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Jeffries v. United States

United States District Court, M.D. North Carolina

January 2, 2018




         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. 262.) The Government has filed a response (Doc. 280), and Petitioner filed a reply (Doc. 291). The parties have filed affidavits, and the court held an evidentiary hearing on August 24, 2017. Thereafter, the parties filed post-hearing briefs. (Docs. 325, 328, and 332.) For the reasons stated below, Petitioner's motion will be granted in part and denied in part.

         I. BACKGROUND

         On April 25, 2011, a federal grand jury charged Petitioner in a two-count indictment with possession with intent to deliver cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Doc. 1.) Attorney William S. Trivette was appointed to represent Petitioner. On May 24, 2011, however, Petitioner retained attorney Andy Patrick Roberts, and Trivette was discharged.[1]

         On May 31, 2011, and August, 30, 2011, the Government filed two superseding indictments, adding three co-defendants and ultimately charging Petitioner with conspiracy to distribute 280 grams or more of cocaine base and to possess 5 kilograms or more of cocaine hydrochloride with the intent to manufacture cocaine base in violation of 21 U.S.C. § 846 (Count 1); possession with intent to distribute 11.5 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count 4); and possession of firearms, including a 12-guage “Street Sweeper” shotgun, a destructive device, in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(a)(i) and (c)(1)(B)(ii) (Count 5). (Doc. 43.) In 2012, following a twelve-day trial, a jury convicted Petitioner on all three counts, although it found that he did not know of the characteristics that rendered the Street Sweeper a “destructive device” as defined in the statute. (Doc. 109.) At sentencing, the court varied downward several offense levels and imposed a sentence of imprisonment of 360 months as follows: 300 months as to Count 1, 240 as to Count 4, to run concurrently with Count 1, and 60 months as to Count 5, to run consecutive to Counts 1 and 4. (Doc. 164 at 2.) Attorney Robert L. McClellan was appointed to represent Petitioner on appeal. (Doc. 209.) Following appeal, the Fourth Circuit affirmed. (Doc. 236.)

         Petitioner brings his present motion on three grounds, each charging ineffective assistance of counsel. First, he claims Trivette both failed to accept a plea Petitioner claims the Government made as well as failed to advise him to cooperate with the Government; and that Roberts failed to communicate acceptance of a plea offer and failed to advise Petitioner and keep him properly informed as to ongoing plea negotiations. (Doc. 263 at 10-14, 19-20.) Second, Petitioner claims that Roberts failed to object to the use of an incorrect version of the United States Sentencing Guideline Manual for his sentencing. (Id. at 14-17.) Finally, Petitioner claims that McClellan failed to pursue the foregoing guideline claim on appeal. (Id. at 17.)

         Because of conflicting affidavits by Petitioner, Trivette, and Roberts, the court held an evidentiary hearing on Petitioner's claims on August 24, 2017. All three witnesses testified. Now that Petitioner's motion is fully briefed, it is ripe for decision.

         II. ANALYSIS

         A. Ineffective Assistance during Plea Bargaining

         Petitioner first claims that his attorneys were ineffective during the plea bargaining process. (Id. at 10-14.) The Supreme Court has recognized a defendant's right to effective counsel during plea negotiations. Missouri v. Frye, 566 U.S. 134, 147 (2012). To succeed on such a claim, “a petitioner must establish that (1) counsel's performance was deficient and (2) there is a reasonable probability that the deficiency prejudiced the defense.” Merzbacher v. Shearin, 706 F.3d 356, 363 (4th Cir. 2013) (citing Strickland v. Washington, 466 U.S. 668, 691-92 (1984)).

         To establish deficient performance, a petitioner “must show that counsel's representation fell below an objective standard of reasonableness.” Merzbacher, 706 F.3d at 363 (quoting Strickland, 466 U.S. at 688.) In considering whether counsel's performance was deficient, a court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, in order to avoid the distorting effects of hindsight.” Id. (quoting Yarbrough v. Johnson, 520 F.3d 329, 337 (4th Cir. 2008)). “To show prejudice from ineffective assistance of counsel in a case involving a plea offer, petitioners must demonstrate a reasonable probability that (1) ‘they would have accepted the earlier plea offer had they been afforded effective assistance of counsel, ' and (2) ‘the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it . . . .'” Id. at 366 (quoting Frye, 566 U.S. at 147.)

         In assessing the credibility of witnesses, the court may consider “variations in demeanor and tone of voice.” Rahman v. United States, No. 7:08-CR-126-D, 2013 WL 5222160, at *5 (E.D. N.C. Aug. 27, 2013) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985)), adopted by 2013 WL 5230610 (E.D. N.C. Sept. 16, 2013). However, “documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.'” Id. (quoting United States v. Marcavage, 609 F.3d 264, 281 (3d Cir. 2010)). “Additional considerations can include the witness's motive to lie and the level of detail in the witness's statements.” Id. (citing United States v. Wilson, 624 F.3d 640, 665 (4th Cir. 2010)). The Fourth Circuit has recognized that a Petitioner's “self serving assertion that he would have accepted the plea is . . . ‘the type of testimony . . . subject to heavy skepticism.'” Merzbacher, 706 F.3d at 367 (quoting United States v. Day, 969 F.2d 39, 46 n.9 (3d Cir. 1992)).

         Framed with this statement of the legal principles, Petitioner's claims will be addressed in turn.

         1. Claims Involving Attorney Trivette

         During Trivette's limited appointment of less than one month, Petitioner was the sole defendant named in a two-count indictment charging possession with intent to distribute 11.5 grams of cocaine base (Count 1) and possession of two firearms - a 9mm Hi-Point handgun and a 10mm Smith & Wesson - in furtherance of a drug trafficking crime. (Doc. 1.) Shortly after the conclusion of Trivette's representation, the Government filed a superseding indictment charging Petitioner with the additional counts of conspiracy to distribute 280 grams or more of cocaine base (object one) and to possess 5 kilograms or more of cocaine hydrochloride with the intent to manufacture cocaine base (object two), and possession of a 12-gauge “Street Sweeper” shotgun, which carried a possible mandatory minimum 30-year sentence. (Doc. 10.) Petitioner blames Trivette for his being exposed to a superseding indictment. Initially, Petitioner contended that Trivette failed to communicate Petitioner's acceptance of a purported Government plea offer. (Doc. 263 at 13, 18.) Following the evidentiary hearing, however, Petitioner characterizes his claim as Trivette failing to properly advise him to accept a “favorable plea offer” from the Government and to cooperate with the Government's investigation and prosecution to avoid the superseding indictment. (Doc. 325 at 10-11.)

         At the evidentiary hearing, Petitioner testified that Trivette first met with him on or around May 3, 2011, and discussed a potential plea offer from the Government that would entail pleading guilty to the two-count indictment for a possible 10-year sentence. (Doc. 324 at 78-79.) According to Petitioner, he told Trivette during this first meeting that he wanted to plead guilty to the two-count indictment. (Id. at 92; Doc. 263 at 18.) Petitioner testified that Trivette handed him a three-page letter dated May 1, 2011, that outlined the charges against him, the criminal adjudicative process, and some general advice about their relationship and Petitioner's rights. (Doc. 324 at 78-79; Pet'r's Ex. 1.) According to Petitioner, Trivette said that the Government's plea offer was “5 years for Count One and 5 years for Count Two for a total of 10.” (Doc. 324 at 79.) Trivette then noted in the letter that any sentence on the gun charge would be “consecutive” and initialed the letter, Petitioner said. (Id.) Trivette said, “10 years doesn't sound that bad.” (Id. at 78.) Petitioner maintains that he read the letter. (Id. at 81.) But he claims that Trivette never explained what cooperation with the Government would entail (only that “the Government feels there's a bigger picture, you know more, but we never went into it”), what sentence he might get if he lost at trial or was superseded with a new indictment, what sentencing range would apply under the Sentencing Guidelines, or the concept of acceptance of responsibility. (Id. at 78-81.)

         Petitioner contends that at no time did Trivette ever inform him that a superseding indictment would be filed if he did not accept the Government's offer. (Id. at 95-96.) He further testified that Trivette never advised him to cooperate with the Government and failed to explain what cooperation would entail. (Id. at 79-80.) Had Trivette done so and provided information regarding his sentencing exposure, Petitioner testified, he would have agreed to cooperate and accepted the Government's plea offer. (Id. at 82.)

         Petitioner claims that while Trivette never reviewed his whole letter with him, he relied on a portion of the letter that provided:

SUBSTANTIAL ASSISTANCE. You can try for a cut in your sentence by providing information or assistance to the government that substantially assists in the investigation or prosecution or another person. Be aware, however, that the majority of defendants who provide information in our area do not get a sentence reduction because the government does not deem their assistance as useful. Do not cooperate with an expectation for a reduction, only a slight hope. I do not recommend you try to cooperate unless I get information from the U.S. Attorney or a law enforcement officer that they think you may be able to help yourself. I wish that I had better news on this topic, but I don't.

(Pet'r's Ex. 1 at 3 (emphasis added); Doc. 324 at 81-82.) After reading this, Petitioner testified, he “saw that cooperation didn't necessarily mean that anything would happen for me.” (Id. at 82.) Petitioner now contends that he did not accept the Government's plea offer because he was either not encouraged, or actually dissuaded, by Trivette from doing so. (Doc. 325 at 8-11; Doc. 332 at 2.) As a result, he contends, he was subjected to the additional charges in the superseding indictment.

         This contention is plainly at odds with Petitioner's initial position in this case. At the outset, Petitioner maintained that he instructed Trivette to accept what he understood was a Government plea offer without any mention of cooperation, and that Trivette's failure to do so resulted in the new indictment. (Doc. 263 at 18.) During the evidentiary hearing, however, Petitioner conceded on cross-examination that in any plea “the Government would be seeking [his] cooperation.” (Doc. 324 at 92; see also Id. at 95.) Further, he admitted that while he says that Trivette never explained cooperation to him, he “knew what that meant, ” including Petitioner's explanation of what he had done, who he sold drugs with, and where he obtained the drugs. (Id. at 92-93.) He also conceded that he never agreed to cooperate during the course of Trivette's representation or indicated an interest in doing so. (Id ...

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