The opinion of the court was delivered by: R. Allan Edgar United States District Judge
Federal prisoner John Herbert Talley ("Talley") moves for post-conviction relief pursuant to 28 U.S.C. § 2255. His attorneys have filed three amendments or supplements to the § 2255 motion. Talley acting pro se has submitted one amendment or supplement to the § 2255 motion.
In his § 2255 motion as amended and supplemented, Talley claims he was deprived of his right to effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution at trial and on direct appeal. He further claims that his sentence of life imprisonment imposed on Count 1 of the indictment under 21 U.S.C. § 841(b)(1)(A) was unlawfully enhanced by prior convictions for felony drug offenses.
Talley also asserts a claim for relief based upon Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and United States v. Booker, 543 U.S. 220 (2005). Talley argues that his judgment of conviction and sentence are unconstitutional because Count 1 of the indictment did not allege a specific quantity of cocaine base (crack) and the jury at trial did not make a factual determination regarding the quantity of cocaine base (crack) attributable to Talley on Count 1 using the standard of proof beyond a reasonable doubt. Talley contends that the District Court erred at sentencing by determining the quantity of crack cocaine attributable to Talley by a preponderance of the evidence. In sum, Talley argues that the Court should retroactively apply Apprendi, Blakely, and Booker to grant him post-conviction relief under 28 U.S.C. § 2255.
The United States opposes the motion as amended. After reviewing the record, the Court concludes that Talley's § 2255 motion as amended shall be DENIED. The record conclusively shows that Talley is not entitled to relief under § 2255. There is no need for an evidentiary hearing.
A federal prisoner may file a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the ground that the sentence was imposed in violation of the Constitution or laws of the United States.
To warrant relief under § 2255 based on an alleged constitutional error, Talley bears the burden of establishing an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005); Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003); Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). To warrant relief under § 2255 based on an alleged non-constitutional error, Talley bears the burden of establishing that there was a fundamental defect in the criminal proceedings which necessarily resulted in a complete miscarriage of justice or an error so egregious that it amounts to a violation of due process. Hill v. United States, 368 U.S. 424, 428 (1962); Watson, 165 F.3d at 488; Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998); Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990).
A § 2255 motion is not a substitute for a direct appeal and it cannot do service for an appeal. Bousley v. United States, 523 U.S. 614, 621 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Timmreck, 441 U.S. 780, 784 (1979); Regalado v. United States, 334 F.3d 520, 528 (6thCir. 2003); Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996); United States v. Walsh, 733 F.2d 31, 35 (6th Cir. 1984). Talley cannot use a § 2255 motion to relitigate the same issues that were fully, fairly presented and decided in his direct appeal to the Court of Appeals for the Sixth Circuit in United States v. Pruitt, 156 F.3d 638 (6th Cir. 1998), cert. denied, Talley v. United States, 526 U.S. 1012 (1999). Issues which are fully, fairly presented and considered on direct appeal may not be relitigated in a § 2255 proceeding absent exceptional circumstances or an intervening change in the law. Wright v. United States, 182 F.3d 458, 467 (6th Cir. 1999); Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999); Oliver v. United States, 90 F.3d 177, 180 (6th Cir. 1996); DuPont v. United States, 76 F.3d 108, 110-11 (6th Cir. 1996).
The Court finds that Talley has not met this burden of showing that he is entitled to post-conviction relief under 28 U.S.C. § 2255. Talley has not established an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Moreover, Talley has not established that there was a fundamental defect in the criminal proceedings which necessarily resulted in a complete miscarriage of justice or an error so egregious that it amounts to a violation of his right to due process of law. Because of the myriad of claims and issues raised by Talley in this § 2255 proceeding and to facilitate the Court's analysis, it is necessary to discuss in detail the facts and procedural history in Talley's underlying criminal case.
In 1993, pursuant to an investigation launched by the Federal Bureau of Investigation, law enforcement officers learned that Cory Evans and several of his associates including Talley, Tobias Pruitt, Michael Clay, and Kelcey Kendrick ("Kendrick") were distributing cocaine base (crack) in the Chattanooga, Tennessee area. The officers developed a confidential informant who had been purchasing large quantities of crack cocaine from this group of persons. Sufficient evidence was accumulated for this District Court to authorize electronic surveillance (wiretaps) on three telephones. The investigation yielded evidence of Talley's active participation in a conspiracy to engage in crack cocaine trafficking from recorded telephone conversations derived from the wiretaps, controlled purchases of crack cocaine, search warrants, and the arrests of coconspirators who possessed controlled substances.
On December 6, 1994, a federal grand jury in Chattanooga returned a 33-count indictment charging Talley and thirteen other co-defendants with drug trafficking offenses, firearms violations, and related charges. All defendants including Talley were charged in Count 1 with conspiracy to possess with intent to distribute cocaine base (crack) from at least October 1992 to on or about December 20, 1993, in violation of 21 U.S.C. § 846. All defendants including Talley were charged in Count 2 with conspiracy under 18 U.S.C. § 371 to use and carry firearms during and in relation to the drug conspiracy alleged in Count 1in violation of 18 U.S.C. § 924(c)(1). In Counts 20 and 21, Talley was charged with using a communication facility (telephone) to facilitate a drug transaction in violation of 21 U.S.C. § 843(b).
The charges against Talley proceeded to a jury trial on September 19, 1995. Talley was represented at trial by his retained attorney, Myron McClary ("McClary"). McClary was admitted to practice law in the United States District Court for the Eastern District of Tennessee and in the State of Tennessee. McClary was assisted at trial by attorney Jeffrey Boehm.
Immediately prior to the start of the trial on September 19,1995, the fact that McClary's Tennessee license to practice law had recently been temporarily suspended by the Supreme Court of Tennessee and the Tennessee Board of Professional Responsibility was discussed by the attorneys and the undersigned United States District Judge in Talley's presence in open court. On September 8, 1995, the Supreme Court of Tennessee entered an order of temporary suspension. It temporarily suspended McClary from the practice of law in the State of Tennessee pursuant to Section 4.3 of Rule 9 of the Rules of the Tennessee Supreme Court.*fn1 The order of temporary suspension did not prohibit or restrict McClary from continuing to represent Talley in the federal trial. Section 4.3 of Rule 9 of the Rules of the Tennessee Supreme provided in pertinent part: "Any order of temporary suspension issued under this rule shall preclude the attorney from accepting any new cases but shall not preclude such attorney from continuing to represent existing clients during the first 30 days after issuance of such temporary order ...."
The trial transcript shows that the federal prosecutor, Assistant United States Attorney Greg Sullivan, raised the issue of the temporary suspension order to make certain that this Court and Talley were fully aware of it. The undersigned District Judge said that he was aware of the matter but it did not affect McClary's ability to represent Talley in the federal trial because the temporary suspension did not take full effect until thirty days had elapsed. There was nothing in the temporary suspension order that prevented McClary from representing Talley at the federal trial in mid-September 1995. After a short discussion, the prosecutor and McClary agreed with the District Judge's assessment that McClary could continue to represent Talley at the trial. After listening to this discussion, Talley did not raise any objection to his being represented at trial by McClary. In the absence of an objection from Talley, the trial then proceeded with Talley being represented by McClary and co-counsel Boehm.
The District Court for the Eastern District of Tennessee has its own local rules and procedures governing the admission and discipline of attorneys. E.D.TN. LR 83.5 - 83.7. Any disciplinary action taken against McClary by the Supreme Court of Tennessee and the Tennessee Board of Professional Responsibility would not automatically and immediately result in precisely the same disciplinary action being taken by the United States District Court for the Eastern District of Tennessee against McClary concerning his admission to practice law in this United States District Court. In sum, at the time of Talley's federal trial, McClary was admitted to practice law in the United States District Court for the Eastern District of Tennessee.
The following witnesses testified at trial. Jeff Baker ("Baker"), a narcotics detective with the Sheriff's Department of Hamilton County, Tennessee, testified that on January 12, 1993, Baker working in an undercover capacity went to Talley's residence with a confidential informant to purchase crack cocaine. Baker saw Talley in possession of crack cocaine. Based on his investigation and observations, Baker obtained a search warrant for Talley's residence later that same day. When the search warrant was executed, the police found Talley in his bedroom with cocaine residue on a mirror. Baker recovered 0.6 grams of cocaine powder from three plastic bags hidden in a couch cushion and 0.9 grams of crack cocaine packaged inside a fourth plastic bag. The police seized three plastic bags containing a total of 2.6 grams of marijuana found inside a closet.
Antoneia Summerrow ("Summerrow"), a cooperating co-defendant, testified on behalf of the government pursuant to a plea agreement. Summerrow testified that had known Talley for over ten years. Summerrow described Talley as being a father figure to his friend, co-defendant Cory Evans. Beginning in 1992, Summerrow bought and sold crack cocaine with Talley. Summerrow testified that he purchased crack cocaine from Talley approximately 13-18 times. From October 1993 through December 1994, Summerrow sold crack cocaine to Talley in quantities ranging from one-sixteenth of an ounce to one-half ounce. Summerrow testified that Talley helped him more than 25 times to obtain crack cocaine from others ranging from one quarter ounce to one ounce quantities.
Summerrow further testified that Talley had similar crack cocaine dealings with Summerrow's associates, including co-defendants Cory Evans and Kendrick. Summerrow described Talley's relationship to the group as a "coach" or a "teacher" who schooled the younger co-defendants in the business of distributing and trafficking in crack cocaine. For example, Talley told the group that they could avoid arrest if they were not flashy about spending their illegal drug proceeds, were careful about not openly discussing drug business over the telephone, and kept few other people aware of the details of their drug trafficking.
Co-defendant Marchshella Sims ("Sims"), a cooperating witness for the government, testified that she knew Talley personally, and that Sims worked for Talley at his restaurant in August and September of 1993. While working at the restaurant, Sims observed Talley selling drugs from the restaurant on a daily basis. Sims, an admitted crack cocaine addict, obtained crack cocaine from Talley through her boyfriend, co-defendant Torran Evans, on at least a weekly basis from 1992 through 1994. Sims was aware that Torran Evans did jobs for Talley in order to obtain crack cocaine from Talley for himself. Sims observed Talley obtain drugs from co-defendant Cory Evans for distribution. Sims also overheard Talley instruct Cory Evans and other members of the conspiracy to be careful in conducting their drug trafficking activities.
Co-defendant Torran Evans, a cooperating witness for the government, testified that he had known Talley for fifteen years and he had purchased crack cocaine and powder cocaine from Talley during that period of time. Torran Evans testified he was addicted to crack cocaine and he would obtain it, sometimes twice a day, from Talley. To obtain the crack cocaine, Torran Evans worked at Talley's restaurant and performed personal errands for Talley. Torran Evans observed Talley selling crack cocaine from the restaurant, and he also observed Talley obtaining crack cocaine from the other members of the drug distribution group including Cory Evans, Kendrick, and Summerrow. Torran Evans was present when Talley gave advice to and counseled the other members of the drug trafficking conspiracy.
Special Agent Roy Carroll testified that he searched Talley's residence on December 17, 1993, pursuant to the execution of a federal search warrant. Officers seized a cellular telephone, pager, ammunition, food stamps, and approximately $760.00 in cash.
FBI Special Agent Wayne Jackson ("Jackson") testified concerning the court-authorized electronic surveillance and telephone wiretaps. On November 23, 1993, Talley in a telephone conversation warned co-defendants Lafayette Faust ("Faust") and Kendrick of a suspicious vehicle that Talley had observed near his restaurant. Fearing the presence of police officers, Talley told Faust and Kendrick that they should not bring any drugs or other illegal items to Talley's restaurant. On December 4, 1993, Talley had a telephone conversation with Torran Evans concerning a crack cocaine transaction. On December 7, 1993, Talley was overheard in a telephone call passing a message to Cory Evans instructing Cory Evans and his associates not to drive such fancy, expensive automobiles since one of the members of the group had been stopped by the police while driving a Cadillac. Talley also instructed a coconspirator to dispose of razor blades in his residence that might contain cocaine residue. This December 7, 1993, telephone call was the basis for the 21 U.S.C. § 843(b) offense charged in Count 20 of the indictment. Later on December 7, 1993, Talley had a different telephone conversation during which Talley instructed Cory Evans to be careful about discussing the drug business with other persons because Talley feared informants. This last telephone call is the basis for the 21 U.S.C. § 843(b) offense charged in Count 21.
Talley did not testify at trial. The only witness for the defense was Reverend Anthony Ray who was called primarily as a character witness. Reverend Ray testified that he had been in Talley's restaurant on several occasions and he never observed any indication of drug trafficking there. McClary advised the Court that some other witnesses that McClary intended to call to testify for the defense did not appear. (Trial Transcript, McClary at p. 298).
Talley was found guilty and convicted on Counts 1, 20, and 21. The jury acquitted Talley on Count 2. At sentencing, this Court determined by a preponderance of the evidence that in excess of fifty grams of crack cocaine were attributable to Talley. Since Talley had trafficked in excess of fifty grams of crack cocaine and he had previously been convicted of two or more felony drug offenses, this Court sentenced him to life imprisonment on Count 1 as required by 21 U.S.C. § 841(b)(1)(A). Talley was sentenced to 48-month concurrent terms of imprisonment on each of Counts 20 and 21. The judgment of conviction was entered December 12, 1995.
Talley took a direct appeal to the Court of Appeals for the Sixth Circuit and he was represented by a different attorney. On appeal, Talley raised the following issues: (1) Aggregation of drug quantities attributed to Talley; (2) Disparate sentencing treatment of cocaine base "crack" and powder cocaine; (3) Unequal treatment of violent versus non-violent offenders under 21 U.S.C. § 841(b)(1)(A); (4) Mandatory life sentence under 21 U.S.C. § 841(b)(1)(A); (5) Double jeopardy for enhanced sentences based on prior convictions; (6) Ineffective assistance of counsel; (7) Whether the rule of lenity requires that Tennessee state law be applied. Talley argued that the uncorroborated testimony of his coconspirators was the only evidence in the record to support the District Court's attribution to Talley of more than fifty grams of crack cocaine for sentencing purposes and that Tennessee law does not permit the conviction of a criminal defendant based upon the uncorroborated testimony of a co-defendant. Talley argued that the District Court erred in including this amount of crack cocaine in determining his federal sentence; and (8) Whether the District Court's determination of the amount of crack cocaine attributable to Talley was supported by sufficient evidence. Talley argued that the District Court erred in relying on the testimony of his coconspirators.
The Sixth Circuit dismissed Talley's direct appeal and affirmed the district court's judgment of conviction. Pruitt, 156 F.3d 638. The Sixth Circuit declined to decide Talley's claim of ineffective assistance of counsel stating it that should first be raised by Talley in a proceeding under 28 U.S.C. § 2255 so that an adequate factual record may be developed. Pruitt, 156 F.3d at 646. On March 8, 1999, the Supreme Court denied Talley's petition for writ of certiorari. Talley v. United States, 526 U.S. 1012 (1999).
III. Claims of Ineffective Assistance of Counsel at Trial
Talley claims he was deprived of his Sixth Amendment right to effective assistance of counsel at trial and on his direct appeal to the Sixth Circuit. With regard to the trial, Talley asserts that McClary was ineffective in the following ways:
1. McClary did not conduct adequate trial preparation by failing to interview, subpoena, and call potential defense witnesses to testify on behalf of Talley;
2. McClary failed to file pretrial motions to suppress evidence seized from Talley's residence during the execution of search warrants and the government's use of recorded telephone conversations obtained as a result of a court-authorized wiretaps;
3. In the absence of a viable defense, McClary failed to initiate plea bargaining;
4. McClary failed to conduct adequate cross-examination of government witnesses;
5. McClary failed to retain the services of an expert witness to refute the veracity or reliability of recorded telephone conversations introduced into evidence by the government at trial;
6. At the conclusion of the trial, McClary failed to raise the argument that the government had not proved on Count 1 anything more than a mere drug buyer-seller relationship between Talley and his alleged coconspirators;
7. McClary refused to allow Talley to testify at trial;
8. McClary did not submit requests for jury instructions; and
9. McClary did not have a valid license to practice law at the time he represented Talley.
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall have to right to assistance of counsel for his defense. Ineffective assistance of counsel in violation of the Sixth Amendment occurs when an attorney's deficient performance causes actual prejudice to the criminal defendant. Lockhart v. Fretwell, 506 U.S. 356, 369 (1993); Strickland v. Washington, 466 U.S. 668, 687 (1984); Sowell v. Bradshaw, 372 F.3d 821, 836 (6th Cir. 2004); Skaggs v. Parker, 235 ...