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United States v. Long

United States District Court, N.D. Oklahoma

August 8, 2017



          James H. Payne United States District Judge

         Before the Court is Defendant Deanta Marquis Long's (“Long” or “Defendant”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. No. 189). The United States of America (“Government”) filed a Response in opposition to Long's Motion (Doc. No. 192). Long filed a Reply brief (Doc. No. 194), followed by a Motion to Amend or Supplement his Reply brief (Doc. No. 195). For the reasons cited herein, Long's Motion pursuant to § 2255 is DENIED. Long's request to amend or supplement his Reply brief is GRANTED.


         In April of 2011, Tulsa Police executed two search warrants on apartments associated with Long. (See Doc. No. 80). On June 6, 2011, a federal Grand Jury indicted Long on four counts: (1) being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count One); (2) attempt to manufacture 28 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) (Count Two); possession of cocaine with intent to manufacture cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Three); and (4) possession of firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Four). (Doc. No. 2 (Indictment)). Assistant Federal Public Defender Selim Fiagome was initially appointed to represent Long in the district court proceedings. On July 26, 2011, Long entered a guilty plea as to Counts Three and Four, with the remaining counts to be dismissed at sentencing. (Doc. No. 13 (Minute Sheet - Change of Plea)). Long and his counsel then requested a substitute attorney, and the Court appointed CJA panel attorney James Fatigante to represent Long. (Doc. No. 24). Long then sought to withdraw his guilty plea, which the Court initially denied but later permitted. (See Doc. No. 72).

         Long's counsel then filed a Motion to Compel the Government to produce the name of the Reliable Confidential Informant (“RCI”) as alleged in the two affidavits for search warrant, based on Long's allegations that either the RCI did not exist or that the affidavits described someone other than Long. (See Doc. No. 76 (Defendant's Motion to Compel Discovery)). The first of the two affidavits for search warrant stated that the RCI had been used by the affiant and other officers on more than three occasions dating back to 1996. (Doc. No. 81, Ex. 1 (Affidavit for Search Warrant)). The affidavit stated that the RCI had made contact with a black male who was selling cocaine, that the RCI had been in an apartment and had seen cocaine packaged for distribution, and that the RCI had pointed out the black male's vehicle. (Id.). The second affidavit repeated the same statements and added that the RCI had told the affiant he had seen the same black male with cocaine inside another residence within the last three weeks. (Id.). In his Motion to Compel Discovery, Long argued the RCI's identity was relevant to the issue of suppression of evidence gathered pursuant to the search warrants.

         The Court referred Long's Motion to Compel Discovery to Magistrate Judge T. Lane Wilson, who held a hearing on the motion and ordered an in camera review of the documentation related to the Tulsa Police Department's use of the RCI. (Doc. No. 83). After reviewing those documents, the Magistrate Judge ordered the Government to produce the RCI at an ex parte, in camera hearing. (Doc. No. 86). Long's counsel was permitted to submit suggested questions for the Court to ask of the RCI. On December 19, 2012, the Magistrate Judge held the ex parte, in camera hearing and questioned the RCI. (Doc. No. 88). At the hearing, the Magistrate Judge asked “virtually all of the questions suggested by defendant's counsel, ” and the RCI “provided no information that would assist defendant in this case.” (Doc. No. 90 (Order), at 7). To the contrary, the Magistrate Judge concluded the RCI “would clearly be helpful to the Government.” (Id. at 7-8). The Magistrate Judge was “convinced that the [RCI] knows defendant well enough to identify him, was inside both the apartment and defendant's residence, and can identify defendant's vehicle. Thus, defendant will not benefit, in any way, from a disclosure of the [RCI's] identity.” (Id. at 8). Therefore, the Magistrate Judge concluded that disclosure of the RCI's identity was not warranted, and the Magistrate Judge denied Long's Motion to Compel Discovery. (Id. at 8-9).

         Next, Long's counsel filed a Motion to Suppress Evidence seized or obtained as a result of the two warrants authorizing the residence searches. (Doc. No. 93). Long argued all the information in the affidavits in regard to the RCI allegations was fabricated by the affiant to create probable cause, and the affidavits otherwise lacked sufficient information to determine probable cause. Long's counsel simultaneously filed a motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to determine whether the affidavit lacked the necessary probable cause (Doc. No. 92). Long's counsel also moved to dismiss the counts against Long (Doc. Nos. 94, 95). Magistrate Judge Wilson issued a Report and Recommendation recommending that Long's motions all be denied. (Doc. No. 109). Long's counsel timely filed objections to the Report and Recommendation, and this Court affirmed and adopted the Report and Recommendation on March 12, 2013. (Doc. No. 116).

         Long went to trial, and the RCI did not testify. (See Doc. Nos. 164, 165, 166 (Trial Tr.)). Long represented himself at trial, with Mr. Fatigante acting as standby counsel. The Government presented evidence from the officers who were present when the first search warrant was executed, including testimony that Long answered the door to the officers while holding a jar of cocaine, that Long attempted to slam the door on the officers, and that Long attempted to run from the officers but fell in the kitchen and dropped the jar, scattering cocaine across the floor. The officers testified to finding firearms, ammunition, baggies of cocaine, and items used for manufacturing crack cocaine. They testified that three other men were present in the kitchen. The officers further testified that, upon execution of the second search warrant at Long's residence, they found a large amount of cash, ammunition, drug distribution baggies, and a small amount of marijuana. Long did not testify. The jury found Long guilty on Counts One to Four. (See Doc. No. 138 (Minute Sheet - Criminal Trial)). Long then moved for a new trial, which the Court denied. (Doc. No. 150). On June 26, 2013, this Court sentenced Long to 211 months of imprisonment. (See Doc. No. 152 (Minute Sheet - Sentencing)).

         Long filed a direct appeal challenging the denial of his Motion to Compel Discovery, his Motion to Suppress, and his Motion for a Franks Hearing. CJA panel attorney J. Lance Hopkins was appointed as appellate counsel. (Doc. No. 175). The Tenth Circuit affirmed Long's conviction. United States v. Long, 774 F.3d 653 (10th Cir. 2014). The Circuit Court rejected Long's challenge to the first search warrant affidavit. First, the Circuit Court concluded the RCI's identification of a “Black male” was sufficient to search the premises where the RCI had recently seen cocaine packaged for distribution, and no further description of the individual was required. Id. at 659-60. Second, the Circuit Court held the RCI's statement that he had recently observed cocaine packaged for distribution at the premises to be searched was sufficiently corroborated “by the affiant's assertions of the [RCI's] prior accuracy in reporting on cocaine offenses and the [RCI's] expertise on cocaine trafficking.” Id. at 660. The Circuit Court further agreed with this Court that Long had not made an adequate evidentiary showing to receive a Franks hearing, because his Franks motion consisted “solely of speculation that if the affidavit were true, the police would have conducted further investigation (such as a controlled buy) and included more information in the affidavit, even though additional investigation and more detail in the affidavit were not necessary for a lawful search.” Id. at 662. The Tenth Circuit stressed that the Magistrate Judge had interviewed the RCI under oath at an ex parte, in camera hearing and had concluded that the RCI did exist, that the RCI had knowledge of Long and his drug activity, and that the RCI had provided the relevant information to the affiant. Id. at 663.

         The Tenth Circuit further affirmed this Court's denial of disclosure of the RCI's identity. The Circuit Court concluded it was irrelevant whether Long was the “Black male” identified in the affidavit, because there was “no dispute that Defendant was the person who answered the door at the first location searched and was closely connected to the cocaine powder found there.” Id. at 663. The Circuit Court again emphasized the Magistrate Judge's questioning of the RCI under oath, after which the Magistrate Judge stated the RCI provided no information that would assist Long in his case. Id. at 664. The Circuit Court stated the in camera hearing was the appropriate procedural vehicle for determining whether the RCI's testimony would have aided Long's defense. Id.[1]

         Long filed a petition for a writ of certiorari, which the United States Supreme Court denied on May 4, 2015. (Doc. No. 185). On August 31, 2015, Long received a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), and his previously imposed sentence was reduced to 190 months. (Doc. No. 187).

         Long has now filed a motion pursuant to 28 U.S.C. § 2255 to vacate his conviction on four grounds of ineffective assistance of counsel. (Doc. No. 189). Long argues his counsel rendered ineffective assistance by “failing to ‘properly' object to and appeal” (1) Long's absence during the Magistrate Judge's in camera, ex parte interview of the RCI and the RCI's absence at trial; (2) the alleged fabrication of evidence by the affiant and prosecutor; (3) Long's right to test the veracity of the search warrant affidavit; and (4) this Court's decision to allow Long to represent himself at trial. (Id.). The Court ordered the Government to respond to Long's § 2255 motion. (Doc. No. 190). The Government filed its Response in Opposition to Long's § 2255 motion (Doc. No. 192), and Long filed a Reply (Doc. No. 194). Long subsequently filed a “Motion to Amend or Supplement the Pleading” (Doc. No. 195), in which he seeks to supplement his Reply brief with respect to Ground Two.


         I. Applicable Legal Standards

         In evaluating Long's claims of ineffective assistance of counsel, this Court is guided by the familiar holding of Strickland v. Washington, 466 U.S. 668, 687 (1984), which sets out the two elements necessary to demonstrate that an attorney's performance constituted ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be ...

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