United States District Court, District of South Carolina, Aiken Division
For USA, Plaintiff: Jane Barrett Taylor, LEAD ATTORNEY, U.S. Attorneys Office, Columbia, SC; John David Rowell, LEAD ATTORNEY, U.S. Attorneys Office (Cola), Columbia, SC.
ORDER AND OPINION
Margaret B. Seymour, Senior United States District Judge.
Shahiee Jermaine Flowers (" Movant"), a prisoner proceeding pro se, seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 20, 2006, a federal grand jury returned a second superseding indictment charging Movant with conspiracy to possess with intent to distribute 5 grams or more of cocaine base and less than 500 grams of cocaine (Count 2), possession with intent to distribute and distribution of 5 grams or more of cocaine base (Count 3), possession with intent to distribute and distribution of cocaine (Count 6), possession with intent to distribute cocaine and cocaine base/aiding and abetting (Count 7), being a felon in possession of a firearm (Count 8), possession of firearms in furtherance of a drug trafficking crime (Count 9), possession with intent to distribute and distribution of 5 grams or more of cocaine base (Count 10), possession with intent to distribute and distribution of 5 grams or more of cocain base (Count 15), and aiding and abetting the carrying of firearms in furtherance of a drug trafficking crime (Count 16). See ECF No. 88.
Movant proceeded to trial. After both sides completed the presentation of their evidence, the court instructed the jury. Relevant to the instant § 2255 motion, the court instructed the jury with respect to testimony by accomplices as follows:
You have heard witnesses who testified that they were actually involved in planning and carrying out the crimes charged in the indictment. The testimony of such accomplices is properly considered by the jury. The law allows the use of accomplice testimony. Indeed, it is the law in federal courts that the testimony of an accomplice may be enough in itself for conviction, if the jury believes that the testimony establishes guilt beyond a reasonable doubt.
Because of the possible interest an accomplice may have in testifying, the accomplice's testimony should be scrutinized with special care and caution. The fact that a witness is an accomplice can be considered by you as bearing upon his credibility. However, it does not follow that simply because a person has admitted in participating in one or more crimes, that he is incapable of giving a truthful version of what happened. Like the testimony of any other witness, accomplice witness testimony should be given such weight as it deserves in light of the facts and circumstances before you, taking into account the witness's demeanor, candor, the strength and accuracy of a witness's recollection, his background and the extent to which his testimony is or is not corroborated by other evidence in the case. You may consider whether accomplice witnesses -- like any other witnesses called in this case -- have an interest in the outcome of the case, and if so, whether it has affected their testimony.
In evaluating the testimony of accomplice witnesses, you should ask yourselves whether these accomplices would benefit more by lying or by telling the truth. Was their testimony made up in any way because they believed or hoped that they would somehow receive favorable treatment by testifying falsely, or did they believe that their interests would be best served by testifying truthfully? If you believe that the witness was motivated by hopes of personal gain, was the motivation one which would cause him to lie, or was it one which would cause him to tell the truth? Did this motivation color his testimony?
If you find that the testimony was false, you should reject it. However, if, after a cautious and careful examination of the accomplice witness's testimony and demeanor upon the witness stand, you are satisfied that the witness told the truth, you should accept it as credible and act upon it accordingly.
ECF No. 238 at 3. On November 30, 2007, the jury found Movant guilty on Counts 2, 3, 7, 10, and 15.
On April 15, 2009, Movant was sentenced to a 360-month term of imprisonment. ECF No. 338. On October 14, 2010, the court resentenced Movant after the Fourth Circuit Court of Appeals held that failure to stop for a blue light was no longer a qualifying offense for the status of career offender under the United States Sentencing Guidelines. See United States v. Rivers, 595 F.3d 558 (4th Cir. 2010). At resentencing, the court sentenced Movant to 168 months imprisonment. ECF No. 420.
On October 15, 2010, Movant filed a notice of appeal. Relevant to the instant § 2255 motion, Movant argued on appeal in a pro se supplemental brief that the trial court improperly dismissed a twelfth juror. ECF No. 438 at 2. On October 28, 2011, the United States Court of Appeals for the Fourth Circuit rejected Movant's arguments on appeal and affirmed the judgment of the court in its entirety. ECF No. 438. The Fourth Circuit " examined the entire record and the issues raised by [Movant] in his supplemental briefs, " including the issue of whether or not the twelfth juror was improperly excused, and concluded that Movant possessed " no meritorious issues for appeal." ECF No. 438 at 4. The Fourth Circuit issued its mandate and judgment on January 5, 2012. ECF No. 442.
Movant filed the within § 2255 motion on April 1, 2013. ECF No. 453. On April 29, 2013, the United States of America (" the Government") filed a response and a motion for summary judgment. ECF Nos. 456 & 457. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court issued an order on April 29, 2013, advising Movant of the summary judgment procedure and the possible consequences if he failed to respond adequately. ...