United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTION TO VACATE
SENTENCE UNDER 28 U.S.C. § 2255 (DOC. #804)
Victoria A. Roberts United States District Judge
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.
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.
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.
are the grounds for West's motion:
There was insufficient evidence for the jury to convict him
of conspiracy to commit murder-for-hire.
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.
Appellate counsel provided ineffective assistance of counsel
by failing to argue that Agent Lucas gave improper lay
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
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
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.
STANDARD OF REVIEW
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.
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
WEST'S MOTION FAILS ON INSUFFICIENT EVIDENCE
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
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, ...