Hall v. U.S.

Decision Date01 December 1998
Docket NumberCriminal No. 2:93cr162.,Civil No. 2:98cv215.
Citation30 F.Supp.2d 883
PartiesWainsworth Marcellus HALL, Petitioner, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — Eastern District of Virginia

Isaac Scott Pickus, Jackson, Pickus & Assoc., P.C., Richmond, VA, Anthony J. Vegh, Cleveland, OH, for petitioner.


JACKSON, District Judge.

This matter is before the Court on the motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Wainsworth Marcellus Hall. The petitioner argues that his sentence for money laundering and engaging in a continuing criminal enterprise ("CCE") should be vacated or corrected for the violation of his Fifth Amendment due process rights and Sixth Amendment effective assistance of counsel rights. Additionally, Petitioner filed motions for the release of his co-defendants' presentence investigation reports, leave to file discovery requests, production of documents and for an evidentiary hearing. Both the petitioner and the government have submitted memoranda on the relevant issues; thus, the matter is ripe for judicial determination. For the reasons set forth below, Petitioner Hall's motions for a writ of habeas corpus, to include the motion to supplement this § 2255 petition and motions for discovery and an evidentiary hearing are DENIED.1


Petitioner Hall was indicted by a Federal Grand Jury on December 8, 1993. He was charged with violations of the federal narcotics and money laundering laws. On June 14, 1994, a jury trial commenced which resulted in guilty verdicts against Hall for (1) conspiracy to possess with the intent to distribute and to distribute cocaine, cocaine base and marijuana, in violation of 21 U.S.C. § 846; (2) engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848; and, (3) conspiracy to launder money, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 371.

On September 15, 1995, Hall was sentenced to life imprisonment on the continuing criminal enterprise count and to a concurrent sentence of 240 months for money laundering. The Court vacated the conspiracy conviction pursuant to Fourth Circuit precedent.3

On September 20, 1994, Hall filed a Notice of Appeal. By trial counsel Eileen Olds, the petitioner filed an appellate brief on March 31, 1995. On August 19, 1996, the Court of Appeals affirmed the convictions and sentence. A subsequently filed petition for writ of certiorari was denied on February 24, 1997.

On February 20, 1998, Petitioner filed the instant motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The Court ordered the government to respond to the original motion on March 4, 1998. The petitioner filed an amended motion on March 30, 1998. The government filed, on April 3, 1998, a motion for leave to file a late response. On April 7, 1998, the Court granted the government's motion, but directed that a response be filed on or before April 20, 1998. The government complied with the Court's order. On May 11, 1998, Hall filed a motion for extension of time to file a reply to the government's response. The Court granted Petitioner's request on June 5, 1998. On June 15, 1998, the petitioner filed a reply to the Government's response to the § 2255 motion.

Petitioner also filed several motions pertaining to discovery. On March 30, 1998, Hall filed a motion for the release of his co-defendants' presentence investigation reports. Hall filed, on May 11, 1998, a motion for leave to file discovery requests with the government. He also filed a motion for production of documents. On June 19, 1998, the Government filed its response to Petitioner's motion for discovery. Petitioner filed a motion for an evidentiary hearing on July 23, 1998.4 Finally, on July 28, 1998, Petitioner untimely filed a reply to the government's response to Petitioner's motion for discovery.5

On August 3, 1998, Petitioner filed a motion to supplement the § 2255 petition in light of the Tenth Circuit holding in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). On September 24, 1998, the Court ordered the United States to respond to Petitioner's motion to supplement. The government's response was filed on October 16, 1998. On November 9, 1998, Petitioner responded to the government's memorandum in opposition to the motion to supplement.

Petitioner made five claims in his § 2255 petition. The first set of allegations pertain to due process violations. Specifically, Hall alleges that the Assistant United States Attorneys ("AUSAs") failed to disclose exculpatory information in that: (1) Ingrid Penick testified at trial that Petitioner was the sole source of narcotics, while she initially gave the government the names of others involved; (2) Agent Kennedy testified that Shelly Hunter bought the gun for the Petitioner, but the Hunter interview notes state that the gun was bought for Hunter's cousin, Andre Wiggins; and (3) information in the possession of the AUSAs could have been utilized to impeach witness John Stokes. Additionally, Hall alleges that the AUSAs knowingly used the perjured testimony of Agent Kennedy and Brian Dykes and then tried to conceal such misconduct by denying Petitioner background information that would have enabled impeachment of the two witnesses. In sum, Hall argues that the government refused to disclose Brady and Giglio information in its possession.6

Petitioner's second allegation concerns his attorneys' failures at trial. Hall had two trial attorneys: appointed counsel Eileen Olds and retained counsel Trevor Headley. Petitioner alleges that the attorneys: (1) failed to seek severance; (2) did not object to leading questions; (3) allowed the government to characterize the gun found in a car in which Petitioner was a passenger as belonging to him and being under his control; (4) failed to request jury instructions on multiple conspiracies and on limiting consideration of offenses pertaining to the continuing criminal enterprise count to those under Title 21, as opposed to Title 18; and, (4) did not argue for the trial testimony of witness Anthony Washington to be stricken.

The third allegation bears on the attorneys' ineffective assistance at sentencing. Petitioner asserts that defense counsel rendered deficient performance by failing to move for a downward departure on either or both of two grounds: (1) Hall's alien status as a Jamaican national and (2) the over-representation of prior criminal convictions in the calculation of his sentence. Further, he argues that defense counsel failed to object to the two point enhancement for possession of a firearm.

As a fourth claim, Petitioner asserts that he received ineffective assistance during the appellate proceedings. Appellate counsel Eileen Olds became a Juvenile and Domestic Relations Judge in General District Court for Chesapeake, Virginia, so George A. DuBois represented Hall. The petitioner claims that his attorneys should have contested: (1) the trial court's decision not to remove a juror who was visibly upset by a photograph of a murder victim; (2) the amount of drugs attributable to him; and, (3) the two-level gun enhancement.

Finally, Hall seeks modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2).7 Petitioner argues that he is entitled to a lesser sentence due to the 1994 amendment to U.S.S.G. § 2D1.1(c), Amendment 505, which reduced the maximum base offense level from 42 to 38.

With respect to Petitioner's discovery requests, he seeks: (1) FBI 302 reports of coconspirators and government witnesses; (2) the arrest file of July 1992, DEA 6 field reports, investigative reports and agent debriefing notes pertaining to Ingrid Penick; (3) state police reports and DEA 6 field reports concerning Eric Marshall; (4) DEA 6 field reports relevant to Brian Dykes and Margaret Jones; and, (5) DEA 6 reports and any related documentation concerning Dirk Ladson.

Moreover, "because of several discrepancies in the facts and the government's conduct in withholding exculpatory evidence," Petitioner seeks an evidentiary hearing in order to: (1) elicit testimony from AUSA Fernando Groene concerning the withholding of the Stokes notes and the suppression of exculpatory FBI 302s and DEA 6s pertaining to other unrelated criminal cases; (2) compel Agent Kennedy to address his previous testimony that Brian Dykes had never been to New York and other matters; (3) have John Stokes name those present when he made statements bearing upon his drug use and explain the variance between his trial testimony and interview statements; (4) obtain Ingrid Penick's testimony as to deals received from the government in exchange for her trial testimony; (5) get Eric Marshall to testify concerning his interview statements and actual involvement in other ongoing conspiracies; (6) question Eileen Olds and Headley as to their trial representation since they did not submit declarations or affidavits; and, (7) enable Petitioner to testify about his interaction with the attorneys.


On a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence, the Petitioner bears the burden of proving his grounds for collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958); Vanater v. Boles, 377 F.2d 898, 900 (4th Cir.1967); United States v. Bondurant, 689 F.2d 1246, 1251 (5th Cir.1982); Polizzi v. United States, 926 F.2d 1311, 1321 (2nd Cir. 1991). A petitioner may attack the sentence imposed on the grounds that: (1) the "sentence was imposed in violation of the Constitution or laws of the United States," (2) "the court was without jurisdiction to impose such sentence," or (3) "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Here, Petitioner Hall...

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