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United States v. Bagby

United States District Court, N.D. Oklahoma

January 16, 2018

JEFFREY SHAUN BAGBY, a/k/a Jeffrey Sjawn Bagby, Jeffrey Shawn Bagby, Defendant.



         Now before the Court is defendant's motion to vacate, set aside or correct sentence (Dkt. # 88).[1] 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.”


         On 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.

         A 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.

         The 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.

         TPD 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. at 63.

         Defendant 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.

         TPD 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.

         TPD 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. at 186-87.

         On the 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.

         Defendant 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.

         On 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.

         On May 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.


         Defendant 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] corruption investigation.
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 Officer Mackenzie.
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 ...

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