United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.
January 23, 2017, through counsel, Petitioner, Tadd Errol
Vassell, (“Vassell”) filed an unsigned petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241
and paid the $5.00 filing fee. ECF Nos. 1 & 2. On January
24, 2107, Petitioner filed an amended, signed copy of his
petition. ECF No. 4. On January 26, 2017, the undersigned
conducted a preliminary review of the file, determined that
summary dismissal was not appropriate at that time, and
directed the Respondent to answer the petition. ECF No. 8. On
May 22, 2017, the Respondent filed a Motion to Dismiss with a
memorandum in support. ECF Nos. 11 & 12. On May 31, 2017,
Petitioner moved for an extension of time. ECF No. 13. By
Order entered June 6, 2017, Petitioner's unopposed motion
for an extension of time was granted. ECF No. 14. Petitioner
filed his response in opposition on August 3, 2017. ECF No.
matter is now pending before the undersigned for a Report and
Recommendation pursuant to LR PL P 2.
Factual and Procedural
Conviction and Sentence
to the Fourth Circuit's opinion on Vassell's direct
appeal, in the early 1990s, Vassell “was a member of a
highly organized enterprise that distributed crack cocaine in
Virginia Beach, and later also in Portsmouth,
Virginia.” See United States v. Vassell, 1998
WL 637419, *1 (4th Cir. 1998) (unpublished). Vassell was a
member of the conspiracy from December 1990 until August
1992; he turned 18 less than a year into the conspiracy in
August 1991. Id. at *3-4. The conspiracy
“obtained highly potent heroin and cocaine from New
York” that the co-conspirators then distributed in a
Virginia Beach public housing project known as Tidewater
Gardens. Id. at *1.
August 1991, around the time of his 18th birthday, until
early March 1992, Vassell “unsuccessfully attempt[ed]
to start a satellite drug operation in Tennessee.”
Id. at *1. Despite his physical absence from
Virginia, while in Memphis, Tennessee, Vassell
“continued to have knowledge of the totality of the
drugs being distributed by the organization” through
weekly telephone calls with his co-conspirators in Virginia.
See PreSentence Investigation Report
(“PSR”), ECF No. 1-16, ¶ 27. Vassell
returned to Virginia in March 1992; on April 28, 1992, he
assumed the leadership responsibilities of the Tidewater
Gardens project heroin operation after a co-conspirator,
Kevin Kinlow [Vassell, 1998 WL 637419 at *1] was
arrested during a routine traffic stop, in possession of a
Tech-9 firearm and heroin. Id. After Kinlow's
arrest, the Fourth Circuit noted, “Vassell was
responsible for selling approximately $7, 000 to $10, 000
worth of heroin daily.” Id. Vassell held a
sufficiently important supervisory role that “[a]ll
distributors waited for Vassell's arrival and always
consulted with him prior to commencing distribution.”
like most of his co-conspirators, was originally arrested on
May 27, 1992, after police executed search warrants at
several houses, including the one where Vassell lived.
Id. At the house that Vassell shared with Floyd
Watson, another co-conspirator, police found “3, 000
packets of heroin, five false bottom cans that contained bulk
heroin and cutting agents, a firearm, a safe containing
approximately $3, 000 in U.S. currency, a digital scale,
numerous empty glassine packets, photographs of Vassell and
other co-conspirators and drug paraphernalia.”
Id. Vassell was arrested on the same day with
co-conspirator Michael Cockem Smith; on their persons, police
found a total of 145 glassine bags of heroin with 4 grams of
heroin, the drugs that formed the basis for Count 41,
charging the two with possessing heroin with intent to
distribute. PSR, ECF No. 1-16, ¶ 27. The offense charged
in Count 41 occurred well after Vassell's 18th birthday.
same day that Vassell's residence was searched, police
searched another co-conspirator's residence, a location
where “Vassell was often videotaped frequenting,
” and recovered “$40, 000 in currency, drug
ledgers, and another firearm.” Vassell, 1998
WL 637419 at *1. Searches of other residences tied to the
conspiracy “resulted in the seizure of similar
items.” Id. In short, as the evidence seized
on May 27, 1992 alone demonstrated, the scope of the
conspiracy was substantial.
Vassell's arrest, he and his co-conspirators were
initially charged with drug offenses in state court and then
released. Id. at *2. Once on bond, however,
“members of the group decided to flee the area rather
than return to court.” Id. at *1. Vassell
remained a fugitive for over four years, from 1992 until his
first court appearance on December 4, 1996. Vassell,
1998 WL 637419 at *2.
25, 1993, during the time Vassell was a fugitive, the United
States indicted himand ten others. See Indictment,
ECF No. 1-2. By the time Vassell was finally arrested in late
1996, “all but one other co-conspirator had pled guilty
and been sentenced.” Vassell, 1998 WL 637419
at *2. All but one of those who pled guilty received sentence
reductions for substantial assistance. ECF No. 1-4 at 3.
Consequently, Vassell was tried alone. His three-day jury
trial began on February 3, 1997 with the granting of the
government's motion to dismiss Counts 3, 30, and 31 of
the indictment. On February 6, 1997, Vassell was convicted on
Counts 1 and 41. ECF No. 1-3 at 8. Although Count 41
(possession with intent to distribute heroin) carried a
statutory maximum of 20 years, Vassell had conspiracy
liability continuing after his 18th birthday, and the Count 1
conspiracy conviction carried life as the statutory maximum.
Vassell's May 16, 1997 sentencing, after considering
defense objections to the PSR and the government's
position, the court heard testimony from Investigator H.
Milner on the issues of drug weights and enhancements in
response to Vassell's objections. Sent. Trans. ECF No.
1-5 at 19 - 46. The government noted its position that
these calculations which were used for the . . .[PSR] are
very, very conservative. They are supported by the totality
of the information from all of these different debriefings .
. . corroborated by the seizures . . . made on April . . .
18th of 1990 -of 1992 and May . . .
27th . . . 1992 . . . by the witness information
about the currency . . .being made as profits from the daily
sales . . . and by the debriefing information of
[co-conspirators] Dwayne and Michael Jenkins . . . [after]
their guilty pleas[, ] about the total quantities of cocaine
and heroin which were brought from New York for
Sent. Trans., ECF No. 1-5 at 47.
calculating drug quantities attributable to Vassell, the
district court excluded the period when Vassell was in
Tennessee trying to establish the satellite drug network-even
though Vassell knew about the drug quantities being
distributed in Virginia then, through his weekly phone
contact with his coconspirators, and only counted the periods
from December 1990 to August 1991 and from March 1992 to
August 1992. See Sent. Trans. ECF No. 1-5 at 51 -
57. In total, the Court found Vassell responsible for 5,
669.85 grams of heroin, 974.024 grams of cocaine, and 3, 375
grams of crack. Id. at 53.
Vassell objected to the district court's counting drugs
that the conspiracy distributed before his 18th birthday, the
district court rejected that argument, noting that
“there is more than sufficient evidence of this
defendant's continued participation in the conspiracy
past his 18th birthday [id. at 54]” and that
Vassell “ratif[ied] his pre-eighteen participation in
the conspiracy after maintaining majority.”
Id. at 55. Further, the district court noted,
“while he started his involvement prior to his 18th
birthday, he clearly and unequivocally continued his
involvement in the conspiracy after his 18th birthday.”
Id. All told, the drug quantity resulted in Vassell
receiving a base offense level of 38. PSR, ECF No. 1-16, at
District Court also found that a 2-point gun enhancement
applied, explaining that “[n]umerous firearms were used
in this conspiracy, were recovered and admitted”
[id. at 61], including a firearm found in
Vassell's residence. Sent. Trans., ECF No. 1-5 at 59 -
62. Further, the district court applied a 3-point role
enhancement for Vassell's supervision of the
conspiracy's drug distribution at Tidewater Gardens after
Vassell returned to Virginia, well after his 18th birthday.
Id. at 66 - 68. Despite the fact that Vassell had
been implicated in one homicide and was charged in an
attempted homicide during his time as a fugitive, the
district court relied on neither in imposing sentence.
See Sent. Trans., ECF No. 1-5 at 68 - 71; PSR, ECF
No. 1-16, ¶ 27.
the obstruction of justice enhancement, the gun enhancement,
the leadership enhancement, and the base offense level of 38,
Vassell had a total offense level of 45, and given that he
had put the government to the expense of going to trial, he
received no reduction for acceptance of responsibility.
Without even taking into account any of the pending charges
accrued while a fugitive, Vassell had a criminal history of
V. However, the criminal history did not even matter, given
that the offense level had already given Vassell a guideline
range of life. See PSR, ECF No. 1-16 at 26.
the guideline calculations were completed, when defense
counsel began his argument regarding the appropriate sentence
by asking the Court “to use . . . [its] discretion,
” the district court cut him off, remarking, “I
don't have any discretion, do I?” Sent. Trans., ECF
No.1-5 at 71. Defense counsel admitted “[y]ou are
correct, Your Honor.” Id. at 72.
allocution before sentence was pronounced, Vassell argued
that he was a juvenile when the conspiracy began, and stated
“things that happened in the past happened while I was
a juvenile. I'm a man now. And I feel I shouldn't
spend the rest of my life in prison for something that
happened in the past.” Id. In response, the
district court noted first that it did not enact the
guidelines, Congress did, and the court's role was merely
“to enforce the law.” Id. at 73. The
court stressed that Vassell was responsible for his actions,
reiterating to Vassell that he had “continued . . .
[his] criminal conduct even into . . . adulthood . . . [and
even though] it may have started when you were a juvenile . .
. it continued at a very active level after you became an
adult.” Id. The court noted that Vassell's
recent use of an alias when he was arrested was an example of
obstruction of justice that occurred after he was already an
adult, noting that “this is one of the reasons your
sentence is up to life at this point because . . . you have
refused to accept any responsibility[.]” Id.
at 73 - 74. Overruling all of the objections, the district
court concluded that 45 was the correct level and sentenced
Vassell to a life sentence on Count 1 and to a 20
year-concurrent sentence on Count 41. Id. at 75.
filed a timely notice of appeal on May 23, 1997. On appeal,
he raised the following grounds of error:
1) the government failed in its burden of proof with respect
to the overt acts in the indictment, and even though no
requirements existed for them to be alleged, once alleged,
they must be proven, and it was error to submit them to the
2) The government failed to prove by a preponderance [of
evidence] that Vassell was responsible for the amount of drug
weights calculated by the probation office and the court
erred in adopting that amount.
3) The government failed in its burden of proof to establish
that Vassell possessed a firearm during the course of the
4) The government failed in its burden of proof that Vassell
occupied a managerial role in the conspiracy.
5) The district court erred, as a matter of law, in
concluding that Vassell's juvenile drug activities could
be considered as relevant conduct.
ECF No. 1-3 at 12. On September 11, 1998, by unpublished
per curiam opinion, the Fourth Circuit affirmed the
district court's judgment. ECF No. 1-4. Vassell filed a
petition for writ of certiorari with the United
States Supreme Court; it was denied on January 19, 1999.
Vassell v. United States, 525 U.S. 1113 (1999).
Motions to Vacate
filed his first Motion to Vacate under 28 U.S.C. § 2255
through counsel on January 13, 2000. See ECF No. 1-6
at 58. It was assigned E.D. Va. Case No. 2:00cv42. In that
motion, he argued that:
1) counsel were ineffective for failing to argue that he
should have been sentenced under a total offense level of
forty-three rather than forty-five;
2) counsel were ineffective for failing to argue that
Petitioner was illegally convicted through the use of
co-conspirator testimony that was obtained in exchange for
plea agreements offering ...