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. 160), his Motion to Amend and Supplement Section 2255
Motion (ECF No. 167), and his Motion for Leave to Amend
Section 2255 Motion (ECF No. 170). 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. §
January 23, 2012, in a parking lot of a convenience store in
Putnam County, West Virginia, Movant Robin Slater
(hereinafter “Defendant”) was approached by West
Virginia State Trooper B.K. Hammontree for suspicion of
driving while intoxicated. (ECF No. 179 at 1). Defendant
allegedly attempted to drive off while Hammontree was
standing in the open driver's-side door of the vehicle.
(Id.) As Hammontree attempted to shift the vehicle
into park, the two men struggled and Defendant bit Hammontree
on the arm and subsequently sprayed him with
“Cap-Stun” pepper spray. (Id. at 1-2).
With the assistance of others, Hammontree subdued Defendant
and placed him under arrest. (Id. at 2).
searching Defendant's vehicle, the police recovered six
firearms, a quantity of cash, and ledgers revealing
Defendant's involvement in a large-scale marijuana
conspiracy. Following his arrest, Defendant waived his
Miranda rights and agreed to be interviewed by the
police. During that interview, Defendant admitted to his
long-term involvement in marijuana trafficking. (Id.
at 2) (footnote omitted).
was initially represented by attorney David Moye. On February
7, 2012, as a result of pre-indictment plea negotiations,
Defendant agreed to plead guilty in federal court to a
single-count information charging him with being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1), which exposed him to a maximum sentence of ten
years in prison, a three-year term of supervised release, and
a fine of up to $250, 000. (Id. at 2 and Ex. 1,
“First Plea Agreement”). The First Plea Agreement
contained a stipulation of facts and a waiver of Federal
Rules of Evidence 410, whereby the United States would be
permitted to introduce the stipulation of facts at trial or
any other court proceeding, if Defendant withdrew from or
breached the plea agreement. (Id. at 2-3 and Ex. 1
at 4, 10-11). Defendant subsequently fled the jurisdiction of
the court and failed to appear for his plea hearing, thus,
effectively withdrawing from his plea agreement.
(Id. at 3).
22, 2012, a federal grand jury returned a five-count
indictment charging Defendant with the following offenses:
one count of conspiracy to distribute more than 100 kilograms
of marijuana, in violation of 21 U.S.C. §§ 846 and
841(a)(1) (Count One); one count of possessing firearms
during and in relation to a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1)(A) (Count Two); one
count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (Count Three); one
count of obstruction of justice, in violation of 18 U.S.C.
§§ 1512(a)(2)(C) and 1512(a)(3)(B) (Count Four);
and possessing firearms in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)
(Count Five). (ECF No. 179 at 3 and Ex. 2,
“Indictment”). Defendant was ultimately arrested
in Kentucky on or about October 3, 2012, following a
high-speed chase. At the time of his arrest, officers found
two firearms and $6, 000 in Defendant's vehicle.
(Id. at 3).
initially appeared in the United States District Court for
the Eastern District of Kentucky. On October 15, 2012, he
appeared in this United States District Court for an
arraignment and detention hearing, where he was represented
by Lex A. Coleman, Assistant Federal Public Defender.
December 21, 2012, Defendant executed a plea agreement in
which he agreed to plead guilty to Counts One through Four of
the Indictment. In exchange, the United States agreed to
dismiss Count Five and forego the filing of a recidivist
information under 21 U.S.C. § 851. (Id. at 3-4
and Ex. 3, “Second Plea Agreement”).
Defendant's sentencing exposure as a result of the plea
agreement was as follows: 5 to 40 years on Count One; a
consecutive 5 years to life on Count Two; up to 10 years on
Count Three; and up to 30 years on Count Four. (Id.
at 4). The Second Plea Agreement also contained a stipulation
of facts and a waiver of Fed.R.Evid. 410. (Id. at 4
and Ex. 3 at 5-6. 9-12).
second stipulation of facts, Defendant agreed that he was
“a long time dealer of marijuana” and had been
dealing the drug since at least 2003. Defendant further
admitted that “he obtained over 10, 000 KG but less
than 30, 000 KG [of marijuana for distribution].”
(Id. at 4 and Ex. 3 at 11). He further admitted
that, while collecting drug debts, he had six firearms in his
possession, despite being a convicted felon. (Id.,
Ex. 3 at 11-12). He also admitted that he had violently
assaulted Trooper Hammontree by biting him on the arm and
spraying him with pepper spray in the face, in order to
prevent him from discovering the firearms, cash, and drug
ledgers that were in the vehicle and reporting such
incriminating evidence to other state or federal law
enforcement officers or a court. (Id.)
hearing was convened on January 7, 2013. However, at that
time, Defendant advised the court that he was not prepared to
go forward. Defendant asserted that he wanted the plea
agreement to cover offenses that occurred in other states;
that he disagreed with the stipulated drug quantity; and that
he did not understand the implications of a section 851
information. (Id. at 4-5 and Ex. 4, “First
Plea Hrg. Tr.” at 6-9, 12-16, 19). Among other things,
the district court explained the use immunity provision of
the agreement and that the filing of a section 851
information would increase his sentencing exposure for his
drug conspiracy offense from 5 to 40 years to 10 to life.
(Id. at 5 and Ex. 4 at 15).
Court continued the plea hearing to enable Defendant to
consult with Mr. Coleman before deciding whether to go
forward with his guilty plea pursuant to the Second Plea
Agreement or withdraw therefrom. (Id. at 4 and Ex. 4
at 19-20). Thereafter, Mr. Coleman filed a Motion to Withdraw
as Counsel, which was granted on January 17, 2013.
(Id. at 5; ECF Nos. 24, 25). Sebastian M. Joy was
then appointed to represent Defendant. (ECF No. 26).
February 12, 2013, Defendant filed a “Notice of
Non-acceptance of Plea Agreement” (ECF No. 29), thus
formally withdrawing from the Second Plea Agreement. (ECF No.
179 at 5 and Ex. 5, “Notice of Non-acceptance of Plea
Agreement”). On April 24, 2013, Defendant filed a
motion in limine seeking to preclude the United States from
using the stipulation of facts contained in the Second Plea
Agreement against him. On June 3, 2013, the Court denied the
motion in limine after a hearing in which Mr. Coleman
testified. The Court found that Defendant knowingly and
voluntarily executed the Second Plea Agreement. (ECF No. 179
at 5 and Ex. 6, “Order Denying Motion in
15, 2013, the United States filed an information under 21
U.S.C. § 851, alleging that Defendant had previously
been convicted of two felony controlled substance offenses.
(Id. at 5 and Ex. 7, “Section 851
Information”). Defendant's trial was scheduled on
August 13, 2013. On the morning of trial, Defendant plead
guilty to Counts One through Four of the indictment without a
plea agreement. The United States moved for the dismissal of
Count Five. (Id. at 5-6 and Ex. 8, “Second
Plea Hrg. Trans.”). Defendant also filed a denial of
the allegations in the Section 851 Information. (Id.
at 6 and Ex. 9, “Denial of Section 851
November 11, 2013, Mr. Joy filed a sentencing memorandum and
objections to the Presentence Investigation Report
(“PSR”). (Id. at 6 and Ex. 10,
“Def. Sentencing Mem. and Obj.”) Mr. Joy also
disputed the drug quantity used to establish Defendant's
base offense level on Count One. He further argued that one
of the firearms (a Beretta shotgun) was inoperable, and two
others found when Defendant was arrested in Kentucky had not
been proven operable. Thus, Mr. Joy contended those guns
should not be used to enhance Defendant's guideline
sentencing range on Count Two. Mr. Joy further asserted that
Defendant's conduct did not create a substantial risk of
serious bodily injury to Trooper Hammontree and that
Defendant's conduct did not warrant a reckless
endangerment enhancement. Mr. Joy further argued for a
downward variance from the guideline sentence. (Id.
at 6 and Ex. 10).
sentencing hearing was held on November 18, 2013. During the
hearing, Mr. Joy addressed the Defendant's various
objections to the PSR and required the United States to prove
the amount of marijuana attributable to Defendant as offense
and relevant conduct. The United States was further compelled
to demonstrate that the Beretta shotgun and the two firearms
seized in Kentucky were operable and that Defendant's
conduct created a substantial risk of serious bodily injury
to Trooper Hammontree. Finally, the United States was
required to prove that Defendant was the person who had been
convicted of the prior felony offenses contained in the
Section 851 Information. (ECF No. 179 at 6-7 and Ex. 11,
“Sentencing Hrg. Tr., ” passim).
cross-examined the government's witnesses and introduced
testimony and argument supporting Defendant's positions
on these various issues. Ultimately, the Court found that the
Beretta shotgun satisfied the definition of a firearm and
that it and the two firearms seized in Kentucky would be
included in the calculation of Defendant's guideline
range for Count Two. The Court further found that
Defendant's conduct created a substantial risk of bodily
injury to Trooper Hammontree. However, Mr. Joy successfully
persuaded the Court to lower the drug quantity to 3, 000 to
10, 000 KG of marijuana.
was sentenced to an aggregate sentence of 420 months in
prison (360 months on Counts One, Three, and Four; and a
consecutive 60 months on Count Two) followed by an aggregate
term of supervised release of 13 years (eight years on Counts
One, Three and Four; and a consecutive five years on Count
Two). (ECF No. 179 at 7; ECF No. 123,
Judgment was affirmed on appeal on July 8, 2014. United
States v. Slater, No. 13-4885, 578 Fed.Appx. 198 (4th
Cir. July 8, 2014) (ECF No. 145). In his direct appeal,
Defendant unsuccessfully challenged the district court's
calculation of the drug weight and the application of a
four-level guideline enhancement for possession of eight
firearms during the offenses (based upon the inclusion of the
allegedly inoperable Beretta shotgun in that calculation).
The Fourth Circuit subsequently denied Defendant's
petition for rehearing and rehearing en banc. (ECF No. 149).
Defendant's petition for a writ of certiorari was denied
by the Supreme Court on December 1, 2014, and his Judgment
became final on that date. Slater v. United States,
135 S.Ct. 734 (2014).
filed the instant Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 (ECF No. 160) on
November 30, 2015. Thereafter, on November 23, 2016, and
November 20, 2017, Defendant filed two motions to amend or
supplement his section 2255 motion. (ECF Nos. 167 and 170).
Defendant's initial motion documents essentially assert
two grounds for relief. First, he contends that his
court-appointed counsel provided ineffective assistance in
numerous ways. Second, he alleges prosecutorial misconduct by
the United States. As noted by the United States in its
response, within his claims of ineffective assistance of
counsel, Defendant also contends that his guilty plea was not
knowing and voluntary.
Motion to Amend and Supplement his Section 2255 Motion (ECF
No. 167), filed nearly one year after the initial motion,
adds specific arguments that his counsel failed to
investigate phone records of phones seized when he was
arrested. Defendant contends that these phone records, which
he further contends were withheld by the United States, would
have shown communications between Defendant and his
co-conspirators indicating that he was not as involved in the
conspiracy as suggested by the government, and would have
demonstrated a more accurate drug quantity. (Id.)
The Motion to Amend and Supplement further asserts that the
Defendant's counsel failed to have the drug quantity
found by a jury. (Id.)
November 20, 2017, nearly two years after filing his initial
section 2255 motion, Defendant filed another Motion for Leave
to Amend his Section 2255 Motion (ECF No. 170), in which he
again challenges the drug quantity determined by the district
court and the four-level enhancement he received for
possessing eight firearms. Defendant also appears to be
challenging, for the first time, the basis for his
obstruction of justice conviction under 18 U.S.C. §
claims that the United States “usurped” its
jurisdiction by indicting him for a crime based upon
dismissed state charges. (ECF No. 170 at 8). Defendant
further appears to contend that, because Trooper Hammontree
was a state law enforcement official, there was no basis to
charge him under section 1512(a)(2)(C). Defendant further
contends that, had his counsel effectively represented him,
he would have shown the trial court that Defendant did not
commit a federal offense on that basis. (Id. at
8-9). Defendant's Motion for Leave to Amend further
asserts that he only pled guilty to the offenses charged in
the indictment because the government threatened to pursue a
life sentence if he proceeded to trial. (Id. at 9).
6, 2018, the United States filed a Response to
Defendant's Section 2255 Motion and Motions to Amend and
Supplement (ECF No. 179), as ordered by the undersigned. The
Response indicates that most of the issues addressed in
Defendant's Motions to Amend and Supplement relate back
to his initial section 2255 motion and, thus, in accordance
with Rule 15(c)(2) of the Federal Rules of Civil Procedure,
the United States does not object to the Court addressing the
merits of the claims contained in the Motions to Amend and
Supplement. (Id. at 23-24).
reply was due on September 6, 2018. (ECF Nos. 172, 175). On
September 10, 2018, the Clerk docketed a
“Response” from the Defendant (ECF No. 180)
indicating that he had not received service copies of either
the government's response to his section 2255 motion or
Mr. Joy's affidavit that had been ordered by the court.
Consequently, the undersigned granted an extension of time
for Defendant's reply brief until November 1, 2018, and
directed the Clerk to provide Defendant with the
government's Response and the affidavits of both Mr. Joy
and Mr. Coleman. (ECF No. 181). Thereafter, Defendant failed
to file any Reply at all. This matter is ripe for
Ground One- Ineffective assistance of counsel.
initial section 2255 motion was timely filed under 28 U.S.C.
§ 2255(f)(1), as it was filed within one year of his
Judgment becoming final. The initial motion raises numerous
claims of ineffective assistance of counsel. Although the
section 2255 motion contains 31 discrete paragraphs
concerning his ineffective assistance of counsel claims, the
undersigned agrees with the government that the claims can be
broken down into three overarching categories: (1)
counsel's failure to adequately advise Defendant
regarding execution of two plea agreements containing
stipulations of facts, and to enter a guilty plea that was
allegedly not knowing and voluntary; (2) counsel's
failure to prepare and effectively present or attack certain
evidence pertinent to the calculation of his advisory
sentencing guideline ranges; and (3) counsel's failure to
adequately attack the Section 851 Information. (ECF No. 179
Supreme Court addressed the right to effective assistance of
counsel as guaranteed by the Sixth Amendment in
Strickland v. Washington, 466 U.S. 668 (1984), in
which the Court adopted a two-pronged test. The first prong
is competence; movant must show that the representation fell
below an objective standard of reasonableness. Id.
at 687-91. There is a strong presumption that the conduct of
counsel was in the wide range of what is considered
reasonable professional assistance, and a reviewing court
must be highly deferential in scrutinizing the performance of
counsel. Id. at 688-89.
In order to meet the first prong, movant must identify the
acts or omissions of counsel that are alleged not to have
been the result of reasonable professional judgment. The
court must then determine whether, in light of all the
circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance. . .
[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment.
Id. at 690. This inquiry is directed at whether
defense counsel's representation “amounted to
incompetence under ‘prevailing professional norms,'
not whether it deviated from best practices or most common
custom.” Harrington v. Richter, 562 U.S. 86,
105 (2011). “The question is whether counsel made
errors so fundamental that counsel was not functioning as the
counsel guaranteed by the Sixth Amendment.”
Id. at 88.
second prong is prejudice; "[t]he defendant must show
that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Id. at 694. The
court may determine the prejudice prong prior to considering
the competency prong if it is easier to dispose of the claim
on the ground of lack of prejudice. Id. at 697.