Henderson v. United States

• Decision Date: 16 December 2021
• Docket Number: 3:20-cv-00763,3:17-cr-00100-02
• Court: U.S. District Court — Southern District of West Virginia
• Parties: MARQUISE HENDERSON, Movant, v. UNITED STATES OF AMERICA, Respondent.

MARQUISE HENDERSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

Nos. 3:20-cv-00763, 3:17-cr-00100-02

United States District Court, S.D. West Virginia, Huntington Division

December 16, 2021

PROPOSED FINDINGS AND RECOMMENDATIONS

Cheryl A. Eifert, United States Magistrate Judge

Pending before the Court is Movant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.^[1] (ECF No. 470). This matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and by Standing Order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 472). Having determined from a thorough review of the record that Movant clearly is not entitled to relief under 28 U.S.C. § 2255, the undersigned FINDS no basis for an evidentiary hearing. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970). For the reasons set forth below, the undersigned respectfully RECOMMENDS that Movant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 be DENIED, and this civil action be DISMISSED, with prejudice, and removed from the docket of the Court.

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I. Procedural History

A. Indictment, conviction, and sentencing

On June 6, 2018, Henderson was charged with federal drug and gun crimes in an eight-count third superseding indictment (“third superseding indictment”) by a grand jury sitting in the United States District Court for the Southern District of West Virginia, Huntington Division (“the Court”). (ECF No. 279). Pursuant to a plea agreement, Henderson agreed to plead guilty to Counts One and Six of the third superseding indictment, which alleged violations of 21 U.S.C. § 846, conspiracy to distribute a quantity of heroin and 50 grams or more of methamphetamine, and 21 U.S.C. § § 922(g)(1) and 924(a)(2), unlawful possession of a firearm by a felon. (ECF No. 372 at 2). In exchange for his guilty plea, the government promised to dismiss the remaining counts against him. (Id.). In addition, Henderson agreed that he would argue for a base offense level of no less than 36 and adjusted offense level of 38, and he waived his right to appeal or collaterally attack his conviction or sentence except on the basis of ineffective assistance of counsel so long as his sentence fell within the agreed-upon range. (Id. at 8-9). The plea agreement also included a stipulation of facts in which Henderson admitted that he “conspired with multiple individuals” to distribute methamphetamine and heroin; that he and his codefendant, Karl Lamerique, obtained methamphetamine and distributed it throughout the District; that he was aware of and had access to firearms at a residence used to distribute the substances; and that he knew he was a felon forbidden from possessing a firearm following convictions for weapons possession and assault under New York criminal law. (Id. at 12-13).

On December 12, 2018, Henderson appeared before the Court and pled guilty to Counts One and Six. (ECF No. 369). At the hearing, after finding Henderson competent

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and capable of entering an informed plea, the Court asked Henderson a series of questions concerning his satisfaction with his attorney, Michelle Fox (“defense counsel”). (ECF No. 426 at 5-6). Henderson confirmed that he had had enough time to discuss his case with defense counsel; that she had been able to answer his questions; and that he was “completely satisfied with the legal advice” she provided. (Id. at 6). The Court, by colloquy, determined that Henderson understood the terms of the plea agreement and allowed it to be filed as part of the record. (Id. at 6-10).

As to Count One, conspiracy under § 846, the Court explained the elements the government would be required to prove beyond a reasonable doubt if the parties proceeded to trial, and Henderson affirmed that he believed he was guilty of the offense. (Id. at 12-13). The Court did likewise for Count Six, possession of a firearm by a person convicted of a crime punishable by a term of imprisonment exceeding one year under § 922(g)(1) and § 924(a)(2). (Id. at 13-15). After Henderson recounted in his own words what he did that comprised the offense conduct, he confirmed that he had read the stipulation of facts in the plea agreement and reviewed it with his defense counsel, agreeing that he understood it and it was accurate and truthful. (Id. at 17). Relevant to this matter, the Court received assurance from Henderson that he participated in a conspiracy with numerous named individuals including Lamerique to buy, store, and distribute drugs. (Id. at 18-20). The Court also asked Henderson if it was true he had been convicted of two felonies in New York at a time before he possessed firearms, and Henderson answered affirmatively. (Id. at 20). The Court found a sufficient factual basis for the guilty plea. (Id. at 30).

The Court next inquired as to whether Henderson understood the potential penalty exposure caused by his conviction, including minimum terms of incarceration

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and supervised release, and that he was relinquishing his right to appeal or collaterally attack his judgment. (Id. at 30-35). After reviewing with Henderson the additional rights he forfeited upon pleading guilty and receiving confirmation that no one coerced him into pleading guilty, the Court found that Henderson understood his rights and his plea was voluntary. (Id. at 35-38). The Court adjudged Henderson guilty of Counts One and Six. (Id. at 39).

Henderson appeared before the Court for a sentencing hearing on March 19, 2019. (ECF No. 407). The Court, after hearing testimony from Henderson's codefendant Lamerique, overruled Henderson's objection to the presentence report which attributed responsibility to Henderson for at least 4.5 kilograms of methamphetamine. (ECF No. 424 at 46-48). The Court granted a downward variance, however, sentencing Henderson to a total of 238 months imprisonment for Count One and 120 months for Count Six, with sentences to be served concurrently followed by five years of supervised release. (Id. at 64-65).

B. Appeal to the Fourth Circuit

On March 28, 2019, Henderson filed a notice of appeal. (ECF No. 414). In his brief to the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”), Henderson argued that the Court should have rejected Lamerique's testimony during his sentencing hearing as not credible and should have granted a downward variance based on disparities in sentencing for different drug types. United States of America v. Henderson, No. 19-4208 (4th Cir. Aug. 20, 2019) (“Henderson II ”), at ECF No. 13. The government moved to dismiss, as Henderson waived his right to appeal except on certain narrow bases. Id., at ECF No. 20. On August 20, 2019, the Fourth Circuit granted the government's motion and dismissed Henderson's appeal because of the

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appeal waiver. Id., at ECF Nos. 24, 25; (ECF No. 434). Henderson unsuccessfully petitioned the Fourth Circuit for a rehearing or a rehearing en banc. Id., at ECF Nos. 27, 30.

C. Instant motion under § 2255

i. Motion and attached exhibits

On November 19, 2020, Henderson filed the instant motion to vacate or set aside his federal sentence pursuant to 28 U.S.C. § 2255 and an accompanying memorandum of law. (ECF Nos. 470, 471). In his form motion, Henderson asserts three grounds for relief from the judgment in his criminal case, the structure of which differs somewhat from his memorandum of law. (ECF No. 470). He contends that the Court lacked jurisdiction to enter judgment in his criminal case because the guilty plea was not supported by a sufficient factual basis. In addition, Henderson claims that his defense counsel was constitutionally ineffective for failing to attack the judgment on appeal on the grounds that Henderson lacked of knowledge of his felon status and that the Court's lack of jurisdiction. (Id. at 4, 5, 7). The substance of the remaining claims asserted in the form motion are also contained in the memorandum of law along with more analysis. The undersigned will examine the grounds as presented in that document in more detail.

Henderson asserts four grounds for relief in his memorandum of law. First, he contends that defense counsel rendered ineffective assistance by failing to “raise contemporary objections to the sufficiency of evidence used to establish the factual basis.” (ECF No. 471 at 3). Henderson asserts that the quantities of drugs sold by his codefendant to a confidential informant are “inadmissible for purposes of conspiracy.” (Id.). He states that because the penalty range for a conspiracy conviction “derives from

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the substantive offense conduct..the applicable range should not apply” and defense counsel was ineffective for failing to raise such objections. (Id.). According to Henderson, defense counsel “turned a blind eye” towards an opportunity to challenge the Court's jurisdiction to enter judgment based on an insufficient factual basis at both the trial and appellate levels. (ECF No. 471 at 3-4).

In Ground Two, Henderson argues that defense counsel was ineffective for not arguing on appeal that his conviction for being a felon in possession of a firearm was unconstitutional. (Id. at 4). He contends that defense counsel should have raised the absence of evidence demonstrating that Henderson was aware of his status as a felon as required by Rehaif v. United States, 139 S.Ct. 2191 (2019) (“Rehaif”). In support, Henderson states that his prior conviction did not require him to “spend more than a year and one day in jail.” (Id. at 4, 12). Henderson asserts that his imprisonment for violating § 922(g) was thus “unwarranted, ” and caused him “substantial[] prejudice.” (Id. at 12).

In Ground Three, Henderson argues that defense counsel was ineffective for “failing to know the laws in relation...