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Vaughan v. United States

United States District Court, M.D. Tennessee, Columbia Division

December 12, 2016



          WILLIAM J. HAYNES, JR. Senior United States District Judge.

         Movant, Beau C. Vaughan, filed this action under 28 U.S.C. § 2255 seeking to set aside his conviction for conspiracy to distribute or possess with intent to distribute 100 kilograms or more of marijuana, for which he received a sentence of 300 months. Movant asserts claims for denial of effective assistance of counsel prior to trial, at trial, at sentencing and on appeal. Movant asserts that his status as a career offender was improperly based upon an illegal state sentence to which his trial counsel failed to object. The specifics of Movant's ineffective assistance of counsel claims are: (1) his counsel's failure to argue in his motion to suppress that after the initial search of Movant's vehicle failed to produce anything, Movant's continued detention and "second search" of the vehicle were unlawful; (2) his counsel's failure to argue that information provided by the confidential informant ("CI") about Movant's drug trafficking was insufficient to support probable cause to arrest Movant; (3) his counsel's failure to prepare a theory of defense at trial and to object to hearsay testimony that contradicted counsel's theory that the government would be unable to establish the amount of marijuana alleged in the indictment or that a single conspiracy existed as to that amount; (4) his counsel's failure to prepare for sentencing by failing to discover and object that one of Movant's prior convictions used to deem him a career offender was the result of an illegal state sentence; (5) his counsel's failure to provide discovery to Movant and to communicate with him about the strengths and weaknesses of his case that deprived Movant of the opportunity to engage in informed plea negotiations and led to his rejection of the government's plea offer under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure with a recommended sentence of twelve years; (6) his counsel's failure to be prepared at trial for testimony regarding "KY, " a customer of Movant's, that was used to establish the amount of marijuana in the charged offense; and (7) his counsel's failure to interview and investigate for available impeachment evidence against Brook Anderson, who testified for the government. Movant also asserts that his sentence was in excess of the maximum authorized by law and that his sentence is subject to collateral attack where one of the prior convictions used to sentence him as a career offender was the result of an illegal state sentence that should be vacated.

         On August 11, 2011, a federal jury convicted Movant of conspiracy to distribute or possess with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Criminal No. 1:10-cr-00006, Docket Entry No. 51). At the January 13, 2012 sentencing hearing, the Court determined that Movant's total offense level was 3 7, his criminal history category was VI and his guideline range was three hundred sixty (360) months to life imprisonment. Id., Docket Entry No. 77 at 1. The Court sentenced Movant to three hundred (300) months imprisonment and eight (8) years of supervised release. Id., Docket Entry No. 76 at 2-3.

         Movant's trial counsel timely appealed Movant's conviction that was affirmed by the Sixth Circuit on January 16, 2013. United States v. Vaughan, 512 F.App'x 459 (6th Cir. 2013). On June 24, 2013, the Supreme Court denied Movant's petition for certiorari on direct appeal. (Criminal No. 1:10-cr-00006, Docket Entry No. 89).

         An evidentiary hearing in a Section 225 5 proceeding is not required if the record conclusively establishes that a movant is not entitled to relief. Arredondo v. United States, 178F.3d778, 782 (6th Cir. 1999); Rule 8, Rules Governing Section 2255 Proceedings for the United States District Courts. Thus, an evidentiary hearing is not 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."' Arredondo, 178 F.3d at 782 (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). Also, "[w]here . . . the judge considering the § 2255 motion also conducted the trial, the judge may rely on his or her recollections of the trial." Id.

         Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court must consider the "answer, any transcripts and records of prior proceedings, and any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted." Such materials may include "letters predating the filing of the motion, documents, exhibits, and answers under oath to written interrogatories propounded by the judge, " as well as affidavits. Rule 7(b), Rules Gov'g § 2255 Proceedings. Where an evidentiary hearing is appropriate, "the hearing conducted by the court, .. . must be tailored to the specific needs of the case, with due regard for the origin and complexity of the issues of fact and the thoroughness of the record on which (or perhaps, against which) the section 2255 motion is made." Smith v. United States. 348 F.3d 345, 550 (6th Cir. 2003) (quoting United States v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993)). Upon consideration of Movant's filings, Respondent's response, and the underlying factual record, the Court finds, as discussed infra, that an evidentiary hearing is required on Movant's claim about his counsel's disclosure of plea offers.

         For relief under § 2255, a prisoner must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the Court was without jurisdiction to impose such sentence, that the sentence was in excess of the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion asserting constitutional error, a movant "must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993)). To prevail on a § 2255 motion asserting non-constitutional error, the movant 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." Id. (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) citing Hill v. United States. 368 U.S. 424, 428 (1962) (internal quotation marks omitted)).

         The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel during their criminal proceedings, Missouri v. Frye, ___U.S. ___, 132 S.Ct. 1399, 1404 (2012), and this right applies to "all 'critical' stages of the criminal proceedings." Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (citation omitted). To establish ineffective assistance of counsel, Movant must demonstrate that his trial counsel performed deficiently and that counsel's performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). As the Supreme Court has explained:

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. As to the "performance" inquiry, "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688. Under Strickland, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. at 691.

         In Strickland, the Supreme Court cautioned that "[j]udicial scrutiny of counsel's performance must be highly deferential, " and must avoid the "second-guess[ing of] counsel's assistance . . . [, as] it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689. To avoid "the distorting effects of hindsight, " 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 trial strategy.'" Id. (citation omitted).

         To establish that counsel's performance was deficient under Strickland, a movant "must identify acts that were 'outside the wide range of professionally competent assistance.'" Smith v. United States. 348F.3d 545, 551 (6th Cir. 2003) (quoting Strickland. 466 U.S. at 690). In evaluating whether a movant has received counsel that falls short of what the Sixth Amendment guarantees to a defendant, "[i]t will generally be appropriate for a reviewing court to assess counsel's overall performance throughout the case in order to determine whether the 'identified acts or omissions' overcome the presumption that a counsel rendered reasonable professional assistance." Kimmelman v. Morrison. 477 U.S. 365, 386 (1986) (quoting Strickland. 466 U.S. at 690).

         In evaluating the prejudice prong, courts must be mindful that "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." 466 U.S. at 693. Indeed, "[v]irtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." Id. (citation omitted). Rather, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. '"A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Williams v. Tavlor, 529 U.S. 362, 391 (2000) (quoting Strickland, 466 U.S. at 694).

         Movant asserts that his counsel provided ineffective assistance of counsel by failing to raise the distinction between the first and second search of the Defendant's vehicle. Citing United States v. Fields, No. 3:09cr029(1) & (2), 2010 WL 1667766 (S.D. Ohio April 23, 2010), Movant asserts that counsel failed to recognize and argue that after the initial search of Movant's vehicle failed to produce anything illegal the continued detention of Movant and second search of his vehicle was unlawful.

The facts established at the suppression hearing are set forth as follows:
At the suppression hearing, Trooper Michael Kilpatrick testified that Agent Darryl Richardson of the Tennessee Bureau of Investigation informed him that Vaughan would be delivering a quantity of marijuana to an O'Charley's parking lot and directed him to develop probable cause to stop Vaughan's vehicle. Trooper Kilpatrick saw the vehicle approaching the O'Charley's and observed that Vaughan was not wearing a seatbelt. Trooper Kilpatrick turned into the parking lot behind Vaughan's vehicle, activated his lights, and initiated the stop. When he approached the driver's side of the vehicle, Trooper Kilpatrick noticed that Vaughan's eyes were bloodshot and smelled the odor of burnt marijuana coming from the vehicle. Shortly after Trooper Kilpatrick stopped Vaughan's vehicle, Trooper Wayne Dunkleman arrived with his drug-detection dog. Trooper Dunkleman also smelled the odor of burnt marijuana coming from Vaughan's vehicle.
Trooper Kilpatrick asked Vaughan to get out of the vehicle and issued him a citation for not wearing his seatbelt and not having proof of insurance. Vaughan denied consent to search his vehicle ....

Vaughan. 512 F.App'x at 460.

         Trooper Kilpatrick then informed Vaughan that there would be a canine search of Vaughan's vehicle and inquired if narcotics were in the vehicle. (Criminal No. 1:10-cr-00006, Docket Entry No. 29, Memorandum at 2). Vaughan stated that he had approximately $15, 000 in the vehicle, but no drugs. Id. Within approximately ten minutes of the traffic stop, Rock, a certified narcotics detection canine, alerted to the driver's side door of Vaughan's vehicle. Id. at 3. Trooper Kilpatrick then placed Vaughan in the back of his patrol car while the officers searched his vehicle. Id.

         Trooper Dunkleman searched the inside of Vaughant's vehicle, recovering only cash. Id. Rock then conducted a canine search of the back exterior of the truck and alerted to the toolbox in the back of Vaughan's track. Id.; Docket Entiy No. 25 at 20-21, 59-60. Within a box inside the toolbox, troopers recovered additional cash, dryer sheets, trash bags, and some marijuana residue. Id. at 3. The troopers searched Defendant's vehicle again and recovered a suspected drug ledger, airline tickets to Dallas, Texas, and a rental car agreement from McAllen, Texas. Id. at 4.

         In summarizing the facts in his motion to suppress, Movant's counsel stated, in part, that:

[Kilpatrick] places Mr. Vaughan in the back of his patrol car - with no way for Vaughan to exit-at 10:28:18. Shortly thereafter, at 10:28:50, Dunkelman concludes his search of Vaughan's truck and announces the "truck's pretty clean" except for the cash in the door panel, previously described by Mr. Vaughan.
Kilpatrick then instructs Dunkelman to run his "drag dog" on the toolbox in the bed of Vaughan's pickup. At 10:30:00, the dog purportedly "alerts" on the toolbox. The troopers obtain the keys to the toolbox from Mr. Vaughan, who is still locked up in the back of Trooper Kilpatrick's car (Vaughan is not allowed out of the back of the car until 11:45). The search of the toolbox reveals more cash in a red shoebox, at 10:31:45.
Trooper Kilpatrick then begins a second search of the truck's interior at 10:33:08. He begins examining papers and a ledger found in Mr. Vaughan's truck. He concludes the ledger is a "drug ledger" and informs Agent Richardson, in a phone call at 10:36, that "there's no dope... but we're gonna keep him here."

Id., Docket Entry No. 14 at 3-4 (emphasis added).

Movant's counsel argued:
The search of Mr. Vaughan's vehicle, while arguably supported by the troopers' purported smelling an odor of marijuana and the drug dog's supposed "hit" (assuming arguendo the Court believes those two events actually occurred), still did not include the troopers' seizure and reading of Mr. Vaughan's journal, logbook, or other documents once their search of the truck for drugs proved futile.

Id. at 6 (emphasis added).

         In his supplemental memorandum, Movant's counsel argued that:

a. Trooper Dunkelman searched the truck and found nothing but Mr. Vaughan's money - ...

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