United States District Court, M.D. Tennessee, Nashville Division
TODD J. CAMPBELL, District Judge.
Pending before the Court is a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence (Docket Nos. 1, 33), filed by the Movant/Petitioner, pro se. The Government has filed a Response (Docket No. 39).
For the reasons set forth herein, Petitioner's Motion To Vacate (Docket Nos. 1, 33) is DENIED, and this action is DISMISSED.
Also pending before the Court is Petitioner's Motion To Check Status (Docket No. 45). Because the issues raised in the Motion are addressed herein, the Motion is DENIED as moot.
II. Procedural and Factual Background
The Petitioner was named in 63 counts of a 66-count Superseding Indictment charging multiple violent crimes in aid of racketeering, firearms offenses, and a drug conspiracy. (Docket No. 245 in Case No. 3:09-00244). The charges primarily arose out of five separate, gang-related shootings, in which four victims were injured and two victims were killed. (Id.) Eight other individuals were named as Co-Defendants, five of whom entered plea agreements prior to trial, and two of whom, Jessie Lobbins and Gary Eugene Chapman, proceeded to trial with the Petitioner.
After a week-long trial, the Petitioner was convicted of 57 of the 63 charges. (Docket No. 737 in Case No. 3:09-00244). The Petitioner was acquitted of the six charges involving the alleged beating of another gang member. (Id.) As part of its verdict, the jury found the drug conspiracy in which the Petitioner participated involved cocaine and marijuana. (Id.).
At the subsequent sentencing hearing, the Court sentenced the Petitioner to three consecutive life terms, plus 4, 020 months of imprisonment. (Docket Nos. 924, 925 in Case No. 3:09-00244). The Petitioner appealed, and the Sixth Circuit appointed new counsel to represent the Petitioner on appeal. (Docket Nos. 926, 930 in Case No. 3:09-00244). The appeals court affirmed the Petitioner's convictions and sentence. (Docket No. 945 in Case No. 3:09-00244).
A. The Petitioner's Claims
Petitioner contends that his conviction should be vacated based on the following grounds: (1) trial counsel operated under a conflict of interest during his representation of the Petitioner; (2) the Government violated the attorney-client privilege when it obtained audio recordings of jail calls between the Petitioner and trial counsel; (3) the jury was not impartial as one of the jurors failed to disclose her acquaintance with the Petitioner and others, and another juror observed the Petitioner in shackles and jail attire; (4) trial and appellate counsel provided ineffective assistance; (5) the prosecution team engaged in misconduct; (6) the Court gave improper jury instructions; (7) Petitioner's Speedy Trial rights were violated; (8) Petitioner's Confrontation Clause rights were violated; (9) the Petitioner's convictions violate Alleyne v. United States, 133 S.Ct. 2151 (2013); and (10) the Government failed to prove the interstate commerce element required for his convictions.
B. The Section 2255 Remedy
Section 2255 provides federal prisoners with a statutory mechanism by which to seek to have their sentence vacated, set aside or corrected. The statute does not provide a remedy, however, for every error that may have been made in the proceedings leading to conviction. "To warrant relief under section 2255, a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'" Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005)(quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).
An evidentiary hearing is not required if the record conclusively shows that the Petitioner is not entitled to relief. 28 U.S.C. § 2255(b); Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013); Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). No hearing is required "if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Id. Where the same judge considering the Section 2255 motion also presided over the underlying criminal proceedings, the judge may rely on his own recollection of those proceedings. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 1629 n.4, 52 L.Ed.2d 136 (1977); Ray, 721 F.3d at 761.
The Court has reviewed the pleadings, briefs, transcripts, and records filed in Petitioner's underlying criminal case, as well as the pleadings, briefs, and records filed by the parties in this case. The Court finds it unnecessary to hold an evidentiary hearing because these records conclusively establish that Petitioner is not entitled to relief on the issues raised.
C. Attorney-Client Jail Calls
Petitioner argues that the Government violated the attorney-client privilege when it obtained audio recordings of jail calls between the Petitioner and trial counsel. The Government argues that the prosecution did not listen to the calls, and that in any event, the calls were not protected by attorney-client privilege.
Prior to trial in the underlying criminal case, four defense attorneys, including Petitioner's trial counsel, filed a Joint Emergency Motion For Protective Order (Docket Nos. 559, 560 in Case No. 3:09-00244), which alleged that the Government had obtained recordings of telephone calls between certain defendants incarcerated in the Davidson County Jail and their attorneys, and requested that the Court order the Government to destroy the recordings, along with other relief. The Joint Motion indicated that the recordings had been included in discovery materials provided to the defendants in a separate federal criminal case, United States v. Adan, Case No. 3:10-00260, and a similar motion was filed in that case. (Docket No. 435 in Case No. 3:10-00260). Petitioner's trial counsel subsequently filed a motion requesting that the Court stay ruling on the motion because a decision on the issue was expected in the Adan case, and this Court granted the request to stay. (Docket Nos. 561, 562 in Case No. 3:09-00244). The Adan Court subsequently ruled that the recorded conversations were protected by the attorney-client privilege, and to prevent any prejudice, set a procedure for redaction of those conversations from the discovery disks through an in camera review by the court. (Docket No. 608 in Case No. 3:10-00260).
In this case, the Government has filed the Statement of Melinda Sears, a Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), which provides, in pertinent part, as follows:
From on or about September 11, 2008 until December 29, 2009, ATF Special Agent Melinda Sears reviewed jail calls made by Roger Wayne BATTLE. During S/A Sears' review of the jail calls, BATTLE would at times have a third party place a three way call to his defense counsel. Upon hearing that a call was being placed to defense counsel, S/A Sears would cease review of the call and/or the portion of the call between BATTLE and his attorney and/or his attorney's office. At no time in the review of BATTLE's jail calls did S/A Sears listen to conversations between BATTLE and his attorney.
(Docket No. 39-7, at 1).
A defendant may establish a Sixth Amendment violation where the government intentionally intrudes on the attorney-client relationship through the interception of confidential communications. See, e.g., United States v. Morrison, 449 U.S. 361, 364-65, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981); United States v. Clark, 319 Fed.Appx. 395, 398-401 (6th Cir. Apr. 2, 2009); Lakin v. Stine, 229 F.3d 1152, *3-4, 2000 WL 1256900 (July 13, 2000); United States v. Steele, 727 F.2d 580, 585-87 (6th Cir. 1984). A defendant is entitled to relief for the prosecution's improper use of protected attorney-client information, however, only if he can show he suffered prejudice as a result. Clark, supra; Steele, 727 F.2d at 586 ("Even where there is intentional intrusion by the government into the attorney-client relationship, prejudice to the defendant must be shown before any remedy is granted).
In this case, the Petitioner has failed to provide any evidence contravening Special Agent Sears' declaration that she did not listen to the recordings of his conversations with his attorney, or that his confidential communications with counsel were otherwise improperly used. Moreover, the Petitioner has failed to present evidence of, or even articulate, any prejudice he suffered as a result of the alleged violation. Accordingly, the Court concludes that Petitioner's Sixth Amendment claim is without merit.
D. Juror Impartiality
Petitioner argues that the jury was not impartial as one of the jurors failed to disclose her acquaintance with the Petitioner and others, and another juror observed the Petitioner in shackles and jail attire.
Petitioner alleges that "juror Chandler" is the cousin of Latorsha Chandler, who he claims is the "on and off girlfriend" of Co-Defendant Curtis Green (who did not proceed to trial). The Petitioner alleges that the juror failed to mention that she knew the Petitioner or Co-Defendant Green, who is also the Petitioner's cousin, during jury selection. Petitioner further alleges that the juror had been present at Latorsha Chandler's residence when both he and Co-Defendant Green were present. Petitioner claims that juror Chandler would have been biased against him because she knew of Co-Defendant Green's "rocky relationship" with Latorsha Chandler, and because the Petitioner had not been friendly with the juror on prior occasions.
A review of the trial transcript reveals that a juror whose last name is Chandler was a member of the Petitioner's trial jury. (Docket No. 856, at 6, in Case No. 3:09-00244). That juror did not express any familiarity with the Petitioner nor did she indicate that she recognized Co-Defendant Green's name during voir dire. (Docket No. 856 in Case No. 3:09-00244).
The Petitioner has not claimed that he was unaware of the connection with juror Chandler during the trial, and given his description of his interactions with her, it is reasonable to assume that he would have recognized her at some point before the trial was concluded. To the extent the Petitioner knew of this issue during the trial and failed to bring it to the attention of the Court, he is considered to have waived any juror misconduct claim. See, e.g., United States v. Morris, 977 F.2d 677, 685-86 (1st Cir. 1992); United States v. Bollinger, 837 F.2d 436, 438-39 (11th Cir. 1988).
Even if the Petitioner has not waived the issue, he has not established that his Sixth Amendment right to trial by an impartial jury was violated. A qualified juror need not be "totally ignorant of the facts and issues involved." See, e.g., Williams v. Bagley, 380 F.3d 932, 943 (6th Cir. 2004). An allegedly biased juror need only "swear that he could set aside any opinion he might hold and decide the case on the evidence." Id., at 944. In order to obtain a new trial based on a juror's non-disclosure during voir dire, the Petitioner "must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Id., at 945-46.
The Petitioner has not made such a showing. First, the Petitioner has not shown that juror Chandler actually recognized him, or the name of Co-Defendant Green, during the trial. Thus, he cannot establish that juror Chandler failed to answer honestly during voir dire as to whether she was familiar with the parties. In addition, the Petitioner has not shown that his "unfriendly" manner in an earlier encounter with juror Chandler, or her alleged knowledge of Co-Defendant Green's rocky relationship with Latorsha Chandler, prevented juror Chandler from laying aside those issues and rendering her verdict only on the evidence presented in the courtroom. Consequently, he cannot establish that her disclosure of that information would have provided a valid basis for a challenge for cause. Petitioner's claim regarding juror Chandler is without merit.
Next, Petitioner alleges that a juror whose name he does not know, but whom he describes as a white male with salt and pepper hair, saw the Petitioner and Co-Defendant Chapman as they were being transported to the courthouse in prison clothes and shackles, and escorted by security personnel holding weapons. The Petitioner alleges that this incident undermined his presumption of innocence. The Petitioner does not explain why he did not bring this issue to the Court's attention during the trial.
The Sixth Circuit has held that "[e]xposure of the jury to a defendant in shackles requires a mistrial only when the exposure is so inherently prejudicial' as to deny the defendant's constitutional right to a fair trial." United States v. Moreno, 933 F.2d 362, 368 (6th Cir. 1991). Inherent prejudice, the court explained, may result from observing a shackled defendant in the courtroom, but does not result from observing a shackled defendant "for a brief period elsewhere in the courthouse." Id. A defendant must show actual prejudice "where the conditions under which defendants were seen were routine security measures rather than situations of unusual restraint such as shackling of defendants during trial." Id. See also United States v. Alsop, 12 Fed.Appx. 253, 258-59 (6th Cir. April 12, 2001).
The Petitioner does not allege that he was visibly restrained in handcuffs or shackles in in the courtroom, and therefore, he has not established that he was inherently prejudiced. In addition, the Petitioner has not shown any actual prejudice that resulted from the alleged brief observation by one of the jurors of security measures during transport of the defendants outside the courthouse. Petitioner's juror impartiality claims are without merit.
E. Prosecutorial Misconduct
The Petitioner argues that Assistant United States Attorney Van Vincent and ATF Special Agent Melinda Sears coerced Tracey Alexander not to testify for the Petitioner by falsely telling her that the Petitioner had threatened to kill her, her fiance, and her newborn child. As a result, the Petitioner alleges, Ms. Alexander disappeared from early 2009 until March 2012, after his trial had concluded. According to the Petitioner, Ms. Alexander, who is the mother of his children, would have provided an alibi "as to many nights in which the indictment stated Battle had committed crimes or ordered lower ranking gang members" to commit crimes. (Docket No. 1, at 16).
In Response, the Government has filed the Statement of Special Agent Sears, which provides, in pertinent part, as follows:
On August 19, 2010, ATF Special Agents Melinda Sears and Mark Ridner served a trial subpoena on Tracey Alexander for the case BATTLE, et al. While serving the subpoena and obtaining current contact information, Ms. Alexander expressed concern that defendant BATTLE would be given her current address and contact phone number. S/A Sears advised Ms. Alexander that the information would not be provided to BATTLE and would only be used by S/A Sears to contact her relating to her court appearance. Ms. Alexander was extremely concerned for her and her family's safety. Ms. Alexander stated BATTLE had written her and her boyfriend letters from jail threatening her and her family. S/A Sears asked if she still had the letters to which she replied that she did. Ms. Alexander provided the letters to S/A Sears. S/A Sears advised Ms. Alexander that the government did not know of any threats to her or her family's safety at the time, but if anyone tried to contact her or threaten her in anyway regarding her testimony to call immediately. S/A ...