United States District Court, E.D. Tennessee, Knoxville
UNITED STATES DISTRICT JUDGE.
William Capers Jordan (“Capers”) has filed a motion
to vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255 [Doc. 332]. The United States has
responded to the motion, objecting to Caper's requested
relief [Doc. 345] to which Capers has filed a reply [Doc.
351] and a supplemental reply [Doc. 358]. The matter is now
ripe for consideration.
18, 2007, the grand jury returned an indictment charging
Capers and others with conspiring to distribute more than 1,
000 kilograms of marijuana in violation of 21 U.S.C.
§§ 846 and 841(a)(1), (b)(1)(A), and money
laundering in violation of 18 U.S.C. § 1956. [Doc. 3,
Indictment]. On January 21, 2009, Capers and three
other codefendants proceeded to trial. Following a ten day
trial, Capers was convicted as charged, [Doc. 181, Jury
Verdict], and he was ultimately sentenced to 192
months' imprisonment [Doc. 297, Judgment]. He
subsequently filed a direct appeal, and the Sixth Circuit
Court of Appeals affirmed his conviction and sentence.
United States v. Jordan, 511 F. App'x 554 (6th
Cir. 2013). Capers then timely filed this § 2255 motion
STANDARD OF REVIEW
prisoner in federal custody may file a motion to vacate, set
aside, or correct a sentence pursuant to 28 U.S.C. §
2255 “claiming the right to be released upon the ground
that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” The relief
authorized by 28 U.S.C. § 2255 “does not encompass
all claimed errors in conviction and sentencing.”
United States v. Addonizio, 442 U.S. 178, 185
(1979). Rather, 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).
Sixth Amendment provides, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. This right extends beyond the mere presence of
counsel to include “reasonably effective
assistance” of counsel. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). To establish a
claim of ineffective assistance, Capers must demonstrate two
essential elements: (1) that his counsel's performance
was deficient, that is, below the standard of competence
expected of attorneys in criminal cases; and (2) that his
counsel's deficient performance prejudiced his defense,
i.e. deprived him of a fair criminal proceeding,
rendering the outcome of the proceeding unreliable.
Id. at 687-88.
§ 2255 motion, Capers first claims his counsel was
ineffective prior to trial. In this category of claims, he
alleges the following: (1) his counsel failed to move to
suppress evidence obtained from an illegal search and seizure
and illegal search warrant, and (2) his counsel concealed
evidence pertinent to his defense. [Doc. 332, p. 5]. Next,
Capers claims his counsel was ineffective for concealing
“[counsel's] prior association with the
prosecution's primary witness, ” resulting in his
counsel withholding crucial evidence supporting the defense
at trial. [Id. at 6]. His final claim is that his
counsel was ineffective at trial in the following respects:
(1) his counsel failed to object to a Brady
violation; (2) his counsel failed to object to the jury pool,
which Capers claims was biased; (3) his counsel failed to
object to the introduction of hearsay testimony; (4) his
counsel failed to present evidence pertinent to his defense;
and (5) his counsel failed to object to the dual role of the
DEA agent who testified as both an expert and a lay witness.
[Doc. 332, pg. 8; Doc. 339, pg. 13, 16-17].
Ineffective Assistance of Counsel Prior to Trial
Counsel's failure to move to suppress evidence
Capers alleges that counsel was ineffective for failing to
“attempt to suppress evidence based on [an] unlawful
search and seizure and illegal search warrant in a competent
manner” despite Capers' request. [Doc. 332,
Motion to Vacate, pg. 4; Doc. 339, Memorandum in
Support of Motion, pg. 11]. He asserts that because
counsel “failed to conduct any meaningful pretrial
discovery, ” counsel was “totally unaware that
certain damaging evidence might have been the appropriate
subject for a suppression motion.” [Doc. 339, pg. 12].
Capers argues that a search of his home occurred pursuant to
a warrant premised on false testimony by a law enforcement
agent. [Doc. 351, Reply to Government's
Response, pg. 5]. He contends that the officer swore
under oath that he saw a marijuana plant in Capers' home,
but given the fact that no plants were discovered except
catnip, this statement was “a blatant falsehood.”
[Id.]. Thus, he argues, his counsel should have
filed a motion to suppress.
“[f]ailure to file a motion to suppress may be
ineffective assistance, ” it is “not ineffective
assistance of counsel per se.” United
States v. Thomas, 38 F. App'x 198, 201 (6th Cir.
2002) (citing Kimmelman v. Morrison, 477 U.S. 365
(1986)). The Supreme Court has explained that
[a]lthough a meritorious Fourth Amendment issue is necessary
to the success of a Sixth Amendment claim . . ., a good
Fourth Amendment claim alone will not earn a prisoner federal
habeas relief. Only those habeas petitioners who can prove
under Strickland that they have been denied a fair
trial by the gross incompetence of their attorneys will be
granted the writ and will be entitled to retrial without the
Kimmelman, 477 U.S. at 382.
claim fails because he does not identify what evidence he
seeks suppressed. Indeed, he claims “no plants were
discovered in the ensuing search….” [Doc. 351,
Reply, pg. 5-6]. Based upon Capers' recitation
of the facts, he has not been prejudiced by any failure to
file a motion to suppress. Accordingly, the Court finds this
claim without merit.
Counsel's concealment of evidence pertinent to the
Capers asserts that his counsel “concealed evidence
pertinent to the defense.” [Doc. 332, pg. 5]. Other
than this bare accusation, Capers provides no supporting
details or context for his claim. It appears, however, that
this claim relates to his allegation that his counsel had a
conflict of interest and as a result withheld evidence
pertinent to his defense [Doc. 332, pg. 6]. The Court will
address the conflict of interest issue infra. To the
extent this allegation is independent of the conflict of
interest claim, it is denied as it is purely conclusory and
otherwise is without any factual support. “Generally,
courts have held that “conclusory allegations alone,
without supporting factual averments, are insufficient to
state a valid claim under § 2255.” Jefferson
v. United States, 730 F.3d 537, 547 (6th Cir. 2013)
(quoting United States v. Moya, 676 F.3d 1211, 1213
(10th Cir. 2012)); see also Milburn v. United
States, No. 2:10-cv-66, 2:05-cr-100, 2013 WL 1120856, at
*1 (E.D. Tenn. Mar. 18, 2013) ...