United States District Court, W.D. Michigan, Southern Division
HOLMES BELL, UNITED STATES DISTRICT JUDGE
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.
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.
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
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
V. Trial counsel waived opening arguments, failed to make
objections, and failed to effectively cross-examine
VI. Trial counsel failed to object to government conduct that
amounted to prosecutorial misconduct.
VII. Appellate counsel failed to challenge the search of
VIII. Cumulative error resulting in ineffective assistance of
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.)
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.
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)).
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.
I. Johnson claim.
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.
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
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
§ 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).
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
II. Failure to request a cautionary instruction
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.
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.
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.)
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
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.
III. Failure to object to Ferguson's testimony based on
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).
IV. Multiple claims of ineffective assistance.
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
Failure to participate
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.
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.
Failure to object to YouTube video and to request a
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.)
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 and jewelry. Moreover, the video was not
made until after the offenses at issue occurred. Rather than
object to its ...