Dawkins v. United States
| Decision Date | 23 June 2014 |
| Docket Number | Nos. 2:11-cv-24 and 2:06-cr-20(3),s. 2:11-cv-24 and 2:06-cr-20(3) |
| Court | U.S. District Court — Eastern District of Tennessee |
| Parties | TERRY L. DAWKINS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
MEMORANDUM OPINION
Acting pro se, Terry L. Dawkins ["petitioner" or "Dawkins"] has filed this motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 and a supporting brief, [Docs. 477 and 478].1 In his pleading and accompanying brief, Dawkins alleges three main grounds for relief: (1) that, in multiple instances, his trial counsel gave him ineffective assistance, (2) that his appellate counsel gave him ineffective assistance, and (3) that there is newly discovered evidence demonstrating that the prosecution's star witness fabricated testimony against petitioner. Dawkins also has filed a motion to amend his § 2255 motion to assert a claim for a lower sentence, based on Sentencing Guidelines Amendment 742.
The Court turns first to the motion to amend. At the time Dawkins was sentenced, § 4A1.1(e) of the Sentencing Guidelines provided that either one or two criminal history points were to be added if the defendant committed the instant offense less than two years following release from confinement on a sentence counted under U.S.S.G. § 4A1.1(a) or (b). See U.S.S.G. § 4A1.1(e) (2007). Amendment 742, which became effective on November 1, 2010—more thantwo years after Dawkins was sentenced-eliminated those so-called "recency points" from the calculation of a defendant's criminal history category under § 4A1.1(e).
Petitioner does not indicate where in his Presentence Investigation Report ["PSR"] those recency points were added. The PSR shows that he received two points, under § 4A1.1(d), for being on probation at the time he committed the offenses of conviction, but the PSR does not show that he received any recency points under § 4A1.1(e).
Moreover, if recency points had been added to Dawkins's criminal history score, the Court could do nothing for him since Amendment 742 is not retroactive to a sentence imposed prior to its effective date, as was petitioner's. See § 1B1.10(c) (); United States v. Click, 2012 WL 6771970, *11 n.14 (E.D.Ky. Dec. 11, 2012) (). The Court is not required to allow amendments to a § 2255 motion to add claims which lack a legal and factual basis, a description which fits the proposed amendments, because that would be an exercise in futility. See Foman v. Davis, 371 U.S. 178, 182 (1962).
In addition, the one-year statute of limitations for filing § 2255 motions, see 28 U.S.C. § 2255(f), also applies to motions to amend. Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). Petitioner had one year from the date his conviction became final, which happened on February 22, 2010, when the Supreme Court denied his petition for a writ of certiorari, to file his § 2255 motion and any motions to amend. The § 2255 motion was timely filed on January 22, 2011; but the motion to amend, filed on February 4, 2013, was untimely.2
Even where a statute of limitations has lapsed, a claim which relates back to a claim offered in a timely-filed pleading is itself considered to be timely under Rule 15(c) of the FederalRules of Civil Procedure. Nothing concerning the recency points was alleged in the original § 2255 motion, so as to permit the proposed newly-minted claims to relate back to the timely-filed claims in the § 2255 motion. Thus, the motion to amend, in addition to its other fatal deficiencies, is also time-barred.
For these reasons, the motion to amend will be DENIED.
This leaves pending before the Court the § 2255 motion; the United States's response to the motion to vacate, supported by several affidavits, including one each by petitioner's trial counsel, L. Kirk Wyss, and his appellate counsel, James J. Lonon; and Dawkins's reply to that response, [Docs. 528, Attachments 1-3, and 529]. For the reasons which follow, petitioner's motion to vacate will DENIED.
In Count One of a fourteen-count superseding indictment returned by the federal grand jury on June 13, 2006, [Doc. 9], Dawkins was charged, along with multiple co-defendants, with conspiring to distribute and possess with the intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and § 846. Count Two alleged that Dawkins conspired to distribute and possess with the intent to distribute fifty grams or more of cocaine base, also in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and § 846. Counts Five and Six alleged that petitioner had aided and abetted the distribution of five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.
Dawkins and two of his co-defendants proceeded to a jury trial, where he was convicted of all counts and sentenced to serve 180 months' of imprisonment, to be followed by four years of supervised release. Prior to his sentencing, Dawkins moved for a new trial, but the motionwas denied, [Docs 370 and 376]. Following his sentencing, Dawkins unsuccessfully appealed his conviction and sentence. United States v. Young, 347 Fed. Appx. 182, 2009 WL 3073164 (6th Cir. Sept. 28, 2009), cert. denied, 559 U.S. 957 (Feb. 22, 2010). On January 22, 2011, after his direct appeal was concluded, Dawkins submitted the instant § 2255 motion and supporting memorandum brief.
This Court must vacate and set aside Dawkins's conviction upon finding that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack . . ." 28 U.S.C. § 2255(b).
When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). "Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing." Green, 454 F.2d at 53; O'Malley, 285 F.2d at 735. A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996).
To warrant relief under 28 U.S.C. § 2255 because of a constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F. 3d 352, 354 (6th Cir. 1994); see also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (). A petitionermust prove that he is entitled to relief by a preponderance of evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
Under Rule 8(a) of the Governing Rules, the Court is to review the answer, any transcripts, and records of prior proceedings and any material submitted under Rule 7 to determine whether an evidentiary hearing is warranted. If the motion to vacate, the answer, and the records of the case show conclusively that the petitioner is not entitled to relief under § 2255, there is no need for an evidentiary hearing. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986). The Court FINDS no need for an evidentiary hearing in the instant case.
The facts are taken from the Sixth Circuit's opinion on direct review of Dawkins's conviction. See United States v. Young, 347 Fed. Appx. at 182, 184. According to proof presented at trial, Rickey Story was at the helm of a conspiracy to sell considerable amounts of cocaine and cocaine base in the Eastern District of Tennessee. The conspiracy ultimately involved fourteen people, eleven of whom pleaded guilty. Story would receive the drugs from two sources: (1) a source called "Carlos," who was never apprehended, and (2) a source in South Carolina, which evidence at trial indicated was Connie Young, one of two of Dawkins's co-defendants who stood trial with him. A Title III wiretap was authorized to intercept calls on Story's cellular telephone and the authorization was extended thirty days and also extended to the interception of text messages. Much of the evidence presented at trial was connected to the intercepts.
At trial, Drug Enforcement Task Force agent David Chambers identified Dawkins as the man who had delivered crack cocaine in November of 2005 to the Sonic Drive-In in Johnson City, Tennessee, to a confidential informant ["CI"]. Chambers acknowledged that he describedthat man as tall, while Dawkins was short, but explained that Dawkins was on an embankment at the time Chambers observed him. The CI likewise identified Dawkins as the man who sold him crack cocaine in the November 2005 controlled drug buy witnessed by Chambers. Story testified that he had sent Dawkins to sell to the CI in November and that Dawkins had accompanied him when Story sold cocaine to the CI in October.
Testimony established that Dawkins was deeply connected to Story's drug sales, including two witnesses's description of Dawkins as Story's right-hand man. One witness testified that Dawkins helped Story cook cocaine and distribute it and another witness, who had lived with Story for a time, testified that Dawkins made daily cocaine deliveries for Story.
Testimony likewise connected Dawkins to Story's supplier. Story testified that, in 2005 and 2006, he would go to South Carolina several times a week with Dawkins to acquire cocaine. Another witness testified that he heard Dawkins and Story talk about how they...
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