U.S.A v. Osborne
| Decision Date | 16 December 2010 |
| Docket Number | No. 4:05CR00109-12 JLH,4:05CR00109-12 JLH |
| Parties | UNITED STATES OF AMERICA PLAINTIFF v. TERRANCE OSBORNE DEFENDANT |
| Court | U.S. District Court — Eastern District of Arkansas |
Terrance Osborne was convicted by a jury of conspiring to distribute and possess with intent to distribute more than 50 kilograms of cocaine and 50 grams or more of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(6) and § 846 (Count 1); and possessing with intent to distribute approximately 13 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 10). Osborne's appellate lawyer filed a no merit brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Osborne filed a pro se brief. The Eighth Circuit affirmed. United States v. Osborne, 343 Fed. Appx. 159, 2009 WL 2778661 (8th Cir. Sept. 3, 2009). Osborne has now filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Osborne asserts four grounds for relief, all of which are based on allegations of ineffective assistance of counsel.
Ordinarily, to prevail on a claim of ineffective assistance of counsel, a defendant must show that his lawyer's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Proving that counsel was deficient "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S. Ct. at 2065. Because of the distorting effects of hindsight and the difficulty of viewingcounsel's representation of the client from the perspective available to defense counsel at the time of trial, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. Proving that the deficient performance prejudiced the defense requires a showing that there is a reasonable probability that, but for defense counsel's mistakes, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. In determining whether there is a reasonable probability that but for counsel's mistakes the result would have been different the court must consider the totality of the evidence before the judge or the jury. Id. at 695, 104 S. Ct. at 2069.
Osborne's first ground for relief alleges that his trial lawyer's performance fell below an objective standard of reasonableness because he represented a conflicting interest that adversely effected the defense. Osborne was represented at trial by Vandell Bland, Sr. Bland had previously represented Osborne's father, Timothy Osborne, in an unrelated criminal drug case in state court. While he was detained on the state charges, Timothy Osborne was interviewed by law enforcement officers and gave a statement that incriminated Terrance Osborne. According to Osborne's section 2255 motion, Timothy Osborne later testified in front of the grand jury in this matter and gave evidence incriminating Osborne. Osborne has attached to his section 2255 motion letters from friends reporting that Timothy Osborne has stated that he lied to the police and did so at the instanceof Bland. The alleged conflict is that Bland could not simultaneously represent Osborne and someone who had given statements incriminating him.
The proceedings against Osborne began on May 27, 2005, when a complaint was filed alleging that Osborne had conspired with intent to distribute more than 13 kilograms of cocaine. The complaint was supported by an affidavit of a law enforcement officer that included an account of a drug transaction in which Osborne participated on January 21, 2005, an account of a transaction in which Osborne participated on May 25, 2005, and accounts of interviews with Timothy Osborne, Keon Neeley, and Broderick Chunn. Osborne was temporarily detained pending a detention hearing. The Court appointed John Wesley Hall, Jr., for the initial appearance. Bland appeared as Osborne's lawyer on May 31, 2005, at a detention hearing in front of Magistrate Judge Jerry W. Cavaneau. Magistrate Judge Cavaneau ordered that Osborne be detained pending the next appearance. Bland then filed a motion for Osborne's release on June 7, 2005. Osborne was then indicted on June 8, 2005, when a superseding indictment was issued. The motion for release was denied, and an amended motion was filed on June 16, 2005. Osborne was then arraigned before Magistrate Judge J. Thomas Ray on June 21, 2005. Bland represented Osborne at the arraignment. Magistrate Judge Cavaneau denied the amended motion for release on July 1, 2005.
Osborne filed a pro se motion on July 18, 2005, asking that Bland be discharged because: (1) he was not a federal lawyer; (2) Osborne did not feel like Bland represented him well in the detention hearing; (3) prior to the detention hearing Bland did not inform Osborne's family of the current charges; (4) Bland did not explain to Osborne what the detention hearing was about before the detention hearing and did not let the family know that they would have to take the stand and testify; and (5) Osborne did not believe that Bland's defense skills could prove him innocent inthe conspiracy case. Three days after Osborne filed the pro se motion for appointment of counsel asking that John Wesley Hall, Jr., be appointed to represent him, Dale Adams entered an appearance as retained counsel on July 21, 2005. The Court then denied the motion to appoint counsel as moot. On November 2, 2005, Reginald S. McCullough entered his appearance as retained counsel for Osborne. On December 27, 2005, Ronald L. Davis, Jr., entered his appearance as retained counsel for Osborne. Thus, by the end of 2005, Osborne had three retained lawyers on this case.
In January 2006, however, Reginald S. McCullough was terminated as attorney of record for reasons that have nothing to do with Osborne. On March 30, 2006, Dale Adams filed a motion to withdraw as counsel, stating that Osborne had made accusations against him that created an irreconcilable conflict of interest. Adams was permitted to withdraw, which left Davis as Osborne's sole attorney. Davis then moved to withdraw, stating that he had been retained as second chair and that the conflict of interest that applied to Adams also applied to him. Osborne had submitted a CJA-23 financial affidavit that showed that he qualified for the appointment of counsel, so the Court permitted Davis to withdraw and appointed Sara F. Merritt to represent Osborne on May 24, 2006. On April 19, 2007, Merritt filed a motion for continuance and to be relieved, stating that Osborne was dissatisfied with her services and wished to retain other counsel. On April 23, 2007, Bland entered his appearance, for the second time, as retained counsel for Osborne. The Court granted Merritt's motion to withdraw on April 24, 2007, and continued the case from April 30, 2007, until June 4, 2007, to allow Bland time to prepare for trial.
Bland represented Osborne at trial, which began on June 4, 2007, and concluded on June 6, 2007. On June 13, 2007, Osborne filed a series of pro se motions, one of which complained about Bland's performance at trial and requested that Bland be relieved. The Court declined to relieve Bland in an order entered on June 18, 2007. On July 2, 2007, Paul D. Groce entered his appearance as retained counsel for Osborne and filed a motion for judgment of acquittal or in the alternative for a new trial, which was denied. Groce represented Osborne in the post-trial proceedings, sentencing, and on appeal.
As this recitation shows, Osborne retained Bland twice during these proceedings. Bland first represented Osborne at the commencement of the case. At that time, Osborne knew that Bland had been engaged to represent Timothy Osborne in unrelated drug charges in state court. Indeed, according to Osborne's affidavit in support of his section 2255 motion, he is the person who engaged Bland and who paid Bland to represent Timothy Osborne in those proceedings. As noted, the affidavit in support of the complaint stated that law enforcement officers had interviewed Timothy Osborne on January 24, 2005, at the Independence County Jail in Batesville, Arkansas, and Timothy Osborne made incriminating statements regarding Osborne at that time. Moreover, the fact that Bland represented Timothy Osborne was discussed at the detention hearing on May 31, 2005. The transcript of the May 31, 2005, hearing reflects that Bland stated that he was representing Timothy Osborne, that he had seen Timothy Osborne that morning, that he recognized that he had a conflict, and that he had moved to withdraw as Timothy Osborne's lawyer at a hearing that morning. The docket sheet for the case against Timothy Osborne shows that Bland was not allowed to withdraw as counsel for Timothy Osborne until October 5, 2005.
When this case went to trial on June 4, 2007, Bland no longer represented Timothy Osborne. That representation had terminated on October 5, 2005. Bland represented Timothy Osborne from some time in 2004 until October 5, 2005, so he was counsel of record for Timothy Osborne when Timothy Osborne gave a statement to police incriminating Osborne. Although the Court has notreviewed transcripts of the grand jury proceedings, the Court will assume that Osborne's allegations are true that Timothy Osborne testified before the grand...
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