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United States v. Wilson

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

May 24, 2018




         This matter is before the Court on defendant's motion to vacate [docket entry 170], motion to amend that motion to vacate [docket entry 177], “motion for reply” [docket entry 186], and motion to supplement his “motion for reply” [docket entry 188]. Plaintiff has responded to the motions to vacate and to amend. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide these motions without a hearing.


         The Sixth Circuit's opinion affirming defendant's conviction summarized the relevant facts as follows:

Lebron Nunn is a convicted felon and experienced confidential informant. In 2012, when his brother Roman Whitfield was charged with various federal crimes, Nunn approached the investigating federal agent, Joseph Nether, to make a deal. Nunn offered to work as a confidential informant if Nether told the prosecutor of Nunn's cooperation. At some point, Nunn informed the agent that Nunn's step-brother, defendant John Davis, trafficked in firearms and narcotics. Nether reviewed Davis's criminal history, which showed prior drug and firearm-related convictions, and encouraged Nunn to attempt to buy guns and drugs from Davis. Shortly thereafter, Davis arranged a sale of stolen firearms to Nunn and, separately, an illegal drug sale.
In 2013, Nunn told Nether that Davis was interested in conducting an armed home invasion of a drug dealer. The agent again reviewed Davis's criminal history and observed that Davis had been convicted of armed home invasion and firearms-related offenses. Nether advised Nunn to set up a meeting between Davis and Nether (undercover) so Nether could present Davis with an opportunity to rob a drug dealer.
The first meeting was on April 23, 2013. This and the following meetings were video and audio recorded. Nether presented the following fictitious scenario: he was a disgruntled drug courier seeking to rob up to 10 kilograms of narcotics from a drug supply house. Nether said there would be at least two armed people inside so he needed “a crew of professionals” to rob the supply house and “didn't want any amateurs[, ] just professionals, people that had done this before.” Davis said he could do it and would find three accomplices.
Davis left the meeting with Nunn, who was wearing a recording device. Davis suggested that they rob Nether after the drug pick-up instead of going inside the house with armed guards. Later, Davis made several calls to co-defendant Rufus Wilson. The next day, in a recorded phone call to Nunn, Davis said he and Wilson had discussed an alternative to the proposed drug house robbery. Two days later, in another recorded call, Davis said he had been sitting up all night making a plan with Wilson. Then Davis asked Nunn “how [Nunn] [felt] about the boy, ” referring to Nether. Nunn said he liked Nether, and Davis expressed disappointment in his voice, responding, “Okay well, alright.” Later that day, Davis met Nunn to discuss the robbery. Davis suggested that, instead of going into the drug house, they crash their car into Nether and “[t]ake whatever he got off of him.”
Nether, Nunn, and Davis met for a second time on April 26. During the meeting, Davis told Nether that Wilson was “talking 'bout going up in there shootin'” and “going in there [and] lay everybody down.” Davis explained that both he and Wilson would be shooting: “[L]isten to me, this is what I'm telling you. We both shooters.” As he said this, he made hand gestures as if he was holding two handguns. Davis said he would not hesitate to shoot: “[M]otha fuckers getting twitchin' and moving, [Wilson] ain't gonna, I'm not gonna hesitate.” Wilson called Davis midway through the meeting and Davis handed the phone to Nether. Nether later testified that he explained the robbery plan directly to Wilson so he would “have the whole story for himself so he could make his own decision” about participating. Wilson agreed to participate by responding affirmatively at various times, like to Nether's statement, “I mean is this cool to you?, ” by saying “Oh, yeah it[']s cool” and, “[i]t's a go on this end.” After the meeting, Davis told Nunn that they should kill Nether: “That's why I asked you how you feel about the nigga . . . We don't need nothing come back to you, or us . . . . [D]ust they ass off or dust his ass off with ‘em.”
On April 29, Nether, Nunn, and Davis met again. This time, Wilson attended in person. On the way to the meeting, Nunn picked up Davis. During the ride, Davis said, “me and [Wilson] was talkin . . . he saying it's a risk us going up in that [house] ‘cause there ain't no telling . . . .” Davis said he wanted to rob Nether instead: “[R]un straight into his Mother fucker car . . . boom! . . . [A]nd whatever he got on him we steal.” Nunn confirmed, “[i]t's understood. Fuck I told you I'm down, fuck it. We knocking his ass, fuck it, knocking his ass off, fuck it. I'm ready, hear me.” Davis responded, “Knock him off, nigga.” Then they picked up Wilson. When he got into the car, he said about Nether, “[d]ig what I'm saying, that nigga can't leave. . . . That nigga can't leave man.” To keep the robbery quiet, Wilson said, “I want, knives man. I cut all them niggas up. . . . Ain't gotta be no pop, pop, pop, pop, pop . . . . That's how I'm gonna do it.” Davis responded, “when it come to this kind of money you got to spill blood. Aint no gentlemen.” Wilson observed that if Nether were to leave the scene, “[h]e gonna testify [and then w]e ain't got nothing. This nigga done left the scene, he set us up . . . . That nigga can not leave that scene.” Davis repeated his plan to run into Nether's car, “[w]hatever he got, whatever he got on him, we gonna get that . . . . Fuck the house . . . .” Then they discussed taking everything from Nether, “the money he got, the phone, everything.” Davis repeated that he wanted to “take his cell phone, when, when he outta there, take everything from him . . . . Take his pants off of him. Leave him in that bitch naked.” Just before they met Nether, Davis said they should continue to pretend they were going to rob the drug house as originally proposed by Nether.
At the April 29 meeting, the men discussed wearing tactical gear during the robbery and wrote down their clothing sizes for Nether. After the meeting, Nunn, Davis, and Wilson again talked about killing Nether. Davis said, “He dead. Let's kill his ass.” Davis and Wilson observed that if Nether got all ten kilograms, he would abscond with the drugs. Wilson responded, “He gotta die . . . blow his brains out anyway . . . . Blow his brains out.”
On May 2, Nether called Davis to make sure everyone was still participating in the robbery, which Davis confirmed. That day, Nunn, Davis, and Wilson met Nether in a parking lot, where Nether asked if they were “still good with everything?” They confirmed by nodding their heads and stating, “yeah.” They followed Nether to a warehouse to get the tactical gear and a van. There, Nether said he would be picking up two kilograms of powder cocaine and one kilogram of crack cocaine. Shortly thereafter, federal agents waiting nearby arrested defendants. As he was arrested, Wilson threw a handgun into a nearby stairwell. The gun was loaded with two rounds of ammunition in the magazine and a hollow-point bullet in the chamber. Trial testimony later established that a hollow-point bullet typically causes more serious wounds to human targets. Wilson also had an 8-inch serrated-blade knife and a knit cap, and was wearing latex gloves. Next to Davis, the agents found latex gloves and a black mask.

United States v. Wilson, 653 Fed.Appx. 433, 435-37 (6th Cir. 2016).

         In June 2014, a jury found defendant guilty of the following five crimes: Count 3, conspiracy to murder a federal employee, 18 U.S.C. §§ 1114, 1117; Count 4, conspiracy to possess with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1), (b)(1)(A); Count 5, possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A); Count 6, felon in possession of a firearm 18 U.S.C. § 922(g); and Count 7, possession with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1), (b)(1)(C). The Court sentenced defendant in November 2014 to the following terms of imprisonment: Count 3, 420 months; Count 4, life; Count 5, 60 months; Count 6, 420 months; and Count 7, 360 months.[1] Defendant immediately appealed his conviction and sentence. In June 2016, the Sixth Circuit affirmed the Court's judgment. In June 2017, the Supreme Court denied defendant's petition for a writ of certiorari.

         In December 2017, defendant filed the instant motion to vacate under 28 U.S.C. § 2255, and in January 2018, he filed a motion to amend the motion to vacate, seeking to add five more claims. The Court ordered the government to respond, which it did in March 2018. In April 2018, defendant filed a “motion for reply”-which includes defendant's proposed reply-and in May 2018 he filed a motion to supplement that reply. To decide the motion to vacate, the Court will consider all of defendant's filings, including the proposed amendments to the instant motion, the reply, and the proposed supplement to the reply.

         LEGAL ...

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