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Jordan v. United States

United States District Court, E.D. Tennessee, Knoxville

July 3, 2017


          GUYTON JUDGE.



         Defendant William Capers Jordan[1] (“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.

         I. BACKGROUND

         On July 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 [Doc. 332].


         A 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).

         The 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.

         III. ANALYSIS

         In his § 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].

         A. Ineffective Assistance of Counsel Prior to Trial

         i. Counsel's failure to move to suppress evidence

         First, 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.

         The “[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 challenged evidence.

Kimmelman, 477 U.S. at 382.

         Capers' 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.

         ii. Counsel's concealment of evidence pertinent to the defense

         Next, 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) ...

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