Higgins v. United States

• Decision Date: 29 July 2015
• Docket Number: No. 10-1316-JDT-egb,Crim. No. 06-10004-JDT,10-1316-JDT-egb
• Parties: OLIVER J. HIGGINS, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Tennessee

OLIVER J. HIGGINS, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 10-1316-JDT-egb

Crim. No. 06-10004-JDT

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

July 29, 2015

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Before the Court is the pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") filed by the Movant, Oliver J. Higgins, Bureau of Prisons register number 20518-076, who is currently an inmate at the United States Penitentiary in Terre Haute, Indiana (ECF No. 1), the Report and Recommendation ("R&R") issued by U.S. Magistrate Judge Edward G. Bryant, Jr. after a limited evidentiary hearing (ECF No. 44) and Higgins's objections to the R&R (ECF No. 56). The R&R recommended that the Court deny relief on a portion of Higgins's ineffective assistance claim. For the reasons stated below, the Court ADOPTS the R&R and DENIES Movant's § 2255 Motion.

I. BACKGROUND

On January 23, 2006, a federal grand jury returned a four-count indictment against Higgins. (United States v. Higgins, No. 06-10004-JDT (W.D. Tenn.), Crim. ECF No. 1.) Counts1 through 3 charged that, on or about September 10, 2005, Higgins unlawfully possessed with the intent to distribute approximately 531.8 grams of cocaine base (crack cocaine) (Count 1), 250.1 grams of cocaine (Count 2), and 62 grams of marijuana (Count 3), in violation of 21 U.S.C. § 941(a)(1). Count 4 charged that, on or about September 10, 2005, Higgins possessed and concealed counterfeit Federal Reserve Notes with the intent to defraud, in violation of 18 U.S.C. § 471. On July 17, 2006, the grand jury returned a six-count superseding indictment, which added two new charges to the four counts in the original indictment. (Crim. ECF No. 25.) Count 5 charged Higgins, a convicted felon, with possessing a Charter Arms .38 Special handgun on or about September 10, 2005, in violation of 18 U.S.C. § 922(g). Count 6 charged Higgins with possessing a Charter Arms .38 Special handgun during and in furtherance of the drug trafficking crimes charged in Counts 1, 2 and 3, in violation of 18 U.S.C. § 924(c).

The factual basis for these charges is stated in the presentence investigation report ("PSR"):

3. According to the information provided by the Assistant United States Attorney responsible for the prosecution of this matter, on September 9, 2005, information was obtained through an arrest made by the Henderson Police Department that Oliver Higgins was selling narcotics from his residence located at 1336 Campbell Street, Apartment #5, Jackson, Tennessee. A check of the criminal history of Oliver Higgins revealed two prior felony convictions for narcotics trafficking in Hardin County, Tennessee: Possession of Marijuana with Intent to Sell in Circuit Court Case No. 6755 in 1990 and Selling Cocaine in Circuit Court Case No. 7608 in 1998. A search warrant was obtained by Sergeant Billy Carneal with the Jackson Madison County Metro Narcotics Unit and on September 10, 2005, the search warrant was executed at Mr. Higgins' residence.

4. The initial search of the residence resulted in locating Mr. Higgins in the east bedroom of the residence where he was asleep and wearing ear plugs. The following items were located in the kitchen of the residence: a partially smoked marijuana cigarette located in an ash tray, suspected crack cocaine located in a coffee cup, approximately 110.4 grams of suspected crack cocaine located in the bottom of a china cabinet, and approximately 0.1 grams of suspected crack cocaine located in a kitchen drawer next to the stove. The following items were located in the bedroom of the residence: approximately 9.1 grams of suspectedmarijuana was located in a red tin can, one pack of rolling papers, four diamond rings, and two gold watches. Located in an upstairs hall closet was approximately 17.1 grams of suspected marijuana. The following items were also recovered in the ceiling of the bathroom: approximately 305.1 grams of suspected powder cocaine, approximately 41.4 grams of suspected marijuana, approximately 313.6 grams of suspected crack cocaine in 12 individual bags inside of a larger ziploc bag, approximately 134.5 grams of suspected crack cocaine in 5 individual bags inside of a larger ziploc bag, black digital scales with cocaine residue, a set of manual finger scales, $2080.00 of suspected counterfeit U.S. currency, $9,000 of U.S. currency, a Charter Arms .38 special handgun, serial number 911597, with four rounds, and a yellow Cambridge ledger.

5. On September 20, 2005, Special Agent J. Jathaniel Cavitt with the Secret Service examined the counterfeit currency and determined that the Federal Reserve Notes were counterfeit and had been produced using ink jet technology. The total amount of counterfeit currency was $2080.00.

6. On December 9, 2005, the Tennessee Bureau of Investigation Memphis Crime Lab confirmed the following substances that were located in Mr. Higgins' residence: 62.0 grams of marijuana, one marijuana cigarette, 531.8 grams of cocaine base, and 250.1 grams of cocaine.

7. On August 2, 2007, Special Agent Christopher Rogers of the Bureau of Alcohol, Tobacco, Firearms and Explosives examined the Charter Arms, model Off Duty, .38 Spl. caliber revolver, serial number 911597 seized from Mr. Higgins' residence and determined that the firearm was not originally manufactured in Tennessee, and therefore, at some point traveled in interstate and/or foreign commerce. In addition, SA Rogers determined that the revolver was a "firearm" as defined in 18 U.S.C. § 921(a)(3).

(PSR ¶¶ 3-7.)

At his initial appearance on March 10, 2006, Higgins advised that he had retained Steven E. Farese, Sr. to represent him. (Min. Entry, Crim. ECF No. 9.) On August 7, 2006, at the initial appearance on the superseding indictment, Farese asked for a continuance because Higgins intended to retain new counsel. (Min. Entry, Crim. ECF No. 30.) On September 1, 2006, Farese filed a motion seeking leave to withdraw due to "certain philosophical and strategical differences . . . as to the way this case should be handled." (Crim. ECF No. 33.) The Court granted themotion on September 11, 2006. (Crim. ECF No. 38.) On September 7, 2006, Daniel J. Taylor filed a notice of appearance on Higgins's behalf. (Crim. ECF No. 36.)

On October 23, 2006, defense counsel filed a motion to suppress the results of the search. (Crim. ECF No. 44.) The Government responded to the suppression motion on October 30, 2006. (Crim. ECF No. 45.)

On December 29, 2006, Higgins filed a pro se motion to dismiss his attorney. (Crim. ECF No. 53.) In an order issued on January 30, 2007, the Court denied the motion because Higgins had not established his financial eligibility for appointed counsel and because his "vaguely expressed displeasure with Mr. Taylor's lack of investigation into the case is not a sufficient reason for the Court to intervene in the attorney-client relationship." (Crim. ECF No. 54.) However, at a report date on February 12, 2007, the Court allowed Taylor to withdraw, determined that Higgins was eligible for appointed counsel, and directed that an attorney from the Criminal Justice Act Panel be appointed. (Min. Entry, Crim. ECF No. 55.) Jack Colin Morris was subsequently appointed to represent Higgins. (Crim. ECF No. 57.)

The Court conducted a suppression hearing on June 19, 2007 and, at the conclusion of that hearing, orally denied the motion to suppress. (Min. Entry, Crim. ECF No. 63; Suppression Hr'g Tr., Crim. ECF No. 112.) The Court also entered a written order confirming that denial. (Crim. ECF No. 66.)

On July 2, 2007, Higgins filed two pro se motions seeking to reopen the proof on the motion to suppress. (Crim. ECF Nos. 67 & 68.) In an order issued on July 6, 2007, the Court denied Higgins's pro se motions because he was represented by counsel. (Crim. ECF No. 69.) At that point, Higgins began filing various other pro se motions. On July 19, 2007, he filed a motion seeking the appointment of substitute counsel. (Crim. ECF No. 70.) On July 23, 2007,he filed a Motion to Challenge 21 U.S.C. § 851 Information. (Crim. ECF No. 71.) On July 24, 2007, Higgins filed additional exhibits in support of his motion challenging a potential § 851 information. (Crim. ECF No. 72.) On July 30, 2007, he filed a motion to dismiss the superseding indictment. (Crim. ECF No. 73.) On July 31, 2007, the Court denied the motion to dismiss the superseding indictment, again because a litigant who is represented by counsel cannot file pro se motions. (Crim. ECF No. 74.)

On July 31, 2007, defense counsel Morris filed a motion seeking leave to withdraw. (Crim. ECF No. 75.) The Court denied that motion, and Higgins's similar pro se motion, on August 2, 2007. (Crim. ECF No. 77.) The order explained, inter alia, that

[t]his case is currently set for trial on August 8, 2007. It appears that the Defendant is merely attempting to manipulate the Court and delay this case indefinitely by continually asking for new counsel. The Court is certain that if Defendant were provided with a fourth attorney, he would soon find fault with that individual as well.

(Id. at 2.)

On August 7, 2007, the Government filed a notice under 21 U.S.C. § 851 about Higgins's prior convictions. (Crim. ECF No. 78.) A jury trial commenced on August 8, 2007, and, on August 9, 2007, the jury returned a guilty verdict on Counts 1, 2, 4, 5 and 6 of the Superseding Indictment. Higgins was acquitted on Count 3. (Min. Entries, Crim. ECF Nos. 79, 80 & 82; Jury Verdict, Crim. ECF No. 84.)

On August 14, 2007, defense counsel filed a motion for a judgment of acquittal. (Crim. ECF No. 87.) The Government filed its response on August 31, 2007. (Crim. ECF No. 90.) On October 1, 2007, a fourth attorney, ...