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United States v. West

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

January 13, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
ROY WEST, Defendant/Petitioner.


          Victoria A. Roberts United States District Judge


         A jury convicted Roy West (“West”) of conspiracy to use interstate facilities in the commission of a murder for hire, in violation of 18 U.S.C. §1958. West received a sentence of life without the possibility of parole. The Sixth Circuit Court of Appeals affirmed his conviction; his petition for writ of certiorari was denied. West files a motion pursuant to 28 U.S.C. §2255 to vacate, set aside or correct his sentence. The motion is DENIED.


         In November 2005, the Federal Bureau Investigation (“FBI”) began wiretapping cellular phone conversations of several individuals, including West (also known as “Buck”) as part of a separate drug investigation. From listening to various phone conversations between the subjects, the FBI learned that Leonard Day, who was also known as “Buck, ” had stolen about $100, 000 in cash, $250, 000 in jewelry, a gun, and car keys from West while staying at West's home in Ohio. Accordingly, West searched for Day, with assistance from Christopher Scott and Marcus Freeman. In December 2005, Day was shot while leaving a house in Detroit.

         West, Freeman, and Scott were charged with and convicted of crimes related to Day's death. The Sixth Circuit Court of Appeals reversed Freeman's conviction, holding that the trial court erroneously admitted improper lay-testimony of FBI Agent Peter Lucas, a Government's witness. United States v. Freeman, 730 F.3d 590 (2013). The trial court vacated Scott's conviction following the Freeman decision; Scott's motion for new trial was granted.

         WEST'S ISSUES

         These are the grounds for West's motion:

         A. There was insufficient evidence for the jury to convict him of conspiracy to commit murder-for-hire.

         B. The district court abused its discretion by permitting Agent Lucas to testify as both fact and expert witness without a cautionary instruction to the jury regarding his dual roles.

         C. Appellate counsel provided ineffective assistance of counsel by failing to argue that Agent Lucas gave improper lay testimony.

         D. Trial counsel was ineffective in the following ways:

1. Failed to request a cautionary instruction regarding Agent Lucas's dual role as fact and expert witness.
2. Failed to request a voice exemplar of West' voice to compare to voices on tapes that the Government contended were instances when West spoke.
3. Failed to investigate potential witness that would help West's defense.
4. Violated Fed. R. Crim. P 12(d) for failing to seek a ruling from the district court on the impact an Ohio authorization to conduct wiretap had on the Michigan authorization.
5. Failed to investigate a causation defense.
6. Failed to file a Rule 33 motion regarding Agent Lucas' dual role as expert and fact witness.


         A prisoner in custody under sentence of a federal court may move to vacate, correct, or set aside the sentence on grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. §2255(a).

         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 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). If alleging a non-constitutional error, petitioner must establish 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 U.S. v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (citing Hill v United States, 368 U.S. 424, 428 (1962)).



         West says his conviction rests on insufficient evidence. The Government says this argument was already raised on his direct appeal, and West is now barred from relitigating it in this §2255 motion. The Government's position is well taken.

         In United States v. West,534 Fed.Appx. 280, 285-86 (6th Cir. 2013) (unpublished), West made the same argument as here. The Sixth Circuit declined to reverse his conviction based on this argument. It held that West did not meet his burden of proof, and, when viewed in the light most favorable to the Government, ...

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