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Kelso v. United States

United States District Court, E.D. Tennessee

November 16, 2016

CHRISTOPHER KELSO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE.

         Before the Court now is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 416].[1] The government responded in opposition [Doc. 422], and Petitioner replied [Doc. 427].

         For the reasons stated below, Petitioner's § 2255 motion [Doc. 416] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         The facts surrounding Petitioner's convictions were recited by the Sixth Circuit as follows:

The events giving rise to this case began in 2004 when Shermond Alsup of Knoxville, Tennessee, contacted Jefferson Bivings of Atlanta, Georgia, whom he had met in prison, to obtain cocaine for distribution in the Knoxville area. Alsup then contacted Dex Hines. Alsup knew Hines from his neighborhood in Knoxville and from previous drug transactions. Alsup told Hines that he had a cocaine source in Atlanta and proposed that the two of them jointly purchase a kilogram of cocaine from Bivings, which they would then split and sell separately. Hines agreed.
Alsup and Hines initially began to purchase one kilogram of cocaine from Bivings every few weeks; over time, however, they worked their way up to purchasing several kilograms twice a month. The two men picked up the cocaine from Brent Ooten, an associate of Bivings, at Ooten's car wash and other locations in Atlanta. They would bring cash in a bag and give the bag to Ooten, who in turn would give them the cocaine. They would then sell the cocaine in the Knoxville area and use proceeds of those sales to buy more cocaine.
Eventually, Alsup, Hines, Bivings, and Ooten agreed to conduct some of the cocaine transactions in Chattanooga, since it was conveniently located about halfway between Knoxville and Atlanta. The procedure in Chattanooga was much the same as it was in Atlanta: Alsup and/or Hines would drive from Knoxville with the money, and Ooten and/or Bivings would drive from Atlanta with the cocaine and the parties would make a brief exchange. The location for the exchange would be at one of two Chattanooga apartment complexes.
After approximately two years, the conspiracy expanded. Hines testified that he took [Petitioner], a long-time friend, fellow motorcycle club member, and cocaine customer who was currently selling to individuals in the Knoxville area, into the conspiracy to take his place. [Petitioner], according to Hines, wanted to get involved with Bivings so that he could obtain more cocaine and make more money. As Hines put it, “I was introducing [Petitioner] to [Alsup, Bivings, and Ooten]. I was going to be done with it . . . . [Petitioner] will be doing it on his own.” The introduction came in late September or early October 2006 when Hines brought [Petitioner] with him to Chattanooga to purchase five kilograms of cocaine from Bivings. Hines testified that on this trip [Petitioner] contributed some money so that he could obtain a portion of the cocaine for himself. Because Hines did not tell Alsup that [Petitioner] would be accompanying him, and because Bivings spoke only to Alsup on the phone, Bivings was surprised and concerned to see [Petitioner] at the exchange.
Nonetheless, [Petitioner] went on the next trip too. On October 18, 2006, [Petitioner] accompanied Hines and Alsup to Chattanooga to purchase seven kilograms of cocaine from Bivings. [Petitioner] knew that he was going to be transporting cocaine, agreed to do so in exchange for compensation from Alsup and Hines, and contributed $7, 000 of his own money for the cocaine purchase. Hines and [Petitioner] rode together in [Petitioner]'s wife's Toyota Highlander, while Alsup drove his own vehicle. After stopping for breakfast, the men went to meet Ooten.
The meeting did not go as planned. As [Petitioner] and Hines neared the apartment complex, Hines spotted what he believed to be an unmarked police vehicle, and he and [Petitioner] drove away. Hines, it turned out, was correct in his identification of the unmarked police vehicle: the Drug Enforcement Administration (“DEA”) had been tracking their cocaine distribution activities via a wiretap and had been surveilling the transaction. Alsup and Ooten attempted to arrange a meeting at the alternative location, but were unsuccessful.
The men were subsequently arrested. Alsup was pulled over by DEA agents in Chattanooga. Hines and [Petitioner] were also detained in Chattanooga, though not before agreeing that if they were arrested, they would say that they had traveled to Chattanooga to look at some motorcycles, which seemed plausible to them given that they had looked at motorcycles together before. And Ooten was apprehended by Fort Oglethorpe police officers in Georgia.

United States v. Kelso, 468 F. App'x 551, 552-53 (6th Cir. 2012).

         On October 16, 2007, a federal grand jury for the Eastern District of Tennessee filed a three count indictment against Petitioner, charging Petitioner with conspiracy to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) (count one); conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (count two); and conspiracy to cause and attempt to cause bodily injury to another person, in violation of 18 U.S.C. § 1513(b)(2) and (e) (count three) [Doc. 196].

         On March 6, 2009, after a jury trial, Petitioner was convicted of counts one and two of the indictment [Doc. 321]. Petitioner later moved for a new trial [Doc. 377], but the Court denied Petitioner's motion as meritless [Doc. 383]. Petitioner was sentenced to a term of life imprisonment as to count one, and 240 months as to count two, to be served concurrently [Doc. 385]. The judgment was affirmed on appeal by the Sixth Circuit [Doc. 406]. The Supreme Court denied certiorari on October 12, 2012 [Doc. 411].

         On September 30, 2013, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 raising multiple theories of ineffective assistance [Doc. 416]. The matter is now ripe for review.

         II. TIMELINESS

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the one-year statute of limitations applicable to collateral challenges under § 2255 runs from the latest of: (1) “the date on which the judgment of conviction becomes final;” (2) “the date on which the impediment to making a motion created by Governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such Governmental action;” (3) “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme court and made retroactively applicable to cases on collateral review;” or (4) “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2255(f). In the case of a direct appeal, a petitioner's conviction becomes final upon either denial of certiorari or expiration of the ninety-day period in which to seek such review. Clay v. United States, 537 U.S. 522, 525, 532 (2003). As the Supreme Court denied certiorari on October 12, 2012 [Doc. 411], Petitioner's conviction became final for the purposes of § 2255(f) on that date. Consequently, Petitioner's one-year period for requesting relief under § 2255 expired on October 12, 2013. The original petition-filed on September 30, 2013-falls safely within the permissible period for requesting collateral relief.

         III. STANDARD OF REVIEW

         To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         Petitioner alleges ineffective assistance of counsel under multiple theories as his sole ground of collateral challenge in his petition [Doc. 416]. For the reasons discussed herein, none of Petitioner's claims of ineffective assistance have merit.

         IV. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

         A petitioner alleging ineffective assistance must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1987). Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013) (applying the Strickland test to an ineffective assistance of counsel claim). First, the petitioner must establish, by identifying specific acts or omissions, that counsel's performance was deficient and that counsel did not provide “reasonably effective assistance, ” Strickland, 466 U.S. at 687, as measured by “prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel's assistance is presumed to have been effective, and a petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 (a reviewing 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 . . . the challenged action might be considered sound . . . strategy” (internal citation omitted)).

         Second, a petitioner must demonstrate “a reasonable probability that, but for [counsel's acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S. at 694. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691; see also Smith v. Robbins, 528 U.S. 259, 285-86 (2000). If a petitioner fails to prove that he sustained prejudice, the Court need not decide whether counsel's performance was deficient. See United States v. Hynes, 467 F.3d 951, 970 (6th Cir. 2006) (holding that alleged “flaws” in trial counsel's representation did not warrant a new trial where the claims, even if true, did not demonstrate that the jury would have reached a different conclusion).

         Petitioner asserts nine theories of ineffective assistance. As several of these theories overlap, the Court will address the theories as follows: (1) failing to present exculpatory evidence on Petitioner's behalf (grounds one, three, and four) [Doc. 416 pp. 7-9, 14-18]; (2) failing to properly address the denial of Petitioner's motion for new trial (ground two) [Id. at 10- 11]; (3) failing to properly cross-examine government witnesses regarding prior inconsistent statements (ground five) [Id. at 19-20]; (4) not objecting to, or investigating, the absence of African Americans in the jury pool (ground six) [Id. at 20-21]; (5) failing to object to the Court's admission of certain evidence under Federal Rule of Evidence 404(b) (ground seven) [Id. at 24- 25]; (5) failing to object to the presentation of allegedly false testimony by the government (ground eight) [Id. at 26-27]; and (6) failing to bring to the Court's attention the presence of a second verdict form that indicated Petitioner was not guilty on all counts of the indictment (ground nine) [Id. at 28-29].

         A. Failing to Present Exculpatory Evidence

         Petitioner's first three theories of his collateral attack center on counsel's alleged failure to present exculpatory evidence on Petitioner's behalf [Doc. 416]. Specifically, Petitioner alleges that counsel (1) failed to present statements and testimony from Dexter Hines, Shermond Alsup, and Agent Todd Lee that would “prove [Petitioner] was factually and actual[ly] innocent” (ground one) [Id. at 7]; (2) failed to present exculpatory evidence offered by Petitioner's wife (ground three) [Id. at 14]; and (3) failed to call Camille Calloway and Carl Allen as witnesses to testify to Petitioner's innocence (ground four) [Id. at 16-17]. The Court will address each of these theories in turn.

         1. Failure to Present Statements from Dexter Hines, Shermond ...


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