United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the Court is Movant's Motion to Vacate, Set Aside,
or Correct Sentence, pursuant to 28 U.S.C. § 2255 [ECF
No. 352] and two Addenda, which the court treats as
amendments to the initial motion. (ECF Nos. 362 and
363). This matter is now assigned to the
undersigned United States District Judge and is referred to
United States Magistrate Judge Dwane L. Tinsley for
submission of proposed findings and a recommendation for
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For
reasons appearing to the court, it is hereby
ORDERED that the referral to the Magistrate
Judge is WITHDRAWN.
Relevant Procedural History
April 2, 2013, Defendant was named in a second superseding
indictment charging her with one count of conspiracy to
distribute oxycodone and oxymorphone, in violation of 21
U.S.C. §§ 846 and 841(a)(1), and one count of
aiding and abetting possession with intent to distribute
oxymorphone, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2. [ECF No. 369, Ex. 4]. A jury trial was
held between July 9 and II, 2013. Throughout her criminal
proceedings, Defendant was represented by court-appointed
counsel, John H. Tinney, Jr. (“Tinney”).
charges arose following her arrest in Wood County, West
Virginia, in the course of a controlled buy initiated by
Jason McClure (“McClure”), a confidential
informant (“CI”), who had previously been
arrested in Ohio and charged with possession with intent to
distribute approximately 900 oxycodone and oxymorphone
Task Force Officer Herb Shelton (“Shelton”) met
with McClure following his arrest on January 10, 2012.
McClure admitted that he had been involved in a
million-dollar drug distribution scheme and he disclosed that
he owed his source of supply $4, 500. McClure agreed to
cooperate with the government and he was provided $4, 500,
which he deposited in two Chase Bank accounts, one of which
was in Defendant's name. [ECF No. 369 at 2-3 and Ex. 1 at
119-124]. According to Shelton, McClure also agreed
to the placement of a recording device on his cell phone,
which captured recordings from February 1-3, 2012. McClure
also agreed to act as a CI for a controlled buy from
Defendant on February 3, 2012. [Id. at 123-126].
testified at Defendant's trial, pursuant to a plea
agreement, following his guilty plea to one count of
conspiracy to distribute oxycodone. However, he had not yet
been sentenced on that charge. McClure told the jury that, at
the time of his arrest in January of 2012, he advised the DEA
agents that he had received the pills in his possession
earlier that day from Defendant, Shavona Starkling, and a
third female whom he did not recognize. He further indicated
that he knew Defendant and Starkling from prior drug
deliveries. McClure confirmed that his primary drug source
over the two years leading up to his arrest was Mack Brooks,
and that he would meet Brooks and/or various females,
including Defendant and Starkling, on a weekly basis to
obtain pills from them. [ECF No. 349 at 4 and Ex. 1 at
testified that “at the beginning [he purchased] maybe
100, 200, and at the end around 1, 000 pills.” [ECF No.
369 at 4 and Ex. 1 at 176]. He further stated that, after
Brooks went to prison, he continued to have contact with him
to order pills, which were delivered by Defendant and other
females, including Starkling. [Id. at 177-179]. He
confirmed that his last communication with Brooks was on
February 3, 2012, the date of the controlled buy resulting in
Defendant's arrest. [Id. at 179].
further testified about the drugs that were in his possession
when he was arrested on January 10, 2012. He stated that he
had paid between $25, 000 and $30, 000 in cash when he
obtained those drugs, but still owed approximately $4, 500.
He stated that the DEA provided him with that sum of money,
which, upon Defendant's instruction, he deposited into
two bank accounts, one of which was in Defendant's name.
[ECF No. 369 at 4 and Ex. 1 at 170-172, 180-181].
further confirmed that he had consented to the placement of a
recording device on his cell phone, which captured several
recorded phone calls between himself and Defendant, with Mack
Brooks “three-wayed” in from prison on all but
one of the calls. [Id. at 4 and Ex. 1 at 182-185,
193-194]. The recorded calls were played for the jury, while
McClure gave explanations as to the meaning and context of
some of the conversations. [Id. at 4-5 and Ex. 1 at
188-197]. Significantly, McClure identified Defendant as the
person referred to as “C” in one of the recorded
conversations, and explained that meant that he would set up
the February 3, 2012 drug delivery with Defendant.
[Id. at 194]. McClure also testified about the
controlled buy on February 3, 2012, stating that he had made
arrangements with Defendant to purchase whatever pills she
had left at that time. [Id. at 5 and Ex. 1 at
cross-examination, McClure suggested that he had paid Brooks
over one million dollars during the two-year period he had
dealt with him, and he identified “four or five or
six” different females who delivered pills for Brooks,
in addition to Defendant and Starkling. [Id. at 5
and Ex. 1 at 209, 232-233].
time of their arrest, a condom full of pills was recovered
from Starkling's vaginal cavity and taken into possession
by Detective S.L. Modesitt (“Modesitt”). Modesitt
was also present for searches of Defendant for pills.
However, no pills were located in her vaginal cavity.
Modesitt testified that she heard Defendant say that
“it had either gone further up and she couldn't
reach it or it had fallen out.” [ECF No. 369 at 5-6 and
Ex. 1 at 241-247, 250-253]. Another Wood County Deputy
Sheriff, G.M. Deem, testified that a similar condom of pills
was located inside Defendant's vehicle on that date.
[Id. at 6 and Ex. 1 at 255-256]. A DEA chemist
confirmed that the pills seized on February 3, 2012 contained
oxymorphone. [ECF No. 369 at 7 and Ex. 1 at 332].
also testified at Defendant's trial pursuant to a plea
agreement with the United States. She had previously pled
guilty to aiding and abetting possession with intent to
distribute oxymorphone and had been sentenced to serve 46
months in prison. [ECF No. 369 at 6 and Ex. 1 at 265-267,
288]. Starkling stated that, after receiving a call from
Brooks and Defendant, she met with Defendant at a residence
in Detroit, Michigan on February 3, 2012, and received a
condom filled with pills, which she inserted into her vagina.
Then, she, Defendant, and another female traveled by car to
West Virginia to meet McClure to deliver the pills. However,
when McClure got in the car, the police approached and
removed them from the vehicle. [Id. at 6 and Ex. 1
testified that she recognized McClure from at least 10 prior
deliveries, which had been arranged by Defendant and Brooks.
[Id. at 6-7 and Ex. 1 at 275]. Starkling further
confirmed that she had known Brooks and had been making
deliveries for him several times a week since late 2009. On
cross- examination, Starkling ...