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United States v. Fonville

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

August 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RICARDO FONVILLE, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255, DENYING DEFENDANT'S MOTION TO AMEND, AND DENYING AS MOOT DEFENDANT'S MOTIONS TO COMPEL

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE.

         Ricardo Fonville was convicted by a jury of possession with intent to distribute 28 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1). (ECF No. 33.) He was sentenced to 97 months imprisonment. (ECF No. 40, PageID.244.) His conviction and sentence were affirmed by the Sixth Circuit on direct appeal. (ECF No. 57.)

         Before the court is Defendant's Motion to Vacate Sentence under 28 U.S.C. § 2255. (ECF No. 62.) The government filed a response (ECF No. 67), and Defendant filed a reply (ECF No. 69). Defendant also filed a Motion to Amend the § 2255 motion (ECF No. 70) and two Motions to Compel the resolution of his § 2255 motion (ECF Nos. 71, 72). For the reasons stated below, Defendant's Motion to Vacate Sentence and Motion to Amend will be denied, and the Motions to Compel will be denied as moot.

         I. BACKGROUND

         This case arises out of a traffic stop on October 17, 2013. Defendant was driving on I-94 and pulled over by the police after changing lanes without signaling. Defendant had been under investigation by the DEA for suspected narcotics trafficking, and the police officers were aware that there was an active warrant for his arrest. (ECF No. 25, PageID.89-91, 127-28.) According to the officers, Defendant consented to a search of the vehicle. (Id., PageID.97, 99.) A drug-sniffing dog arrived at the scene and alerted to the presence of drugs in the vehicle. Defendant was arrested, and the vehicle was removed to the local police precinct. There, the vehicle was searched more thoroughly, and over 100 grams of crack cocaine were found in the driver's side window-control console.

         After being indicted by a grand jury for possession with intent to distribute crack cocaine, Defendant filed a Motion to Suppress challenging the legality of the search and seizure. (ECF Nos. 17, 20.) The court held a hearing on the motion. (ECF No. 25.) The officers testified that when they conducted the traffic stop, Defendant volunteered he had an outstanding warrant for nonpayment of child support. (Id., PageID.95-96.) The court asked if there was any contest about whether the warrant was outstanding. (Id., PageID.129.) Defense counsel responded that there was not. (Id.) Defendant testified that he told the officers that he might have a child support warrant but was not sure because there were also papers stating his child support obligation had ended now that his daughter was 23 years old. (Id., PageID.148.) The court denied the Motion to Suppress, indicating that either the outstanding warrant or the traffic violation would constitute sufficient probable cause to stop Defendant's vehicle. (ECF No. 22, PageID.71.)

         Defendant proceeded to a jury trial, was convicted, and was sentenced. (ECF Nos. 33, 40.) He appealed. (ECF No. 41.) Defendant's arguments on appeal challenged, inter alia, his arrest and the search of his car under the Fourth Amendment and the court's decision not to apply a two-level decrease in his criminal-offense level for acceptance of responsibility. (Brief of Appellant at 48-54, United States v. Fonville, No. 14-2457 (6th Cir. 2016)). Defendant also filed with the Sixth Circuit a motion to remand the case in order to enlarge the record to include a Friend of the Court letter indicating that his child-support case was closed at the time of his arrest. The motion to remand the case was denied (ECF No. 51), and Defendant filed a motion in this court for an indicative ruling while the appeal was pending. (ECF. No. 52.) The court provided an indicative ruling that Defendant's ineffective assistance of counsel claim was without merit and that that the court would decline to enlarge the record to include the Friend of the Court letter. (ECF No. 56.) The Sixth Circuit affirmed Defendant's conviction and sentence. (ECF No. 57.)

         II. STANDARD

         Under § 2255, a prisoner sentenced by a federal court may “move the court which imposed the sentence to vacate, set aside or correct the sentence” on the 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). This statute “is not a substitute for a direct appeal, ” and “a prisoner must clear a significantly higher hurdle than would exist on direct appeal” to merit relief. Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 166-68 (1982)). Consequently, “[t]o prevail on a § 2255 motion alleging constitutional error, the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)).

         Defendant's motion is grounded in part upon the alleged inadequacy of his legal representation. To establish ineffective assistance of counsel under the Sixth Amendment, Defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, Defendant must show that his counsel's performance was deficient, which “requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. Next, Defendant “must show that the deficient performance prejudiced the defense.” Id. This requires that Defendant “show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 695 The government raises procedural default as a defense to Defendant's other claims. When a defendant fails to raise a claim on direct appeal, it is procedurally defaulted. See Bousley v. United States, 523 U.S. 614, 622 (1998). Such a claim “may only be raised on habeas ‘if the defendant can first demonstrate either “cause” and actual “prejudice, ” or that he is “actually innocent.”'” Vanwinkle v. United States, 645 F.3d 365, 369 (6th Cir. 2011) (quoting Bousley, 523 U.S. at 622). Defendant cites ineffective assistance of counsel as an explanation for his failure to raise his other claims on direct appeal. For attorney error to constitute cause for procedural default, it must rise to the level of constitutionally ineffective assistance of counsel. See Barrow v. United States, 8 Fed.Appx. 286, 288 (6th Cir. 2001) (citing Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994)).

         III. DISCUSSION

         Defendant lists four grounds for his § 2255 motion: ineffective assistance of counsel, violation of Due Process, violation of the Confrontation Clause, and unlawful search and seizure. (ECF No. 62, PageID.784-88.) These claims largely stem from Defendant's “Statement of Facts, ” which presents a novel account of the facts underlying the case. (Id., PageID.797-99.) There, Defendant states that he hired a plumber named “Wizz” to work on his property. He explains how Wizz came to develop a grudge against him because of his former relationship with Wizz's wife, Sharon. (Id.) Defendant claims that Wizz went on to act as confidential informant for the government and planted the crack cocaine found in the vehicle that led to Defendant's arrest. (Id.)

         This version of the facts, the government points out, directly contradicts both the record and Defendant's argument on appeal. (ECF No. 67, PageID.844.) At sentencing, Defendant testified as follows: “I admitted to the Government myself even before I was indicted . . . I didn't lie. I told the truth . . . I admitted to everything. I admitted to the drugs. I admitted to where I was going with the drugs. I told them who I was even going to see with the drugs. I admitted to everything.” (ECF No. 50, PageID.696-97.) On appeal, Defendant argued that the court should have granted him a two-level decrease in his criminal offense level based upon his acceptance of responsibility, citing as relevant facts that Defendant admitted the crime to the police officers at the time of his arrest; admitted the crime at the evidentiary hearing under oath; was debriefed by the government prior to trial; and attempted to enter a conditional plea. (Brief of Appellant at 48-54, United States v. Fonville, No. 14-2457 (6th Cir. 2016)). With this background, the court will consider each of Defendant's arguments in turn.

         A. Ineffective ...


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