Kimball v. United States

• Decision Date: 19 November 2012
• Docket Number: No. 3:10-0730,3:10-0730
• Parties: KENNETH KIMBALL v. UNITED STATES OF AMERICA
• Court: U.S. District Court — Middle District of Tennessee

KENNETH KIMBALL

v.UNITED STATES OF AMERICA

No. 3:10-0730

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

Dated: November 19, 2012

JUDGE CAMPBELL

MEMORANDUM

I. Introduction

Pending before the Court is a Motion To Vacate, Set Aside, Or Correct Conviction And Sentence Under 28 U.S.C. § 2255 (Docket No. 1), filed by the Movant/Petitioner (hereinafter "Petitioner"). The Petitioner has filed a brief in support of the Motion (Docket No. 39), and the Government has filed responses to the Motion. (Docket Nos. 13, 45).

For the reasons set forth below, the Court concludes that Petitioner's Motion To Vacate is DENIED, and this action is DISMISSED.

II. Procedural and Factual Background

In the underlying criminal case, the Petitioner was charged with conspiracy to distribute and possess with intent to distribute 50 kilograms or more of marijuana and 100 grams or more of methamphetamine, in violation of 21 U.S.C. § 846 (Count One); conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count Two); conspiracy to import five kilograms or more of cocaine, in violation of 21 U.S.C. § 963 (Count Three); four counts of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Counts Four, Seven, Eight, Twelve); distribution and possession with intent to distribute five kilograms or more of cocaine within 1000 feet of a school or college, inviolation of 21 U.S.C. §§ 841(a)(1), 856, and 860 (Count Five); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Six); conducting a financial transaction to conceal unlawful activity, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Count Nine); possession with intent to distribute five kilograms or more of cocaine within 1000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) and 860 (Count Thirteen); conducting a financial transaction involving unlawful activity, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Count Fourteen); attempt to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count Fifteen); solicitation to commit murder, in violation of 18 U.S.C. § 373 (Count Sixteen); possession of destructive device and silencer in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Seventeen); transfer of explosive materials for use in a crime of violence, in violation of 18 U.S.C. § 844(o) (Count Eighteen); possession of a destructive device and firearm silencer, in violation of 26 U.S.C. § 5861(b) (Counts Nineteen and Twenty); obstruction of justice, in violation of 18 U.S.C. § 1503 (Count Twenty-Three); and witness tampering, in violation of 18 U.S.C. § 1512(b) (Count Twenty-Four). (Docket No. 338 in Case No. 3:02-00053).

Co-Defendant John Weston pled guilty prior to trial; Co-Defendant Debra Moses was placed on Pretrial Diversion; and Co-Defendants Jimmy Ray Patterson and Amilcar Butler were severed for separate trial. (Docket Nos. 67, 291, 292, 347 in Case No. 3:02-00053). Co-Defendants Randall R. Parker and Steve Corlew proceeded to trial with the Petitioner.

At the conclusion of a three-week trial involving over 80 witnesses, the jury convicted the Petitioner on all counts, and granted forfeiture in the amount of $30,000,000. (Docket Nos. 388, 395, 399 in Case No. 3:02-00053). Trial counsel filed motions for new trial and forjudgment of acquittal, which were denied by the Court. (Docket Nos. 403, 509, 522). The Court subsequently sentenced the Petitioner to two consecutive life sentences plus 15 years. (Docket Nos. 539, 540 in Case No. 3:02-00053).

On appeal of Petitioner's conviction and sentence, the Sixth Circuit affirmed the conviction, but vacated and remanded the sentence for reconsideration in light of United States v. Booker, 543 U.S. 220 (2005), which was issued after the Court imposed sentence. (Docket No. 684 in Case No. 3:02-00053; United States v. Kenneth Kimball, et al., 194 Fed. Appx. 373, 2006 WL 2571951 (6th Cir. Sept. 8, 2006)), cert. denied, 127 S.Ct. 1137 (Jan. 16, 2007)). On remand, the Court applied the decision in Booker, but ultimately imposed the same sentence it had imposed prior to remand. (Docket Nos. 736, 737 in Case No. 3:02-00053). On appeal of the Amended Judgment, the Sixth Circuit affirmed. (Docket Nos. 739, 770 in Case No. 3:02-00053; United States v. Randall R. Parker and Kenneth Kimball, 341 Fed. Appx. 122, 2009 WL 2413149 (6th Cir. Aug. 7, 2009)).

In its first decision, the Sixth Circuit presented the relevant facts as follows:

Drug Charges

Beginning in 1999, Kimball was the head of a drug trafficking operation. He paid others, Corlew included, to import drugs into Nashville from Texas and New Mexico, and then distributed them through Parker and others.

One of Kimball's suppliers in Texas, Russell Bourjaily, sold Kimball's couriers-John Weston and Jimmy Patterson-hundreds of kilograms of cocaine over a one-year period. Patterson and Weston made approximately 10 trips, carrying hundreds of thousands of dollars in cash to El Paso and purchasing around four hundred kilos of cocaine at a time. Margaret Harper, Kimball's assistant and mistress, helped procure the large amounts of cash to pay suppliers. Patterson and Weston usually delivered the contraband to K & K's Auto Service, one of Kimball's businesses in Nashville. Parker served as one of Kimball's principal distributors.

In December 2000, Patterson and Weston drove to El Paso with $ 592,000 in cash to purchase cocaine from Bourjaily. On their way back to Nashville they were stopped at a checkpoint where officers seized approximately 40 kilograms of cocaine and records of other drug purchases.

Solicitation of Violence

Patterson told Weston that Kimball had sent unidentified persons to kill Bourjaily, whom Kimball suspected was behind the arrest. Kimball instructed Alva Lock to kill Bourjaily and provided him with a bomb which Lock kept stored in a locker and kept the detonator in his car. Kimball also gave Lock a Bersa handgun and a silencer. In August 2001, the police found the Bersa and the detonator in Lock's car. In May 2002, the bomb was found in the storage locker when it was opened after the contents were auctioned off for non-payment.

In August 2001, Eric Boyd identified Kimball as having supplied him with several kilos of cocaine. When other informants corroborated the fact that Kimball was a drug supplier in the Nashville area, a confidential informant contacted Patterson and recorded their meetings. During one such meeting, Patterson discussed a drug deal with Parker. These calls made Kimball and Parker erroneously suspect Patterson of cooperating with the police. Harper overheard Kimball and Parker agree that Patterson and Weston should both be killed. Kimball contacted James Bass and asked him to find someone who would do the deed for $ 10,000. Bass in turn contacted Marcel Boyd and Terrell Polk. Parker, Bass, Boyd and Polk met at Parker's business where Parker increased the fee to $ 15,000 to commit the murders and asked whether they could find other triggermen.

In 2002, the government contacted Kimball as part of a Nashville-based investigation. Kimball told Lock he was being investigated by the IRS, and that he had surrendered $ 118,000 in cash. Kimball then became concerned that Parker might testify against him, and asked Lock to kill Parker in addition to Bourjaily. Kimball also promised to pay off Lock's $ 115,000 mortgage. Lock ultimately failed to carry out his plan to kill Parker and Bourjaily.

Money Laundering

Kimball purchased 'Frank's Auto Salvage' with cash, and used the business as a way to disguise the cash proceeds from the drug sales through structured transactions, and by falsifying sales of parts and scrap. Additionally, Parker paid cash for a Cadillac at a Nashville auto auction. Parker contacted Kimball and asked him to prepare false documents showing that Parker's sister, Debra Moses, purchased the vehicle from Kimball's used car lot, Tank's Auto Sales.

United States v. Kimball, 194 Fed.Appx. at 375-376.

III. Analysis

A. The Petitioner's Claims

Petitioner contends that his conviction should be vacated because he received the ineffective assistance of counsel at trial and on appeal, and because the Government engaged in prosecutorial misconduct.

B. The Section 2255 Remedy/Evidentiary Hearing Not Required.

Section 2255 provides federal prisoners with a statutory mechanism by which to seek to have their sentence vacated, set aside or corrected.¹ The statute does not provide a remedy, however, for every error that may have been made in the proceedings leading to conviction. The statute contemplates constitutional errors, and violations of federal law when the error qualifies as a "fundamental defect which inherently results in a complete miscarriage of justice." Reed v. Faley, 512 U.S. 339, 114 S.Ct. 2291, 2296, 2299-2300, 129 L.Ed.2d 277 (1994); Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that the Court shall consider the "files, records, transcripts, and correspondence relating to the judgment underattack" in ruling on a petition or motion filed under Section 2255. In addition, where the same judge considering the Section 2255 motion also presided over the underlying criminal proceedings, the judge may rely on his own recollection of those proceedings. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 1629 n. 4, 52 L.Ed.2d 136 (1977); Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996).

An evidentiary hearing is not required if the record conclusively shows that the Petitioner is not entitled to relief. 28 U.S.C. § 2255; Rule 8 of the Rules Governing Section 2255 Proceedings For The United States District Courts; Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). No hearing is required "if the petitioner's allegations ...