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 under 28 U.S.C. § 2255 (Dkt. #
464). Defendant argues that he received ineffective
assistance of trial counsel, and he asks the Court to vacate
his convictions 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.”
November 4, 2014, a grand jury returned an indictment
charging defendant and ten others with conspiracy to
participate in a racketeering enterprise (count one), and
conspiracy to distribute and possess with intent to
distribute at least 500 grams of a mixture or substance
containing a detectable amount of methamphetamine (count
two). Dkt. # 2. As to count one, the indictment
alleged that defendant and others operated a prison gang
known as the Universal Aryan Brotherhood (UAB), and the UAB
engaged in acts including the distribution of drugs,
kidnapping, assault, money laundering, and arson.
Id. at 2. Defendant made his initial appearance on
November 12, 2014, and Shannon McMurray was appointed to
represent defendant. Dkt. # 37. The Court entered a
scheduling order setting the jury trial for January 20, 2015.
At the government's request, the Court declared the
matter a complex case under the Speedy Trial Act, 18 U.S.C.
§ 3161 et seq., and the trial was continued to
June 15, 2015. Dkt. # 73. McMurray filed a motion to compel
discovery concerning the identity of a confidential
informant, and a motion to sever the trial of defendant from
the trial of the other defendants. Dkt. ## 136, 138, 139.
McMurray also filed a motion for a pretrial hearing to
determine the admissibility of co-conspirator statements and
a motion in limine to exclude evidence of defendant's
gang affiliation. Dkt. ## 137, 140. Defendant appeared at the
pretrial conference on June 5, 2015, as the only remaining
defendant named in the indictment who had not changed his
plea. See Dkt. # 191. Defendant's motion to
sever was moot, and his other motions were denied.
defendant's request, a change of plea hearing was set for
June 9, 2015, and defendant appeared at the hearing with
McMurray. Defendant changed his plea without a plea
agreement, and defendant acknowledged that he had declined a
plea agreement offered by the government. Dkt. # 224, at 4-5.
Defendant stated that he was pleading guilty of his own free
will because he was guilty of counts one and two.
Id. at 8. The Court advised defendant of the
possible punishment he faced as to counts one and two,
including that count two carried a statutory mandatory
minimum sentence of 10 years imprisonment. Id. at 9.
Defendant stated that he and McMurray had discussed how the
advisory sentencing guidelines might apply to his case, and
the Court advised the defendant that it would determine
whether any aggravating facts or sentencing factors applied
that could increase his sentence. Id. at 12, 16.
Defendant signed a waiver of his right to a jury trial. The
Court read the indictment to defendant, and asked him
questions about the offenses to ensure that he admitted to
the essential elements of each offense. Id. at
20-34. Counsel for the government represented that defendant
could be facing sentencing enhancements for making threats of
violence in connection with drug trafficking, his leadership
role in the conspiracy, and his criminal history.
Id. at 36. McMurray stated that she had discussed
these possible enhancements with defendant. Id. The
Court accepted defendant's guilty plea and set a
sentencing hearing for September 24, 2015. Id. at
change of plea hearing, defendant submitted a petition to
enter plea of guilty (Dkt. # 223) that was prepared with the
assistance of his attorney. As to count one, defendant
admitted to the following facts:
I, Anthony Hall did between 2005 and November 2014 knowingly
conspire with others to commit racketeering Acts. I was a
member of the “UAB” and as a “UAB”
member I did commit illegal acts to benefit the enterprise as
alleged in the indictment, including but not limited to,
possession with intent to distribute and distribution of 500
grams or more of a mixture and substance containing a
detectable amount of methamphetamine and 50 grams or more of
actual methamphetamine and money laundering. On or about
9/18.2013 [sic] using a cell phone I smuggled into prison, I
ordered the delivery of approximately 800 grams of meth. I
did knowingly participate in, either directly or indirectly,
the conduct of the affairs of the racketeering enterprise.
Additionally, while incarcerated I orchestrated the delivery
and sale of several pounds of methamphetamine in Oklahoma
City and sold in Tulsa, Oklahoma.
Dkt. # 223, at 2. These admissions by defendant also provided
much of the factual basis for his guilty plea as to count
two. Id. Defendant acknowledged that he faced a
statutory mandatory minimum sentence of 10 years and a
maximum sentence of life imprisonment as to count two.
Id. at 3. He stated that he understood that the
Court would apply the advisory sentencing guidelines to
determine defendant's sentence, and that
“sentencing is a matter left exclusively in the
province of the Court.” Id. at 4. The petition
further states that defendant had consulted with his attorney
about the charges against him and possible defenses, and he
was changing his plea to guilty of his own free will.
Id. at 1-2.
sentencing hearing was continued several times, and
eventually took place on April 15, 2016. Defendant stated
that he had an opportunity to review the presentence
investigation report (PSR) and discuss it with his attorney.
Dkt. # 470, at 2. Defendant had filed an objection to the
PSR, arguing that he should receive an adjustment of the
offense level for acceptance of responsibility. Id.
at 3. The Court rejected defendant's argument. Defendant
had disclosed to the UAB the names of witnesses cooperating
with the government, placing these witnesses in danger of
retribution from the UAB. Id. at 4-5. Defendant was
actively participating in ongoing criminal conduct, which
showed that he had not terminated his criminal conduct as
required to receive a reduction of his offense level for
acceptance of responsibility. I d . at 6. The Court
accepted the PSR and advised defendant that his total offense
level was 38 and his criminal history category was VI.
Id. at 7. This resulted in an advisory guideline
range of 360 months to life imprisonment. The Court
considered defendant's motion for a variance (Dkt. #
400), in which he sought a seven level downward variance.
Id. at 13. The Court found that defendant was a high
ranking member of the UAB substantially involved in acts of
violence, but a sentence of 360 months would have been
disparate compared with the sentences received by
co-defendants. Id. at 14. Defendant's motion for
a variance was granted in part, his total offense level was
reduced to 35, and his variance guideline range was 292 to
365 months. Id. at 15. The Court sentenced defendant
to 294 months imprisonment and five years of supervised
release. Id. at 16-17.
did not file a notice of appeal, and his convictions became
final when his deadline to file a notice of appeal expired.
The judgment and commitment (Dkt. # 407) was filed on April
18, 2016, and his convictions became final 14 days later on
May 2, 2016. On June 23, 2016, defendant filed a motion
requesting that the Court compel McMurray to provide
defendant a copy of his file, and the Court initially granted
the motion. Dkt. ## 422, 423. However, the government filed a
motion to reconsider and argued that many of the documents in
defendant's file were subject to a protective order. Dkt.
# 426. After allowing defendant to respond to the motion to
reconsider, the Court vacated its order (Dkt. # 423) and
limited the disclosure of documents to defendant in order to
comply with the parties' protective order. Dkt. # 436. On
May 1, 2017, defendant filed a § 2255 motion (Dkt. #
464), which contains a statement that it was placed in the
prison mail on April 14, 2017. The motion was filed within
one year of the date that defendant's convictions became
final, and the Court finds that defendant's motion (Dkt.
# 464) is timely under § 2255(f)(1). The Court ordered
the government to respond to defendant's § 2255
motion. Dkt. # 466. The government has filed a response (Dkt.
473) and defendant has filed a reply (Dkt. # 476),
defendant's § 2255 motion is ripe for adjudication.
§ 2255 motion alleges two claims. First, defendant
argues that McMurray provided ineffective assistance of
counsel by failing to adequately prepare for plea
negotiations, file a motion to suppress or a motion to
dismiss, prepare for sentencing, and by advising defendant
not to file a notice of appeal. Dkt. # 464, at 4. Second,
defendant argues that counsel for the government withheld
exculpatory evidence and threatened potential witnesses who
could have testified on behalf of defendant. Id. at
5. However, defendant alleges no facts in support of his
claims and the government argues that defendant's
conclusory allegations are insufficient to show that there is
a reasonable probability that defendant is entitled to
relief. Dkt. # 473, at 8-10.
establish ineffective assistance of counsel, a defendant must
show that his counsel's performance was deficient and
that the deficient performance was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687 (1984);
Osborn v. Shillinger, 997 F.2d 1324, 1328 (10th Cir.
1993). A defendant can establish the first prong by showing
that counsel performed below the level expected from a
reasonably competent attorney in criminal cases.
Strickland, 466 U.S. at 687-88. There is a
“strong presumption that counsel's conduct falls
within the range of reasonable professional
assistance.” Id. at 688. In making this
determination, a court must “judge . . . [a]
counsel's challenged conduct on the facts of the
particular case, viewed as of the time of counsel's
conduct.” Id. at 690. Moreover, review of
counsel's performance must be highly deferential.
“[I]t is all too easy for a court, examining
counsel's defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689.
establish the second prong, a defendant must show that
counsel's deficient performance prejudiced the defendant
to the extent that “there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694;
see alsoLockhart v. Fretwell, 506 U.S.
364, 369-70 (1993). In Glover v. United States, 531
U.S. 198, 199 (2001), the Supreme Court held that “any
amount of actual jail time has Sixth Amendment
significance.” Thus, the prejudice prong of the