United States v. Maxwell

• Decision Date: 04 June 2013
• Docket Number: Criminal Action No. 2:09–33–DCR.,Civil Action No. 2:12–7223–DCR.
• Citation: 948 F.Supp.2d 749
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Lazelle MAXWELL, Defendant/Movant.
• Court: U.S. District Court — Eastern District of Kentucky

948 F.Supp.2d 749

UNITED STATES of America, Plaintiff/Respondent,

v.Lazelle MAXWELL, Defendant/Movant.

Criminal Action No. 2:09–33–DCR.

Civil Action No. 2:12–7223–DCR.

United States District Court,

E.D. Kentucky,

Northern Division,

at Covington.

June 4, 2013.

Lazelle Maxwell, Glenville, WV, pro se.

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

This matter is pending for consideration of Defendant/Movant Lazelle Maxwell's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 244] Consistent with local practice, the motion was referred to United States Magistrate Judge Robert E. Wier for consideration under 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Wier filed a Recommended Disposition on April 3, 2013. [Record No. 264] Based on his review of the record and the applicable law, Magistrate Judge Wier recommended that Maxwell's motion be denied. However, he also recommended that the Court grant a Certificate of Appealability regarding the second claim raised in Maxwell's § 2255 motion. The United States filed an objection to the magistrate judge's recommendation on April 17, 2013, and Maxwell filed his objections on April 30, 2013. [Record Nos. 265, 268] Having reviewed all matters relevant to Maxwell's motion, the Court concludes that the Recommended Disposition should be adopted in full. Therefore, Maxwell's motion will be denied.

I.

Maxwell was charged on April 9, 2009 with two counts of conspiracy to distribute and possess with intent to distribute a controlled substance—namely, cocaine base (crack cocaine) and heroin—in Kenton and Campbell Counties in Kentucky. [Record No. 1] Attorney David Fessler was appointed to represent Maxwell on May 29, 2013. [Record No. 46] On June 11, 2009, the grand jury returned a Superseding Indictment, which amended the second count to specify that the conspiracy involved 100 grams or more of heroin and added two counts of forfeiture to the conspiracy charges contained in the original Indictment. [Record No. 65]

Following a six-day trial, on September 23, 2009, a jury found Defendant Maxwell guilty of conspiracy to distribute over 50 grams of cocaine base (crack cocaine) and conspiracy to distribute over 100 grams of heroin in violation of 21 U.S.C. § 846. Maxwell was later sentenced to a combined term of imprisonment of 360 months for these crimes, followed by ten years of supervised release. [Record No. 208] Specifically, Maxwell received 240 months' imprisonment for Count One and 120 months' imprisonment on Count Two, to be served consecutively. [ Id., p. 2] The total sentence imposed was at the bottom of the United States Sentencing Guidelines range of 360 months to life. ¹ [Record No. 226, p. 15] Maxwell appealed his conviction and sentence, but the United States Court of Appeals for the Sixth Circuit affirmed the Judgment on March 18, 2011, 415 Fed.Appx. 692 (6th Cir.2011). [Record No. 233] The Supreme Court denied Maxwell's petition for a writ of certiorari on June 20, 2011, ––– U.S. ––––, 131 S.Ct. 3048, 180 L.Ed.2d 864 (2011). [Record No. 236]

Maxwell filed his motion to vacate under 28 U.S.C. § 2255 on June 18, 2012. [Record No. 244] The United States responded to the motion on August 21, 2012, and Maxwell filed a reply on October 16, 2012. [Record Nos. 251, 255] On January 4, 2013, Magistrate Judge Wier ordered the United States to file a supplemental brief stating its position on: “(1) The effect, if any, of Rutledge on the prejudice argument previously made by the Government; and (2) The merits of Maxwell's argument concerning the separate conspiracy counts.” [Record No. 259, p. 3] The United States filed this brief on January 15, 2013 and Maxwell replied on February 7, 2013. [Record Nos. 260, 261]

II.

The Court reviews de novo those portions of the Recommended Disposition to which Maxwell objects. See28 U.S.C. § 636(b)(1)(C). In his § 2255 motion, Maxwell claims that his trial counsel provided ineffective assistance by failing to: (1) challenge the Superseding Indictment's open-ended beginning date for the conspiracy; (2) challenge the Superseding Indictment's charging structure; and (3) object to the testimony of two law enforcement officers. ² [Record No. 244] Although Magistrate Judge Wier rejected all of these claims in his Recommended Disposition, Maxwell filed detailed objections to each of those conclusions. Therefore, the Court will review all three of Maxwell's claims.

Claims of ineffective assistance of counsel are evaluated using the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, the defendant must first establish “that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. When evaluating an ineffectiveness claim, the Court “must indulge a strong presumption” that counsel rendered effective assistance. Id. at 689, 104 S.Ct. 2052. The second prong of the Strickland inquiry is whether the defendant was prejudiced by his attorney's deficient performance. Id. at 687, 104 S.Ct. 2052. To satisfy the prejudice requirement, a “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. If either part of the Strickland test is not met, the Court's inquiry ends.³Id. at 697, 104 S.Ct. 2052. Here, the Magistrate Judge correctly determined that Maxwell's ineffective-assistance claims fail under Strickland.

A. Temporal Parameters

Counts One and Two of the Superseding Indictment state that the conspiracy occurred “[o]n a date unknown and continuing through on or about May 21, 2008.” [Record No. 65] In his § 2255 motion, Maxwell claims that his trial counsel erred by not objecting “to the conspiracy counts' failure to charge a beginning date for the conspiracy.” [Record No. 244, p. 10] He alleges that this failure constituted ineffective assistance of counsel because, in the absence of a defined start date, he was unable to prepare a proper defense to the charges, offer an alibi defense, or allege double jeopardy.

Magistrate Judge Wier found that Maxwell's trial counsel did not err in deciding to forgo challenging the temporal parameters of the Superseding Indictment. He noted that there is a factual disagreement between Maxwell and his counsel on this issue: “Counsel Fessler avers that the defense fully discussed the theory and opted against a baseless attack. Maxwell avers that Fessler promised to make a defensive motion and failed to do so against his wishes.” [Record No. 264, p. 5] However, the magistrate judge ultimately determined that this dispute was not dispositive because the Superseding Indictment was “invulnerable to attack in this scenario.” [ Id.] Maxwell objects to this conclusion, arguing that he was denied a fair trial as a result of the Superseding Indictment's failure to allege a defined start date for the conspiracy. [Record No. 268, pp. 6–12]

An indictment is sufficient if it “ ‘first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.’ ” United States v. Anderson, 605 F.3d 404, 411 (6th Cir.2010) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). An indictment that fails to place the offense within any defined time frame does not meet these requirements; however, the start date need not be as specifically defined as the end date. Thus, “[c]ourts have found indictments insufficient where they are open-ended as to both beginning and end dates, but sufficient where they fix the end of the conspiracy and provide an approximate start date.” United States v. Vassar, 346 Fed.Appx. 17, 19–20 (6th Cir.2009) (finding indictment sufficient where conspiracy was alleged to take place “on or before January 1, 2004, until on or about August 24, 2005”) (internal citation omitted). Thus, “an indictment that is open-ended as to beginning dates but not end dates suffices.” Id. at 22.

In short, the failure to identify a specific start date in the indictment does not render it constitutionally deficient. Indeed, other circuits have upheld indictments using the same or similar language as that employed in the Superseding Indictment in this case. United States v. Forrester, 616 F.3d 929, 940–41 (9th Cir.2010) (upholding indictment that alleged an offense beginning on a “date unknown” because “an indictment that specifies an end date is sufficient to apprise defendants of the charges and enable them to prepare a defense”); United States v. Rawlins, 606 F.3d 73, 79 (3d Cir.2010) (finding indictment sufficient where it alleged a conspiracy beginning at “a time unknown”); United States v. Pease, 240 F.3d 938, 943 (11th Cir.2001) (concluding that indictment charging a conspiracy beginning on an “unknown date” was sufficient to inform the defendant of the charges against him). Maxwell argues that in each of these cases, “there were ways to determine a time frame from the indictment, such as overt acts being charged in the same indictment.” [Record No. 268, p. 9] It is true that in Forrester, the Ninth Circuit stated “uncertainty regarding a conspiracy's beginning and ending dates does not render an indictment fatally defective so long as overt acts alleged in the indictment adequately limit the time frame of the conspiracy.” 616 F.3d at 941. However, the court went on to explain that an indictment that “tracks the language of the conspiracy statute, identifies a location and co-conspirators, and alleges the purpose of the...