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Dawkins v. United States

United States District Court, S.D. West Virginia

March 28, 2019

CIARA DAWKINS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          J0SEPR R. GOODWIN UNITED STATES DISTRICT 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. 352] and two Addenda, which the court treats as amendments to the initial motion. (ECF Nos. 362 and 363).[1] 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 For reasons appearing to the court, it is hereby ORDERED that the referral to the Magistrate Judge is WITHDRAWN.

         I. Relevant Procedural History

         On 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”).

         Defendant's 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 tablets.

         DEA 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].[2] 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].

         McClure 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 169-179].

         McClure 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].

         McClure 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].

         McClure 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 197-201].

         On 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].

         At the 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].

         Starkling 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 at 267-275].

         Starkling 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 ...


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