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Duval v. United States

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

March 30, 2019




         Following a jury trial, petitioners Gerald Duval and his son Jeremy Duval were convicted of violating the Controlled Substances Act. The convictions were based on the petitioners' operation of a marijuana operation, which was curtailed after two searches of their family farm resulted in the seizure by federal drug task force agents of a total of more than 200 marijuana plants. Gerald Duval was sentenced to concurrent prison terms totaling 120 months. Jeremy was sentenced to 60 months in prison. Supervised release was ordered to follow in both sentences. The convictions were affirmed on appeal. United States v. Duval, 742 F.3d 246 (6th Cir. 2014). Each petitioner then filed a motion to vacate their sentences, alleging government misconduct and ineffective assistance of trial counsel. The petitioners also argue that the government should be barred from opposing these motions because of a prohibition contained in an appropriations bill relating to marijuana prosecutions. Because none of these claims justifies the relief they seek, the Court will deny both motions.

         I. Facts and Proceedings

         The Sixth Circuit included the following comprehensive recitation of the factual and procedural background of the case in its opinion affirming the defendants' convictions:

In May and June 2011, Monroe County Sheriff's Deputy Ian Glick investigated tips from a confidential informant (CI) that led him to conduct surveillance on Gerald [Duval]'s farm and ultimately to apply for and execute two separate search warrants that are at issue in this case. The government contends that Deputy Glick simply conducted a routine investigation to corroborate information supplied by the CI, but the Duvals argue that as duly registered marijuana patients and caregivers under state law, they were the targets of an investigation for which the conclusion was never in doubt. According to the Duvals, Deputy Glick and other law-enforcement officers knew that the Duvals possessed and grew marijuana because agents from the Office of Monroe Narcotics Investigations (OMNI) visited the farm in 2010 and offered advice on how to comply with the MMMA.
Deputy Glick was assigned to OMNI, an alliance of state and local law-enforcement officers directed by the Drug Enforcement Agency (DEA), from 2004 to 2007, but was a Task Force Officer working directly with the DEA when his office received a tip that Gerald was growing marijuana on his farm. The tip came from a CI who claimed to have seen marijuana growing in two greenhouses on the farm and to have heard Gerald bragging about growing and selling marijuana. Moreover, the CI claimed that the greenhouses were surrounded by tall chain-link fences and patrolled by Rottweilers.
Deputy Glick took immediate action to substantiate the CI's tip. He consulted the Law Enforcement Information Network (LEIN) and learned that Gerald had a federal felony conviction for cocaine trafficking. This prior conviction prohibited Gerald from qualifying as a caregiver under Michigan law, Mich. Comp. Laws § 333.26423(g) (2008), a status that Gerald never claimed. Deputy Glick then decided to conduct surveillance on the farm.
Along with Reserve Deputy Joe Schumaker, Deputy Glick traveled to a tract of land adjacent to the farm. From that vantage point, the officers saw two greenhouses matching the CI's description. Eight-foot-high chain-link fences topped with barbed-wire surrounded the greenhouses. The greenhouses themselves were constructed from opaque plastic slats and were almost completely bordered by a three-foot-tall layer of burlap that ran along the perimeters of the buildings. Open ventilation windows located slightly above the layer of burlap material provided a view into the interiors of the greenhouses.
Using binoculars to peer through the ventilation windows from a distance of approximately 75 to 100 yards, Deputy Glick and Reserve Deputy Schumaker observed a “large quantity” of marijuana plants. In addition, Reserve Deputy Schumaker testified that open doors on the southern sides of the greenhouses provided an unobstructed view of the marijuana. Deputy Glick subsequently prepared a search-warrant affidavit based on the CI's now-corroborated tip and his own personal observations. A Monroe County magistrate issued a search warrant on June 15, 2011.
Deputy Glick's affidavit in support of the June 15 search warrant included a description of the greenhouses. The two opaque structures, surrounded by barbed-wire fences, were allegedly constructed after OMNI officers told the Duvals in September 2010 that secure facilities were needed to comply with the MMMA. Although the Duvals claim that Deputy Glick provided this advice, other officers testified that Deputy Glick was neither a member of OMNI in September 2010 nor on duty on the date of the visit. Deputy Glick himself denied being present.
Regardless of whatever prior encounters occurred between OMNI and the Duvals, law-enforcement officers searched the farm on June 16, 2011. In particular, the officers searched a two-story house, the two greenhouses, and a large pole barn, seizing 144 live marijuana plants, seven firearms, and various other items related to marijuana cultivation. No criminal charges, however, were brought against the Duvals under state or federal law at that time.
But the June 16 search did not end the investigation. On July 18, 2011, the CI again contacted Deputy Glick and reported that the Duvals had replanted marijuana in the greenhouses. Agent Brendan Gillen and Task Force Agent Jeremy Langenderfer subsequently traveled to the same tract of land adjacent to the farm and saw marijuana “growing the length of both greenhouses.” After verifying the information, Deputy Glick obtained another warrant to search the farm - only this time he sought the warrant in federal court based on probable cause for federal narcotics violations. Law-enforcement officers executed this second search warrant on August 9, 2011, seizing 67 live marijuana plants from the two greenhouses.
In November 2011, the Duvals jointly requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978), for the purpose of suppressing the evidence gathered during the June 16 and August 9 searches. The district court held a hearing on the Duvals' motion to suppress in January 2012, ordering the parties to file supplemental briefing and provide additional photographic evidence related to the searches.
A second evidentiary hearing was held in March 2012. The district court denied the motion to suppress at the conclusion of the second evidentiary hearing.
After a nine-day trial in April 2012, the jury found the Duvals guilty on the drug-related counts in the indictment, but not guilty on the counts related to the firearms. On October 1, 2012, the district court sentenced the Duvals, who shortly thereafter filed timely notices of appeal.

Duval, 742 F.3d at 249-50. On appeal, the Sixth Circuit rejected on the merits the defendants' arguments that (1) “the June 15, 2011 search warrant [was] invalid because Deputy Glick made deliberate ‘material omissions' concerning the Duvals' status as registered patients and caregivers under Michigan law in order to obtain the warrant, ” 742 F.3d at 250; and (2) “the June 15 search warrant [was] invalid because Deputy Glick applied to a state magistrate rather than to a federal magistrate judge, allegedly in violation of Rule 41(b) of the Federal Rules of Criminal Procedure, ” id. at 254. The panel also held that the defendants had forfeited their argument that the indictment was “defective as a matter of law because Jeremy and Ashley cultivated the marijuana plants while serving as registered ‘caregivers' under Michigan law and because Jeremy qualifie[d] under the ‘practitioner exception' of the Controlled Substances Act, 21 U.S.C. § 802(21).” Id. at 255.

         The defendants timely filed their 2255 motions. The government has responded to those motions and the defendants filed replies. The defendants also filed supplemental briefs raising an argument not addressed in their opening motion briefs - that the government's opposition to the present motions is barred by a 2014 funding bill rider that prohibited the Department of Justice from expending funds to interfere with the administration of medical marijuana regulations enacted by various states including Michigan.

         II. Discussion

         A federal prisoner challenging his sentence under section 2255 must show that the sentence “was imposed in violation of the Constitution or laws of the United States, ” the sentencing court lacked jurisdiction, the sentence exceeds the maximum penalty allowed by law, or it “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the ...

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