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Simon v. United States

United States District Court, D. South Carolina, Florence Division

October 20, 2017

Jovan Cornelius Simon, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. Bryan Harwell, United States District Judge

         This matter is before the Court on the sole remaining claim-Ground Three-in Petitioner Jovan Cornelius Simon's § 2255 motion. The Court held an evidentiary hearing on Ground Three, took the matter under advisement, and now issues this written Order. For the reasons herein, the Court denies relief on Ground Three and dismisses Petitioner's § 2255 motion in its entirety.

         Background[1]

         On September 25, 2012, Petitioner was charged in a single count indictment as being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and (e). See ECF No. 2. Petitioner was arrested on May 9, 2013; and on August 27, 2013, he was charged in a two-count superseding indictment with (1) conspiracy to distribute and possess with intent to distribute cocaine, cocaine base, and marijuana (“Count One”), in violation of 18 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(D), and 846, and (2) being a felon in possession of firearms and ammunition (“Count Two”).[2]See ECF Nos. 52 & 101. Count One charged a drug conspiracy involving cocaine, crack cocaine, “and” marijuana. See ECF No. 101 at p. 1 (emphasis added). Ashley B. Nance (hereinafter referred to as “trial counsel) was appointed to represent Petitioner. See ECF No. 58.

         At a hearing on November 1, 2013, the Court asked the parties if they “want[ed] to put on the record any plea offers.” ECF No. 235 at p. 81. Trial counsel stated there had been several offers, and he set forth the terms of the most recent one on the record.[3] Id. at pp. 81-82. This offer (hereinafter referred to as “the Plea Offer”) provided that if Petitioner pled guilty to Count Two, the Government would dismiss Count One, Petitioner could appeal the Court's denial of his motion to suppress the firearms and ammunition, and Petitioner would receive a stipulated sentence of 27 months' imprisonment pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). See ECF No. 235 at pp. 81-82; see also ECF No. 264-8 (the Plea Offer). Trial counsel informed the Court that Petitioner did not intend to accept this plea agreement. ECF No. 235 at p. 82.

         On November 5-6, 2013, Petitioner proceeded to a jury trial. See ECF Nos. 149, 151, & 158.

         After the Government rested its case, trial counsel moved for a judgment of acquittal on several grounds, one of which was that the Government had to prove the alleged conspiracy in Count One involved all three of the drugs alleged in the superseding indictment. See ECF No. 237 at pp. 86-87. Trial counsel stated:

I don't think there's been any evidence entered into this record that states that Mr. Simon agreed with any other individual to conspire and possess with intent to distribute crack cocaine, cocaine, and marijuana.
Now, the last part I just mentioned, crack cocaine, cocaine, and marijuana, I want to mention that because the superseding indictment says “and, ” it's all three. And I clearly don't think there is any evidence that says that he had an agreement to possess with intent to distribute all three of those drugs. And I think you have got to have that the way it's worded in the superseding indictment; you have got to have the evidence that there is agreement to do all three.

Id. The Court denied the motion and subsequently instructed the jury in the disjunctive that it could convict based upon participation in a conspiracy involving cocaine, crack cocaine, “and/or” marijuana.

         ECF No. 237 at pp. 87, 90, 166, 173-76. The jury found Petitioner guilty of both Counts One and Two; regarding Count One, the verdict form indicated the jury found cocaine and crack cocaine attributable to Petitioner, but not marijuana. See ECF No. 158 at p. 1. This finding was sufficient to sustain Petitioner's conviction for Count One.

         After the Fourth Circuit affirmed the Court's judgment and the Supreme Court denied certiorari, Petitioner filed the instant pro se § 2255 motion on September 30, 2016, [4] asserting seven grounds for relief. See ECF No. 257. On September 19, 2017, the Court issued an order denying Petitioner's § 2255 motion on all seven grounds except Ground Three, wherein Petitioner alleged trial counsel was ineffective for allegedly misadvising him about the proof required for Count One of the superseding indictment. See ECF No. 287. The Court determined an evidentiary hearing on Ground Three was necessary because the sworn allegations in Petitioner's § 2255 motion and affidavit/declaration directly conflicted with those in trial counsel's affidavit. Id. at pp. 11-12. Accordingly, the Court reserved its ruling on Ground Three and appointed attorney John M. Ervin, III for the limited purpose of representing Petitioner on Ground Three. Id. at p. 21; ECF No. 288.

         The Court held the evidentiary hearing on October 16, 2017. See ECF No. 298. Petitioner was present and represented by Mr. Ervin, and A. Bradley Parham of the United States Attorney's Office represented the Government. The Court heard testimony from Petitioner and trial counsel and received two exhibits into evidence.

         A. Petitioner's Testimony

         Petitioner testified he rejected the Plea Offer after trial counsel told him that the Government would have to prove the alleged conspiracy in Count One involved all three drugs: cocaine, crack cocaine, and marijuana. Petitioner testified it was always his understanding that the Government had to prove all three substances charged in Count One of the superseding indictment, and asserted his rejection of the plea offer was based on this belief. Petitioner referenced several pro se motions that he filed before and after trial, see, e.g., ECF Nos. 110, 127, & 197, [5] and he appeared to claim the content of these motions revealed his understanding of the proof required for Count One.

         Petitioner testified he believed that the evidence was pretty strong on the gun charge in Count Two, that there was a reasonable likelihood he would be convicted of this charge, and that a conviction on Count Two would produce a guideline range of 27 to 33 months-a difference of six months from the terms of the Plea Offer. Petitioner claimed that had he known the Government only had to prove a drug conspiracy involving only one of the three types of drugs, he would have accepted the Plea Offer.

         Petitioner stated that he had thirty or more meetings with trial counsel and that counsel sent him several letters. Two letters were admitted into evidence without objection during Petitioner's testimony. See Pet.'s Exh. 1 & Govt's Exh. 1. In a letter dated October 29, 2013, trial counsel summarized their meeting from October 25, stating, “We discussed the necessary elements that the government has the burden of proving as to each of your charges. I gave you copies of the jury charges on each crime, which outline each of these elements as well as supporting case law.” See Pet.'s Exh. 1. In another letter dated September 24, 2013, trial counsel stated that he was responding to Petitioner's “most recent letter requesting several items, resources, and information, ” and was enclosing four cases[6] Petitioner had requested. See Govt's Exh. 1. Petitioner appeared to claim these letters supported his claim in Ground Three, but he acknowledged on cross-examination that trial counsel did not specifically advise him in those letters that the Government had to prove all three drugs. Petitioner further acknowledged he did not have any written document showing trial counsel gave such advice.

         Also on cross-examination, Petitioner admitted he sometimes agreed with trial counsel and sometimes did not. Petitioner acknowledged trial counsel refused to file several motions that Petitioner wanted him to file, so he (Petitioner) would file them pro se. However, Petitioner maintained it was trial counsel's idea to move for acquittal on the basis that the Government had not proven all three drugs. Petitioner denied trial counsel ever telling him that the Government did not have to prove all three drugs to prove the conspiracy charged in Count One.

         B. Trial ...


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