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Vassell v. O'Brien

United States District Court, N.D. West Virginia

January 31, 2018

TADD ERROL VASSELL, Petitioner,
v.
TERRY O'BRIEN, Warden, USP Hazelton, Respondent.

          Stamp Judge.

          REPORT AND RECOMMENDATION

          MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.

         I. Background

         On 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. 15.

         This matter is now pending before the undersigned for a Report and Recommendation pursuant to LR PL P 2.

         II. Factual and Procedural History[1]

         A. Conviction and Sentence

         According 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 See United States v. Vassell, 1998 WL 637419, *1 (4th Cir. 1998) (unpublished).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.[2] 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.

         From 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.” Id.

         Vassell, 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.

         On the 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.

         After 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.[3] Vassell, 1998 WL 637419 at *2.

         On May 25, 1993, during the time Vassell was a fugitive, the United States indicted him[4]and 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.

         At 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 distribution[.]

Sent. Trans., ECF No. 1-5 at 47.

         In 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.

         Although 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 30.

         The 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.

         With 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.

         After 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.

         In his 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.

         B. Appeal

         Vassell 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 jury.
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 conspiracy.
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).

         C. Motions to Vacate

         Vassell 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 ...

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