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Donaldson v. United States

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

June 30, 2017

MARION STURGIS DONALDSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Petitioner, an inmate at the Federal Correctional Institution in Manchester, Kentucky, filed with this Court a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The Court REPORTS and RECOMMENDS Petitioner's motion to amend be DENIED (doc. nos. 22-1, 22-2), the § 2255 motion be DENIED without an evidentiary hearing, this civil action be CLOSED, and final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         A bench trial resulted in Petitioner's conviction for conspiracy to distribute and possession with intent to distribute controlled substances, and using a communication facility to facilitate commission of a crime. United States v. Donaldson, CR 111-361, doc. no. 207 (S.D. Ga. Nov. 2, 2011) (“CR 111-361”). Petitioner claims in the present petition trial counsel ineffectively failed to argue various aspects of the investigation and arrest violated his constitutional rights.

         A. Investigation

         In March 2011, Richmond County narcotics officers commenced an investigation of Dorsett Mandrell Williams. United States v. Donaldson, 558 F. App'x 962, 963 (11th Cir. 2014), cert. denied, 135 S.Ct. 1451, 191 L.Ed.2d 403 (2015). A confidential informant alleged Mr. Williams was selling large amounts of cocaine from two houses on Camille Street in Augusta, Georgia. Id. Confirming the tip through surveillance and controlled purchases of cocaine, officers obtained court authorization on May 24, 2011 to intercept calls on Mr. Williams's phones. Id. The phone intercepts informed officers Petitioner was also engaged in narcotics distribution and was Mr. Williams's supplier. Id. at 964. In one conversation, for example, Mr. Williams told Petitioner he had $29, 000 to purchase drugs. Id. On June 10, 2011, officers observed Petitioner deliver half a kilogram of cocaine to Mr. Williams. Id.

         On June 21, 2011, Judge Daniel J. Craig in the Superior Court of Richmond County issued a court order, pursuant to 18 U.S.C. § 3122 and O.C.G.A. § 16-11-64.1, authorizing investigators to receive real-time cell site information and GPS location tracking of Petitioner's cell phone. (CR 111-361, doc. no. 284-1.) Judge Craig found such information relevant to the criminal investigation that would constitute or lead to evidence of cocaine distribution. (Id. at 1, 3.) On June 25, 2011, Judge Craig issued another court order authorizing investigators to intercept Petitioner's phone calls. (Id., doc. no. 175, Ex. 5.)

         On June 26, 2011, officers observed Petitioner arrive at Mr. Williams's stash house and leave with a white bag. Donaldson, 558 F. App'x at 964. Investigators followed Petitioner to 2911 Rolling Wood Drive in Augusta, Georgia. (CR 111-361, doc. no. 218, p. 28.) Later that day, officers pinged Petitioner's phone and determined it was located at 180 Oakland Drive in North Augusta, South Carolina. Donaldson, 558 F. App'x at 964. Officers confirmed this was Petitioner's residence by observing him there and determining a vehicle at the address was registered to him. Id. In addition, officers pinged Petitioner's cell phone and located it at the same residence on June 27 and 28, 2011. Id.

         On June 27, 2011, officers intercepted a call between Petitioner and “Big” in which Petitioner arranged the purchase of four kilograms of cocaine. Id. at 965. The next day, on June 28, 2011, Richmond County officers contacted Detective Phillip Turner of the North Augusta Department of Public Safety, for assistance in obtaining a warrant to search Petitioner's residence. Id. Based on a summary of the investigation to date, Detective Turner drafted a search warrant application and affidavit which stated in part as follows:

Through the use of multiple investigative means and techniques it has been established that within the past seventy-two hours, [Petitioner] was in possession of a quantity of cocaine and was in the process of acquiring more cocaine. Through further investigative techniques it has been discovered that [Petitioner] is living at 180 Oakland Drive, North Augusta, South Carolina. Reviewing the City of North Augusta water files it has been discovered that the account is in [Petitioner's] name. Upon conducting physical surveillance at the residence, a [vehicle] is parked at the residence and does come back [as registered] to [Petitioner]. Through using proven investigative tools and measures, it has been established that [Petitioner] has been present for extended periods of time at the residence in question. Upon my training and experience, I believe that probable cause exists that cocaine and items associated with the distribution or ingestion of cocaine are present on the property of 180 Oakland Drive, North Augusta, South Carolina.

Id.

         That same day, June 28, 2011, Detective Turner met with the Honorable Roger Edmonds, Chief Magistrate Judge of Aiken County, South Carolina, to apply for the search warrant. Id. at 965. In addition to the affidavit, Detective Turner provided sworn but unrecorded testimony regarding details of the investigation. (Id. at 966; CR 111-361, doc. no. 126, p. 7.) Judge Edmonds then signed the search warrant. Donaldson, 558 F. App'x at 966.

         On June 29 and 30, 2011, phone intercepts discussed an upcoming meeting between Petitioner and Big on the morning of July 1, 2011. Id. On July 1, 2011, Petitioner told Big in a phone conversation he was on his way to the meeting and would purchase three kilograms of cocaine instead of four. Id. Officers followed Petitioner, uncertain where the meeting would occur. Id. Petitioner drove westbound on Interstate 20 for a significant distance, and officers believed he was driving to Atlanta. Id. Not willing to lose Petitioner in Atlanta, officers stopped Petitioner and a canine raised an alert during an open air sniff around Petitioner's vehicle. Officers searched Petitioner's vehicle and found a bag containing $82, 025. Id. Officers took Petitioner to a nearby rest stop, and Petitioner admitted he was traveling to Atlanta to purchase three kilograms of cocaine with the money. Id. at 967.

         At the same time as the traffic stop, officers executed the search warrant of Petitioner's residence and found 736.5 grams of cocaine, 124.9 grams of crack, 221.9 grams of marijuana, $57, 000, a .40 caliber handgun, and a Rolex watch. Id.

         B. Indictment

         On November 2, 2011, a grand jury in this district charged Petitioner with one count of conspiracy to distribute and possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846; three counts of possession with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C), (b)(1)(D); six counts of using a communication facility in causing or facilitating the commission of a felony, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2; and one count of possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). (CR 111-361, doc. no. 1.) Petitioner pled not guilty on November 28, 2011. (Id., doc. no. 25.)

         C. Motion to Suppress

         On January 6, 2012, Petitioner filed a motion to suppress alleging (1) there was no probable cause for the traffic stop and car search on Interstate 20; (2) the search warrant affidavit for Petitioner's home did not establish probable cause and contained false information; and (3) the Leon good-faith exception to the exclusionary rule did not apply. (Id., doc. no. 90.) After an evidentiary hearing, United States Magistrate Judge W. Leon Barfield rejected all four arguments and recommended denial of the motion. (Id., doc. no. 126.) United States District Judge Dudley H. Bowen, Jr., adopted Judge Barfield's findings and overruled Petitioner's objections. (Id., doc. nos. 126, 149, 218.)

         D. Bench Trial

         At the bench trial that began on June 12, 2012, the Court heard testimony from Richmond County Sheriff's Office Investigator Ty Hester, North Augusta Department of Public Safety Investigator Phillip Turner, and former co-defendant Mr. Williams. (Id., doc. no. 217.) Investigator Hester explained how the investigation of Mr. Williams led to Petitioner, and he described the development of the case through intercepted phone calls, controlled drug purchases, the traffic stop on July 1, 2011, and the search of Petitioner's home on the same date. (Id. at 13, 15, 18, 25, 35, 47, 49, 52.)

         Investigator Turner described his efforts to obtain the search warrant on June 28, 2011. (Id. at 86.) In so doing, Investigator Turner explained that he confirmed Petitioner's address as 180 Oakland Drive by running the DMV license plates of vehicles found at the address to determine they were registered to Petitioner, and by searching city utility records and finding Petitioner listed as the resident. (Id. at 88-89.) Investigator Turner also testified regarding the large quantities of illegal drugs his team found at Petitioner's home during the search on July 1, 2011. (Id. at 91, 172.)

         Mr. Williams testified that he first purchased cocaine from Petitioner in late 2009. (Id. at 140.) As Mr. Williams's cocaine sales flourished, he began purchasing kilograms of cocaine from Petitioner every one to two weeks and on multiple occasions he purchased $30, 000 of cocaine from Petitioner. (Id. at 142-47, 158-60, 161-62.)

         E. Verdict and Sentence

         At the close of the evidence, defense counsel argued the Court erred in denying his motion to suppress because there was no nexus between Petitioner's home and any criminal activity. (Id., doc. no. 217, pp. 179-82.) Judge Bowen re-affirmed the ruling, finding there was “a plentitude of evidence” supporting the search warrant. (Id. at 184.) Judge Bowen found Petitioner guilty of one count of conspiracy to distribute and possession with intent to distribute five kilograms or more of cocaine hydrochloride, twenty-eight grams or more of cocaine base, and an amount of marijuana, in violation of 21 U.S.C. § 846; and one count of using a communication facility in causing or facilitating the commission of a felony, in violation of 21 U.S.C. § 843(b). (Id., doc. no. 207.)

         On October 11, 2012, Judge Bowen sentenced Petitioner to 169 months imprisonment, five years supervised release, an $8, 000.00 fine, and $100.00 special assessment. (Id.) On June 24, 2015, Judge Bowen reduced Petitioner's sentence from 169 months to 136 ...


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