United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE
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WITHDRAWN and the undersigned will proceed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.
Relevant Procedural History
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]. 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”).
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
[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.
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.
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”).
Summary of pertinent trial testimony.
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].
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].
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.
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].
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
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
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].
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].
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
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].
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].
Defendant's Motion for Judgment of Acquittal or New
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].
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.]
Defendant's sentencing hearing.
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].
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].
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].
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.
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].
Defendant's direct appeal.
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].
the reasonableness of the relevant conduct used to calculate
his sentence, ...