroughly investigating the facts and the law, Roberts met with Spence and told Spence that the government would be able to prove all four counts against Spence, that the drug weight would be substantial, and that Spence faced an advisory guideline range of 3 60 months to life imprisonment, if convicted at trial on count one. Roberts also discussed with Spence the benefits of pleading guilty to one of the non-conspiracy counts pursuant to a plea agreement, and attempting to cooperate in order to possibly receive a motion under U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e). Spence told Roberts that he had not committed the charged crimes and did not have any knowledge of criminal activity that would help the government. Spence also told Roberts that he was innocent, could "beat the case" at trial, and needed a lawyer who would fight for him.

         On March 19, 2012, the court held Spence's arraignment. See [D.E. 46]. During the arraignment, the court advised Spence about his rights under the Constitution and laws of the United States, the charges, and the potential penalties. Arraignment Tr. [D.E. 161] 2-22. As for the potential penalties, the court told Spence that count one required a mandatory minimum sentence of 120 months' imprisonment and a maximum sentence of life imprisonment, that counts two and three each carried no mandatory minimum sentence and a statutory maximum sentence on each count of 240 months' imprisonment, and that count four required a mandatory minimum sentence of 60 months' imprisonment and a statutory maximum sentence of 480 months' imprisonment. See Id. at 21-22. After confirming under oath that he understood his rights, the charges, and the potential penalties, Spence pleaded not guilty to counts one through four. See Id. at 18-19, 23. The court set the trial for June 4, 2012. See Id. at 23-24.

         On May 30, 2012, Spence moved to continue the trial "until the middle of August at the earliest." [D.E. 57]. In support, Roberts noted that he received additional discovery between May 25, 2012, and May 29, 2012. Id. at 1. According to Roberts, the discovery included the identity of two key witnesses and their unredacted statements pertaining to Spence. Id. Roberts stated that he and Spence needed "additional time" to review this additional discovery, "inquire into details regarding these new witnesses, and prepare a defense for trial." Id. Roberts also cited the government's Rule 404(b) notice of May 29, 2012, as warranting a continuance. Id. Roberts also noted that he had to undergo a medical procedure on June 1, 2012, and that the procedure could interfere with his effectiveness if the trial began on June 4, 2012. Id. at 2. Finally, Roberts noted that he had preplanned vacations between July 13 and July 20, 2012 and between August 4 and August 12, 2012. Id. Thus, Robert asked the court to continue the trial "until the middle of August at the earliest." Id. The government did not oppose the motion to continue. Id. On May 30, 2012, the court granted Spence's motion to continue and rescheduled the trial for Monday, August 13, 2012, at 10:00 a.m. in Raleigh [D.E. 60]. On June 7, 2012, Spence wrote a pro se letter to the court complaining that government agents were seeking to intimidate his mother "and people who are my witnesses." See [D.E. 61].

         During June and July 2012, Roberts continued to be concerned about Spence's decision to plead not guilty and go to trial. Roberts feared that the jury would convict Spence on all four counts, that the drug weight would be substantial, and that Spence could receive a sentence of between 360 months to life imprisonment on count one. Roberts met with Spence and discussed his concerns. Roberts suggested approaching AUSA Walker with a proposed plea agreement to count two. Roberts explained the proposal to Spence, the mandatory minimums and statutory maximums on each count in the indictment, the advisory guideline system, and the benefits of pleading guilty to count two with a proposed stipulated drug weight of at least 840 grams but less than 2.8 kilograms of cocaine base (crack). Roberts also explained to Spence that such a proposed plea agreement would cap Spence's sentencing exposure at 240 months' imprisonment. Roberts contrasted that sentencing exposure with the sentencing exposure on count one of up to life imprisonment upon conviction. Roberts also explained to Spence that if Spence cooperated pursuant to a plea agreement, the government might file a motion under U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e), which would increase Spence's chances for an even lower sentence. Spence authorized Roberts to approach AUSA Walker to engage in such plea negotiations, but continued to maintain his innocence and continued to prepare for trial.

         In accordance with Spence's direction, Roberts undertook plea negotiations with AUSA Walker while simultaneously preparing for trial. Roberts knew that he was scheduled to go on a cruise between August 4 and August 11, 2012, to celebrate his mother's 60th birthday. Thus, in early August 2012, Roberts prepared his trial notebook. On August 4, 2012, Roberts filed four pretrial motions. See [D.E. 63, 64, 65, 66]. Roberts also contacted AUSA Walker to discuss whether the government was willing to negotiate a plea agreement to count two with a stipulated drug weight of at least 840 grams but less that 2.8 kilograms of cocaine base (crack) to be used in determining the base offense level under U.S.S.G. § 2D1.1. The proposed plea agreement would also recommend to the court that Spence receive full credit for acceptance of responsibility and include cooperation language. See Fed. R. Crim. P. 11(c)(1)(A), (B).

         On August 8, 2012, Roberts (while on the cruise ship) held a conference call with AUSA Walker, Roberts's assistant, and Roberts's paralegal Steven Wright ("Wright") to discuss the plea agreement. At the time, Wright was a lawyer admitted to the Vermont bar and was awaiting his results from the July 2012 North Carolina bar exam. Wright assisted Roberts throughout the course of representing Spence and attended several meetings with Spence and Roberts. See [D.E. 135-1] 23 (Gov't Ex. 2); [D.E. 135-1] 3 (Goy't Ex. 13). During the conference call, AUSA Walker agreed to draft a plea agreement as Roberts outlined concerning count two. On that same date, AUSA Walker emailed the draft plea agreement to Roberts. See [D.E. 135-1] 15-20 (Gov't Ex. 4).

         Roberts, who was on a cruise ship with spotty cell service, reviewed the draft plea agreement and concluded that it comported with what he had discussed with Spence before leaving on the cruise. Roberts then instructed Wright to meet with Spence and tell Spence that Roberts recommended signing the plea agreement. Roberts also told Wright to tell Spence if he did not sign the plea agreement when ...


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