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Ervin v. United States

United States District Court, S.D. Georgia, Savannah Division

February 1, 2017



         Convicted 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), [1]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.

         A. BACKGROUND

         Movant was recorded on several telephone calls discussing a cocaine purchase with a confidential informant (CI). Doc. 84 & 85 (Trial Transcript)[2] 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.

         Ervin 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)

46-57 months

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 accept." Id.

         Despite 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).

         B. ANALYSIS

         Ervin 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.

         1. District Court Errors

         On 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.

         2. Prosecutorial Misconduct & Ineffective Assistance

         Ervin 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. Id.

         Movant, 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 ...

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