United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Movant Lematavous Regtez Collins ("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 April 21, 2010, a federal grand jury returned an indictment charging Movant with various violations of federal drug and firearm laws. ECF Nos. 2-3. Movant was released on bond after his arrest under the original indictment on May 27, 2010. ECF Nos. 119, 122-24. One of the conditions of Movant's bond was that he not violate any federal, state or local law while on release. ECF No. 124 at 1. On August 18, 2010, a federal grand jury returned a superseding indictment charging Movant with conspiracy to possess and distribute cocaine and cocaine base in violation of 21 U.S.C. 846 (Count 1); possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 (Count 9); and two counts of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Counts 27 & 28). ECF No. 319. The superseding indictment also contained forfeiture allegations. Id.
On August 23, 2010, Movant entered into a proffer agreement with the United States. ECF No. 638-1. The proffer agreement provided that Movant's "violation of federal or state law or of the provision of any bond executed in this cases constitutes a breach of this Agreement, and upon such violation, the Government may use for any purpose any and all statements made and other information provided by [Movant] in the prosecution of [Movant] on any charges." Id.
On September 9, 2010, the Government provided Movant's pre-trial attorney with copies of recorded phone conversations between Movant and an indicted co-defendant, Maurice Bradham ("Bradham"). The seventy-seven tapes were recorded post-indictment and post-arrest of both defendants while Bradham was cooperating. ECF No. 657-3. The tapes were not shared with the prosecutors or agents involved in the case. ECF No. 657-2.
On September 17, 2010, this court issued an arrest warrant for Movant based on allegations that he had been threatening witnesses who were to testify against him at trial. ECF No. 386. Movant was re-arrested on December 28, 2010. Magistrate Judge Paige J. Gossett granted the Government's motion to revoke Movant's bond on December 29, 2010. ECF Nos. 508-09.
On March 4, 2011, Movant's pre-trial attorney moved to withdraw. ECF No. 596. A hearing on the motion was held before Magistrate Judge Gossett on March 10, 2011. ECF No. 606. At the hearing, Movant's pre-trial counsel represented to the court that Movant no longer trusted pre-trial counsel's advice and that absence of trust "really divides [pre-trial counsel's] ability to adequately prepare for and be ready to represent [Movant] to the fullest possible extent knowing that there is this underlying dissatisfaction with my ability to handle the case." ECF No. 940 at 10:10-17. Movant, however, disagreed stating: "I don't think nobody around here can represent me better than [pre-trial counsel]. I don't want nobody else.... I really want him to represent me." Id. at 13:6-13. However, based on pre-trial counsel's representation that pre-trial counsel was unable to provide constitutionally effective representation because of the deterioration in his relationship with Movant, Judge Gossett granted the motion to withdraw. Id. at 19:13-22.
Movant retained trial counsel, who entered a notice of appearance in the case on March 21, 2011. ECF No. 6012.
Via email, the Assistant United States Attorney conveyed to Movant's trial counsel on March 23, 2011, an offer of a guilty plea which would carry a sentence of ten years to life imprisonment. ECF No. 1243-1. Movant's trial counsel received a second email that same day. ECF No. 1243-2 (email from AUSA to Movant's trial counsel). Movant's trial counsel indicated in his affidavit that the AUSA "offered the potential for a plea to a sentence of 210-262 months without cooperation.... [Movant and trial counsel] did discuss the government's offer and possible penalties." ECF No. 1243-3. Movant claims he was never informed of a plea offer by trial counsel. ECF No. 1248 at 11.
On April 15, 2011, Movant filed a motion to suppress the proffer statement, arguing that it was obtained in violation of his rights under the Fourteenth Amendment Due Process Clause and the Sixth Amendment right to counsel. ECF No. 643. Movant also filed a motion to suppress the proffer statements on the grounds that they were obtained in violation of Movant's Fifth Amendment right against self-incrimination. ECF No. 659. Movant argued that the delay in disclosing the seventy-seven tapes of the phone conversations between Bradham and Movant was a violation of the Government's obligation to disclose exculpatory or impeaching evidence under Brady v. Maryland, 373 U.S. 83 (1963). The court held a hearing on the suppression motions on April 25, 2011. ECF No. 673.
At the suppression hearing, the court heard testimony from Movant's pre-trial counsel and Movant concerning whether or not Movant would have entered into the proffer agreement had he known about the recorded phone conversations between himself and Bradham. ECF No. 937. Pretrial counsel attested that, prior to Movant entering into the proffer agreement with the Government, pre-trial counsel and Movant met with the prosecutor to review some of the evidence against Movant. ECF No. 937 at 80-81. Pre-trial counsel testified that prior to entering into the proffer agreement Movant knew that cooperating co-defendants were prepared to testify concerning a controlled purchase of crack cocaine that Movant made. ECF No. 937 at 81-82. According to pretrial counsel, Movant signed a proffer agreement only after pre-trial counsel reviewed it with Movant "more than once." ECF No. 937 at 83. Pre-trial counsel stated that he advised Movant that Movant must tell the truth, abide by federal and state law, abide by the terms and conditions of any bonds executed in his case, and that if he violated any of those terms, the statements made pursuant to the proffer could be used against him. ECF No. 937 at 83-84.
Movant also testified at the suppression hearing. According to Movant, in July 2010, Movant learned that Bradham was a witness against him. ECF No. 937 at 107. Movant testified that, based on pre-trial counsel's representations to him that Bradham would be a witness against him at trial, Movant believed that the Government had a strong case against him. ECF No. 937 at 108-109. Movant then testified that based on the information he received from pre-trial counsel and others that Bradham would testify against him at trial, he and pre-trial counsel came to a decision that he would sign a proffer. ECF No. 937 at 110. Movant testified that "based on everything that was happening" with Bradham pleading guilty and the return of a superseding indictment, Movant decided to sign a proffer agreement. ECF No. 937 at 111.
After hearing the testimony, the court concluded that "the tapes are not exculpatory, " and therefore there had been no violation of Brady v. Maryland, 373 U.S. 83 (1963). ECF No. 937 at 127:11-14. The court also concluded that Movant presented "no reason" to exclude the proffer statement on Sixth Amendment grounds. Id. at 127:19-21.
A four day jury trial was held in May of 2011. On May 13, 2011, the jury returned a verdict of guilty as to Count 1, conspiracy to possess with the intent to distribute or the distribution of controlled substances. ECF No. 720 at 1. The jury specially found that the conspirators possessed with the intent to distribute or distributed five kilograms or more of cocaine and a detectible quantity or more of marijuana. Id. at 2. The jury made the same findings on drug type and quantity attributable to Movant. The jury was deadlocked as to Counts 9 and 27 and the court declared a mistrial as to those counts. ECF No. 722. The jury returned a verdict of not guilty as to Count 28. ECF No. 720. After the return of the verdict, Movant waived the right to a jury determination on the forfeiture allegation and elected to have a forfeiture hearing in front of the court at a future date. ECF No. 965 at 17-18.
On May 19, 2011, Movant's trial attorney made motions for acquittal or in the alternative for a new trial. ECF No. 725. In those motions, Movant challenged the sufficiency of the evidence used to convict Movant on the conspiracy count. By order dated July 8, 2011, the ...