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Kincannon v. United States

United States District Court, S.D. West Virginia, Huntington

February 2, 2018



          Dwane L. Tinsley, United States Magistrate Judge.

         Pending 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).


         On June 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.[1]

         On 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.

         On 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).

         On 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, ¶ 2).

         As 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).

         On 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), [2] 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).

         The 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).

         On 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).

         Defendant 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).

         On 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 counsel
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
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 ...

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