United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
after a jury trial for possession with intent to distribute
and distribution of cocaine hydrochloride in violation of 21
U.S.C. § 841, docs. 1 (indictment), 76 (judgment for 168
months' imprisonment), Demetrius Ervin moves under 28
U.S.C. § 2255 to have his sentence vacated. Doc. 97. He
contends his sentence must be upended due to ineffective
assistance of counsel, prosecutorial misconduct, and district
court errors. Docs. 97 & 98. The Government opposes. Doc.
100. Review of the parties' briefing shows that
Ervin's motion must be denied.
was recorded on several telephone calls discussing a cocaine
purchase with a confidential informant (CI). Doc. 84 & 85
(Trial Transcript) at 24, 87-88. At an agreed time and
location, Ervin met the CI and was observed making a sale of
7 grams of cocaine. Id. at 65, 93-94. Law
enforcement moved to arrest him, using their vehicles to
block his vehicle from escaping. Id. at 104-105.
Despite the fact that all officers wore tactical vests
identifying them as "Police" and clearly ordered
him to cease resisting, Ervin used his vehicle to back in and
out between the blocking vehicles, forcing the rear vehicle
backwards and nearly striking an officer. Id. at
110-12. During the ensuing struggle to subdue him, Ervin had
to be tasered twice, a canine had to be deployed into his
car, and an officer sustained a broken bone in his hand.
Id. at 112-18; doc. 83 at 18. A search of the
vehicle turned up more cocaine and drug paraphernalia,
including baggies, scales, and presses. Trial Tr. at 67-71.
was charged with four counts: possession with intent to
distribute cocaine hydrochloride, and distribution of that
drug, possession of a firearm in furtherance of a drug
trafficking crime, and being a felon-in-possession of a
firearm. Docs. 1 & 76. His attorney advised him, based on
an investigation of the case and Ervin's criminal
history, that he would be considered a career criminal and
would receive "the greater" of the following
"range of estimated sentencing:"
21 USC 841(a)(1) (201.1)
21 USC 924(c)(A)(1)(ii)/841(a)(1) (2K2.4)/(2D1.1)
100-125 months if Career Criminal 46-57 months if no
Career Criminal 5 year minimum (60 months) or 7 year
minimum (84 months)
18 USC 924(c) (2K2.1)
168-210 months 20 year maximum (240 months) with a 5
year minimum (60 Months) to be served after
serving Count I & Count II
18 USC 922(g)(1) (2K2.1)
168-210 months with a 120 month cap
Doc. 100-3 at 5. Ervin responded that he would proceed to
trial. Doc. 100-4. Although "it had been explained to
[him] that a trial will result in a conviction on all
counts" - resulting in a consecutive sentence of at
least 152 months (a minimum 92-115 months "plus 60
months") - and the proposed plea agreement would limit
his sentence to a total of only 117 months, Ervin demurred.
Id. He hoped to "defeat the trafficking
charge" and "six (6) level increase for harming a
public official, " shaving off two months from the
115-month plea his lawyer "ha[d] advised [him] to
his hopes, the jury convicted Ervin on all four counts (doc.
66) and the Court sentenced him to 168 months'
imprisonment (doc. 83 at 76 (consisting of 108 months'
imprisonment for Counts 1, 2, and 4 and 60-months consecutive
imprisonment for Count 3)). Doc. 76 (judgment). His
conviction was affirmed on appeal. United States v.
Ervin, 601 F.App'x 793 (11th Cir. 2015).
presents several grounds for relief: (1) errors by the
district court, (2) generalized prosecutorial misconduct, and
(3) ineffective assistance of counsel for failing to raise
those errors on appeal. Doc. 97.
District Court Errors
appeal, Ervin challenged (1) the sufficiency of the evidence
to convict, (2) an erroneous jury instruction, (3) improper
admission of "bad acts" character evidence, (4) the
prosecutor's closing statement, and (5) the six-level
official victim sentence enhancement. See Ervin, 601
F.Appx. at 793. Here, he argues the Court erred for (1)
"failing to grant [a] motion of acquittal, " (2)
"permitting evidence concerning unindicted events,
" (3) permitting introduction of prior convictions, and
(4) by applying the U.S.S.G. § 3A1.2(c) official victim
enhancement. Doc. 97 at 2. His first, third, and fourth
claims were already considered, and rejected, on appeal.
See Ervin, 601 F.App'x 793. They are thus
procedurally barred. Stoufflet v. United States, 757
F.3d 1236, 1239 (11th Cir. 2014); United States v.
Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). And
because his second claim was not raised on appeal,
it too is procedurally barred. Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004) (a §
2255 movant may not use his collateral attack as "a
surrogate for a direct appeal."). His associated,
meritless IAC claims do not overcome that bar. United
States v. Montano, 398 F.3d 1276, 1280 (11th Cir. 2005);
Lynn, 365 F.3d at 1232.
Prosecutorial Misconduct & Ineffective
argues his attorney failed to: fully investigate the case,
move to suppress evidence from the search of his home, raise
issues "important to his client, " or
"preserve any/all of the unlawful acts committed by the
government or the court." Doc. 98 at 3. He contends his
attorney provided "bad legal advice" "which
led [him] to proceed to trial, " much to his detriment.
however, lacks specifics when it conies to the details of
counsel's failures - he contends that the search warrant
was unsupported because the CI was "unreliable" and
the testifying agents "lied" by presenting
apparently conflicting testimony about the video recording of
his cocaine sale and arrest. Doc. 98 at 3-18. But a failed
video recording does not negate, or convert into perjury, eye
witness testimony about the sale and arrest, nor does it
detract from the successfully recorded telephone calls with
the CI to set up the buy. Ervin ...