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Bell v. United States

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

March 29, 2018

Christopher Bell, Movant,
v.
United States of America, Respondent.

          ORDER AND OPINION

          Margaret B. Seymour Senior United States District Judge.

         Christopher Bell (“Bell”), 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

         By an indictment filed on July 17, 2008, Bell was charged in the United States District Court for the District of South Carolina on four drug-related counts. ECF No. 3. Count 1 charged Bell with conspiring to distribute and possess with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Id. Counts 6, 7, and 8 each charged Bell with distributing and possessing with intent to distribute a quantity of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Id.

         On August 6, 2009, Bell signed a plea agreement and entered a plea of guilty to Count 1 of the Indictment. ECF No. 244. By judgment entered March 10, 2010, the court sentenced Bell to 380 months imprisonment. ECF No. 342. Bell timely appealed and the Government consented to a remand, which the Fourth Circuit granted on January 28, 2011. ECF No. 413.

         On July 19, 2011, the grand jury returned a superseding indictment against Bell. ECF No. 457. The only change from the original indictment was that the threshold quantity of drugs alleged in Count 1 was amended from 50 grams or more of cocaine base to 5 kilograms or more of cocaine and 280 grams or more of cocaine base. Id. Bell proceeded to trial on August 24, 2011 through August 26, 2011. ECF Nos. 508, 510, & 514. The jury returned a guilty verdict on all counts. ECF Nos. 514 & 522.

         On February 6, 2012, the court sentenced Bell to 380 months imprisonment on Count 1 and 360 months imprisonment on Counts 6 through 8, all to run concurrently. ECF No. 546. Judgment was entered on February 8, 2012. ECF No. 553. The Fourth Circuit affirmed Bell's conviction and sentence on April 26, 2013. See United States v. Bell, 523 F. App'x 956 (4th Cir. 2013).

         Bell timely filed the within § 2255 petition on October 8, 2014. ECF. No. 624. Bell raises the following grounds for relief: (1) ineffective assistance of counsel in violation of his Sixth Amendment rights; and (2) prosecutorial misconduct by knowingly using false testimony before the grand jury and the petit jury to support Bell's indictment and conviction. ECF No. 624-1 at 3-21. On November 10, 2014, the Government filed a response in opposition and a motion for summary judgment. ECF No. 633-34. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court issued an order on November 12, 2014, advising Bell of the summary judgment procedure and the possible consequences if he failed to respond adequately. ECF No. 635. Bell filed a reply to the Government's response on December 17, 2014. ECF No. 637.

         On June 27, 2016, Bell filed Pro Se Motion to Preserve Rights and to any Applicable Law under Johnson v. United States, 135 S.Ct. 2551 (2015). ECF No. 654. The Government filed a response in opposition on August 1, 2016, asserting that Johnson would not apply in the context of Bell's predicate drug offenses. ECF No. 661 at 1. The court issued a Roseboro Order on August 8, 2016, advising Bell of the summary judgment procedure and the possible consequences if he failed to respond properly. ECF No. 662. No additional response has been filed.

         II. LEGAL STANDARD

         Pursuant to Fed.R.Civ.P. 56(a), this court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. The evidence presents a genuine issue of material fact if a “reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The facts and any inferences drawn from the facts should be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The party seeking summary judgment bears the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party makes this showing, the opposing party must set forth specific facts showing there is a genuine issue for trial. Id.

         III. DISCUSSION

         A federal prisoner in custody may challenge the fact or length of his detention by filing a motion pursuant to 28 U.S.C. § 2255. To receive relief under § 2255, a movant is required to prove by a preponderance of the evidence that his 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. 28 U.S.C. § 2255(a). If this showing is made, the court must “vacate and set the judgment aside” and “discharge the prisoner or resentence him or grant a new trial to correct the sentence as may appear appropriate.” Id.

         An evidentiary hearing is required under § 2255 unless it is clear from the pleadings, files, and records that a movant is not entitled to relief. See United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000); see also United States v. Magini, 973 F.3d 261, 264 (4th Cir. 1992) (“When a colorable Sixth Amendment claim is presented, and where material facts are in dispute involving inconsistencies beyond the record, a hearing is necessary.”). However, “no [evidentiary] hearing is required if the [movant's] allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Jackson v. United States, 638 F.Supp.2d 514, 528 (W.D. N.C. 2009) (internal quotations omitted). Whether an evidentiary hearing is necessary, and whether a movant's presence is required, is left to “the common sense and sound discretion” of the district court.” Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970).

         Defendant raises a number of grounds under an ineffective assistance of counsel claim. To prove ineffective assistance of counsel, a movant must show that trial counsel's performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's performance is deficient when it is not reasonable under prevailing professional norms. Id. at 688. A movant also must demonstrate that he was prejudiced by trial counsel's alleged deficient performance, in that because of trial counsel's unprofessional errors, the result of the proceeding would have been different. See id. at 694. Strickland requires the movant to “identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690. The court then must “determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 692. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687.

         I. Movant's Claims of Ineffective Assistance of Counsel

         Bell contends that his trial counsel, Jeffrey Bloom (hereinafter “Bloom”), was constitutionally ineffective for: (1) failing to investigate and interview witnesses Connie Simpkins (hereinafter “Simpkins”) and Glenwood Bettis (hereinafter “Bettis”), ECF No. 624-1 at 3; (2) failing to object to a Speedy Trial Violation, id. at 4; (3) failing to object to statute of limitations violation, id. at 5; (4) failure to move for judgment of acquittal based on insufficient evidence of drug quantity, insufficient evidence of participation in the conspiracy, and insufficient evidence of aiding and abetting, id. at 7-10; (5) failing to provide competent advice with respect to a plea offer, id. at 11; (6) failing to object to certain prior convictions being used at sentencing, id. at 13-15; and (7) failing to object to prosecutor's use of false testimony to obtain Bell's indictment, see id. at 16.

         A. Counsel's failure to Investigate Connie Simpkins and Glenwood Bettis.

         Bell argues that trial counsel Bloom was ineffective for failing to interview Simpkins and Bettis pretrial because their testimony would have established that Bell did not participate in a conspiracy to distribute or possess 5 kilograms or more of cocaine and 280 grams or more of cocaine base. ECF No. 624-1 at 3-4. Bell points to Simpkins' affidavit, in which Simpkins states that she was never involved in a drug conspiracy with Bell. ECF No. 624-2, Exhibit A, Affidavit of Connie Simpkins. However, Simpkins contradicted her affidavit at trial and placed Bell in the conspiracy. See ECF No. 572 at ...


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