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Brooks v. United States

United States District Court, S.D. West Virginia, Charleston Division

August 27, 2019

MACK BROOKS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Movant, Mack Brooks' (“Defendant”) Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 [ECF No. 358]. 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 For reasons appearing to the court, it is hereby ORDERED that the referral to the Magistrate Judge is WITHDRAWN and the undersigned will proceed to rule on the motion.

         I. Relevant Procedural History

         On January 10, 2012, Jason McClure (“McClure”) was arrested in Ohio and charged with possession with intent to distribute approximately 900 oxycodone and oxymorphone tablets. [Id. at 2 and Ex. 1 at 119].[1] On that date, he gave statements to the Ohio State Troopers who arrested him, as well as Drug Enforcement Agency (“DEA”) Task Force Officer Herb Shelton (“Shelton”).

         On February 3, 2012, DEA agents utilized McClure as a confidential informant (“CI”) to make a controlled buy of approximately 600 oxymorphone pills from Ciara Dawkins (“Dawkins) and Shavona Starkling (“Starkling”) in Wood County, West Virginia, and Dawkins and Starkling were arrested during the controlled buy.[2] [ECF No. 368 at 1]. On February 3, 3012, Defendant was incarcerated on other controlled substance charges in Ohio, but is alleged to have continued running the drug distribution ring from prison, using Dawkins, Starkling, and other females to obtain and deliver the drugs.

         On April 2, 2013, Defendant was named in a Second Superseding Indictment charging him with one count of conspiracy to distribute oxycodone and oxymorphone, in violation of 21 U.S.C. §§ 846 and 841(a)(1). [ECF No. 368, Ex. 2].[3] A jury trial was held between July 9 and 11, 2013. At trial and sentencing, Defendant was represented by court-appointed counsel, Deirdre H. Purdy (“Purdy”).

         A. Summary of pertinent trial testimony.

         At trial, Shelton testified that he met with McClure following his arrest in Ohio on January 10, 2012. [ECF No. 368 at 2 and Ex. 1 at 118]. During that meeting, McClure admitted that he had been involved in a million-dollar drug distribution scheme and disclosed that he owed his source of supply $4, 500. McClure agreed to cooperate with the government and was provided $4, 500, which he deposited in two Chase Bank accounts, one of which was in Dawkins' name. [ECF No. 368 at 2 and Ex. 1 at 119-123].

         According to Shelton, McClure agreed to the placement of a recording device on his cell phone, which captured recordings between February 1-3, 2012. McClure also agreed to act as a CI for a controlled buy from Dawkins on February 3, 2012. [Id. at 123-126]. During Purdy's cross-examination, Shelton admitted that, to his knowledge, McClure had not previously served as an informant for the DEA or any other law enforcement agency, and that he had lied about some of the things they had discussed in his initial interview. [Id. at 152-164].

         McClure also 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 DEA agents that he had received the pills in his possession earlier that day from Dawkins, Starkling, and a third female whom he did not recognize. 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 he deposited into two bank accounts, one of which was in Dawkins' name. He further indicated that he knew Dawkins and Starkling from prior drug deliveries. McClure confirmed that Defendant was his primary drug source over the two years leading up to his arrest, and that he would meet Defendant and/or various females, including Dawkins and Starkling, on a weekly basis to obtain pills from them. [ECF No. 368 at 3-4 and Ex. 1 at 170-177, 180-182].

         McClure testified that “at the beginning [he purchased] maybe 100, 200, and at the end around 1, 000 pills.” [ECF No. 368 at 3 and Ex. 1 at 176]. He further stated that, after Defendant went to prison, he continued to have contact with him to order pills, which were delivered by Dawkins, Starkling, and other females. [Id. at 177-179]. He confirmed that his last communication with Defendant was on February 3, 2012, the date of the controlled buy resulting in Dawkins' and Starkling's arrest. [Id. at 179].

         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 Dawkins with Defendant “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]. McClure identified Defendant and Ciara Dawkins as the persons to whom he was speaking and clarified that he was to set up the February 3, 2012 drug delivery with Dawkins, who was referred to as “C” on the recording. [Id. at 194]. McClure stated that he made arrangements with Dawkins to purchase whatever pills she had left on February 3, 2012. [Id. at 5 and Ex. 1 at 197-201].

         On cross-examination, McClure suggested that he had paid Defendant over one million dollars during the two-year period he had dealt with him, and he stated there were “four or five or six” different females who delivered pills for Defendant, in addition to Dawkins and Starkling. [Id. at 5 and Ex. 1 at 209, 232-233]. Purdy vigorously cross-examined McClure about the quantities and price of the pills he sold in that time frame, about his own drug habit, and she got McClure to admit that he had other sources of supply as well. [Id. at 206-217]. She further questioned him about the inconsistencies between his prior statements to the Ohio officers and his trial testimony concerning his travel on January 10, 2012 and the number of women involved in the alleged drug transaction on that date, and about his motivation to testify in order to receive a lower sentence. [Id. at 217-222].

         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. 368 at 5-6 and Ex. 1 at 265-267, 288-289]. Starkling stated that, after receiving a call from Defendant and Dawkins, she met Dawkins at a residence in Detroit on February 3, 2012, and received a condom filled with pills, which she inserted into her vagina. Then, she, Dawkins, 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 5 and Ex. 1 at 267-275].

         Starkling testified that she recognized McClure from at least 10 prior deliveries, which had been arranged by Dawkins and Defendant. [Id. at 5 and Ex. 1 at 275]. Starkling confirmed that she had known Defendant and had been making deliveries for him, along with other females, including Dawkins, a couple of times a week since late 2009. She further stated that, on each trip, she was provided pills and was paid cash for delivering them. She further confirmed that, once Defendant was incarcerated, the deliveries continued at his direction by telephone. [Id. at 6 and Ex. 1 at 276-285].

         On cross-examination, Starkling stated that she did not meet Dawkins until late 2010. [Id. at 6 and Ex. 1 at 298]. Purdy also vigorously cross-examined Starkling about her hopes to receive a sentence reduction for cooperating with the government, the fact that she had not previously mentioned speaking with Defendant about the February 3, 2012 delivery, and other inconsistencies between her trial testimony and the statements she had made to law enforcement. [ECF No. 368, Ex. 1 at 304-314, 320-324].

         Defendant presented no evidence at trial. Co-defendant Dawkins re-called Task Force Officer Shelton and, during his testimony, Purdy questioned him concerning his discussions with McClure about providing truthful information and conservatively estimating drug amounts. [ECF No. 368, Ex. 1 at 360-371]. She suggested that McClure and Starkling had not been completely truthful. [Id.] The jury ultimately returned a guilty verdict against Defendant on the conspiracy count. [Id. at 6 and Ex. 1 at 413].

         B. Defendant's Motion for Judgment of Acquittal or New Trial.

         On August 7, 2014, four days before his sentencing hearing, Defendant filed a pro se “Motion of Judgment of Acquittal and/or Motion for New Trial, ” in which he claimed that his counsel had provided ineffective assistance of counsel at trial by failing to call the Ohio State Troopers who arrested McClure on January 10, 2012 to impeach his trial testimony. [ECF No. 368, Ex. 4]. The district court took up Defendant's motion at the beginning of his sentencing hearing. The government asserted that the motion was untimely filed. [Id. at 3]. Ms. Purdy acknowledged her belief that the pro se motion was either untimely or more appropriately made in a post-conviction habeas motion. [Id. at 4].

         The district court initially found that the court had no obligation to consider Defendant's pro se motion because he was represented by counsel, but ultimately denied the motion as untimely under Rules 29 and 33. [Id. at 4-7]. The district court specifically found that “[a] Motion for a New Trial predicated on ineffective assistance of counsel must be brought within the 14-day time period, regardless of when the defendant becomes aware of the facts which suggested to him that his attorney's performance may have been constitutionally inadequate . . . .” [Id. at 6]. The district court further noted that, Defendant had not presented any newly discovered evidence and “the assertions made by the defendant in his motion demonstrate on their face that he was aware of all the relevant facts during his trial.” [Id.]

         C. Defendant's sentencing hearing.

         Defendant's sentencing hearing took place on August 11, 2014. A Presentence Investigation Report (“PSR”) prepared by the United States Probation Office determined that the total offense and relevant conduct attributable to Defendant was 8, 153.9 kilograms of marijuana equivalency, based upon the testimony of McClure and Starkling. As relevant here, Defendant objected to the guideline calculation on the basis that McClure's testimony was too unreliable, and that there was no basis for a four-level enhancement for his role in the offense. [ECF No. 368 at 8-9 and Ex. 3 at 8].

         The government noted that the proposed relevant conduct calculation had been severely reduced by the probation officer based upon the credible and substantial trial testimony of McClure and Starkling. [Id. at 9 and Ex. 3 at 11-13]. The district court noted that the approximately 8, 000 kilograms in marijuana equivalency fell within the sentencing range of 3, 000 to 10, 000 kilograms, “so even if we cut it in half, the range would still be the same[.]” Thus, the district court overruled the objection. The court also specifically noted that it found the testimony of McClure and Starkling to be credible and that, if the jury had not so found, it likely would not have convicted Defendant on the conspiracy count. [Id. at 9 and Ex. 3 at 12-13].

         Concerning the objection to the four-level role enhancement under section 3B1.1(a) of the United States Sentencing Guidelines (“USSG”) for being a leader or organizer of an organization involving five or more participants, Defendant's counsel argued that McClure could not count as one of those participants because he was a “buyer, ” not a “seller.” She further asserted that McClure had only identified three women who had allegedly engaged in drug sales with him. However, the district court ultimately overruled the objection and found that, based upon McClure and Starkling's testimony, there were at least five people allegedly involved in the conspiracy and that Defendant was a leader of the organization. [Id. 10-11 and Ex. 3 at 20-22].

         Defendant was also subject to an enhancement for being a career offender under USSG § 4B1.1 because he had prior felony convictions for armed robbery and delivery/manufacture of less than 50 grams of cocaine. Defendant's counsel did not specifically challenge his career offender status. Instead, she argued that Defendant's criminal history was overrepresented and sought a downward departure under USSG § 4A1.3(b), or a variance from the guideline range, both of which were denied.

         The court determined Defendant's total guideline level to be 38, with a criminal history category of VI, resulting in an advisory guideline range of 361 months to life in prison. However, Defendant's sentence exposure was capped at the statutory maximum of 240 months. Thus, Defendant was sentenced to 240 months in prison. [Id. at 11 and Ex. 3 at 35]. A Judgment to that effect was entered on August 15, 2014. [ECF No. 325].

         D. Defendant's direct appeal.

         Defendant filed a Notice of Appeal on August 14, 2014. [ECF No. 324]. Purdy was permitted to withdraw as counsel, and Defendant was represented by new court- appointed counsel, Stephen D. Herndon. On appeal, Defendant challenged the reasonableness of the drug quantity attributed to him at sentencing based upon the credibility of McClure's testimony, and the district court's denial of his motion for judgment of acquittal or a new trial. Defendant's Judgment was affirmed on April 2, 2015. United States v. Brooks, No. 14-4660, 599 Fed.Appx. 85 (4th Cir. Apr. 2, 2015). [ECF No. 368, Ex. 6].

         Concerning the reasonableness of the relevant conduct used to calculate his sentence, ...


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