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Fleming v. United States

United States District Court, W.D. Michigan, Southern Division

December 20, 2016

MARJUAN FLEMING, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          ROBERT HOLMES BELL, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Movant Marjuan Fleming's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1) and supplement thereto (ECF Nos. 6, 7). The Government has filed a response (ECF No. 13) and Movant has filed a reply (ECF No. 15). Also before the Court is Movant's motion for discovery and/or expansion of the record (ECF No. 9). For the reasons that follow, Movant's motions will be denied.

         I.

         In 2010, Movant was charged with four counts involving the distribution of cocaine base. (Indictment, United States v. Fleming, No. 1:10-cr-301 (W.D. Mich.), ECF No. 1.) Count 1 alleged that he distributed cocaine base on or about July 14, 2010. Count 2 alleged that he distributed cocaine base on or about July 15, 2010. Count 3 alleged that he distributed cocaine base on or about July 21, 2010. Count 4 alleged that he distributed cocaine base on or about July 26, 2010. Count 5 alleged that, on or about July 28, 2010, he possessed with intent to distribute 5 grams or more of cocaine base. Count 6 alleged that, on or about September 24, 2010, he possessed with intent to distribute 28 grams or more of cocaine base.

         Before trial, Movant's counsel filed a successful motion to suppress the evidence in support of Count 6, and that count was dismissed. Shortly before trial, the Government dismissed Counts 1, 2, and 4 of the indictment because the Kalamazoo Department of Public Safety destroyed the evidence and reports related to those counts. That left the distribution charge in Count 3 (occurring on or about July 21, 2010) and the charge of possession with intent to distribute in Count 5. Following a jury trial, Movant was found guilty of both counts and sentenced to a term of 276 months in prison. Movant appealed his conviction and sentence, but the Court of Appeals for the Sixth Circuit affirmed the Court's judgment. In 2014, Movant filed this motion to vacate, set aside or correct sentence raising the following claims:[1]

II. Trial counsel provided ineffective assistance by failing to request a cautionary instruction.
III. Trial counsel provided ineffective assistance by failing to object to an officer's testimony pursuant to Rule 704(b) of the Federal Rules of Evidence.
IV. Trial counsel refused to participate in the trial, failed to object to the introduction of a YouTube video, failed to move for a judgment of acquittal, and failed to give a limiting instruction.
V. Trial counsel waived opening arguments, failed to make objections, and failed to effectively cross-examine witnesses.
VI. Trial counsel failed to object to government conduct that amounted to prosecutorial misconduct.
VII. Appellate counsel failed to challenge the search of Movant's residence.
VIII. Cumulative error resulting in ineffective assistance of counsel.
IX. Trial counsel failed to object to an impermissible identification of Movant during rebuttal testimony.
X. Trial counsel failed to seek appropriate remedies upon discovery of a Brady violation.

(See Mot. under § 2255, ECF No. 1, PageID.11.)

         In a supplement to his motion filed in 2016 (ECF No. 7), Movant argues that he is entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015). The Government argues that Movant's claims are meritless or are barred by procedural default.

         II.

         A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion “a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non- constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotations omitted)).

         As a general rule, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review unless the petitioner shows either (1) “cause” and “actual prejudice” or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. An ineffective assistance of counsel claim may be raised in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal. Id.

         III.

         Ground I. Johnson claim.

         In a supplemental pleading, Movant asserts that he is entitled to relief under the Supreme Court's 2015 Johnson decision. In that case, the Supreme Court held that the residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), is invalid. Johnson, 135 S.Ct. at 2557. Movant was not sentenced under the ACCA; thus, Johnson does not apply.[2]

         Movant also argues that he was improperly sentenced as a career offender under the Sentencing Guidelines. According to the version of the Guidelines in effect at the time of Movant's sentence,

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

         U.S.S.G. § 4B1.1(a) (2015) (emphasis added). Applying Johnson to the Sentencing Guidelines, the Sixth Circuit has held that part of the definition of “crime of violence” is invalid. United States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016).

         Neither Johnson nor Pawlak apply to Movant's sentence because he was classified as a career offender due to two prior convictions for controlled substance offenses committed in Illinois. (See Information & Notice of Prior Drug Conviction, United States v. Fleming, No. 1:10-cr-301, ECF No. 36.) In other words, his sentence does not rely upon the invalidated portion of the definition of crime of violence. Thus, his Johnson claim is meritless.

         Ground II. Failure to request a cautionary instruction

         Movant argues that his counsel was ineffective for failing to request a cautionary instruction that a police officer was giving both fact and opinion testimony. In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective assistance of counsel. Movant must prove: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced Movant resulting in an unreliable or fundamentally unfair outcome. A court considering a claim of ineffective assistance must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Movant bears the burden of overcoming the presumption that the challenged action might be considered sound trial strategy. Id.; see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel's strategic decisions were hard to attack). The court must determine whether, in light of the circumstances as they existed at the time of counsel's actions, “the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690. Even if a court determines that counsel's performance was outside that range, the defendant is not entitled to relief if counsel's error had no effect on the judgment. Id. at 691. Movant must show that “there is 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.

         Officer Ferguson testified that he had been part of many investigations involving drug crimes. (Trial Tr. 8, United States v. Fleming, No. 1:10-cr-301, ECF No. 52.) He was familiar with how cocaine was used and distributed in the Kalamazoo area. Typically powder cocaine would be purchased and used in 1 gram quantities, whereas crack cocaine would be purchased and used in quantities of around .1 gram, which is 1/280th of an ounce. (Id. at 8-9.) This quantity of crack cocaine typically sold for approximately $20 in Kalamazoo.

         Ferguson also testified that he used and paid confidential informants to buy drugs, one of whom was Cassandra Hargrave. In 2010, he used her to purchase crack cocaine from Movant at 910 North Westnedge, in Kalamazoo. (Id. at 19.) He subsequently obtained and executed a search warrant for the second-story apartment in that location. In the apartment, there were two bedrooms, one of which was locked. He and other officers forced their way into the locked bedroom and discovered a pair of shoes. Inside one of the shoes was a bag of approximately 20 grams of crack cocaine and a bag of marijuana. (Id. at 29.) In another shoe nearby were two receipts, one from a store and another from a bank. (Id.) The bank receipt had Movant's driver's license number on it. (Id. at 34.) Inside a drawer near the shoes was a digital scale. (Id. at 36.) In Ferguson's opinion, a bag of over 20 grams of crack cocaine was not consistent with mere use, because it would be the equivalent of over 200 individual bags of crack cocaine that could be purchased off the street. (Id. at 39.)

         Movant argues that a cautionary instruction should have been given to distinguish Ferguson's lay and expert opinion testimony, and that without such an instruction, a jury was more likely to believe that Ferguson's opinions were fact. With such an instruction, Movant claims that a jury would have been free to reject Ferguson's statements about the price of drugs, the quantity in which they are sold, and the manner in which dealers sold drugs on Westnedge.

         Movant has not demonstrated prejudice. Ferguson's “opinions” about drug prices and sale quantities tended to show that the amount of drugs discovered in Movant's possession was for the purpose of sale and not use. But there was other evidence to support Movant's possession with intent to distribute. Hargrave testified that she purchased crack cocaine from Movant about 30 times. (Id. at 70.) On one occasion, he gave her crack cocaine that he retrieved from a tennis shoe. (Id. at 80.) Vivian Buchanan testified that she rented Movant's room to him, but she did not have the key for it. (Id. at 90-91.) She testified that neighbors were complaining about the number of people coming over to the house. (Id. at 92.) She told him to “quit selling out of the house, ” because she believed that he was selling drugs. (Id. at 93.) Kemberlyn Trotman, a cousin of Movant's, testified that he and Movant would pool their money to purchase cocaine. (Id. at 112.) Movant would cook his portion into cocaine base and then sell it. (Id. at 113.) Trotman saw Movant sell crack cocaine from the house on Westnedge approximately 200 times. (Id. at 114.) According to Trotman, Movant was the only one with a key to Movant's room. (Id. at 111.) In light of the foregoing evidence of possession and intent, Movant cannot demonstrate prejudice by counsel's failure to provide a cautionary instruction about Ferguson's testimony. Ample evidence other than Ferguson's opinions supported Movant's possession with intent to distribute the cocaine base discovered in his room.

         Ground III. Failure to object to Ferguson's testimony based on Fed.R.Evid. 704(b).

         Movant claims that his attorney should have objected to Ferguson's testimony under Rule 704(b), which provides that “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Fed.R.Evid. 704(b). This claim is without merit because Ferguson did not testify about a mental state or condition of Movant that constituted an element of the crimes charged. Movant refers to testimony that Ferguson ordered Hargrave to purchase cocaine base from Movant and that she did so. This is not opinion testimony and it is not covered by Rule 704(b).

         Ground IV. Multiple claims of ineffective assistance.

         Movant asserts several claims of ineffective assistance of trial counsel. In particular, he asserts that counsel: (1) failed to participate in his trial proceedings; (2) failed to require notice under Rule 404(b)(2) of the Federal Rules of Evidence and failed to object to the introduction of a YouTube video and to request a limiting instruction on that video; and (3) failed to make a motion for a judgment of acquittal.

         1. Failure to participate

         Movant contends that counsel failed to participate by failing to object to evidence introduced at trial. Movant asserts that counsel should have objected to Ferguson's testimony about the contents of an agreement between Ferguson and Hargrave, and to the introduction of a receipt that contained Movant's driver's license number. Movant does not identify any valid basis for objection to this evidence. It was not improper for the prosecutor to describe the agreement and then confirm with Ferguson that this was a standard agreement between an informant and the police.

         Nor was it improper to introduce Ferguson's testimony about the receipt showing Movant's driver's license number. This evidence did not, as Movant asserts, violate the Confrontation Clause. Moreover, the receipt was cumulative of other evidence presented, so its exclusion would not have had an impact on the outcome of the proceedings. Buchanan testified that the locked room in which the drugs were found belonged to Movant, and that Movant never allowed anyone else into the room when he was not around. (Trial Tr. 91-92.) Thus, the receipt was not the only evidence of Movant's constructive possession of the drugs found in that room. Consequently, Movant has not established prejudice resulting from counsel's alleged failure to object.

         2. Failure to object to YouTube video and to request a limiting instruction

         At trial, the Government presented six minutes of a YouTube video in which Movant was seen carrying a satchel of money. According to Trotman, the money belonged to Movant, and Movant could not have obtained it in any manner other than selling crack cocaine because Movant did not have a job. (Trial Tr. 119-20.) Trotman testified that he paid to have the video made. The video showed a street party near Movant's home. (Id. at 115.) Other parts of the video not shown to the jury showed individuals singing along to a recording of the rap song “Ecstasy Line, ” and the video was intended as a promotion of that song. (Id. at 121.)

         Movant contends that his attorney should have objected to the video as irrelevant and prejudicial. According to Movant, the video depicted a bad stereotype of the “gangster” lifestyle. It contained offensive language, referred to the use and/or sale of drugs by others, and depicted individuals flashing guns[3] and jewelry. Moreover, the video was not made until after the offenses at issue occurred. Rather than object to its ...


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