Byrd v. United States

• Decision Date: 07 January 2022
• Docket Number: 5:18-CV-84-BR,5:12-CR-312-1BR
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: MARCUS DORRELL BYRD, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

MARCUS DORRELL BYRD, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 5:12-CR-312-1BR, 5:18-CV-84-BR

United States District Court, E.D. North Carolina, Western Division

January 7, 2022

ORDER

W Earl Britt, Senior U.S. District Judge

This matter is before the court on the government's motion to dismiss petitioner's second amended 28 U.S.C. § 2255 motion, (DE # 139), to which petitioner filed a response, (DE # 151), and a motion for an evidentiary hearing, (DE # 152). Subsequently, petitioner filed a motion to amend his § 2255 motion a third time, (DE # 154), a motion for appointment of counsel to assist him with obtaining § 2255 relief, (DE # 155), and an addendum supporting his second amended § 2255 motion, (DE # 156).

I. BACKGROUND

In 2014, a jury convicted petitioner of conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 (“Count 1”); two counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of the drug trafficking crime alleged in Count 1 in violation of 18 U.S.C. § 924(c)(1)(A) (“Count 4”); and felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (“Count 5”). The court sentenced petitioner to life imprisonment on Count 1, a consecutive term of 25 years on Count 4, and concurrent terms on the other counts, resulting in a total term of imprisonment of life. Petitioner appealed his convictions and sentence. The Fourth Circuit Court of Appeals affirmed. (DE # 91.) The Supreme Court denied a petition for a writ of certiorari on 4 December 2017. Byrd v. United States, No. 17-6555.

In February 2018, petitioner filed his initial § 2255 motion. (DE # 92.) With leave of court, petitioner was twice permitted to amend his § 2255 motion. (See 5/1/19 Order, DE # 111; 3/27/20 Order, DE # 131.) The government moves to dismiss petitioner's second amended § 2255 motion, and petitioner seeks leave to amend his motion again, among other things.

II. DISCUSSION

A. Government's Motion to Dismiss

The government requests that the court dismiss petitioner's second amended § 2255 motion pursuant to Federal Rule of Civil Procedure 12(b)(6).

It is well established that a motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint, and that the legal sufficiency is determined by assessing whether the complaint contains sufficient facts, when accepted as true, to “state a claim to relief that is plausible on its face.” This plausibility standard requires only that the complaint's factual allegations “be enough to raise a right to relief above the speculative level.”

Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015) (citations omitted). This standard applies equally to a Rule 12(b)(6) motion challenging a § 2255 motion. See Rule 12, Rules Governing Section 2255 Proceedings (applying the Federal Rules of Civil Procedure to § 2255 proceedings to the extent such rules are not inconsistent with any statute or the § 2255 rules).

Petitioner asserts the following claims: (1) ineffective assistance of trial counsel, (Mot., DE # 130, at 4; Mem., DE # 130-1, at 2-10); (2) selective prosecution, (Mem, DE # 130-1, at 10 12); (3) insufficiency of evidence as to Count 1, (id. at 13-16); (4) invalidity of his conviction on Count 5 in light of the decision in Rehaif v. United States, 139 S.Ct. 2191 (2019), (id. at 16); and (5) violation of the First Step Act of 2018, (id. at 17-18). The court considers these claims in turn.

1. Ineffective assistance of trial counsel claim

Petitioner claims that trial counsel was ineffective in several respects.

To establish a claim of ineffective assistance of counsel, a defendant must show (1) that “counsel's performance was deficient, ” and (2) that “the deficient performance prejudiced the defense.” To satisfy the deficiency prong, the defendant must show that counsel's performance “fell below an objective standard of reasonableness.” “Judicial scrutiny of counsel's performance must be highly deferential.” There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ” and “that, under the circumstances, the challenged action might be considered sound trial strategy.”

Under the prejudice prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” There must be “a probability sufficient to undermine confidence in the outcome” of the trial. However, a defendant is not required to establish that “counsel's deficient conduct more likely than not altered the outcome of the case.”

United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015) (citations omitted).

i. failure to file a motion to suppress

Petitioner first claims trial counsel should have filed a motion to suppress. (Mem., DE # 130-1, at 2-3.) The above-quoted standard is “refined” for assessing ineffective assistance of counsel claims based on the failure to file a motion to suppress. United States v. Pressley, 990 F.3d 383, 388 (4th Cir. 2021). With those claims, and

[w]ith respect to the performance prong, [the court] ask[s] whether the unfiled motion would have had some substance. If the motion would have had some substance, then [the court] ask[s] whether reasonable strategic reasons warranted not filing the motion. To satisfy the prejudice prong, the defendant must show that: (1) the suppression motion was meritorious and likely would have been granted, and (2) a reasonable probability that granting the motion would have affected the outcome of his trial.

Id. (internal quotation marks, citations, and alteration omitted). Petitioner contends that counsel should have moved to suppress his alleged statements to law enforcement that he sells about one-half ounce a week and that the only prints on a gun were his. (See Mem., DE # 130-1, at 23.)

At trial, Detective Thompkins testified that after executing a search warrant at an apartment where petitioner was staying with his girlfriend and after petitioner was arrested and waived his Miranda rights, petitioner told him and Agent Collins that he sold one half ounce of cocaine per week for the past nine months and that the only prints on the gun (found during the search) should be his. (8/5/14 Tr., DE # 89-1, at 92-93, 96-97, 106.) Agent Collins' testimony corroborated Detective Thompkins' testimony. (See 8/6/14 Tr., DE # 89-2, at 15, 17, 20.)

According to petitioner, he never made such statements, and, in fact, when the officers began questioning him, he informed them he wanted an attorney to be present. (Byrd Aff., DE # 130-2, ¶¶ 6-7.)^[1] Petitioner told trial counsel of this prior to trial. (Id. ¶ 7.) Based on his version of events, along with the fact the officers did not document petitioner's alleged statements or accurately document the items seized pursuant to a search warrant, petitioner contends the court likely would have granted a motion to suppress his alleged statements. (Mem., DE # 130-1, at 3.)

Accepting petitioner's version of events and assuming trial counsel's performance was deficient in not filing a motion to suppress on this basis, ^[2] petitioner cannot show he was prejudiced thereby. There was ample evidence of petitioner's distribution of cocaine (including conspiring to distribute) and possession of a firearm, other than the alleged statements petitioner contends should have been suppressed.

For example, Robin Applewhite, who was working as a confidential informant, purchased two ounces of cocaine from petitioner on two occasions, one week apart, shortly before petitioner's arrest, and both purchases were recorded by law enforcement. (8/5/14 Tr., DE # 89-1, at 156-75.) Marcus Moore supplied petitioner with increasing amounts of cocaine- eventually two kilograms of cocaine per month-from 2009 until March 2011 (three months before petitioner's arrest), when petitioner began purchasing from another supplier. (Id. at 22228, 236.) Moore testified petitioner told him that he was selling the cocaine to others from Virginia. (Id. at 238.) During the search of the apartment, bundles of cash, items used to process cocaine for sale, a gun, and cocaine residue were found. (8/5/14 Tr., DE # 89-1, at 6676, 83, 85-89.) Detective Thompkins testified that, based on his training and experience, drug dealers often have those items in their homes, (id. at 8-10), and keep firearms easily accessible to protect themselves against robberies, (see id. at 10). The subject gun was found under petitioner's side of the bed. (Id. at 76.)

Although the government recounted petitioner's statements in its opening statement, (8/4/14 Tr., DE # 89, at 18, 23), and closing argument, (8/6/14 Tr., DE # 89-2, at 57, 77), the statements were not central to its case, cf. Pressley, 990 F.3d at 391-92 (holding the defendant had sufficiently shown prejudice where his confession was very detailed and the centerpiece of the government's presentation). In light of evidence other than the statements, a reasonable jury could have concluded beyond a reasonable doubt that petitioner was guilty of the offenses charged. Therefore, there is not a reasonable probability that granting a motion to suppress those statements would have affected the outcome of petitioner's trial.

ii. testimony regarding petitioner's criminal background

Next petitioner faults trial counsel for failing to object to Detective Thompkins' testimony that petitioner had a probation officer, had a criminal history, and was violent. (Mem., DE # 130-1, at 4; see also 8/5/14 Tr., DE # 89-1, at 61, 63, 11, 171.) Petitioner argues that this testimony was prejudicial because “he . ....