United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER, UNITED STATES DISTRICT JUDGE
Herman Majors, a prisoner in federal custody, brings this
action pursuant to 28 U.S.C. § 2255 to set aside, vacate
and correct an allegedly illegal sentence and Judgment
imposed by the Honorable Senior Judge John T. Nixon of this
court. See United States v. Patterson et al., No.
3:09-cr-00047 (M.D. Tenn. June 25, 2011) (Judgment, Doc. No.
300). (References to the criminal case record will hereafter
be designated as “Crim. Doc. No. .”) For the
reasons set forth herein, the court finds that an evidentiary
hearing is not required and that the movant is not entitled
February 2009, Majors and others were charged in an
Indictment filed in this court with conspiring to possess
with intent to distribute five or more kilograms of cocaine,
a Schedule II controlled substance, in violation of 21 U.S.C.
§ 841(a)(1). (Crim. Doc. No. 9.) A Superseding
Indictment was issued in September 2011, adding four
additional counts against other defendants but not changing
the substance of the charge against Majors. (Crim. Doc. No.
was represented by appointed counsel, Jordon D. Mathies,
throughout the pretrial and trial proceedings and on
appeal. The two-week jury trial on Count One of
the Superseding Indictment proceeded against Majors and one
of his co-conspirators in February 2012. Judge Nixon presided
at the trial.
jury returned a guilty verdict, and the court later sentenced
Majors to 360 months of incarceration-the bottom of the
Sentencing Guidelines range. The conviction and sentence were
affirmed on direct review. United States v.
Patterson, 587 F.App'x 878 (6th Cir. 2014),
cert. denied, Majors v. United States, 135
S.Ct. 1273 (March 30, 2015).
filed his original Motion to Vacate in this court on July 20,
2015. (Doc. No. 1.) The matter was originally assigned to
Judge Nixon, who appointed counsel. Appointed counsel filed
an Amended Motion to Vacate on January 8, 2016. Thereafter,
Judge Nixon recused himself, and the matter was reassigned to
Sixth Circuit summarized the procedural history and the
evidence presented at trial, in relevant part, as follows:
Between 2004 and 2006, defendants [Adrian] Patterson and
Majors participated in a drug trafficking conspiracy
involving the possession and distribution of more than 150
kilograms of cocaine. Patterson purchased cocaine from
dealers in Los Angeles, and arranged for it to be transported
to Tennessee. Majors and other individuals traveled to and
from Los Angeles with cash and drugs hidden in vehicles.
The conspiracy came to light over a period of years. In late
2004, while driving to Los Angeles, Majors and Cleo Patterson
(a relative of Adrian Patterson's) were stopped for a
traffic violation, and a search revealed 26 kilograms of
cocaine in a hidden compartment of the vehicle. Both men were
arrested. [The Oklahoma Indictment against Majors was
dismissed without prejudice, but Cleo Patterson was tried,
convicted, and sentenced to 360 months.] ¶ 2006, agents
of the Drug Enforcement Administration in Los Angeles and
Nashville began collaborating on an investigation of a
multi-kilogram cocaine transaction that was to take place in
Tennessee. The Los Angeles agents had learned from a wiretap
that a cocaine supplier would be traveling from Los Angeles
to meet a buyer in Clarksville, Tennessee. The Nashville
agents identified Adrian Patterson as buyer. With the
participation of officers from the Clarksville Police
Department, the agents established surveillance of the
expected meeting site, which was located at 2211 Ladd Drive.
Soon thereafter, Tim Anderson of the Clarksville Police
Department sought and obtained a warrant to search for
evidence of drug trafficking at Ladd Drive. The warrant was
executed the same day, and Adrian Patterson was among those
present during the search. Officers seized over $300, 000 in
cash, along with approximately one kilogram of cocaine. Also
seized was a Ford F-150 that had been used to transport
Herman Majors and Cleo Patterson from Los Angeles to
Tennessee in 2004.
Two months later, agents executed a search warrant in
Clarksville at Patterson's alleged residence, 1869 West
Court. Patterson was the only person in the home when the
warrant was executed. Among the items seized was a Ford
Expedition used to transport drug proceeds.
In 2009, the federal government charged Patterson and Majors
with conspiracy. The government subsequently filed a
five-count superseding indictment that included the
conspiracy count (Count 1), along with four additional
charges against Patterson for other crimes (Counts 2-5). To
avoid prejudice at trial, the district court severed Count 1
from Counts 2-5.
. . . .
In their proposed instructions to the jury, both Majors and
Patterson asked the court to incorporate a statement that a
defendant's “mere presence” could not support
a finding of guilt on the conspiracy charge. The district
court denied the request, but ultimately instructed the jury
that “proof that a Defendant simply knew about a
conspiracy, or was present at times . . . is not enough, even
if he approved of what was happening or did not object to
Patterson, 587 F.App'x at 880-81.
THE MOTION AND AMENDED MOTION
original pro se motion (Doc. No. 1), Majors asserts
seven grounds for relief, which the court construes as
1: The government violated Rules 3 and 4(a) of the Federal
Rules of Criminal Procedure by failing to present an
affidavit of complaint to the federal grand jury or a
magistrate judge, and it was stipulated by the Assistant
United States Attorney that Majors was not present at the
“crime scene, ” 2211 Ladd Drive in Clarksville,
Tennessee, when law enforcement officers executed a search
warrant at that address.
2: The DEA Case Agent failed to tell the grand jury that the
2002 Mitsubishi Montero owned by Majors did not have a hidden
compartment built into it.
3: Majors was never found to be present at 1869 West Court in
Clarksville, Tennessee, the other “crime scene”
identified in this case.
4: Government witness and co-conspirator Cleo Patterson lied
on the stand during trial and to law enforcement officers
regarding the ownership of the vehicle he and Majors were
driving when they were stopped in Oklahoma for speeding in
2004 and officers discovered 26 kilograms of cocaine in a
5: The Assistant United States Attorney committed
prosecutorial misconduct by bringing into evidence the
previously dismissed Oklahoma Indictment against Majors.
6: Majors' sentence is unduly harsh and excessive.
7: The United States lacked probable cause to charge and
arrest Majors for conspiracy to distribute five kilograms or
more of cocaine.
Amended Motion filed by counsel expressly adopts and
incorporates the seven grounds for relief set forth in the
pro se Motion. The Amended Motion also asserts
fourteen additional grounds for relief, all premised upon the
ineffective assistance of counsel at trial and on appeal, as
8: Trial counsel failed to understand that a defendant may be
convicted at trial in federal court based upon uncorroborated
testimony of an alleged accomplice, as a consequence of which
he provided Majors with faulty advice concerning his options
for resolving this case and offered no viable defense at
9: Counsel failed to maintain reasonable contact with his
client, thereby denying Majors adequate legal consultation
regarding his case during both the trial and the appeal.
10: Counsel failed to request a legally sufficient jury
instruction regarding the defense of “mere
presence.” Ground 11: Counsel failed to request a jury
instruction describing the Defense Theory.
12: Counsel failed to present a coherent closing argument.
13: Counsel failed to present factually supportable
objections during sentencing proceedings regarding the
calculation of the quantity of cocaine attributable to
Majors; consequently, Majors' sentence was based on the
quantity of 150 kilograms or more of cocaine instead of on
“at least 50 but less than 150 kilograms, ” or
“at least 15 but less than 50 kilograms.”
14: Counsel failed to present a legally cognizable argument
for a mitigating role reduction in sentencing.
15: Counsel did not fully understand the Sentencing
Guidelines applicable to a mitigating role reduction under
U.S.S.G. § 3B1.2, as a result of which he erroneously
argued for a role reduction based on the absence of factors
applicable to an aggravating role enhancement under U.S.S.G.
16: Counsel failed to support with citations to the
evidentiary record his objections to the allegations in the
PSR that Majors had recruited Cleo Patterson and had multiple
vehicles titled in his name.
17: Counsel was ineffective at sentencing insofar as he
failed to request that Majors' sentence be reduced by 3
months for the period of time he was in pretrial detention in
Oklahoma and failed to request that Majors' 30-year
sentence be served concurrently with an existing 10-year
18: Counsel was ineffective in his handling of a Motion to
Dismiss based on an alleged violation of the double jeopardy
clause of the Fifth Amendment to the United States
19: Counsel was ineffective in his handling of the Motion to
Suppress Evidence under the Fourth, Fifth, Sixth, and
20: Counsel filed an inadequate appellate brief, failed to
file a corrected brief when directed to do so by the Sixth