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Slater v. United States

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

February 22, 2019

ROBIN EARL SLATER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          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. 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. § 636(b)(1)(B).

         PROCEDURAL HISTORY

         On 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).

         Upon 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).

         Defendant 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).

         On May 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).

         Defendant 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.

         On 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).

         In the 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.)

         A plea 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).

         The 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).

         On 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 Limine”).

         On July 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 Information”).

         On 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).

         Defendant's 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).

         Mr. Joy 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.

         Defendant 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”).[1]

         Defendant's 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).

         Defendant 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.

         Defendant's 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.)

         On 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. § 1512(a)(2)(C).

         Defendant 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).

         On July 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).

         Defendant's 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 adjudication.

         ANALYSIS

         A. Ground One- Ineffective assistance of counsel.

         Defendant's 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 at 9).

         The 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.

         The 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. ...


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