Rowsey v. United States

Decision Date29 December 2014
Docket NumberCriminal No. 4:11cr53.,Civil No. 4:14cv15.
Citation71 F.Supp.3d 585
CourtU.S. District Court — Eastern District of Virginia
PartiesDennis Wayne ROWSEY, Jr., Petitioner, v. UNITED STATES of America, Respondent.

Dennis Wayne Rowsey, Jr., pro se.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is before the Court on a Motion to Vacate, Set Aside, or Correct Sentence, filed by Petitioner Dennis Wayne Rowsey, Jr., (Petitioner) pursuant to 28 U.S.C. § 2255. ECF No. 62 (“Pet'r's § 2255 Motion). Petitioner's § 2255 Motion asserts that his conviction should be vacated because his counsel was ineffective in a number of ways. More specifically, Petitioner alleges that counsel was ineffective with respect to Petitioner's decision to enter a guilty plea, during post-plea cooperation, and at sentencing. The Court finds that an evidentiary hearing is unnecessary because the record conclusively demonstrates that Petitioner is not entitled to the relief sought in his § 2255 motion. See R. Governing § 2255 Proceedings in U.S. Dist. Cts. 8(a). For the reasons discussed below, Petitioner's § 2255 motion is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2011, the Federal Bureau of Investigation (“FBI”) began investigating a drug trafficking organization headed by Petitioner. Statement of Facts at 1, ECF No. 31. On April 25, 2011, a confidential human source CHS 1), who had interacted with Petitioner since at least October 2010, provided information to the FBI. Id. The information from CHS 1 involved Petitioner's conspiracy with others to distribute and possess with intent to distribute cocaine and cocaine base. Id.

On April 26, 2011, Petitioner contacted CHS 1 by telephone and asked him to bring a digital scale to Petitioner's work location at the Harbour Apartments in Newport News. Id. CHS 1 wore a concealed audio/video recording device during the delivery of the scale. Id. Upon arrival at the Harbour Apartments, Petitioner directed CHS 1 to an empty apartment. Id. Inside that apartment, CHS 1 observed Petitioner and another individual, Perry, with one ounce of powder cocaine. Petitioner stated that he had purchased the cocaine from an associate of Perry for $1,200.Id. at 2.

In 2011, CHS 1 participated in a series of controlled drug evidence purchases from Petitioner. See id. at 2–3. CHS 1 wore a concealed audio/video recording device during each such operation. See id. On May 19, 2011, CHS 1 purchased one ounce of crack cocaine for $1,300 from Petitioner at Petitioner's home. Id. at 2. After that purchase, CHS 1 observed that approximately one ounce of crack cocaine and three quarters of an ounce of powder cocaine remained in a cookie tin in Petitioner's kitchen. Id. On May 20, 2011, CHS 1 purchased half an ounce of crack cocaine and half an ounce of powder cocaine for $1,300 from Petitioner at Petitioner's home. Id. During that purchase, CHS 1 also observed Petitioner sell two grams of crack cocaine to another individual for $200 in Petitioner's kitchen. Id. In addition, CHS 1 observed a .45 caliber Ruger P90 pistol on top of Petitioner's refrigerator. Id. During the operation, Petitioner also purchased five ounces of powder cocaine from an unidentified third party who was also present at Petitioner's home. Id. On June 6, 2011, Petitioner contacted CHS 1 and asked him to accompany Petitioner to meet with several other individuals at a restaurant in Newport News. CHS 1 and Petitioner drove separately to the restaurant that evening to meet with those other individuals. Id. at 3. At the restaurant, CHS 1 observed Petitioner sell one ounce of powder cocaine to another individual. Id. Thereafter, Petitioner invited CHS 1 back to Petitioner's home. Id. At Petitioner's home, CHS 1 observed approximately one ounce of crack cocaine and powder cocaine in the cookie tin in Petitioner's kitchen. CHS 1 also observed that the “pay/owe” dry erase board on the refrigerator had more names on it than CHS 1 had observed on prior occasions. Id. Petitioner stated that he was going to purchase six ounces of powder cocaine later that evening. Id. On June 15, 2011, during a phone call between Petitioner and CHS 1, Petitioner stated that he had obtained half a kilogram of cocaine on June 13, 2011. Id. In addition, Petitioner stated that he had to “re-up” soon because he had sold so much cocaine in the preceding several days. Id.

On June 17, 2011, federal arrest and search warrants were executed on Petitioner and his residence. Id. During the execution of those warrants, law enforcement seized in excess of $34,000 from a safe located in a false space behind a wall, more than five ounces of cocaine, and two firearms. Id. In total, between 2010 and 2011, Petitioner conspired to distribute and possess with intent to distribute more than 500 grams of cocaine and 280 grams of cocaine base. Id.

On June 19, 2011, Petitioner retained Andrew M. Sacks to represent him in connection with this case. Sacks Affidavit at 1, ECF No. 73. After reviewing “the Arrest Warrant Affidavit in support of the Criminal Complaint, and based upon discussions that [he] recall [s] having with the prosecutor in the case, as well as Mr. Rowsey, [Mr. Sacks] concluded early on that the evidence against [Petitioner] as to the conspiracy charge under the Criminal Complaint was likely substantial.” Id. at 2. Accordingly, Mr. Sacks “attempted to explore with the prosecutor early on in the case a proposed agreed disposition that would include [Petitioner's] cooperation and substantial assistance to mitigate and diminish his potential confinement exposure.” Id. However, the prosecutor did not react favorably to Mr. Sacks' initial requests and “ruled out any cooperation or substantial assistance agreement” because the prosecutor did not trust Petitioner based on a belief that Petitioner had lied to the prosecutor and Government agents at the time of his arrest. Id. Nevertheless, Mr. Sacks continued to advocate, with the prosecutor, for a potential agreed disposition that would include Petitioner's cooperation and substantial assistance because Mr. Sacks believed such an agreement would result in the least confinement for Petitioner. Id.

On July 22, 2011, a grand jury in Newport News returned an eight-count Indictment against Petitioner. ECF No. 11. In Count I, the grand jury charged Petitioner with Conspiracy to Possess with Intent to Distribute and Distribution of more than five hundred (500) grams of cocaine and more than 280 grams of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Indictment at 2. In Counts Two through Six, the grand jury charged Petitioner with possession with intent to distribute and distribution of cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1). See id. at 3–7. In Count Seven, the grand jury charged petitioner with maintaining a drug house in violation of 21 U.S.C. 856(a)(2). Id. at 8. In Count Eight, the grand jury charged Petitioner with possession of a firearm in furtherance of a drug trafficking crime, distribution of cocaine and cocaine base. Id. at 9.

Following the indictment, the Government agreed to provide Petitioner with another chance to demonstrate his trustworthiness as a cooperator. Id. Mr. Sacks believed that “having [Petitioner] commence his cooperation prior to any guilty plea would greatly enhance both his credibility with the Government and his chances for a substantial assistance reduction of potential confinement.” Id. at 3. Through a series of emails, Mr. Sacks arranged for Petitioner to cooperate with and debrief FBI agents prior to Petitioner entering a guilty plea. Pet'r's § 2255 Mot. at 19. Prior to Petitioner's first debriefing, Mr. Sacks “advised [Petitioner] to tell them the truth and provide information which might induce the U.S. Attorney to offer [Petitioner] a favorable or lenient plea agreement.” Id.

On September 20, 2011, Petitioner commenced his cooperation with the Government in an initial debriefing session. Mr. Sacks was present at the beginning of the debriefing between Petitioner and Government agents. Id. The Government provided a proffer letter to Petitioner granting him Kastigar use immunity for any statements made other than admissions of violent crimes. Id. Mr. Sacks advised Petitioner to sign the letter, and Petitioner did so. Id. The FBI agents present at the meeting then began to question Petitioner. Id. at 20. Two minutes later, Mr. Sacks announced that he had to leave to attend another meeting. Id. Petitioner asked Mr. Sacks why he was leaving, to which Mr. Sacks responded “things look like they are going [okay] here, just be sure to tell the truth about everything.” Id. During the debriefing, FBI agents asked Petitioner if he knew who killed Jeffrey Summers. Id. Petitioner told the agents that he “did not have any idea about who might have killed Summers.” The agents also asked Petitioner about James Talley. Id. More specifically, the agents asked Petitioner if he knew “that [Mr.] Talley had ever hurt or killed anyone,” to which Petitioner responded that he “did not know about any violent crimes done by [Mr.] Talley.” Id. The agents arranged for another debriefing on October 4, 2011. Id. at 21.

On October 3, 2011, the Government informed Mr. Sacks that a superseding indictment would add charges for [continuing criminal enterprise] and an additional firearm for a net increase of 35 mandatory years.” Id. at 44. Assistant United States Attorney Eric M. Hurt further informed Mr. Sacks that [w]hen I originally talked to [Petitioner] I told him these charges would be in the original indictment but at your urging I did not put them in the first indictment.” Id.

On October 4, 2011, Petitioner met with FBI agents for a second debriefing. At that debriefing, agents asked Petitioner the same questions about James Talley. Id. at 21. Petitioner again responded that he “did not know of any violent crimes or murders done by [Mr.] Talley.” Id.

On October 11, 2011,...

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