United States District Court, S.D. West Virginia, Huntington
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley, United States Magistrate Judge.
before the Court is Movant's Motion to Vacate, Set Aside,
or Correct Sentence, pursuant to 28 U.S.C. § 2255 (ECF
No. 56, Motion to Vacate, Set Aside or Correct Sentence).
This matter is assigned to the Honorable Robert C. Chambers,
United States District Judge, and it is referred to the
undersigned United States Magistrate Judge for submission of
proposed findings and a recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B).
4, 2013, Movant Darius LaJuan Kincannon (hereinafter
“Defendant”), was charged in a single-count
indictment with one count of possession with intent to
distribute 100 grams or more of heroin, in violation of 21
U.S.C. § 841(a)(1). (ECF No. 1). Throughout his district
court proceedings, Defendant was represented by retained
counsel, Kevin Edward Milner.
September 30, 2013, Defendant, by counsel, filed a Motion to
Suppress (ECF No. 18), in which he sought the suppression of
the contents of his backpack that was seized and searched
when a K-9 alerted on the backpack following Defendant's
arrival in Huntington on a Greyhound bus. Upon obtaining a
search warrant, the backpack was opened and a vacuumed bag
containing 510.6 grams of heroin was discovered, along with
two bottles of Superior Inosital and Quinine, products
commonly used to “cut” heroin.
October 7, 2013, the district court held a hearing on
Defendant's Motion to Suppress, at which evidence was
taken. (ECF Nos. 20, 22). Following additional briefing, the
district court denied the Motion to Suppress on October 28,
2013. (ECF No. 27).
November 18, 2013, Defendant executed a written plea
agreement in which he agreed to plead guilty to the charge in
the indictment, which exposed him to a statutory sentencing
range of not less than five nor more than 40 years in prison.
(ECF No. 35). As part of the agreement, the Government agreed
not to file an information pursuant to 21 U.S.C. § 851,
which would have increased Defendant's minimum and
maximum statutory sentencing range. (Id. at 1,
noted by Respondent, the written plea agreement contained an
express waiver by Defendant of his right to appellate review
of his conviction and his sentence, so long as the sentence
did not exceed the maximum statutory penalty prescribed by
law, and a waiver of post-conviction collateral attack,
except for any claim based upon ineffective assistance of
counsel. (Id. at 3-4, ¶ 7). The plea agreement
also included the following acknowledgement:
I hereby acknowledge by my initials at the bottom of each of
the foregoing pages and by my signature on the last page of
this six-page agreement that I have read and carefully
discussed every part of it with my attorney, and that I
understand the terms of this agreement, and that I
voluntarily agree to those terms and conditions set forth in
the agreement. I further acknowledge that my attorney has
advised me of my rights, possible defenses, the Sentencing
Guideline provisions, and the consequences of entering into
this agreement, that no promises or inducements have been
made to me other than those in this agreement, and that no
one has threatened me or forced me in any way to enter into
this agreement. Finally, I am satisfied with the
representation of my attorney in this matter.
(Id. at 12). The plea agreement also contained a
stipulation of facts in which Defendant acknowledged that he
possessed the drugs and paraphernalia in his backpack that
were sufficient to support the charge in the indictment.
(Id. at 3 (¶ 6) and 7-8, Ex. A). Defendant
signed and initialed each page of the plea agreement, and
initialed each page of the stipulation of facts as well.
(Id. at 1-8).
November 18, 2013, Defendant pled guilty, in accordance with
the written plea agreement, to the charge in the indictment.
(ECF Nos. 32-36). The district court conducted a thorough
plea colloquy in accordance with Rule 11 of the Federal Rules
of Criminal Procedure, including receiving Defendant's
own factual basis for his guilty plea, the government's
proffer of evidence to support the essential elements of the
crime set forth in the indictment (which included the
testimony of the arresting officer),  and Defendant's
acknowledgement of the rights he was waiving and his
satisfaction with his attorney's representation. (ECF No.
68, Plea Hrg. Tr., passim).
district court specifically discussed with Defendant the
appellate and collateral attack waiver and also the effect of
the guilty plea on Defendant's ability to further
challenge the suppression issue. (Id. at 18-19,
22-23). Defendant acknowledged that he understood the effects
of the waiver provision and the effect of his guilty plea
with respect to the suppression issue. (Id.)
Defendant also acknowledged that the stipulation of facts
could be used against him to support the guilty plea and at
sentencing, and even at a trial. (Id. at 10).
March 5, 2014, Defendant appeared for sentencing. The
district court determined that Defendant's total offense
level under the United States Sentencing Guidelines was 25,
with a criminal history category of VI, yielding a guideline
range of 110-137 months of imprisonment. Defendant was
sentenced to 110 months of imprisonment, followed by a
five-year term of supervised release. A Judgment to that
effect was entered on March 5, 2014. (ECF No. 45, Judgment in
a Criminal Case).
did not file a direct appeal to the United States Court of
Appeals for the Fourth Circuit. However, on December 15,
2014, Defendant, by counsel, filed a Motion to Reduce
Sentence under 18 U.S.C. § 3582(c)(2) and Amendment 782
to the United States Sentencing Guidelines (which
retroactively lowered the base offense levels for drug
offenses as of November 1, 2014). On November 23, 2015, the
district court granted Defendant's section 3582 motion
and modified Defendant's sentence to 92 months of
imprisonment. All other aspects of his Judgment remained in
effect. (ECF Nos. 64, 67).
March 6, 2015, Defendant filed the instant section 2255
motion (ECF No. 56), asserting the following grounds for
relief [citations corrected]:
Ground One: Ineffective assistance of
I was charged with 21 USC § 841([a]) and 841([b])(1)(B),
possession with intent to distribute 100 grams or more of
heroin. I pled guilty on November 6, 2013. Prior to my plea
hearing, Attorney General Eric Holder gave a directive not to
charge this type of case (low level without ties to cartels)
with a mandatory minimum. This directive was given in August
of 2013 and directed all prosecutors to immediately apply
841([b])(1)(C) instead of 841([b])(1)(B). In my case, this
would have rendered a sentence of 0-20 years instead of 5-40
years. My counsel was ineffective for failing to argue for
the new directive and application before advising me to plead
guilty, leaving counsel as ineffective during the plea
negotiation stage. See: Attorney General directive August
2013. Counsel's failure gave me a mandatory minimum when
I shouldn't have had one and it doubled the maximum
sentence I was facing. These are two significant factors and
it's extremely probable that my sentence would have been
lower if I still decided to take a plea, which I may not have
taken since the time I was facing was cut in half.
Ground Two: Ineffective assistance of
Counsel was ineffective for failing to appeal the Motion to
Suppress ruling that involved the 4th Amendment
violation, before advising the petitioner to plead guilty.
Counsel should have appealed on the grounds that the officer
did in fact conduct an investigatory stop and the interaction
was not consensual. I did not “feel free to disregard
the police and go about [my] business.” I was
surrounded by three armed officers who restricted my freedom
of movement as well as confiscated my identification and
personal belongings. Had my ...