United States District Court, D. South Carolina, Florence Division
Bryan Harwell, United States District Judge
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.
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”).See ECF Nos. 52 & 101. Count
One charged a drug conspiracy involving cocaine, crack
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.
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. 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.
November 5-6, 2013, Petitioner proceeded to a jury trial.
See ECF Nos. 149, 151, & 158.
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
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”
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.
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,
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.
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.
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,
he appeared to claim the content of these motions revealed
his understanding of the proof required for Count One.
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
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 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.
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.