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Jones v. United States

United States District Court, N.D. West Virginia

August 8, 2019

KOFIE AKIEM JONES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Background

         In December 2013, the pro se[1] petitioner, Kofie Akiem Jones, filed a motion to vacate under 28 U.S.C. § 2255 (“§ 2255”), wherein he asserts three arguments.[2] First, the petitioner claims that he received ineffective assistance of counsel from his original defense attorney. ECF No. 1 at 4-27/ECF No. 308 at 4-27.[3] Second, the petitioner believes he is entitled to relief pursuant to the holding of Alleyne v. United States, 133 S.Ct. 2151 (2013). Id. at 29. Third, the petitioner asserts that his due process rights were violated because the jury received incorrect instructions. Id. at 32. For relief, the petitioner requests that (1) his conviction and sentence be vacated and set-aside or (2) the sentence of his second § 924(c) offense be vacated. ECF No. 1 at 39/ECF No. 308 at 39. After the pro se motion was filed, attorney Jason T. Gain entered a notice of appearance as petitioner's counsel. ECF No. 51/ECF No. 414. The government filed a response in opposition to the motion to vacate under § 2255. ECF No. 5/ECF No. 312.

         The action was referred to United States Magistrate Judge Robert W. Trumble for initial review and report and recommendation pursuant to Local Rule of Prisoner Litigation Procedure 2. United States Magistrate Judge Trumble then entered a report and recommendation. ECF No. 64/ECF No. 437. In the report and recommendation, the magistrate judge recommended that the petitioner's § 2255 motion be denied and the civil action be dismissed with prejudice because the petitioner's claims were procedurally defaulted or without merit. Id. at 1.

         Counsel for petitioner filed a motion for an extension of time to file objections to the magistrate judge's report and recommendation. ECF No. 438.[4] This Court granted the motion for an extension of time. ECF No. 65 at 1/ECF No. 439 at 1. The order directed the petitioner to file objections on or before May 21, 2018 and directed the government to file a response to the petitioner's objections on or before June 4, 2018. Id.

         The petitioner filed two primary objections through counsel. ECF No. 67/ECF No. 441. The petitioner first objects to the magistrate judge's finding that his counsel was not ineffective by failing to communicate a plea deal because no plea deal was ever offered by the government. Id. at 1. The petitioner contends that “testimony elicited at the evidentiary hearing shows that counsel for the government would most certainly have extended an offer to the Petitioner - and in fact had prepared a written plea document for that purpose - but was precluded from even making an offer by the actions of Petitioner's trial counsel.” Id. Petitioner cites to the similarities between the facts of the instant case and Lafler v. Cooper, [5] in which the Supreme Court ruled that the State must re-offer the plea agreement to a defendant who originally turned it down, based on what the Court deemed to be deficient advice from counsel. Id. Next, the petitioner objects to the magistrate judge's finding of procedural default as to the second and third grounds. With respect to the Alleyne claim, petitioner argues that he has demonstrated “cause” or actual “prejudice” or actual innocence under Bousely[6] “because the petitioner in Alleyne was ultimately successful, the theory was not novel.” Id. at 2. With respect to the jury instruction claim, the petitioner notes that his “underlying conviction suffered from a faulty jury instruction, ” and that “a further conviction under § 924(c) requires specificity as to whether or not the petitioner was convicted under an aiding and abetting theory or a Pinkerton[7]theory.” Id.

         The government failed to respond to the petitioner's objections by the ordered date. On April 1, 2019, this Court again entered an order directing the government to file a response to petitioner's objections. ECF No. 70/ECF No. 455.

         The government then filed a response to petitioner's objections. ECF No. 72/ECF No. 410. In response to the petitioner's claim that his attorney offered inadequate assistance of counsel because he failed to communicate a plea offer, the government cites to the three-prong test presented in Lafler v. Cooper, where the first prong requires “a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea).” Id. at 2. The government states that petitioner's maintained innocence throughout the trial and the appeals is an indication that he would not have accepted a plea deal, had it been offered. Id. For this reason, the government maintains that petitioner's claim for ineffective assistance of counsel should be dismissed. Id.

         As to petitioner's objection to the magistrate judge's finding of procedural default on petitioner's original second and third claims for relief, the government's response reiterates support for the conclusions of the magistrate judge. With respect to the Alleyne claim (petitioner's second ground for relief), the government states that the “claim was procedurally defaulted, and even if not, then factually the claim fails” because the jury found that the petitioner's second § 924(c) conviction was later in time than his first. Id. As to the petitioner's third ground for relief, regarding the jury instructions to determine whether he was convicted under an aiding and abetting theory or under a Pinkerton Doctrine liability theory, the government again asserts that the claim was procedurally defaulted because the issue was not raised in the direct appeal or intervening judgment. Id. at 3. Furthermore, the government contends that even if petitioner's claim is not procedurally defaulted, the claim is meritless because the jury was permitted to convict on either prong, and the jury was not required to designate upon which one they chose to convict. Id.

         The petitioner then filed a pro se “hybrid motion” seeking permission to file a sur-reply to the government's response (ECF No. 74/ECF No. 458) and then, soon after, filed a sur-reply (ECF No. 75/ECF No. 459). In this hybrid motion, the petitioner again claims that he should not receive the enhanced sentence because “when there are two § 924(c) counts in the same indictment, neither is a second or subsequent conviction, because neither has become final.” Id. at 3.

         For the reasons set forth below, the magistrate judge's report and recommendation is adopted and affirmed in its entirety and the petitioner's objections are overruled.

         II. Applicable Law

         Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge's report and recommendation to which an objection is timely made. Because the petitioner filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo as to those findings to which the petitioner objected. As to those findings to which objections were not filed, all findings and ...


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