United States v. Barrero

• Decision Date: 01 August 2022
• Docket Number: Crim. 6:17-cr-00426-JMC
• Parties: United States of America, v. Ana Milena Barrero, Defendant.
• Court: U.S. District Court — District of South Carolina

United States of America,
v.
Ana Milena Barrero, Defendant.

Crim. No. 6:17-cr-00426-JMC

United States District Court, D. South Carolina, Greenville Division

August 1, 2022

ORDER AND OPINION

Defendant Ana Milena Barrero, proceeding pro se, filed this Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (ECF No. 104.) Defendant alleges she is entitled to relief based on ineffective assistance of counsel (id. at 4, 5) and the insufficiency of evidence for conviction (id. at 7). In response, the Government filed a Motion for Summary Judgment asserting that Defendant could neither demonstrate her lawyer's ineffectiveness nor that the evidence to convict her was insufficient. (ECF No. 126.) Defendant filed a detailed Response. (ECF No. 141.) Upon review, the court DENIES Defendant's Motion to Vacate under § 2255 (ECF No. 104) and GRANTS the Government's Motion for Summary Judgment (ECF No. 126).

I. FACTS AND PROCEDURAL HISTORY

Defendant conspired with her former romantic partner and co-defendant Theodore Khleborod to sell, package, and mail opioid narcotics over the dark web to users across the country. The death of eighteen-year-old A.C. from a U-47700 overdose triggered an intricate federal investigation that eventually uncovered Defendant and Khleborod's operation. (ECF No. 122 at 10-13.) After her arrest, Defendant pleaded guilty to conspiracy to possess with intent to distribute U-47700, butyryl fentanyl, furanyl fentanyl, fentanyl, and hydrocodone, resulting in the death and serious bodily injury of others, in violation of 21 U.S.C. §§ 841(a), (b)(1)(C), and 846. (ECF No. 70 at 1-2.) At all times, Defendant was represented by Joshua Snow Kendrick (“Counsel”). A

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lengthy sentencing hearing covered the scope of the conspiracy, the government's investigation, Defendant's statement to investigators, and testimony from numerous witnesses on her behalf. (ECF No. 122.) The court then sentenced Defendant to 180 months of incarceration, followed by three years of supervised release. (See generally, ECF Nos. 95; 122.) Defendant's plea agreement waived her right to appeal or challenge her sentence through post-conviction proceedings, except for ineffective assistance of counsel, prosecutorial misconduct, or favorable changes in the law. (ECF No. 70 at 12.) Defendant did not file an appeal. She now brings several ineffective assistance claims in a timely § 2255 Motion. (ECF No. 104.)

The factual background is adopted from the Government's presentation at Defendant's sentencing hearing, which Defendant accepted without contest.^[1] (ECF No. 122 at 6-22.) Defendant also admitted the underlying facts of this conspiracy in a lengthy counseled statement to federal investigators, recounting in detail the history and nature of Khleborod's “dark web” drug trafficking operation and her role within it.^[2] (ECF Nos. 125; 126 at 2-4.) Defendant met Khleborod while they studied at the University of South Carolina Upstate. (ECF No. 81 at 3.) As their relationship became romantic, she began to discover the vast, global scale of Khleborod's drug trafficking activities. (Id. at 4.) By May 2016, she was assisting him by packaging and distributing U-47700, fentanyl, and other drugs, which Khleborod sold to buyers directly through his “PeterTheGreat” dark web account. (Id.; ECF No. 122 at 16, 19.) Defendant's primary

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responsibility in the scheme was to buy stealth materials, such as dollar-store “Veriquick” pregnancy tests, in which the drugs would be concealed before the pair packaged and mailed them to buyers across the country. (Id. at 14; ECF No. 126 at 3.)

The conspiracy began to unravel when police in Oregon found a Veriquick pregnancy test, baggies containing U-47700, a parcel containing a Greenville, South Carolina return address, and a secret dark web access code at the scene of eighteen-year-old A.C.'s overdose death. (ECF No. 122 at 7, 12.) Though the significance of these items was not immediately clear, patterns linking her death to other overdoses began to emerge: A Veriquick pregnancy test and a package listing a Greenville return address, for instance, were found in the home of M.L., who died from an overdose in Minnesota. (Id. at 8-9.) His autopsy revealed fentanyl in his system at the time of his death. (Id. at 9.) Only a few days later, a Philadelphia man named H.T. was narrowly revived with Narcan after ingesting fentanyl. (Id. at 9-10.) He told police that the drugs had been shipped to him from a dark web account named PeterTheGreat. (Id. at 10.) Like in the other cases, H.T.'s parcel contained seemingly innocuous items in which the fentanyl came hidden. (Id.) Investigators were eventually able to link all three overdoses to drugs purchased from PetertheGreat, in part through A.C.'s cellphone data. (ECF No. 126 at 18 (referencing the Government's statement during the plea hearing that internet traffic from A.C.'s cell phone helped pinpoint the account).) Agents tracked the South Carolina return addresses and conducted undercover dark web buys from PetertheGreat-at last identifying Khleborod as the man behind the account. (ECF No. 122 at 11-13.) Further investigation tracked the Veriquick pregnancy test found at the scene of A.C.'s death to a Dollar Tree in Greenville, South Carolina. (Id. at 14.) Upon reviewing security camera footage, agents were able to determine that a woman had purchased those tests in bulk around the time of A.C.'s death. (Id.) They recognized her as Defendant from

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Khleborod's public relationship status on his Facebook account. (Id. at 14-15.) By this point, Defendant and Khleborod were under constant surveillance. (Id. at 15.) Agents intercepted 136 parcels containing U-47700, fentanyl, and other drugs which Defendant and Khleborod had attempted to mail over the next three days. (Id.) On April 26, 2017, agents arrested Defendant at Khleborod's Greenville apartment-recovering a bag full of parcels containing various drugs, packed and ready for shipping, from her possession. (Id. at 16.) Khleborod was arrested that day at work. (Id.) In the subsequent search of the apartment, agents discovered garbage bags with kilogram quantities of fentanyl, U-47700, and other illicit drugs. (Id. at 17.) Agents also found records of transactions and shipments between the PetertheGreat account and victims M.L. and H.T., matching the drugs, timeframes, and locales involved in their respective overdoses. (Id. at 17-18.)

Approximately two months after her arrest, Defendant, in the presence of Counsel, gave a statement to federal investigators in which she acknowledged her role in the conspiracy. (ECF No. 18-19.) She provided testimony regarding the intricate details of the scheme, recalling drug shipments from Russia, China, and Spain, which she and Khleborod resold and mailed to buyers in multiple states. (ECF No. 126 at 2-3.) She expressed her familiarity with PetertheGreat and other dark web accounts used in the conspiracy. (ECF No. 122 at 19.) She recounted purchasing stealth materials, such as the Veriquick pregnancy tests discovered in the investigation, to conceal drug shipments. (ECF No. 126 at 3.) Importantly, she conceded that “she knew what she and Khleborod were doing was illegal.” (Id. at 4 (referencing sealed interview report).)

Defendant and Khleborod had, by all accounts, a volatile relationship-a fact counsel belabored in his sentencing memorandum (ECF No. 81) and during Defendant's sentencing hearing. Khleborod controlled many aspects of Defendant's life. (Id. at 4.) His emotional abuse

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left her depressed throughout their relationship; she even attempted suicide as an escape. (ECF No. 104-2 at 2.) While Counsel did not present evidence of physical abuse during sentencing, he emphasized how Khleborod had emotionally abused, threatened, and manipulated Defendant from the start. (Id. at 34-35.) Even after their arrests, for example, Khleborod attempted to thwart her cooperation in the investigation with manipulative letters and messages relayed through the prison grapevine. (ECF No. 122 at 36.) Counsel argued Defendant's involvement with Khleborod had changed her, and four close friends and family members provided testimony on behalf of Defendant, affirming this impression. (Id. at 32, 41-48.) They recounted how Khleborod's manipulation had essentially turned Defendant into “an accessory” in his scheme, (id. at 41), which she felt powerless to leave. One witness recalled a May 1, 2016, Facebook post around the time Defendant became involved in the conspiracy, where she stated simply, “I feel trapped.” (Id. at 43-44.) Defendant's brother believed her participation in the conspiracy was driven by her decision to “do whatever [Khleborod] wanted to before caring about herself.” (Id. at 47.) Defendant echoed these sentiments, profoundly regretful that she “made the mistake of holding on to someone who was so selfish.” (Id. at 49.)

II. LEGAL STANDARD

A. Motion to Modify Sentence Pursuant to 28 U.S.C. § 2255

Under 28 U.S.C. § 2255, a prisoner in federal custody may petition the court to vacate, set aside, or correct a sentence on the grounds that (1) the imposed sentence violates “the Constitution or the laws of the United States”; (2) the sentencing court lacked jurisdiction; (3) the sentence exceeded “the maximum authorized by law”; or (4) the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “A petitioner collaterally attacking his sentence or conviction pursuant to § 2255 bears the burden of proving his grounds for collateral attack by a preponderance

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of the evidence.” White v. United States, 352 F.Supp.2d 684, 686 (E.D. Va. 2004) (citing Miller v. United States, 261 F.2d 546 (4th Cir. 1958)). “The language of § 2255 makes clear that not every alleged sentencing error can be corrected on collateral review.” United States v. Foote, 784 F.3d 931, 932 (4th Cir. 2015). When the record conclusively...