The opinion of the court was delivered by: Jordan
This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by petitioner Quincy A. Goins ("Goins"). For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED.
This court must vacate and set aside Goins' conviction upon a finding that "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255. To prevail under § 2255, Goins "must show a 'fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 424, 428 (1968)).
Under Rule 8 of the Rules Governing Section 2255 Proceedings In The United States District Courts, the court is to determine after a review of the answer and the records of the case whether an evidentiary hearing is required. If the motion to vacate, the answer and the records of the case show conclusively that Goins is not entitled to relief under § 2255, there is no need for an evidentiary hearing. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).
Goins was convicted by a jury of possession with intent to distribute in excess of 50 grams of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1).*fn1 Based upon his two prior felony drug convictions, Goins was sentenced to a mandatory term of life imprisonment. Id. § 841(b)(1)(A). The conviction and sentence were affirmed on direct appeal. United States v. Goins, 53 Fed.Appx. 724 (6th Cir. 2002), cert. denied, 538 U.S. 971 (2003).
The Sixth Circuit summarized the evidence against Goins as follows:
In July of 2000, the Harriman Police Department (HPD) conducted a two-week investigation into suspected drug-related activity at Goins's residence in Harriman, Tennessee. The investigation culminated with the purchase of crack cocaine at that location by a confidential informant. In order to obtain a warrant to search the residence, the HPD presented an affidavit describing the investigation to a state trial judge. Based upon the affidavit, a warrant was issued on July 18, 2000, less than 72 hours after the crack cocaine was purchased.
The warrant required that the search of Goins's residence occur within five days of its issuance. Due to a lack of resources and a concern for protecting the identity of the confidential informant who had made the controlled drug purchase, the HPD waited until the third day, July 21, 2000, to execute the warrant. On that date, the HPD initiated the search in a manner designed to reduce the likelihood that Goins would destroy any contraband upon seeing the arrival of police officers. This was accomplished by a detective with the HPD making a false report of a music disturbance at Goins's residence, a report that the HPD dispatcher then broadcast over the police radio. The HPD anticipated that Goins would hear the broadcast over the police scanner that he kept on the premises, and that he would therefore not suspect that the officers who arrived shortly thereafter were coming to conduct a search.
When two officers knocked on the front door of Goins's residence, Goins answered and began discussing the reported music disturbance with them. Several additional officers then arrived on the scene, at which time Goins was informed of the warrant and told to get on the ground. Rather than comply with this command, Goins attempted to retreat toward a bathroom near the rear of his residence. Two of the officers grabbed Goins, and a struggle ensued.
During the struggle, Goins punched one of the officers in the face and twice threw the other officer into a wall. Goins was finally subdued at the end of a narrow hallway leading from the front door to the bathroom. He was removed from the bathroom doorway and taken outside. Two other individuals who had remained in the living room during the struggle were also escorted from the premises. Another person who had fled the residence through the kitchen window was apprehended a short time later.
An officer videotaped the interior before the search began. The tape shows what appears to be a bag of crack cocaine near the toilet in the bathroom where Goins had been subdued. During the subsequent search, the HPD recovered the bag, a police scanner, a small fire safe containing $21, and baking soda (a substance often used in the production of crack cocaine). Analysis later showed that the bag contained 105.5 grams of crack cocaine, an amount with a street value of between $50,000 and $60,000.
On direct appeal, Goins claimed, inter alia, that the district court erred in denying the motion to suppress the evidence removed from his residence. The basis of the claim was that the probable cause that justified the issuance of the search warrant no longer existed when the warrant was executed three days later. The Sixth Circuit disagreed:
[T]he reason that the HPD waited three days before executing the warrant was due to a lack of resources and a concern for indirectly disclosing the identity of the confidential informant who had purchased crack cocaine at Goins's residence. This court has specifically recognized that delaying the execution of a warrant to protect the identity of a confidential informant is reasonable. We therefore conclude that the district court properly denied Goins's motion to suppress the evidence recovered from his residence.
In support of his § 2255 motion to vacate sentence, Goins alleges that he received ineffective assistance of counsel before and during trial and on appeal. He also alleges prosecutorial misconduct that deprived him of his right to due process. In a supplement to his § 2255 motion, Goins also notifies the court of the U.S. Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), which he claims applies in his case.
A. Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-part standard for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687.
To establish that his attorney was not performing "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771 (1970), Goins must demonstrate that the attorney's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. at 687-88. In judging an attorney's conduct, a court should consider all the circumstances and facts of the particular case. Id. at 690. Additionally, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
The issue is whether counsel's performance "was so manifestly ineffective that defeat was snatched from the hands of probable victory." United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (en banc). Because he is seeking relief under § 2255, Goins bears the burden of proving by a preponderance of the evidence that his counsel was deficient. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). As noted, Goins alleges several instances of ineffective assistance of counsel, each of which the court will consider in turn.
1. Investigation of Search Warrant Affidavit
Goins alleges that his attorney failed to investigate the basis for the search warrant affidavit. The Sixth Circuit summarized the affidavit, in considering the suppression issue.
In the present case, the HPD offered the affidavit of Detective Kristopher Mynatt in support of its request for a warrant to search Goins's residence. Mynatt's affidavit set forth that (1) a citizen had complained that individuals were frequently visiting Goins's residence at irregular hours and for short periods of time, (2) Goins had been convicted of drug distribution on two prior occasions, (3) four rock-like substances that appeared to be crack cocaine were recovered from a vehicle exiting Goins's residence on July 15, 2000, and (4) a confidential informant had purchased crack cocaine from an unidentified individual at Goins's residence within 72 hours prior to the execution of the affidavit. The state trial judge to whom the affidavit was ...