Hawkins v. United States
| Decision Date | 20 April 2021 |
| Docket Number | CRIMINAL ACTION 16 Cr. 691 (GHW),CIVIL ACTION 19 Civ. 867 (GHW) (SLC) |
| Parties | DASHAWN HAWKINS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
THE HONORABLE GREGORY H. WOODS, United States District Judge
REPORT AND RECOMMENDATION
Dashawn Hawkins (“Hawkins”) pled guilty to distributing and possessing with intent to distribute heroin and fentanyl which resulted in the overdose death of Colin Cameron in September 2016, and for which the Honorable Gregory H. Woods sentenced Hawkins to 252 months' imprisonment, over 100 months below the advisory guidelines range to which he had agreed in his plea agreement. Hawkins, who is incarcerated at the Federal Correctional Institution in Ray Brook, New York [1] has now filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the “Petition”). (ECF No. 1). In the Petition, Hawkins argues that: (i) his counsel was constitutionally ineffective for failing to investigate the cause of Cameron's death; (ii) his plea was not knowing and voluntary; (iii) “newly discovered evidence” shows that “he is actually innocent of the sentence enhancement for distribution of heroin resulting in death[;]” and (iv) the statute under which he was convicted is unconstitutionally vague. (ECF No. 2 at 2; see ECF No. 1 at 5-9). For the reasons below, I respectfully recommend that the Petition be denied.
On September 2, 2016, New York City Police Department (“NYPD”) officers and emergency medical service personnel responded to a 911 call at an apartment in Manhattan (“Cameron's Apartment”), where they found Colin Cameron (“Cameron”) unresponsive. (Cr. ECF No. 58 at 7 ¶ 13, 8 ¶ 24). After efforts to revive him were unsuccessful, Cameron was pronounced dead at the scene. (Id. at 7 ¶ 13). The Office of the Chief Medical Examiner (“OCME”) determined that Cameron “died from an acute heroin and fentanyl intoxication resulting from an accidental overdose.” (Id.) In Cameron's Apartment, NYPD officers recovered: three needles that tested positive for heroin and fentanyl; a spoon that tested positive for heroin, fentanyl, and ketamine; and a vial that tested positive for ketamine. (Id. at 7 ¶ 14).
The NYPD's investigation determined that Cameron had purchased heroin from Hawkins, alias “Jhonny Cash, ” and one of Hawkins' associates, Leonce Cunningham, alias “Audi.” (Cr. ECF No. 58 at 7 ¶ 15). For approximately two years, Hawkins had been Cameron's primary heroin dealer, although, earlier in 2016, Cameron had completed a rehabilitation program and abstained from using heroin for some time. (Id. at 7 ¶¶ 15-16). Until early August 2016, Cameron had also been receiving monthly doses of Vivitrol, a drug used to treat opioid dependence after rehabilitation. (Id. at 7 ¶¶ 16-17). Then, on August 6, 2016, after receiving a text message from Hawkins the day before, Cameron bought heroin from Hawkins again for the first time in several months. (Id. at 7 ¶¶ 17-18). Between August 6, 2016 and August 28, 2016, Cameron and his girlfriend bought heroin from Hawkins or one of his associates approximately ten times. (Id. at 7-8 ¶¶ 19-22).
At about 7:45 p.m. on September 1, 2016, Cameron bought heroin from Hawkins; Cameron and his girlfriend used some of the heroin that night, and Cameron used the remainder the following morning. (Cr. ECF No. 58 at 8 ¶ 23). When Cameron's girlfriend found him unresponsive at 7:53 a.m. on September 2, 2016, she called 911. (Id. at 8 ¶ 24). Later that night, Cameron's girlfriend sent a text message to Cunningham informing him of Cameron's death; Hawkins and Cunningham then stopped using their cellphones and bought new ones that same night. (Id. at 8 ¶ 25).
After recovering text messages between Cameron, Cunningham, and Hawkins, from the end of September 2016 until early October 2016, NYPD officers conducted surveillance of Hawkins and his apartment (“Hawkins' Apartment”). (Cr. ECF No. 58 at 8 ¶ 26). On October 19, 2016, a sealed indictment (the “Indictment”) was filed, charging Hawkins with one count of distribution and possession with intent to distribute heroin and fentanyl, the use of which resulted in Cameron's death, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C), and one count of conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). (Cr. ECF No. 2).
On October 20, 2016, pursuant to an arrest warrant issued with the Indictment, the NYPD arrested Hawkins. (Cr. ECF No. 58 at 9 ¶ 31). NYPD officers also executed a search warrant at Hawkins' Apartment, where they found, inter alia: (i) fentanyl packaging; (ii) $14, 681 in cash; (iii) a “stash of drugs” consisting of plastic bags containing heroin and cutting agents, “twists” of heroin and fentanyl, cocaine, methamphetamine, and a scale with heroin and cocaine residue; (iv) a semi-automatic 9mm short-barreled rifle with two loaded magazines and a silencer; (v) a business card for “Jhonny Cash, ” described as “party supplier, ” “bringing the night to life, ” and located at 187 Candyland Drive; and (vi) a notebook containing Hawkins' handwriting with the following entry signed “Jhonny Cash”:
The number twenty two on the top right corner indicates my remaining time © I on the MF! Countdown bitches. . .did my time like a champ! Like your pops said, don't do the crime if you can't do the time. Which is straight #facts. Timeless but cliche, ‘paying taxes' is my analogy. Because I don't consider myself a criminal. I'm a businessman that receives tax free, cold cash! I love money I need it every day. I'm a junkie, lol, just being honest Daniele. . .
(Cr. ECF No. 58 at 8-9 ¶ 27). While the NYPD officers were executing the search warrant, Cunningham appeared, and when questioned by the officers, said that he was there to visit “Dashawn.” (Id. at 9 ¶¶ 28-29). The officers arrested Cunningham, and on searching him, found two twists of heroin, $1, 191 in cash, and two cellphones. (Id. at 9 ¶ 29).
Following his arrest, Hawkins appeared before the Honorable Henry B. Pitman, who appointed Federal Defenders of New York, specifically, Julia Gatto, Esq. (“Gatto”), to represent him. (Cr. ECF No. 5). Several months later, Amy Gallicchio, Esq. (“Gallichio”) also appeared as Hawkins' counsel (Gatto and Gallicchio, together, “Counsel”). (Cr. ECF minute entry Mar. 6, 2017).
On December 19, 2016, a grand jury returned a superseding indictment (the “Superseding Indictment”), charging Hawkins with: (i) distribution of and possession with intent to distribute heroin and fentanyl, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C) (“Count I”); (ii) conspiracy to distribute and possess with intent to distribute 100 grams and more of heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) (“Count II”); (iii) use, carry, and possession of a short-barreled rifle during a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 924(c)(1)(B)(i) (“Count III”); and (iv) being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (“Count IV”). (Cr. ECF No. 11).
In contemplation of the Government's production of discovery to Hawkins, the parties agreed to a protective order (the “Protective Order”), which Judge Woods so-ordered on October 31, 2016. (Cr. ECF No. 6). The Protective Order permitted Hawkins to review with his counsel, but not to keep a copy of, Cameron's autopsy report and related documents, and crime scene photographs from Cameron's Apartment, and to review outside of counsel's presence the contents of Cameron's cellphone. (Id. ¶ 2(b)).
Thereafter, the Government produced discovery to Hawkins, including Cameron's girlfriend's 911 call, historical cell site data, the results of the search of Hawkins' Apartment, the contents of Cameron's cellphone, OCME materials, NYPD laboratory results on the controlled substances found in Cameron's Apartment and Hawkins' Apartment, and the contents of Hawkins' cellphones. (ECF No. 23 at 10; see Cr. ECF No. 7 at 1; Cr. ECF No. 9 at 5-7; Cr. ECF No. 13; Cr. ECF No. 15 at 2-4).
On July 14, 2017, Hawkins pled guilty, pursuant to a plea agreement (the “Plea Agreement”) to one count of distributing heroin and fentanyl resulting in Cameron's death, in violation of 21 U.S.C. § 841(b)(1)(C) (the “Offense”).[3] (Cr. ECF No. 30 at 17-18; ECF No. 2 at 5157). As set forth in the Plea Agreement, this offense carried a mandatory minimum term of imprisonment of 20 years. (ECF No. 2 at 51; see Cr. ECF No. 30 at 13).
At the beginning of the plea allocution (the “Plea Allocution”), Judge Woods first asked Hawkins a series of questions that established that Hawkins was competent, was pleading guilty because he was “in fact guilty and not for some other reason, ” and understood the rights he was giving up by entering his guilty plea. (Cr. ECF No. 30 at 2-10). Among the rights that Hawkins acknowledged he understood he was giving up was the right to “appeal with respect to whether the government could use the evidence that it has against [him], or with respect to whether [he] did or did not commit this crime.” (Id. at 9-10). Judge Woods then confirmed that Hawkins understood the maximum and minimum penalties for the Offense, including the mandatory minimum punishment of 20 years' imprisonment. (Id. at 12-14). Hawkins also acknowledged that “the sentence ultimately imposed may be different from any estimate that [his] attorney may have given...
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