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United States v. Melvin

United States District Court, D. Massachusetts

April 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES MELVIN, Defendant.

          REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION UNDER 28 U.S.C. S 2255 TO VACATE. SET ASIDE. OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (Dkt. No. 247)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         After a jury found James Melvin ("Petitioner") guilty of possession with intent to distribute and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1), he was sentenced to serve 168 months imprisonment followed by six years of supervised release (Dkt. Nos. 212, 225).[1] Petitioner, proceeding pro se, has now moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Dkt. No. 247). The United States of America ("the government") has opposed Petitioner's § 2255 motion and Petitioner has responded (Dkt. Nos. 259, 260). The trial judge referred the motion to this court for a report and recommendation (Dkt. No. 261). See 28 U.S.C. §636(b)(1)(b); Fed.R.Civ.P. 72; Rule 10, Rules Governing Section 2255 Proceedings. For the reasons detailed below, the undersigned recommends that Defendant's motion be DENIED.

         II. Factual Background[2]

         Petitioner's conviction arose from his sale of approximately 11.5 grams of crack cocaine to a government informant in the parking lot of Frank's Package Store in Springfield on February 19, 2010. The government informant, Robert K. Williams, Jr. ("Williams"), began working as an informant for the Massachusetts State Police in September 2009 (Tr. 1: 187). His undercover work for the Federal Bureau of Investigation ("FBI") commenced two months later in November 2009 (Tr. 1: 187-88). At approximately 2:00 p.m. on February 19, 2010, FBI Special Agent ("SA") Jeffrey Lawrence, the supervisor of the federal task force conducting the undercover operation, directed Williams to call the investigation's target, Anthony Hook ("Foo"), to set up a controlled purchase of crack cocaine (Tr. 1: 196, 198; Tr. 2: 23, 155-56). During the recorded telephone call, Hook agreed to sell Williams "three and a teenth" of crack cocaine for $500 (Tr. 2: 165-66).[3] Hook then handed the telephone to a person who Hook described as "one of my young boys, my runner, my peoples" (Tr. 2: 167). This man, who Williams later identified as Petitioner, directed Williams to meet him in the parking lot of Frank's Package Store and indicated that he would be wearing a black jacket (Tr. 1:202-03; Tr. 2: 166).

         After the call, SA Lawrence supplied Williams with $500 and a digital scale (Tr. 1: 197, 200). Another member of the task force, Massachusetts State Police Sergeant Thomas Fitzgerald, searched Williams' person and his vehicle, a blue Chevy Blazer, for money and contraband with negative results (Tr. 1:201-02; Tr. 3: 79, 81-82). Williams was outfitted with an audio transmitter, which permitted the surveillance officers to hear his conversations but did not record, and two digital cameras, which did record (Tr. 1: 199).[4] SA Lawrence, Sergeant Fitzgerald, and two other officers then followed Williams to the package store in a separate vehicle (Tr. 1: 202, 205). Williams stopped for gas along the way (Tr. 1: 204). He was alone in the gas station's store while he paid for gas (Tr. 2: 28-30; Tr. 3: 55-56).

         After Williams arrived in the package store's parking lot, Petitioner entered the front passenger's seat of his vehicle (Tr. 2:155). According to Williams' testimony, the video recording, and the audio transmission, Petitioner reached into his pants and pulled out a plastic bag containing crack cocaine, and said, "'We got three balls and a teenth'" (Tr. 2: 162, 174). Williams attempted to weigh the narcotics on the digital scale that he placed on the console between the front seats, but the scale did not work (Tr. 2:174-75). According to the audio recording, Petitioner said, "That shit is always on point, you might have extra" (Tr. 2: 175). During the conversation, Petitioner counted four individually wrapped items that were contained in a larger plastic baggie while saying, '"You got two of these is 7, that's ten and a half, IT... [you have] '12 here'" (Tr. 1: 211-12; Tr. 2: 78-79, 175-76; Tr. 3:173). According to Williams, Petitioner was indicating that he was giving him twelve grams of crack cocaine (Tr. 2: 175-76). Williams then gave Petitioner $500 and Petitioner left Williams' vehicle (Tr. 2: 177). Notwithstanding SA Lawrence's instruction to Williams regarding the importance of recording Petitioner handing over the drugs, the "actual exchange" of drugs for cash was not recorded by the digital cameras that Williams was wearing (Tr. 2: 22; Tr. 3: 21).

         As Williams began to leave the parking lot, an acquaintance, James Clinton, was among a group of people who walked in front of Williams' vehicle (Tr. 2:73, 178). Williams called out to Clinton who approached Williams and made a joke about his vehicle (Tr. 2:177; Tr. 3: 50-52). Williams testified that he rolled down the driver's side window with his left hand, reached out of the window with his right hand, and "slapped [Clinton] five" (Tr. 2: 74, 183-84; Tr. 3: 52). Williams denied that he was holding anything when his hand met Clinton's (Tr. 2: 184).

         The surveillance officers followed Williams to the predetermined debriefing location where he turned over 11.5 grams of crack cocaine to SA Lawrence (Tr. 1: 207, 209, 210; Tr. 2: 96, 185). Sergeant Fitzgerald did not recover any other narcotics or money when he searched Williams' person and vehicle (Tr. 1:209, 210; Tr. 3: 83).

         Petitioner testified in his defense that, on February 19, 2010, Hooks provided him with twelve grams, or approximately one-half ounce, of high grade hydroponic marijuana, which he exchanged with Williams for $500 in Williams' vehicle in Frank's Package Store parking lot (Tr. 3: 124-27, 133, 144-45, 147, 154-55).[5] Petitioner testified that the marijuana was a light green substance, but the sunlight made it appear to be white on the video recordings (Tr. 3:127, 155, 157, 167). For comparison, Petitioner pointed to the black garbage bag the covered Williams' front passenger side window, which he alleged appeared gray in the video recordings (Tr. 3: 127). Petitioner also told the jury that the white or off-white ball that he was seen holding in the video was the empty, crumpled, larger plastic sandwich bag from which Williams had removed the smaller bags of marijuana in order to weigh them (Tr. 3:138-39, 141-44, 146-47, 161-62).

         Notwithstanding Petitioner's representation to Williams regarding the narcotics "always [being] on point, " Petitioner testified that this was the only time he made a delivery for Hooks (Tr. 3* 135-36). However, he stated that he previously had served Hooks as a lookout (Tr. 3: 130).

         III. PROCEDURAL HISTORY

         On May 20, 2010, a grand jury sitting in the United States District Court for the District of Massachusetts returned a single count indictment charging Petitioner with distributing cocaine base or possessing cocaine base with intent to distribute (Dkt. No. 2). See 21 U.S.C. § 841(a)(1). The government filed an information pursuant to 21 U.S.C. § 851 before Petitioner's first trial, which commenced on November 28, 2011 before Judge Nathaniel M. Gorton and a jury (Dkt. No. 97). After the jury found Petitioner guilty, Judge Gorton sentenced him to 180 months in prison and six years of supervised release (Dkt. Nos. Ill. 127). On September 17, 2013, Petitioner's conviction was vacated and the case was remanded for a new trial. See United States v. Melvin, 730 F.3d 29, 40 (1st Cir. 2013).

         On retrial in March 2014, a jury again found Petitioner guilty and Judge Gorton sentenced him to 168 months of imprisonment and six years of supervised release (Dkt. Nos. 201, 206, 207, 208, 212, 225). The First Circuit affirmed the conviction, see United States v. Melvin, 628 Fed.Appx. 774, 778 (1st Cir. 2015), and the Supreme Court denied the petition for a writ of certiorari on February 29, 2016 (Dkt. No. 246). See Melvin v. United States, 136 S.Ct. 1236(2016).

         On January 12, 2017, Petitioner moved to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 (Dkt. No. 247). Judge Gorton ordered the government to respond (Dkt. No. 248). See 28 U.S.C. § 2255(b); Rules 4(b) & 5(a), Rules Governing Section 2255 Proceedings. The government filed its opposition and Petitioner replied (Dkt. Nos. 259, 260). See Rule 5, Rules Governing Section 2255 Proceedings.

         Petitioner claims that his trial counsel at both trials, Attorney William O'Neil ("Attorney O'Neil"), rendered ineffective assistance at the second trial by failing to: (1) subpoena James Clinton to testify that Williams transferred marijuana to him in the parking lot of Frank's Package Store on February 19, 2010; (2) withdraw from Petitioner's case due to a conflict of interest; and (3) effectively communicate the government's plea offer (Dkt. No. 247 at 4-5). In addition, Petitioner moves to correct his sentence based on the Board of Prisons' ("BOP") alleged representation that Petitioner's 168 month sentence would run consecutive to a 51 month sentence imposed by the United States District Court for the Southern District of New York for violating conditions of supervised release (id. at 5).

         IV. Legal Standards

         A. 28 U.S.C. $ 2255

         Section 2255 "provides for post-conviction relief in four instances, namely, if the petitioner's sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." David v. United States, 134 F.3d 470, 474 (1st Cir. 1998) (citing Hill v. United States, 368 U.S. 424, 426-27 (1962)). "The fourth category includes only 'assignments of error that reveal "fundamental defects" which, if uncorrected, will "result in a complete miscarriage of justice, " or irregularities that are "inconsistent with the rudimentary demands of fair procedure.'"" United States v. Mahan, Criminal No. 10-10073-NMG, 2015 WL 4762652, at *4 (D. Mass. Aug. 11, 2015) (quoting David, 134 F.3d at 474). "[Petitioner] bears the burden of establishing the need for section 2255 relief." Id. "Where, as here, a petitioner is acting pro se, his petition must be 'liberally construed ... [and] zpro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" United States v. Robinson, 227 F.Supp.3d 141, 146 (D. Mass. 2016) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

         Although Petitioner has not requested an evidentiary hearing, § 2255(b) states that the court "shall... grant a prompt hearing" on a § 2255 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). "The language of section 2255 ... 'does not strip the [Court] of all discretion to exercise [its] common sense."' Kiley v. United States, 260 F.Supp.2d 248, 258 (D. Mass. 2003) (alteration in original) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). The First Circuit has held that "[a] prisoner who invokes section 2255 is not entitled to an evidentiary hearing as a matter of right." David, 134 F.3d at 477 (citing United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993)). Petitioner has the burden to show, by a preponderance of the evidence, that he is entitled to one. See Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) ("Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted."); David, 134F.3dat478.

         "[A] district court properly may forgo [a hearing] when (1) the motion is inadequate on its face, or (2) the movant's allegations, even if true, do not entitle him to relief, or (3) the movant's allegations 'need not be accepted as true because they state conclusions instead of facts, contradict the record, or are "inherently incredible.'"" David, 134 F.3d at 477 (quoting McGill, 11 F.3d at 225-26); see also Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007), abrogated on other grounds by Weaver v. Massachusetts, 137 S.Ct. 1899 (2017); Rule 4(b), Rules Governing Section 2255 Proceedings. To determine whether a petitioner is entitled to a hearing, the court reviews the "expanded record, " which includes "the answer, any transcripts and records of prior proceedings, " and additional submitted materials, including affidavits. Rules 7 & 8(a), Rules Governing Section 2255 Proceedings. See Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977) ("[T]he district court may make its preliminary assessment of the motion's merits on an expanded record that may include 'in an appropriate case, even affidavits."') (quoting Raines v. Unijed States, 423 F.2d 526, 530 (4th Cir. 1970)). "However, material issues of fact may not be resolved against the petitioner solely by relying on exparte, sworn or unsworn, statements of the government or defense counsel." United States v. Butt, 731 F.2d 75, 77-78 (1st Cir. 1984) (internal citations omitted). "Affidavits may assist only in determining if there is a genuine issue of fact to resolve." Miller, 564 F.2d at 106 (citing Blac Hedge v. Allison, 431 U.S. 63, 80 (1977)). "An evidentiary hearing is required if the records and files in the case, or an expanded record, cannot conclusively resolve substantial issues of material fact, 'and when the allegations made, if true, would require relief.'" Butt, 731 F.2d at 78 (quoting United States v. Fournier, 594 F.2d 276, 279 (1st Cir. 1979)). See Carpenter v. United States, 478 F.Supp.2d 205, 214 (D.R.I. 2007) ("Genuine issues of material fact may not be resolved without a hearing......").

         B. Ineffective Assistance of Counsel

         "In all criminal prosecutions, the accused shall enjoy the right to ... the Assistance of Counsel for his defence." U.S. Const, amend. VI. "The touchstone for determining whether an attorney's performance falls below the constitutional norm is whether counsel has brought 'to bear such skill and knowledge as will render the trial a reliable adversarial testing process.'" Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).

         In Strickland, the Supreme Court developed a two prong test to determine claims of ineffective assistance of counsel. See Mahan, 2015 WL 4762652, at *4.

[T]o establish counsel ineffectiveness, a defendant must prove that (1) "counsel's performance was deficient... that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and (2) - "the deficient performance prejudiced the defense... that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."

United States v. Guerrero, Criminal No. 08-10197-LTS, 2015 WL 6958071, at *3 (D. Mass. Nov. 9, 2015) (quoting Strickland, 466 U.S. at 687). A petitioner's failure to make the required showing on either prong "defeats the ineffectiveness claim." Strickland, 466 U.S. at 700.

         Under the first prong "a [petitioner] must show that, 'in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" Rosado v. Allen, 482 F.Supp.2d 94, 101 (D. Mass. 2007) (quoting Strickland, 466 U.S. at 690).

         "This evaluation of counsel's performance 'demands a fairly tolerant approach.'" Id. (quoting Scarpa, 38 F.3d at 8). "'[T]actical decisions, whether wise or unwise, successful or unsuccessful, cannot ordinarily form the basis of a claim of ineffective assistance.'" Murchu v. United States, 926 F.2d 50, 58 (1st Cir. 1991) (alteration in original) (quoting United States v. Ortiz Oliveras, 717 F.2d 1, 3 (1st Cir. 1983)). See United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991), Because "[t]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, '" Smullen v. United States, 94 F.3d 20, 23 (1st Cir. 1996) (quoting Strickland, 466 U.S. at 689), "the burden that [a petitioner] faces when filing a section 2255 motion is unquestionably heavy......" Mahan, 2015 WL 4762652, at *5.

         The second Strickland prong requires a petitioner to establish that counsel's subpar performance was prejudicial to the defense. See Strickland, 466 U.S. at 692. The prejudice prong "entails 'a showing of a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."'" Rosado, 482 F.Supp.2d at 101 (quoting Scarpa, 38 F.3d at 8). See Padilla v. Kentucky, 559 U.S. 356, 366 (2010). Put another way, '"[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment."' Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996) (quoting Strickland, 466 U.S. at 691).

         V. ANALYSIS

         A. Counsel's Failure to Subpoena James Clinton to Testify

         Petitioner first claims that he was deprived of his Sixth Amendment right to compulsory process for obtaining witnesses to testify on his behalf by Attorney O'Neil's failure to subpoena James Clinton (Dkt. No. 247 at 4). See U.S. Const, amend. VI ("In all criminal prosecutions, the accused shall enjoy the right... to have compulsory process for obtaining witnesses in his favor."); Bowling v. Vose, 3 F.3d 559, 561 (1st Cir. 1993) (a criminal defendant's "[e]xercise of the right [to compulsory process] assists the adversary process in its truth-seeking function by ensuring that the trial court hears the full array of admissible facts pertinent to the case."). At trial, the parties agreed that the video recording showed Clinton approaching Williams in his vehicle and touching Williams' hand immediately after Petitioner exited from the vehicle and Williams began driving out of the parking lot. The government claimed that Petitioner had sold crack cocaine to Williams and that he did not transfer anything to Clinton. Instead, the two men just "slapped five." According to the defense theory, however, Williams handed Clinton the marijuana that he had just purchased from Petitioner, which explained why Sergeant Fitzgerald did not find marijuana on Williams' person or in his vehicle after the transaction. Petitioner asserts that his Sixth Amendment right was violated by Attorney O'Neil's failure to subpoena Clinton to testify because Clinton's testimony was necessary to corroborate the defense theory that Petitioner sold Williams marijuana (Dkt. No. 247 at 4; Dkt. No. 260 at 2-4). See Bowling, 3 F.3dat561.

         On June 20, 2013, between Petitioner's first and second trials, Clinton signed an "Affidavit" stating that a "friend" had shown him a video recording of Frank's Package Store's parking lot on February 19, 2010 in which he appeared (Dkt. No. 247-1 at 5).[6] According to Clinton's affidavit, Williams called him over to his vehicle and gave him marijuana on that date (id). Petitioner states that he showed Clinton's affidavit to Attorney O'Neil before the second trial (Dkt. No. 247 at 4).

         Attorney O'Neil submitted a sworn affidavit confirming that he received Clinton's affidavit before Petitioner's second trial (Dkt. No. 259-1 ¶ 9).[7] Attorney O'Neil states that he spoke to Clinton by telephone on November 5, 2013 "to confirm that he had executed the affidavit and to confirm his willingness to cooperate ..." (id.). On January 8, 2014, after plea negotiations had broken down and it appeared that Petitioner's case would proceed to trial, Attorney O'Neil and his investigator met with Clinton in Attorney O'Neil's office for approximately fifty minutes (id ¶¶ 10, 11). They reviewed Clinton's affidavit and the videotape of Frank's parking lot showing him and Williams (id. at ¶ 11). Clinton again indicated that he had signed the affidavit, but was unable to confirm its information due to his "poor memory" that he attributed, in part, to "his regular substance abuse" (id.). At a meeting with Petitioner two days later, Attorney O'Neil recounted his meeting with Clinton and told Petitioner that he was not planning to call Clinton as a witness because he would not be "helpful" (id. ¶ 12). Attorney O'Neil did not discuss Clinton with Petitioner again until shortly before the trial in March 2014 (id).

         Apparently the government alerted the trial judge to the possibility that Clinton would be called as a defense witness who might invoke his Fifth Amendment privilege against self-incrimination because the judge discussed the issue with counsel at the pretrial conference on March 18, 2014 and expressed his concern that he might need to appoint counsel "on short notice" and might be required "to conduct a voir dire outside the presence of the jury in order to determine if [Clinton] intends to plead the Fifth Amendment on the stand" (PTC Tr.: 5-6).[8]Attorney O'Neil responded by informing the court that he did not anticipate calling Clinton as a witness, but indicated "[t]here may be an outside chance that would change" (PTC Tr.: 6).

         According to Attorney O'Neil, he received a message from Clinton three days later, on March 21, 2014, and returned the call (259-1 ¶ 13). Clinton told Attorney O'Neil that Petitioner had contacted him and "he wanted to help" (id.). Consequently, Attorney O'Neil and his investigator met with Clinton on March 22, 2014 (id. ¶ 14). According to Attorney O'Neil's affidavit, "Clinton reiterated his desire to help [Petitioner] but he again described his poor memory and the difficulty he was having in recalling the events of February 19, 2010 when he had contact with ... Williams in the Frank's Package Store parking lot-----Clinton was unable to confirm ... that he would be able to testify as to the facts stated in his affidavit" (id.). Based on Attorney O'Neil's two interviews of Clinton and his theory of defense, Attorney O'Neil concluded that he would not call Clinton as a witness ...


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