United States v. Duerson

• Decision Date: 27 February 2023
• Docket Number: Civil Action 5:22-278-DCR,Criminal Action 5: 19-130-DCR
• Parties: UNITED STATES OF AMERICA, Plaintiff/Respondent, v. RICHARD C. DUERSON, Defendant/Movant.
• Court: U.S. District Court — Eastern District of Kentucky

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UNITED STATES OF AMERICA, Plaintiff/Respondent, v. RICHARD C. DUERSON, Defendant/Movant.

Civil Action No. 5:22-278-DCR

Criminal Action No. 5: 19-130-DCR

United States District Court, E.D. Kentucky, Central Division, Lexington

February 27, 2023

MEMORANDUM OPINION AND ORDER

Danny C. Reeves, Chief Judge United States District Court.

Defendant/Movant Richard Duerson has filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Record No 167] He has also filed two motions for an evidentiary hearing on the claims contained in his § 2255 motion, and a motion to amend the claims contained in his § 2255 motion. [Record Nos. 192, 202, 216] The matter was referred to Magistrate Judge Edward B. Atkins for issuance of a Report and Recommendation (“R&R”) pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Atkins issued his report on February 2, 2023, recommending that Duerson's petition for habeas relief and motions for an evidentiary hearing be denied. [Record No. 212]

Both parties filed objections to the Magistrate Judge's R&R.^[1][Record Nos. 214, 215] This Court makes a de novo determination of those portions of a magistrate judge's recommendation to which particularized objections are made 28 U.S.C. § 636(b)(1)(C), but “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, courts review objections that merely “reiterate [a party's] original arguments” for clear error. United States v. Ickes, No. 1:15-CR-00004, 2017 WL 1017120, at *1 (W.D. Ky. Mar. 15, 2017) (citing Manigualte v. C.W. Post of Long Island Univ., 659 F.Supp.2d 367, 372 (E.D.N.Y. 2009)).

Many of Duerson's objections to the R&R reiterate the defendant's claims from his initial § 2255 motion and, therefore, need only be reviewed for clear error. [See Record No. 215.] However, the Court has conducted a de novo review of the entire matter (including both parties' objections) and agrees with Magistrate Judge Atkins' determination that Duerson is not entitled to any relief. Accordingly, his § 2255 motion, motions for an evidentiary hearing, and motion to amend will be denied.

I. Background

Officers from the Richmond Police Department executed a search warrant on Duerson's apartment on March 2, 2019. There, they discovered methamphetamine, cocaine, a cutting agent, unidentified pills that were “in the shape of the ‘Superman' shield and imprinted with the Superman ‘S,'” cash, and several firearms. See United States v. McFarland, No. 20-5310, 2021 WL 7367157, at *1 (6th Cir. Oct. 4, 2021). Specifically, Officer Daniel Toth's citation report states that officers found “approximately 73.5 ggw [grams gross weight] of suspected methamphetamine in a zip lock bag, approximately 661 ecstasy pills, and a gun magazine with hair on it, all inside a white Apple bag.” [Record No. 167-1, p. 12] Duerson was arrested Duerson and taken to the Madison County jail. McFarland, 2021 WL 7367157, at *1.

Duerson made several calls to co-conspirator Jennifer McFarland while incarcerated. Id. In part, he asked that she retrieve personal belongings from his apartment during one call, mentioning either a gray safe or a gray vase. Id. Officer Toth obtained a warrant to search McFarland's apartment after listening to the recordings of the co-defendants' conversations. Upon executing the second warrant at McFarland's residence on March 8, 2019, officers discovered cocaine, methamphetamine, a black firearm wrapped in a bedsheet, and more “Superman” pills. Id.

A federal grand jury indicted Duerson for one count of conspiring to distribute methamphetamine and cocaine in violation of 21 U.S.C. § 846 (Count 1) and three counts of possessing with the intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1)(B). One count involving methamphetamine (Count 2), one count involving cocaine (Count 3), and one count involving fentanyl (Count 4). [Record No. 1, pp. 1-3] McFarland also was indicted for one count of conspiring to distribute controlled substances and two counts of possessing with the intent to distribute controlled substances. [Id.]

Attorney Elizabeth Hughes was appointed to represent Duerson at the district court level. During the pretrial conference, the Court granted the government's motion to dismiss Count 4 against Duerson. [Record No. 44] Hughes moved to continue the trial date on October 21, 2019. [Record No. 34] During a hearing on the motion to continue, Hughes stated that she needed more time to review discovery with Duerson. [Record No. 114, p. 7] She further indicated that she met with the defendant the day before the hearing to ensure that he had reviewed the discovery in his case. [Id.] The undersigned granted the defendant's motion to continue and postponed the trial for one month. [Record No. 39]

During trial, the government introduced recordings of Duerson's phone calls with McFarland, including the call in which he discussed a gray safe or gray vase. [Record No. 111, p. 66] Counsel for McFarland questioned Officer Toth regarding whether he understood what was said during the call, asking him if he acknowledged the “difference between discussing a safe and having someone direct you to move it.” [Record No. 111, p. 117] Hughes also questioned Officer Toth over his interpretation of the call in the following exchange:

HUGHES: Would you agree with me that the first jail call we listened to, Mr. Duerson could have been saying they were looking for keys? Do you remember that first phone call?

OFFICER TOTH: Yes, ma'am.

HUGHES: And he said, if you can't find them, I believe your testimony was or your interpretation was, then look in the safe. Is that what you understood?

OFFICER TOTH: He mentioned something about the safe, yes.

HUGHES: Could he have been saying look in the vase?

OFFICER TOTH: It's possible.

HUGHES: Did you listen to it closely?

OFFICER TOTH: They - when I listened to it closely, they mentioned a gray safe.

HUGHES: Well, Ms. McFarland mentioned a gray safe - and question mark - and then Mr. Duerson went on to another subject. They were talking about the keys. He said -I think he said “vase,” but I'll play it for you again and we can listen to it.

\[Id. at pp. 106-07]

Hughes also discussed Duerson's jail call with Task Force Officer Scott McIntosh (“TFO McIntosh”), again mentioning that it is not clear in the recording whether Duerson references a “vase” or “safe.” [Record No. 112, p. 142] She asked TFO McIntosh, “would you agree with me that whether it says safe or a vase, there was no instruction in that portion of the jail call we listened to by Mr. Duerson for Ms. McFarland to take the safe to her house?” [Id.] Hughes made the a similar point during closing arguments, indicating that “the distinction [between vase and safe] doesn't even make a difference, because the conversation was that Ms. McFarland could not find [Duerson's] keys ....Whichever word is used, Mr. Duerson is not saying transport this, take custody of it. He says, can't find the keys? Look there.” [Record No. 124, p. 5]

Officer Toth testified that as further proof of the co-defendants' conspiracy, he had heard from other narcotics detectives that McFarland “stor[ed] drugs, guns, and money for Mr. Duerson” to assist in the defendant's trafficking efforts. [Id. at pp. 104-05] Hughes objected to the statements from other detectives as inadmissible hearsay, but the Court overruled the objection because Hughes' question invited the officer's statement. [Id.] Hughes addressed Officer Toth's hearsay statements during closing arguments, noting that because there was no “firsthand knowledge” that McFarland's residence served as a “stash house” for Duerson, the jury should harbor a “reasonable doubt with respect to [Officer Toth's] theory.” [Record No. 124, p. 8]

The government called Duerson's former landlord, Wesley Frazier, who testified that he saw McFarland at Duerson's apartment “a few times” and that he once unlocked the door to the apartment so that McFarland could retrieve the defendant's belongings. [Record No. 112, pp. 51-52] Frazier also testified that he witnessed Duerson's friend remove a “rifle or something” that was “sticking out from under a blanket or a piece of clothing of some kind” from the defendant's apartment. [Id. at p. 64] The parties delivered closing arguments on the third day of the defendants' trial. [Record No. 47] During the United States' closing argument, the attorney for the government contended that ample evidence supported the charge that the defendants were co-conspirators. The prosecutor specifically mentioned that the firearm that Frazier witnessed being removed from Duerson's apartment was “the same firearm” that detectives found in McFarland's apartment. [Record No. 113, pp. 21-22]

Following deliberations, the jury found the defendants guilty of all counts. [Id.] Hughes later withdrew as counsel of record and attorney Mark Wohlander was appointed as substitute counsel. [Record Nos. 62, 64]

The United States moved for an upward departure pursuant to Section 4A1.3 of the United States Sentencing Guidelines after receiving the defendant's Presentence Investigation Report (“PSR”). [Record No. 58] It argued that an upward departure was warranted because “the Defendant's criminal history category substantially underrepresent[s] the seriousness of the Defendant's criminal history and the likelihood of recidivism.” [Id. at p. 1] Specifically, the government noted that Duerson's criminal history was misleading because he had repeatedly been “probated, paroled, or released on bond...