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Green v. United States

United States District Court, E.D. Oklahoma

April 25, 2019

KEVIN BERNARD GREEN, Plaintiff,
v.
UNITED STATED OF AMERICA, Defendant.

          REPORT AND RECOMMENDATION

          Eleven P. Shreder United States Magistrate Judge

         The Plaintiff Kevin Bernard Greed pleaded guilty to a drug conspiracy pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. He was sentenced to imprisonment for a term of 132 months, followed by a term of supervised release of 60 months, as well as a $100.00 special assessment. No. direct appeal was filed. Green (the plaintiff or petitioner in this case, and the defendant in No. CR-15-37-RAW-1, referred to herein as “the Defendant”) now seeks post-conviction relief pursuant to 28 U.S.C. § 2255. The District Judge has referred the Defendant's amended petition to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for an evidentiary hearing and a report and recommendation. The undersigned Magistrate Judge heard evidence on April 10, 2019. For the reasons set forth below, the undersigned Magistrate Judge now recommends that the Defendant be denied relief under 28 U.S.C. § 2255.

         FINDINGS AND ANALYSIS

         In June 2015, the Defendant was charged by way of a fourteen-count indictment for a drug conspiracy (Count 1) and use of a communication device in furtherance of drug trafficking (Counts 2-14). The indictment also contained a drug forfeiture allegation. The Defendant pleaded guilty without a plea agreement to Count 1 before United States Magistrate Judge Kimberly E. West on July 27, 2015. At the plea hearing, the Government, through Assistant U.S. Attorney Shannon Henson indicated that the Defendant's preliminary advisory Guideline calculation range was 120 months imprisonment. Defendant's counsel, Terry Weber, agreed that it was “in the realm of possibilities” despite some arguments about quantities of drugs. See Docket No. 5, p. 129. The Defendant indicated he understood this and provided a factual basis for his plea. Id.

         The Defendant was sentenced by Chief U.S. District Judge Ronald A. White on January 7, 2016. Prior to sentencing, the U.S. Probation office filed a Pre-Sentence Report (“PSR”), to which the Defendant had objected. At the sentencing hearing, AUSA Henson objected to a two-point reduction for acceptance of responsibility, which the Court overruled as untimely. The Court further noted that there had not been a motion for a third point as to acceptance of responsibility, and therefore there was nothing to rule on as the motion for the third point was in the discretion of the U.S. Attorney's office. Based on this amendment, the Court found that the Defendant had a sentencing Guideline range of 97 to 121 months. See Docket No. 5, pp. 144-146. AUSA Henson then called two witnesses as to the Defendant's objections to the PSR. First, Willie Wartson testified that he knew the Defendant and that he would buy approximately eighteen ounces of cocaine powder from the Defendant about once a week, that he saw the Defendant with kilo quantities, and that the Defendant was his main source of supply. Id. at pp. 155-157. Mr. Wartson had originally provided this information during an interview on July 30, 2014, then recanted his original statement on May 11, 2015 after learning he had been accused of being a snitch. On May 20, 2015, Mr. Wartson then recanted his recantation, affirmed his original statement, and agreed to testify at the Defendant's sentencing hearing. Id. at pp. 156-165. AUSA Henson confirmed with Mr. Wartson that he had agreed to file a Rule 35 motion seeking a reduction of sentence for Mr. Wartson's testimony at the Defendant's sentencing. Id. at pp. 172.

         Next, Oklahoma Bureau of Narcotics Agent John Morrison testified that he interviewed the Defendant on October 13, 2015, and believed that the Defendant had not been truthful at that meeting. See Docket No. 5, pp. 175, 181. At the October 2015 meeting, the Defendant told Agent Morrison that Duran Delt was not his cocaine supplier, that he did not know the supplier for powder cocaine, and that he got it from a “middle man” named Adrianna Hill, and then he would sell it back to her and others. Agent Morrison testified that this was strange because this would make the cocaine more expensive for Ms. Hill than if she just purchased it from the supplier directly. Id. at p. 179. Further, the Defendant had told Agent Morrison that he did not know how to turn powder cocaine into cocaine base, and that he had never been in possession of kilo quantities of cocaine. Id. at p. 181. Agent Morrison stopped the interview at this point because he believed the Defendant was not being truthful. Agent Morrison believed that Duran Delt was the Defendant's supplier, based on an earlier interview with Mr. Wartson, facts learned in wire intercepts, and an interview with Defendant's co-conspirator Elijah Mayes. Id. at p. 182. He also believed the Defendant had sold cocaine base to Adrianna Hill, based on interviews with her and facts learned during wire intercepts. Id. at pp. 182-183. Finally, he testified as to calls intercepted and that the contents of those phone calls related to Defendant selling drugs and the quality of those drugs. Id. at pp. 187-190.

         The Defendant then testified at the sentencing hearing that he did not sell powder cocaine to Mr. Wartson in 2013, and that he believed Mr. Wartson had testified about this in retaliation for the Defendant having an affair with Mr. Wartson's girlfriend. He also testified that Duran Delt was just a good friend of his family. Id. at pp. 206-209. Upon cross examination, the Defendant was unable to explain why Mr. Wartson became aware of the affair in early 2014 but did not provide information as to the Defendant until July 2014, after Mr. Wartson's March 2014 sentencing. When confronted with statements by Elijah Mayes, Adrianna Hill, and Mr. Wartson, the Defendant asserted that they had all lied and that he had just been the middle man. Additionally, the Defendant testified that he had lied at his own change of plea hearing when he stated the amount of drugs he was responsible for. Id. at pp. 212-217.

         Based on the evidence and testimony at the sentencing hearing, including that the Defendant lied at the Rule 11 hearing in October 2015, the Government asserted that the Defendant was not eligible for the two-level safety valve decrease. Defendant's counsel argued that Mr. Wartson's testimony should be rejected, which would have lowered the amount of powder cocaine attributed to the Defendant by 936 ounces, making the Defendant eligible for safety valve relief. Id. at pp. 217-218, 222. AUSA Henson then pointed out that the Defendant had lied, either at the plea hearing or at sentencing, by his own admission. Id. at p. 225.

         The Court then found that the information provided by Mr. Wartson's testimony regarding drug quantities was relevant conduct and that the quantities were appropriately included in the drug quantity calculations in the PSR, and therefore overruled the Defendant's objections to the drug quantities. Id. at p. 227. The Court could not find that the Defendant met all the necessary criteria for safety valve relief, specifically the provision requiring the Defendant to truthfully provide all information and evidence to the Government concerning the offense or offenses that were part of the same source of conduct or of a common scheme or plan. The Court then overruled the Defendant's objection. Id. at p. 229. Finding that the Defendant lied while under oath either at the plea hearing or at the sentencing hearing, the Court then found the Defendant qualified for a two-level enhancement for obstruction of justice, resulting in a two-level enhancement from level 30 to level 32, making the Guidelines range 121 to 151 months. Id. at pp. 229-230. The Court then dismissed Counts 2-14 in the Indictment. The Court noted that the sentencing hearing had resulted in an unexpected increase in the offense level. Defendant's counsel noted his minimal criminal history, quick plea, and the lack of guns in the conspiracy, and argued that the mandatory minimum 120 months was sufficient. Id. at p. 232-233. The Court sentenced the Defendant to 132 months' imprisonment on Count 1, followed by a term of supervised release of five years. Id. at p. 234. At the close of the hearing, the Court instructed the Defendant that he had fourteen days to appeal his sentence, and that Mr. Weber would remain his attorney during that time. Id. at p. 237.

         Defendant Green has raised a claim of ineffective assistance of counsel for failing to file an appeal following his plea and sentence. With regard to such a claim, Barrett must demonstrate that the performance of his trial attorneys fell below an objective standard of reasonableness, and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687 (1984). Because the Defendant asserted that he instructed his attorney to file an appeal and the Government had responded by provided an affidavit from Mr. Weber indicating that the Defendant never instructed him to file an appeal, the Court referred this matter for an evidentiary hearing.

         At the evidentiary hearing, Terry Weber, the Defendant's counsel from his criminal case, was called to testify. As to his experience, Mr. Weber testified that he was licensed in Oklahoma in 1983 that his litigation practice had involved federal criminal appointments since 1995. He further testified that he has filed over fifty criminal appeals in federal courts and has argued criminal appeals before the Tenth Circuit four or five times. Mr. Weber further testified that he represented the Defendant in the 2015 underlying criminal case, that the Defendant had pleaded guilty without a written plea agreement, and that he had therefore not waived his right to appeal. Mr. Weber testified that he did not file an appeal for the Defendant, did not consult with the Defendant as to whether he wanted to appeal, and did not visit the Defendant to speak with him after the sentencing hearing. Mr. Weber testified that, while he had previously received phone calls from the Defendant's family members, neither the Defendant nor his family members contacted him after sentencing regarding the filing of an appeal. He further stated that he took no steps following sentencing to ascertain whether the Defendant want to appeal, that he did not think he had a duty to consult about an appeal, and that he did not believe there was an appellate issue. Mr. Weber testified that he generally discusses the appellate procedure with clients when the issues come up with motions or discovery issues but had no specific recollection of those conversations with this Defendant, and he confirmed that no such conversations took place after the Defendant's sentencing hearing. On cross-examination, Mr. Weber agreed that if he had seen an appellate issue, he would have discussed that with the Defendant.

         Analysis

          The Defendant's ineffective assistance of counsel claim centers on his assertion that his counsel failed to file a notice of appeal for him. Claims for ineffective assistance of counsel are governed by the standard announced by the Supreme Court and set forth in Strickland v. Washington, 466 U.S. 668 (1984), requiring the Defendant to “show that counsel's representation fell below an objective standard of reasonableness.” Id. at 687. “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. To prevail on a claim for ineffective assistance of counsel, the Defendant: (1) “must show that counsel's performance was deficient[, ]” and (2) “that the deficient performance prejudiced the defense.” Id. at 687.

         A violation of the Strickland standard is clear where an attorney disregards “specific instructions from the defendant to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). A violation of Strickland is much less clear when the Defendant “has not clearly conveyed his wished one way or the other.” Id. In that case, “where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, ” the Supreme Court held that the first question to be addressed is “whether counsel in fact consulted with the defendant about an appeal.” Id. at 478. “If counsel has not consulted with the defendant, the court must in turn ask [] whether counsel's failure to consult with the defendant itself constitutes deficient performance.” Id. Thus rejecting a “bright-line rule, ” the Supreme Court instead held that “counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) ...


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