United States v. Powell
| Decision Date | 09 July 2020 |
| Docket Number | Case No. 2:12-cr-20052-1,Civil Case No. 2:18-cv-13107 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CARLOS ELLIS POWELL, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Defendant Carlos Ellis Powell and his brother, who was also one of his co-defendants in the case, were leaders in a massive drug distribution and money laundering conspiracy. ECF 749, PgID 11399.1 On October 17, 2014, the Court sentenced Defendant to concurrent terms of life in prison on each of three counts: (1) conspiracy to distribute marijuana, five kilograms or more of cocaine and one kilogram or more of heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(i), 841(b)(1)(A)(ii), and 841(b)(1)(D); (2) possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A)(i); and (3) possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A)(ii)(II); a consecutive sentence of sixty months' imprisonment for one count of possession of a firearm in furtherance of the possession with intent to distribute a controlled substance, in violation of 18 U.S.C. § 924(c)(1)and 924(c)(1)(A)(i); and a concurrent sentence of twenty years in prison for one count of conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1956(a)(1)(B)(ii), 1956(h), and 21 U.S.C. § 841(b)(1)(A). ECF 469, PgID 4012-13. Shortly thereafter, Defendant timely appealed. ECF 471.
On February 6, 2017, the Sixth Circuit affirmed Defendant's sentence. See United States v. Powell, 847 F.3d 760 (6th Cir. 2017). And on October 2, 2017, the Supreme Court denied Defendant a writ of certiorari. See Powell v. United States, 138 S. Ct. 143 (2017) (Mem). Defendant timely filed, pro se, the present motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. ECF 728. He then filed a motion to supplement his § 2255 motion and add four additional claims. ECF 743. The Government agreed that the additional claims related back to the original motion and could be added. ECF 755. The Court will therefore grant the motion to supplement and will consider the entirety of the parties' filed briefs, including the portions related to the additional claims, ECF 728, 743, 771, 773.
Defendant also filed five additional motions: a motion for an evidentiary hearing, a motion for discovery and production of documents, a motion to appoint counsel, a motion for partial summary judgment, and a motion for order directing the Government to respond to his discovery requests. ECF 742, 744, 760, 780, 810. The Court reviewed all briefs and finds that a hearing is unnecessary. See E.D. Mich. LR 7.1(f)(2). For the following reasons, the Court will deny Defendant's § 2255 motion, deny his motion for appointment of counsel, and deny as moot his remaining motions.
An individual sentenced by a federal court may seek to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255. The statute provides four different grounds for claiming relief: "(1) that the sentence was imposed in violation of the Constitution or laws of the United States, (2) that the court was without jurisdiction to impose such sentence, (3) that the sentence was in excess of the maximum authorized by law, and (4) that the sentence is otherwise subject to collateral attack." Hill v. United States, 368 U.S. 424, 426-27 (1962) (quoting 28 U.S.C. § 2255) (internal quotation marks omitted). Generally, the motion must allege "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001) (citation omitted).
Defendant sought to challenge his sentence under 28 U.S.C. § 2255 on eight grounds: (1) his Sixth Amendment right to the effective assistance of counsel was violated when his trial counsel failed to adequately cross-examine Agent Donovan; (2) his Sixth Amendment right to the effective assistance of counsel was violated when his trial counsel failed to move to suppress evidence obtained as a result of an unlawful search of his phone data; (3) his Sixth Amendment right to the effective assistance of counsel was violated when his trial counsel failed to object to the use ofa cell site simulator to obtain data; (4) his Fifth Amendment due process rights were violated when the Court imposed a sentence in excess of the maximum authorized by law; (5) his right to self-representation was denied; (6) he is actually innocent of violating 18 U.S.C. § 924(c); (7) he is entitled to a resentencing under Dean v. United States, 137 S.Ct. 1170 (2017); and (8) his Fifth and Sixth Amendment rights were violated when the Court used uncharged conduct to convict and sentence him. ECF 728, 743. The Court will address each of Defendant's arguments in turn.
Defendant's first three grounds for relief are based on allegations of ineffective assistance of counsel. To succeed on any of his ineffective assistance of counsel claims, Defendant must demonstrate: (1) that his counsel's representation "fell below an objective standard of reasonableness," and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Defendant first argued that his trial counsel was ineffective when he failed to adequately cross-examine Agent Donovan—the head DEA agent on the case—about the investigation that led to the charges against him. ECF 728, PgID 11195. Specifically, Defendant wanted his counsel to cross-examine Agent Donovan about when the investigation began and when the United States Attorney's Office got involved in it since those facts might support a tactic of moving to disqualify the assigned district judge. Id.
A judge must recuse himself from a proceeding when "his impartiality might reasonably be questioned" or when "he has served in governmental employment and in such capacity participated as counsel . . . [on] the particular case in controversy." 28 U.S.C. § 455(a), 455(b)(3). When the judge formerly served as a United States Attorney, he is considered "of counsel" for all criminal cases within his district during his tenure. United States v. Amerine, 411 F.2d 1130, 1133 (6th Cir. 1969) (citations omitted). Disqualification is only required if the judge served as the United States Attorney during the time that the investigation of the specific case at issue began. Jenkins v. Bordenkircher, 611 F.2d 162, 165 (6th Cir. 1979) (citing Amerine, 411 F.2d).
Here, the undersigned served as the United States Attorney for the Eastern District of Michigan from March 8, 2005, until August 18, 2008. As soon as the case was filed, the Court confirmed it had no prior knowledge of the case. And the United States Attorney's Office confirmed that the investigation against Defendant was not ongoing during the undersigned's tenure there. Internal documents from the United States Attorney's Office established that the investigation was not opened until March 16, 2010—almost two years after the undersigned's service ended. See ECF 771-1. The undersigned therefore had no reason to recuse himself from the case even if Defendant's counsel had raised the issue through the cross-examination of Agent Donovan.
Defendant further argued that the testimony of Agent Donovan could have indicated that the investigation began earlier than August 2008. But Defendantfailed to point to any evidence to substantiate that speculation. "Disqualification is not required on the basis of 'remote, contingent, indirect or speculative interests.'" United States v. Thompson, 76 F.3d 442, 451 (2d Cir. 1996) (citing United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992)). Because the case was not opened with the United States Attorney's Office until 2010 and the undersigned had no knowledge of the case, Defendant's proposed tactic would have failed. The Court will therefore deny that ground of Defendant's § 2255 motion.
Defendant next argued that his counsel failed to move to suppress evidence that resulted from warrants to obtain cell site location information on his phones. ECF 728, PgID 11203. But his counsel did move to suppress the evidence. ECF 74, 202. On collateral review, Defendant now seemed to argue that his counsel should have also further expanded on the argument that the search warrants to obtain cell site location information used to locate his phones violated the Communications Assistance for Law Enforcement Act ("CALEA"), 47 U.S.C. §§ 1001-1010. ECF 728, PgID 11203.
CALEA provides that "with regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices . . . call-identifying information shall not include any information that may disclose the physical location of the subscriber." 47 U.S.C. § 1002(a)(2)(B) (emphasis added). As cell site location data would disclose the physical location of a subscriber, CALEA clearly prohibits theGovernment from obtaining it solely on the authority of the Pen/Trap statute. See In re Application of U.S. for Order, 497 F. Supp. 2d 301, 307 (D.P.R. 2007)).
While the CALEA bars the Government from obtaining authorization to obtain cell site data by merely showing that its "use is relevant to an ongoing criminal investigation," it did not explicitly establish a standard for obtaining such data. United States v. Cooper, No. 13-cr-00693, 2015 WL 881578, at *3 (N.D. Cal. Mar. 2, 2015). And in the...
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