United States District Court, N.D. Georgia, Atlanta Division
ORDER AND FINAL REPORT AND RECOMMENDATION
LINDA T. WALKER, Magistrate Judge.
Movant is a federal prisoner who, prose, challenges under 28 U.S.C. § 2255 his judgment of conviction. (Docs. 401, 403.) Respondent opposes the motion. (Doc. 409). Movant filed a motion for leave to file a traverse, or reply brief, which is GRANTED. (Doc. 414.) For the reasons discussed below, the undersigned recommends that Movant's § 2255 motion be denied and that a certificate of appealability be denied.
A grand jury indicted Movant, in a single count, for conspiring to distribute at least 100 kilograms of marijuana and at least five kilograms of cocaine. (Doc. 35.) In August 2011, a trial jury convicted Movant of the marijuana charge, but not the cocaine charge. (Doc. 330.) The jury further found that Respondent did not prove that Movant's business property was subject to forfeiture. (Doc. 331.)
A summary of the key evidence in the case follows:
[Movant] owned Hi-Tech Manufacturing Services, a truck-welding shop in Lithonia, Georgia. Aside from performing welding services, [Movant] allowed others to park their trucks on his property. One such individual was Marlon Burton, whom FBI agents had been investigating for drug trafficking. In November of 2008, the FBI sought (and obtained) a wiretap to intercept calls made on a cellular telephone used by Mr. Burton. FBI Special Agent Nikki Badolato submitted an affidavit containing information gathered over the course of the investigation, including information provided by an unidentified cooperating witness (CW-1), a second cooperating witness later identified as Leon Lumsden (CW-2), an undercover FBI agent, and recorded telephone calls. During the course of the investigation, and with the aid of information garnered from this wiretap, the FBI gathered evidence about [Movant's] role in Mr. Burton's criminal enterprise.
At trial, two cooperating co-defendants testified for the government: Mr. Burton and Otoniel Herrera, a truck driver who transported marijuana to Hi-Tech. Mr. Herrera testified that he delivered three separate loads of marijuana to Atlanta, which were unloaded at Hi-Tech.
Mr. Burton testified about [Movant's] role in the drug trafficking conspiracy as follows. Mr. Burton rented space at Hi-Tech to unload large quantities of drugs from trailers coming from Mexico and to load them with drug proceeds for delivery back to Mexico. Mr. Burton paid [Movant] approximately $6, 500 per load of marijuana and $13, 000 per load of cocaine that was loaded or unloaded at Hi-Tech; in total, he used Hi-Tech 30 or 40 times to unload marijuana and cocaine. He notified [Movant], by telephone, when trucks carrying drugs were en route to Hi-Tech and [Movant] routinely went to his shop to open the gate and allow the trucks to enter his property.
Mr. Burton also testified that [Movant] required the trucks to arrive in the dark and helped clear the way for the trucks to back up to the main building to unload. [Movant] was thin and able to crawl inside the truck across the legitimate load, often fruit or produce, to unload the marijuana bales. If necessary, [Movant] would drive the forklift to remove the legitimate load and locate the marijuana. After unpacking the marijuana bales, he burned the packaging at his shop.
United States v. Grant, 521 F.App'x 841, 842, 844 (11th Cir. 2013). Attorney L. Burton Finlayson represented Movant in pre-trial proceedings, at trial, and at sentencing.
Before trial, Finlayson filed motions to suppress the wiretap evidence, Movant' s post-arrest statements, evidence from Movant's cell phone, and other evidence and supplemented those motions as additional information became available. (Docs. 79 through 84, 128, 130, 219, 220, 263, 269.) The undersigned held evidentiary hearings on those motions. (Docs. 118, 261, 262.) The undersigned also held hearings on the motions Finlayson filed for disclosure of evidence. (Docs. 180, 201.)
The undersigned ultimately recommended that Movant's motions to suppress evidence be denied. (Doc. 272.) Finlayson filed objections to my report and recommendation. (Doc. 278.) The Honorable Thomas W. Thrash, Jr. overruled the objections and denied the motions to suppress. (Doc. 281.)
Finlayson also filed before trial motions in limine to exclude expert testimony and character evidence and a motion for disclosure of the testifying co-defendants' pre-sentence reports ("PSR"). (Docs. 297 through 300.) The Court held a hearing on those motions and denied them. (Doc. 375.)
After trial, and before sentencing, Finlayson filed a motion for new trial. (Doc. 341.) Finlayson argued in that motion that the wiretap evidence was erroneously admitted at trial and presented new evidence to support that argument. ( Id.; Docs. 341-1, 359.) The Court heard argument on that motion at the sentencing hearing and denied it. (Doc. 380 at 5-6.)
Finlayson also filed a sentencing memorandum. (Docs. 360, 361.) Finlayson argued, among other things, that Movant's sentence should not be enhanced based on conduct for which he was acquitted (primarily the conspiracy to traffic cocaine) and that the sentence should be below the range set by the U.S. Sentencing Guidelines (the "Guidelines") because of Movant's low culpability in the drug trafficking operation. (Doc. 360.) Finlayson submitted with his memorandum forty-one letters requesting leniency for Movant. (Docs. 360-2, 360-3, 360-4, 361-1.)
At sentencing, the Court found Movant responsible for 2, 195.12 kilograms of marijuana, but did not hold him responsible for any cocaine. (Doc. 380 at 11.) That reduced by six levels Movant's base offense level under the Guidelines. ( Id. at 13, 20.) The statutory minimum sentence was five years' imprisonment and the statutory maximum was forty years. ( Id. at 21.) The Guidelines range was 121 to 151 months' imprisonment. ( Id. )
The Court sentenced Movant to 108 months of imprisonment and five years of supervised release. (Doc. 363.) The Court found that a sentence slightly below the Guidelines range was appropriate "because in my opinion such a sentence is a fair and reasonable one considering the sentencing factors set forth in Title 18, U.S. Code, Section 3553(a)." ( Id. at 42.) The Court found the 108-month sentence "fair considering [Movant's] age, considering his lack of any prior criminal convictions, considering his family history and responsibilities" and that "the sentence is a fair and reasonable one considering the sentences that I have imposed on his co-Defendants." ( Id. at 43.) The Court also found the sentence appropriate given that "[t]he evidence of [Movant's] guilt at trial was overwhelming." ( Id. at 42.)
Movant appealed and was represented by Attorney Amanda R. Clark on appeal. Movant argued on appeal that the Court erred by denying his pre-trial motion to suppress the wiretap evidence and by instructing the jury on deliberate ignorance. Grant, 521 F.App'x at 842. The court of appeals affirmed the judgment. Id.
Movant contends in his § 2255 motion that Finlayson rendered ineffective assistance. (Doc. 401 at 5-8.) Specifically, Movant contends ...