United States v. Melvin
| Decision Date | 03 April 2018 |
| Docket Number | Case No. 10-cr-30017-NMG |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JAMES MELVIN, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
After a jury found James Melvin ("Petitioner") guilty of possession with intent to distribute and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1), he was sentenced to serve 168 months imprisonment followed by six years of supervised release (Dkt. Nos. 212, 225).1 Petitioner, proceeding pro se, has now moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Dkt. No. 247). The United States of America ("the government") has opposed Petitioner's § 2255 motion and Petitioner has responded (Dkt. Nos. 259, 260). The trial judge referred the motion to this court for a report and recommendation (Dkt. No. 261). See 28 U.S.C. §636(b)(1)(b); Fed. R. Civ. P. 72; Rule 10, Rules GoverningSection 2255 Proceedings. For the reasons detailed below, the undersigned recommends that Defendant's motion be DENIED.
Petitioner's conviction arose from his sale of approximately 11.5 grams of crack cocaine to a government informant in the parking lot of Frank's Package Store in Springfield on February 19, 2010. The government informant, Robert K. Williams, Jr. ("Williams"), began working as an informant for the Massachusetts State Police in September 2009 (Tr. 1: 187). His undercover work for the Federal Bureau of Investigation ("FBI") commenced two months later in November 2009 (Tr. 1: 187-88). At approximately 2:00 p.m. on February 19, 2010, FBI Special Agent ("SA") Jeffrey Lawrence, the supervisor of the federal task force conducting the undercover operation, directed Williams to call the investigation's target, Anthony Hook ("Foo"), to set up a controlled purchase of crack cocaine (Tr. 1: 196, 198; Tr. 2: 23, 155-56). During the recorded telephone call, Hook agreed to sell Williams "three and a teenth" of crack cocaine for $500 (Tr. 2: 165-66).3 Hook then handed the telephone to a person who Hook described as "one of my young boys, my runner, my peoples" (Tr. 2: 167). This man, who Williams later identified as Petitioner, directed Williams to meet him in the parking lot of Frank's Package Store and indicated that he would be wearing a black jacket (Tr. 1:202-03; Tr. 2: 166).
After the call, SA Lawrence supplied Williams with $500 and a digital scale (Tr. 1: 197, 200). Another member of the task force, Massachusetts State Police Sergeant Thomas Fitzgerald, searched Williams' person and his vehicle, a blue Chevy Blazer, for money and contraband with negative results (Tr. 1:201-02; Tr. 3: 79, 81-82). Williams was outfitted with an audio transmitter, which permitted the surveillance officers to hear his conversations but did not record, and two digital cameras, which did record (Tr. 1: 199).4 SA Lawrence, Sergeant Fitzgerald, and two other officers then followed Williams to the package store in a separate vehicle (Tr. 1: 202, 205). Williams stopped for gas along the way (Tr. 1: 204). He was alone in the gas station's store while he paid for gas (Tr. 2: 28-30; Tr. 3: 55-56).
After Williams arrived in the package store's parking lot, Petitioner entered the front passenger's seat of his vehicle (Tr. 2:155). According to Williams' testimony, the video recording, and the audio transmission, Petitioner reached into his pants and pulled out a plastic bag containing crack cocaine, and said, "'We got three balls and a teenth'" (Tr. 2: 162, 174). Williams attempted to weigh the narcotics on the digital scale that he placed on the console between the front seats, but the scale did not work (Tr. 2:174-75). According to the audio recording, Petitioner said, "That shit is always on point, you might have extra" (Tr. 2: 175). During the conversation, Petitioner counted four individually wrapped items that were contained in a larger plastic baggie while saying, "'You got two of these is 7, that's ten and a half, 11' . . . [you have] '12 here'" (Tr. 1: 211-12; Tr. 2: 78-79, 175-76; Tr. 3:173). According to Williams, Petitioner was indicating that he was giving him twelve grams of crack cocaine (Tr. 2: 175-76). Williams then gave Petitioner $500 and Petitioner left Williams' vehicle (Tr. 2: 177).Notwithstanding SA Lawrence's instruction to Williams regarding the importance of recording Petitioner handing over the drugs, the "actual exchange" of drugs for cash was not recorded by the digital cameras that Williams was wearing (Tr. 2: 22; Tr. 3: 21).
As Williams began to leave the parking lot, an acquaintance, James Clinton, was among a group of people who walked in front of Williams' vehicle (Tr. 2:73, 178). Williams called out to Clinton who approached Williams and made a joke about his vehicle (Tr. 2:177; Tr. 3: 50-52). Williams testified that he rolled down the driver's side window with his left hand, reached out of the window with his right hand, and "slapped [Clinton] five" (Tr. 2: 74, 183-84; Tr. 3: 52). Williams denied that he was holding anything when his hand met Clinton's (Tr. 2: 184).
The surveillance officers followed Williams to the predetermined debriefing location where he turned over 11.5 grams of crack cocaine to SA Lawrence (Tr. 1: 207, 209, 210; Tr. 2: 96, 185). Sergeant Fitzgerald did not recover any other narcotics or money when he searched Williams' person and vehicle (Tr. 1:209, 210; Tr. 3: 83).
Petitioner testified in his defense that, on February 19, 2010, Hooks provided him with twelve grams, or approximately one-half ounce, of high grade hydroponic marijuana, which he exchanged with Williams for $500 in Williams' vehicle in Frank's Package Store parking lot (Tr. 3: 124-27, 133, 144-45, 147, 154-55).5 Petitioner testified that the marijuana was a light green substance, but the sunlight made it appear to be white on the video recordings (Tr. 3:127, 155, 157, 167). For comparison, Petitioner pointed to the black garbage bag the covered Williams' front passenger side window, which he alleged appeared gray in the video recordings (Tr. 3: 127). Petitioner also told the jury that the white or off-white ball that he was seen holding in thevideo was the empty, crumpled, larger plastic sandwich bag from which Williams had removed the smaller bags of marijuana in order to weigh them (Tr. 3:138-39, 141-44, 146-47, 161-62).
Notwithstanding Petitioner's representation to Williams regarding the narcotics "always [being] on point," Petitioner testified that this was the only time he made a delivery for Hooks (Tr. 3: 135-36). However, he stated that he previously had served Hooks as a lookout (Tr. 3: 130).
On May 20, 2010, a grand jury sitting in the United States District Court for the District of Massachusetts returned a single count indictment charging Petitioner with distributing cocaine base or possessing cocaine base with intent to distribute (Dkt. No. 2). See 21 U.S.C. § 841(a)(1). The government filed an information pursuant to 21 U.S.C. § 851 before Petitioner's first trial, which commenced on November 28, 2011 before Judge Nathaniel M. Gorton and a jury (Dkt. No. 97). After the jury found Petitioner guilty, Judge Gorton sentenced him to 180 months in prison and six years of supervised release (Dkt. Nos. 111, 127). On September 17, 2013, Petitioner's conviction was vacated and the case was remanded for a new trial. See United States v. Melvin, 730 F.3d 29, 40 (1st Cir. 2013).
On retrial in March 2014, a jury again found Petitioner guilty and Judge Gorton sentenced him to 168 months of imprisonment and six years of supervised release (Dkt. Nos. 201, 206, 207, 208, 212, 225). The First Circuit affirmed the conviction, see United States v. Melvin, 628 F. App'x 774, 778 (1st Cir. 2015), and the Supreme Court denied the petition for a writ of certiorari on February 29, 2016 (Dkt. No. 246). See Melvin v. United States, 136 S. Ct. 1236 (2016).
On January 12, 2017, Petitioner moved to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 (Dkt. No. 247). Judge Gorton ordered the government to respond (Dkt. No. 248). See 28 U.S.C. § 2255(b); Rules 4(b) & 5(a), Rules Governing Section 2255 Proceedings. The government filed its opposition and Petitioner replied (Dkt. Nos. 259, 260). See Rule 5, Rules Governing Section 2255 Proceedings.
Petitioner claims that his trial counsel at both trials, Attorney William O'Neil ("Attorney O'Neil"), rendered ineffective assistance at the second trial by failing to: (1) subpoena James Clinton to testify that Williams transferred marijuana to him in the parking lot of Frank's Package Store on February 19, 2010; (2) withdraw from Petitioner's case due to a conflict of interest; and (3) effectively communicate the government's plea offer (Dkt. No. 247 at 4-5). In addition, Petitioner moves to correct his sentence based on the Board of Prisons' ("BOP") alleged representation that Petitioner's 168 month sentence would run consecutive to a 51 month sentence imposed by the United States District Court for the Southern District of New York for violating conditions of supervised release (id. at 5).
Section 2255 "provides for post-conviction relief in four instances, namely, if the petitioner's sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." David v. United States, 134 F.3d 470, 474 (1st Cir. 1998) (citing Hill v. United States, 368 U.S. 424, 426-27 (1962)). "The fourth category includes only 'assignments of error that reveal "fundamental defects" which, if uncorrected, will "result in a complete miscarriage of justice," or irregularities that are "inconsistent with the...
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