United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE.
before the Court is defendant's motion to vacate, set
aside or correct sentence (Dkt. # 88). Defendant argues
that he received ineffective assistance of trial and
appellate counsel, and he asks the Court to vacate his
conviction and sentence. Under 28 U.S.C. § 2255,
“a prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States .
. . may move the court which imposed the sentence to vacate,
set aside or correct the sentence.”
August 31, 2010, a magistrate judge signed a complaint
charging defendant with possession of 50 grams or more of
cocaine base (crack) with intent to distribute in violation
of 21 U.S.C. 841(a)(1) and (b)(1)(A)(iii) and being a felon
in possession of a firearm in violation of 18 U.S.C.
922(g)(1). Dkt. # 1. Defendant was arrested and made his
initial appearance on September 2, 2010, and Julia
O'Connell, the Federal Public Defender for the Northern
District of Oklahoma was appointed to represent defendant.
Dkt. # 5. On September 6, 2010, O'Connell filed a motion
to withdraw when she learned that a conflict of interest
prevented her from representing defendant, and the motion to
withdraw was granted. Dkt. ## 8, 9. James Fatigante was
appointed as substitute counsel. Dkt. # 9. On September 7,
2010, a grand jury returned an indictment (Dkt. # 11)
containing the same charges alleged in the complaint. A
detention hearing was held and the magistrate judge ordered
that defendant be detained pending trial. Dkt. ## 16, 17.
Fatigante filed a motion to withdraw from his representation
of defendant, stating that the attorney/client relationship
was irretrievably broken. Dkt. # 20, at 2. The motion to
withdraw also states that defendant asked Fatigante to file
the motion to withdraw. Id. The Court granted
Fatigante's motion to withdraw and appointed Beverly
Atteberry to represent defendant.
pretrial conference was held on November 5, 2010, and
Atteberry advised the Court that she had requested discovery
concerning an ongoing police corruption investigation of
officers in the Tulsa Police Department (TPD). Dkt. # 66, at
3. Counsel for the government, Janet Reincke, had contacted
the prosecutor in charge of the police corruption
investigation and was awaiting a response to her inquiry
about the police officers involved in defendant's arrest.
Id. at 4-5. At the conclusion of the pretrial
conference, the Court held an ex parte hearing with
only defendant and Atteberry present. Defendant expressed
dissatisfaction with the representation provided by Atteberry
and Fatigante, and he claimed that both attorneys should have
challenged the magistrate judge's ruling of pretrial
detention. Dkt. # 67, at 1-4. Defendant stated the he wanted
to represent himself. The Court asked defendant questions to
establish that he understood the charges against him.
Id. at 5-7. Atteberry advised the Court that Reincke
would be filing an enhancement information raising the
statutory mandatory minimum as to count one from 10 years to
life imprisonment. Id. at 7. Defendant acknowledged
that he had been offered two plea agreements by the
government, but he characterized any attempt at plea
negotiations as “interfering with [his] defense.”
Id. at 8. Defendant complained that neither
Fatigante nor Atteberry had filed a motion to dismiss as he
requested, but Atteberry stated that there was no legitimate
basis to file a motion to dismiss. Id. at 9-10.
Defendant also alleged that Atteberry refused to investigate
or prepare a defense; Atteberry stated that she had received
a list of 10 potential witnesses from Fatigante. Defendant
told her that there was only one witness that she needed to
interview, and she was also contacted by another witness on
the list. Id. at 11. However, defendant had
repeatedly sent Atteberry on “wild goose chases”
for purported evidence that did not actually exist.
Id. Defendant asked the Court to appoint Kevin Adams
to represent him, and defendant was advised that he could not
pick any attorney he wanted to be appointed by the Court.
Id. at 16-17. At the conclusion of the ex
parte hearing, the Court determined that defendant had
not unequivocally expressed an intention to represent himself
at trial and Atteberry would remain as his counsel of record.
Id. at 18-19. On December 21, 2010, the government
filed an enhancement information (Dkt. # 34) pursuant to 21
U.S.C. § 851, and the mandatory minimum sentence as to
count one was life imprisonment.
jury trial began on December 22, 2010, and defendant
announced that he would represent himself at trial. Dkt. #
68, at 3. Atteberry confirmed that defendant had stated that
he intended to terminate Atteberry's representation and
that he wanted to represent himself at trial. Id. at
4. The Court held an extended colloquy with defendant and
Atteberry about their discussions concerning the punishment
defendant faced if convicted, and Atteberry stated that she
had advised defendant about the impact of the enhancement
information filed by the government. Id. Upon
questioning by the Court, defendant stated that he understood
the nature of the charges against him and the punishment he
faced, and he claimed that he had to represent himself
because Atteberry was racist. Id. at 5-8. The Court
advised defendant that he was bound by the Federal Rules of
Evidence and the Federal Rules of Criminal Procedure.
Id. at 9. Defendant claimed that he had no choice
but to represent himself, because Atteberry was working with
the prosecutor and had failed to prepare a defense.
Id. at 12-13. The Court found that defendant
knowingly and voluntarily waived his right to counsel and
permitted him to represent himself at trial. Id. at
14. The Court appointed Atteberry to serve as standby counsel
during trial. Id. The government asked the Court to
prevent defendant from referencing the police corruption
investigation, and the government's motion was granted.
Id. at 15. The Court asked defendant if he wished to
stipulate to the fact of his prior convictions as to count
two, and the Court presented defendant with a redacted
indictment that did not list his prior convictions.
Id. at 16. Defendant refused to consult with his
standby counsel and he directed the Court to show the jury
the unredacted indictment. Id. at 17. After jury
selection, the parties made their opening statements and
defendant many numerous improper and irrelevant statements to
the jury. Id. at 35-41.
Officer William Mackenzie testified that he had been working
undercover and had received a tip that defendant was selling
cocaine from a residence located at 1643 North Columbia Place
in Tulsa, Oklahoma. Id. at 46. Mackenzie was
conducting surveillance at the residence and saw defendant
enter a vehicle. Id. Mackenzie followed the vehicle
and observed multiple traffic violations, and he asked TPD
Officer Josh Dupler to conduct a traffic stop of the vehicle.
Id. at 48. Mackenzie returned to the residence and
knocked on the door, and a person identified as Mike Braggs
opened the door. Id. Braggs consented to a search of
the residence, but Mackenzie did not search defendant's
bedroom because defendant was not present to consent to a
search. Id. at 50. Braggs consented to a search of
the garage and he provided Mackenzie a key to the garage.
Mackenzie observed a plastic bag containing rocks consistent
with the appearance of cocaine base. Id. at 51.
Mackenzie contacted Dupler and directed him to detain
defendant at the traffic stop. Id. at 53. TPD
Officer Tim Wilson stayed in the garage to prevent anyone
from tampering with evidence, and Mackenzie went to interview
defendant when Dupler and defendant arrived at the residence.
Id. Mackenzie also contacted TPD Corporal Michael
Helton for the preparation of a search warrant for
defendant's bedroom. Id. at 56-57. Mackenzie
read defendant his Miranda rights and defendant agreed to
speak to Mackenzie. Id. Defendant told Mackenzie to
take the drugs and he would stop selling drugs, and he said
that there was “about nine ounces of hard in the garage
and there's about $9, 000 in the bedroom in the
safe.” Id. at 59. Defendant wanted to work out
a deal with Mackenzie and he told Mackenzie that
“it's all mine, ” but Mackenzie told
defendant that he could not make a deal. Id. at 60.
Defendant declined to consent to a search of his bedroom, and
they waited until Helton arrived with a warrant to search
defendant's bedroom. Id. at 61. Police recovered
a total of $17, 000 in cash from the residence. Id.
cross-examined Mackenzie about the source of the tip that led
Mackenzie to defendant's residence, and Mackenzie
admitted that he was the only police officer who spoke to the
confidential informant. Id. at 64-71. Mackenzie
testified that he observed defendant commit traffic
violations and he asked Dupler to conduct the traffic stop,
but Dupler would not have been the officer who actually
observed the traffic violations. Id. at 72-74.
Mackenzie testified that he arrested defendant for possession
of cocaine base, because a substantial amount of cocaine base
was found in the residence and defendant admitted that he
possessed it. Id. at 77. Mackenzie stated that no
drugs were found in defendant's bedroom but police did
recover a large amount of money from the room. Id.
at 79. Maczenzie went back to the residence when a second
search warrant was executed, and he went to the residence a
third time to interview Braggs. Id. at 84.
Officer David Brice was Mackenzie's partner on April 16,
2010, and he was also conducting surveillance of 1643 North
Columbia Place on that date. Id. at 99. He was
present when Mackenzie received a call from a confidential
informant, but Brice did not talk to the confidential
informant himself. Id. Brice observed a male and a
female get into a car and drive away from the residence, and
Brice identified the male passenger as defendant.
Id. at 101. Mackenzie and Brice followed
defendant's vehicle, and Brice observed that defendant
failed to stop at a stop sign. Id. Mackenzie and
Brice contacted another police officer to maintain
surveillance of defendant's vehicle, and they returned to
1643 North Columbia Place. Id. at 102. They made
contact with the resident of the home, Braggs, and Braggs
permitted them to look around the home for illegal drugs.
Id. at 102-03. Mackenzie searched the home while
Brice stayed in the living room with Braggs, and Brice also
took photographs of property seized from the residence.
Id. at 103-04. Brice returned to the home a second
time when a search warrant was executed, and papers
establishing defendant's residency in the home and cash
were seized. Id. at 104-05. Jared Lieser, a forensic
scientist for TPD, testified that he examined the substances
seized from the residence, and the substances tested positive
for cocaine base with a net weight of 342.88 grams.
Id. at 138-48.
Officer Wilson testified that on April 16, 2010 he received a
call to provide assistance at 1643 North Columbia Place, and
Officers Mackenzie, Brice, and Dupler were in the residence
when he arrived. Id. at 153. Mackenzie informed
Wilson that drugs had been found in the garage, and Mackenzie
showed Wilson a plastic bag in a clothes dryer in the garage
that appeared to contain cocaine base. Id. at 154.
Wilson participated in the search of the residence and he
found $900 in cash in the pocket of shirt found in
defendant's bedroom. Id. at 155. Wilson was in
the living room of the residence while Mackenzie was
interviewing defendant, and Wilson heard defendant state that
he did not need scales to cut an “eight ball” of
crack cocaine. Id. at 155-56. TPD Corporal Helton
testified that he prepared an affidavit for a search warrant
that would allow the police to search all of the rooms of
1643 North Columbia Place on April 16, 2010. Id. at
164-65. Helton appeared before a judge and the judge signed
the search warrant, and Helton took the search warrant to the
residence. Id. at 165. TPD Officer Matt Frazier
testified that a second search warrant was obtained for the
residence in July 2010, and police recovered ammunition from
a safe, a digital scale, a documents establishing that
defendant resided at 1643 North Columbia Place. Id.
second day of trial, Special Agent Thomas Harris of the
Bureau of Alcohol, Tobacco, Firerarms, and Explosives (ATF)
described the ammunition seized from the residence and he
testified that the ammunition crossed state lines before it
was seized by TPD. Dkt. # 69, at 9-10. Robert Yerton, a
forensic expert, testified that he had compared
defendant's fingerprints with the fingerprints in
defendant's penitentiary pack, and the fingerprints came
from the same individual. Id. at 14-24. The
government rested its case after Yerton's testimony and
defendant made a motion for judgment of acquittal.
Id. at 30. The Court denied defendant's motion,
and defendant called Braggs as a witness. Id. at 31.
Braggs stated that on April 16, 2010 the police did not have
a search warrant for the residence, but he consented to the
search and provided police officers a key to open the garage.
Id. at 33-35. However, police refrained from
searching the defendant's bedroom until they obtained a
search warrant later that day. Id. at 37. Braggs
testified that police returned with a second search warrant
for the entire residence on July 22, 2010, and the ammunition
found by police belonged to him and not to the defendant.
Id. at 38-39. Defendant's sister, Kimberly
Harvey, testified that, on April 16, 2010, defendant lived at
her house located on East Xyler Street. Id. at 58.
After calling another witness, defendant stated that he did
not have any more witnesses, and the Court advised defendant
that he had a right to testify on his own behalf.
Id. at 68. Defendant stated that he understood that
he had the right to testify and standby counsel acknowledged
that she had discussed the matter with defendant.
Id. at 68-69. Defendant clearly stated that he did
not want to testify and he was “ready to get this over
with.” Id. at 69. Defendant renewed his motion
for judgment of acquittal and the motion was denied.
Id. After the Court instructed the jury, plaintiff
and defendant made their closing arguments, and the jury
retired to deliberate. The jury found defendant guilty of
count one of the indictment and found that he possessed
342.88 grams of cocaine base, but the jury found defendant
not guilty of count two. Dkt. # 41. The Court acquitted
defendant of count two. Dkt. # 48.
continued to represent himself at the sentencing stage of the
case and filed a pro se objection (Dkt. # 44) to the
presentence investigation report (PSR). A sentencing hearing
was set for March 29, 2011 and defendant appeared at the
hearing with standby counsel. Dkt. # 49. Defendant claimed
that he did not receive a copy of the revised PSR until the
day before the sentencing hearing, and the Court engaged in a
colloquy with defendant about the process of preparing the
PSR. Id. at 4-12. Despite defendant's frequent
interruptions, the Court conducted the sentencing hearing and
advised defendant that a judgment and commitment would be
entered. Id. at 48-50. On March 29, 2011, the Court
entered a judgment and commitment, but the Court vacated the
judgment and commitment based on defendant's allegations
that he did not timely receive the revised PSR and addendum.
Dkt. # 52. The Court held a second sentencing hearing on
April 13, 2011, and the Court ruled on defendant's
objections to the PSR. Dkt. # 71, at 9-11. The Court
sentenced defendant to life imprisonment, because the
government had filed an enhancement information (Dkt. # 34)
stating that defendant had previously been convicted of two
or more felony drug offenses. Atteberry advised the Court
that she would assist the defendant with filing a notice of
appeal and any preliminary appellate documents, and she would
ask the Tenth Circuit Court of Appeals to appoint new counsel
to represent defendant on appeal. Id. at 30-31. The
Court entered a judgment and commitment on April 13, 2011,
and Atteberry filed a notice of appeal (Dkt. # 57) on behalf
of defendant the next day.
October 17, 2012, the Tenth Circuit entered a decision
denying defendant's appeal. Dkt. # 79. The Tenth Circuit
found that there was sufficient evidence presented to the
jury to establish that defendant possessed the cocaine base
found in the residence, and it rejected defendant's
argument that it was plain error for the Court to read the
jury an unredacted indictment. Defendant challenged whether
the Court complied with the proper procedures under 21 U.S.C.
§ 851, but the Tenth Circuit found that any error was
harmless. Defendant did not file a petition for a writ of
certiorari with the United States Supreme Court and, assuming
no other intervening circumstances, it appeared that
defendant's conviction became final 90 days after the
Tenth Circuit issued its decision. Based on the information
contained on the docket sheet, defendant's conviction
became final on January 15, 2013.
12, 2014, the Court Clerk received a motion to vacate, set
aside, or correct sentence under 28 U.S.C. § 2255 (Dkt.
# 88) from defendant. The Court ordered defendant to show
cause why his motion should not be dismissed as untimely,
because his § 2255 motion was filed more than one year
after January 15, 2013. Dkt. # 97. Defendant failed to
respond to the order to show cause and the Court dismissed
defendant's § 2255 motion as untimely. Dkt. # 100.
Defendant filed a motion to alter or amend judgment (Dkt. #
103), and he argued that he had filed a petition for
rehearing after the Tenth Circuit denied his appeal. He
provided evidence that the Tenth Circuit denied his request
for rehearing on February 5, 2013, and his conviction became
final 90 days after his time to file a petition for writ of
certiorari expired after his request for rehearing was
denied. Defendant's conviction actually became final on
May 6, 2013, and his § 2255 motion would be timely if it
was filed no later than May 6, 2014. Defendant's §
2255 motion was received by the Court Clerk on May 12, 2014,
but the motion includes a sworn statement that defendant
placed the motion in the prison legal mail system on May 5,
2014. In light of the new information provided by defendant,
the Court found that his § 2255 motion was timely. Dkt.
# 104. The Court permitted defendant to file a brief in
support of his § 2255 motion, and defendant filed a
lengthy supplemental brief (Dkt. # 105) with evidence
attached. The Court ordered the government to respond to
defendant's § 2255 motion, and the government filed
a response (Dkt. # 109) with affidavits of Atteberry and
Reincke attached, as well as correspondence between defendant
and Atteberry. Defendant was permitted to file a reply, but
no reply was filed. The § 2255 motion is at issue.
claims that he received ineffective assistance of trial and
appellate counsel, and he alleges the following claims:
I. Whether trial counsel provided constitutionally
ineffective assistance when he/she failed to object to the
[g]overnment's pervasive misconduct, including its
deliberate fraud upon the Court relevant to the [TPD]
II. Whether trial counsel provided constitutionally
ineffective assistance when she failed to file a motion to
suppress the statements purportedly made by the defendant to
III. Whether trial counsel provided constitutionally
ineffective assistance when she failed to adequately
investigate and prepare for trial.
IV. Whether trial counsel provided constitutionally
ineffective assistance when she failed to object to the
[d]istrict [c]ourt's conclusion that the defendant had
knowingly and voluntarily waived his right to counsel.
V. Whether trial counsel provided constitutionally
ineffective assistance when he failed to request a hearing on
previous counsel's motion to withdraw based upon ...