Michel v. United States

• Court: United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
• Citation: 849 F.Supp.2d 649
• Docket Number: Criminal Action No. 5:06–cr–00041–01.
• Parties: Adelson MICHEL, Petitioner, v. UNITED STATES of America, Respondent.
• Decision Date: 28 March 2012

849 F.Supp.2d 649

Adelson MICHEL, Petitioner,
v.
UNITED STATES of America, Respondent.

Criminal Action No. 5:06–cr–00041–01.

United States District Court,
W.D. Virginia,
Harrisonburg Division.

March 28, 2012.

Jeb T. Terrien, Grayson A. Hoffman, United States Attorneys Office, Harrisonburg, VA, Joseph William Hooge Mott, United States Attorneys Office, Roanoke, VA, for Petitioner.

[849 F.Supp.2d 650]

Adelson Michel, F.C.C. Coleman–Low, Coleman, FL, Dana R. Cormier, Attorney at Law, Staunton, VA, for Respondent.

MEMORANDUM OPINION
GLEN E. CONRAD, Chief Judge.

Adelson Michel (“Michel”), a federal inmate, brings this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (2006). After an evidentiary hearing before United States Magistrate Judge B. Waugh Crigler (“Judge Crigler”) on the government's motion to dismiss, Michel filed objections to the Magistrate Judge's Report and Recommendation (“Report”). For the reasons that follow, the court will grant the government's motion to dismiss and deny Michel's motion to vacate.

I. Factual and Procedural Background

On September 6, 2006, a grand jury in the Western District of Virginia returned a twenty-nine count indictment stemming from a crack cocaine conspiracy in Winchester, Virginia. (Docket No. 3.) Among the twelve defendants named in the indictment was Michel, who was charged in eight of the twenty-nine counts. More specifically, Michel was charged with one count of conspiracy to distribute 50 or more grams of crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A), and with seven counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B), and (b)(1)(C).

Michel was tried before a jury in Harrisonburg over a four-day period from March 26 to March 29, 2007.¹ In its case-in-chief and on rebuttal, the prosecution presented approximately twenty-six witnesses, including thirteen law enforcement officers, three experts, and three codefendants who had pleaded guilty (Mark Fleurival, Roland Jackson, and Robert Scott). United States v. Kellam, 568 F.3d 125, 130 (4th Cir.2009), cert. denied,––– U.S. ––––, 130 S.Ct. 657, 175 L.Ed.2d 501 (2009). Seven other prosecution witnesses—most of whom had pleaded guilty to related drug crimes—testified to being involved in various crack cocaine transactions with Michel. Id. The defense called seven witnesses, six of whom were prosecution witnesses recalled for impeachment purposes. Id. at 130–31. The remaining defense witness was another codefendant named Tiffany Sloane, who had also pleaded guilty to the conspiracy.²Id. at 131 n. 5. Michel did not testify at trial. ³Id. at 131.

On March 29, 2007, the jury returned its verdict, finding Michel guilty of the one conspiracy count, and of six of the seven counts of distribution of crack cocaine.⁴ After denying several of Michel's post-trial motions, the court sentenced him on September 6, 2007 to a total term of imprisonment of 324 months. On June 3, 2008, the court granted Michel's motion to reduce his sentence pursuant to the November 1, 2007 Amendments to the United States Sentencing Guidelines, reducing Michel's term of imprisonment to 262 months. ⁵

[849 F.Supp.2d 651]

After unsuccessfully appealing his convictions and sentence to the United States Court of Appeals for the Fourth Circuit and seeking a writ of certiorari in the Supreme Court of the United States, Michel timely filed the present motion to vacate on August 23, 2010. (Docket No. 787.) Michel advanced multiple claims in his motion, all except one of which were dismissed by this court in response to the government's motion to dismiss. Michel v. United States, Criminal Action No. 5:06–cr–41–1, Civil Action No. 5:10–cv–80281, 2011 WL 767389 (W.D.Va. Feb. 25, 2011). The court then referred the case to Judge Crigler for an evidentiary hearing on Michel's sole surviving claim in this § 2255 motion—specifically, that Michel's trial counsel, Gary Lance Smith (“Smith”),⁶ “was ineffective in failing to apprise [him] of his right to testify at trial.” Id. at *8.

Judge Crigler convened an evidentiary hearing on October 12, 2011, at which the court heard testimony from Michel and Todd Freiwald (“Freiwald”) of the Bureau of Alcohol, Tobacco, Firearms and Explosives, the principal investigator in the case. Michel was represented by court-appointed counsel. On direct examination, Michel testified that the only contact he had with Smith before trial was a single visit by Smith to the jail where Michel was detained pending trial. (Docket No. 897 at 14–15.) Despite Michel's poor English capabilities at that time,⁷ Smith failed to bring a Haitian Creole interpreter with him, Michel testified. ( Id. at 12, 17.) Not once (either at the sole jail visit or at the trial), according to Michel, did Smith ever apprise Michel that he possessed a right to testify at trial in his own defense. ( Id. at 15–19.) Smith likewise failed ever to discuss with Michel whether he should testify at trial, Michel stated. ( Id.) However, Michel testified, he told Smith directly during the jail visit that he wanted to testify in his own defense and, furthermore, Michel communicated that desire to the interpreter (and not to Smith) during the trial. ( Id.) According to Michel, though, the interpreter never conveyed that request to Smith during the trial. ( Id. at 16, 19.) Furthermore, Michel took issue with Smith's performance at trial, alleging that Smith conducted poor cross-examinations of the government's witnesses and failed to contest the witnesses' credibility while arguing to the jury. ( Id. at 44–46.)

According to Michel, if he had known that he had a right to testify, he would have taken the witness stand to fill in the gaps in the case that Smith allegedly had left through his deficient performance. More specifically, his testimony “would have concerned the truthfulness of the Government's witnesses, his denial that he knew several of them, and other matters relating to their personal motives for testifying against him.” (Docket No. 904 at 5.) In short, Michel's aspiration to testify at trial emanated from his desire to profess his complete innocence of the charges for which he was prosecuted and ultimately convicted.

On cross-examination at the evidentiary hearing, the Assistant United States Attorney questioned Michel on his English proficiency during the period from 2003, when he moved from Florida to Winchester, to 2007, when he was tried. According to Michel, he lived in Winchester with his girlfriend, Laquita Sloane, during that time period. (Docket No. 897 at 53.) Michel

[849 F.Supp.2d 652]

communicated with Sloane only in English, because that was the only language that she knew. ( Id.) However, Michel nonetheless maintained that his English was poor at that time, and that he had only limited interactions in Winchester with people other than Sloane. ( Id. at 53–54.) Furthermore, Michel retreated on cross-examination from his previous statement that Smith had contacted him only once prior to trial—instead, Michel testified that Smith had visited him in jail numerous times in 2006 and 2007 prior to trial. ( Id. at 55–56.) Michel acknowledged that he also communicated with Smith before trial by telephone. ( Id. at 57.) However, according to Michel, Smith never discussed the case with Michel during those communications. ( Id. at 56.) Instead, his conversations with Smith at the jail and by telephone consisted only of Smith telling him to plead guilty. ( Id.) Michel further testified that Smith never discussed the case with him at trial, either. When asked about portions of the trial transcript indicating instances where Smith would confer with the defendant during trial, Michel accounted for such instances as times when, during a witness' testimony, Michel would tell Smith, “I don't want them on the stand.” ( Id. at 67.)

Furthermore, on cross-examination, the Assistant United States Attorney asked, “I want to make sure I understand your position. I mean, you knew you had a right to testify; correct?” ( Id. at 68.) Michel responded, “I knew that I could talk if I wanted to, but I didn't know that I had the right.” ( Id.) Michel also testified on cross-examination that he would be satisfied with an attorney's services only if he prevailed on his § 2255 motion. ( Id. at 48.)

Freiwald was the only witness called by the government during the evidentiary hearing. Freiwald's testimony concerned two main points. First, Freiwald testified that, prior to trial, he met with Smith and Michel to review an evidentiary videotape.⁸ ( Id. at 77.) Second, Freiwald testified that his interaction with Michel during this meeting afforded Freiwald an opportunity to assess Michel's English proficiency and, based on his observations, Freiwald testified that he detected no difference in Michel's English during the evidentiary hearing as compared to his English at the prior meeting related to the videotape. ( Id.)

Following the evidentiary hearing, Judge Crigler submitted his Report in which he recommended that this court deny Michel's motion to vacate and grant the government's motion to dismiss. (Docket No. 904.) The Report reflected Judge Crigler's observation that Michel's “demeanor and conduct while testifying did not instill confidence in the substance of that testimony.” ( Id. at 14.) Judge Crigler found that Michel's testimony was laced with contradictions and found disingenuous Michel's allegations regarding Smith's performance. ( Id. at 14–15.) Furthermore, the trial transcript refuted Michel's assertions regarding Smith's allegedly abysmal performance at trial—specifically, the transcript revealed that Smith's cross-examination of government witnesses probed their own involvement with drugs and their incentive to cooperate with law enforcement. ( Id. at 15.) Judge Crigler noted that the transcript further demonstrated that, in his closing argument to the jury, Smith sought to...