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Clark v. United States

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

June 28, 2018

ARRON BERNARD CLARK, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         On January 21, 2016, this Court sentenced Arron Bernard Clark (“Clark”) to three hundred months' imprisonment after he pleaded guilty to the crimes of conspiracy to possess with intent to distribute and to distribute controlled substances and possession of a firearm in furtherance of a drug trafficking crime. Clark, who is currently incarcerated at the United States Penitentiary in Pine Knot, Kentucky, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 804.)[1] Clark contends that various errors by his trial counsel plagued his guilty plea and sentence. As laid out below, Clark's claims lack merit. Clark's conviction and sentence resulted from his own admitted criminal conduct, not any errors by his counsel. Thus, for the reasons set forth below, I RECOMMEND the Court DENY Clark's Motion to Vacate, Set Aside, or Correct his Sentence. Further, I RECOMMEND that the Court DENY Clark a Certificate of Appealability and in forma pauperis status on appeal. The Court should DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal.

         The Court GRANTS Clark's Application to Expand the Record, (doc. 805), and the Government's Motion for Extension of Time, (doc. 834). The Court has considered Clark's affidavit attached to his Application and the Government's subsequently filed Response when issuing this Report and Recommendation.[2]

         BACKGROUND

         I. Indictment and Clark's Guilty Plea

         On April 8, 2015, the grand jury for this District returned a thirty-count Indictment against Clark and seventeen co-defendants. (Doc. 3.) The Indictment arose out of an alleged drug trafficking organization in Glynn County, Georgia. (Id.) The grand jury charged Clark, the lead defendant, with: conspiracy to possess with intent to distribute and to distribute cocaine base and cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846 and 18 U.S.C. § 2 (Count One); possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Four); and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count Five). (Id.) Count Five of the Indictment specifically listed the firearms Clark allegedly possessed in furtherance of the drug trafficking crime charged in Count One. (Id. at pp. 5-6.) The Government asserted in its Penalty Certification that Clark faced not more than twenty years' imprisonment as to Count One; not more than ten years' imprisonment as to Count Four; and not less than five years' imprisonment as to Count Five. (Doc. 4.)

         Subsequently, Clark and his appointed attorney, Mr. Marvin Paul Hicks, III, were able to negotiate a plea agreement with the Government whereby Clark agreed to plead guilty to Counts One and Five of the Indictment. (Doc. 565.) Clark also agreed to waive his rights to appeal and collaterally attack his sentence with limited exceptions. (Id. at p. 8.) In exchange, the Government agreed to dismiss the remaining count of the Indictment against Clark. Among other things, the plea agreement laid out the elements the Government must prove in order for Clark to be found guilty of Counts One and Five, Clark's offense conduct, and the factual basis for his guilty plea. (Id. at pp. 4-5.) Through the plea agreement, Clark agreed that he “has had the benefit of legal counsel in negotiating this agreement. Defendant believes that his attorney has represented him faithfully, skillfully, and diligently, and he is completely satisfied with the legal advice given and the work performed by his attorney.” (Id. at p. 9.)

         On August 27, 2015, Clark appeared before the Honorable Lisa Godbey Wood for a change of plea, or Rule 11, proceeding. (Doc. 561.) At the hearing, Judge Wood engaged in an extensive plea colloquy with Clark. She explained to Clark that the decision to plead guilty was an important one, that the decision was entirely his decision, and that she wanted to be certain Clark understood all of the important issues to be considered before making a decision. (Doc. 572, pp. 2-3.) Judge Wood inquired whether anyone was making, pushing, or leaning on Clark to plead guilty, and he said no one had done so and that pleading guilty was what he wanted to do. (Id. at p. 3.)

         Judge Wood had Clark placed under oath before asking him a series of questions. (Id.) He then related his personal information, including his age, the ages of his children, and his residence. (Id. at p. 4.) Clark recounted his educational and employment history-he completed the tenth grade and worked in landscaping. (Id. at pp. 4-5.) Clark stated that he had no physical or mental disability, took no medications, and had not had any drugs or alcohol since the date of his arrest months prior. (Id. at p. 5.)

         Judge Wood explained to Clark that he was presumed innocent and the Indictment was not evidence of his guilt. (Id.) She also explained that he did not have to plead guilty and that he had the right to maintain a plea of not guilty. (Id. at p. 6.) Judge Wood further advised Clark that if he chose to persist in his not guilty plea, he would have the right to a public and speedy trial by jury, a presumption of innocence during that trial, and the assistance of counsel through every phase of the case. (Id. at pp. 6-7.) Judge Wood told Clark that if he went to trial he could see, hear, confront, and cross-examine the Government's witnesses and evidence, call witnesses on his behalf, and testify himself or remain silent. (Id. at p. 7.) Judge Wood cautioned Clark he would be waiving those rights if he pleaded guilty. (Id. at pp. 7-8.) She explained that, if she accepted his guilty plea, there would be no right to trial of any kind and all that would remain of his case would be the sentencing phase. (Id.) Clark stated that he understood and that he had no questions regarding the waiver of his rights. (Id. at p. 8.)

         Judge Wood asked Clark if he and Mr. Hicks had the opportunity to discuss the facts and law as they pertain to his case. (Id. at p. 8.) Clark responded, “Most of them, yes ma'am.” (Id.) Judge Wood followed up on this answer, and Clark stated, “I ain't really seen really no discovery, no phone taps.” (Id.) Judge Wood asked Clark if there were things that he wanted to examine before he changed his plea but Clark declined. (Id. at pp. 8-10.) Upon inquiry from the Court, Mr. Hicks stated that Clark wanted to change his plea due to developments in the prosecution of the conspiracy, and Clark agreed with that assessment. (Id. at pp. 8-9.) Judge Wood then explored whether Clark had sufficiently discussed the law and facts of his case with Mr. Hicks. (Id. at p. 9.) She asked, “Do you need to talk with [Mr. Hicks] more about the facts and the law as they pertain to your case?” (Id.) Clark responded, “No, ma'am.” (Id.) Judge Wood then added, “Do you feel like you've done that a sufficient amount?” (Id.) Clark responded, “Yes, ma'am.” (Id.) Mr. Hicks also confirmed that he and Clark had an adequate discussion of the facts and law of the case. (Id. at p. 10.)

         When Judge Wood asked Clark whether he had discussed the Indictment with Mr. Hicks, Clark repeated that he had not seen the “phone taps and other stuff.” (Id.) Judge Wood again asked, “Is that something that you still want to look at before you plead guilty?” Clark responded that he did not. (Id.) Judge Wood followed up with another question as to whether Clark wanted to look at any discovery more closely before he entered his plea, and Clark yet again responded, “No, ma'am.” (Id.)

         Clark then testified, upon inquiry from Judge Wood, that he had an opportunity to review and discuss the Indictment with Mr. Hicks. (Id. at p. 11.) He also affirmed that he and Mr. Hicks had reviewed and discussed the plea agreement, the United States Sentencing Guidelines (“Sentencing Guidelines” or “Guidelines”), and what would occur at the Rule 11 hearing. (Id.) Clark further testified that he was satisfied with Mr. Hicks' representation and that he had no complaints about Mr. Hicks whatsoever. (Id. at pp. 11-12.)

         Judge Wood then reviewed in detail the three counts of the Indictment against Clark and asked him if he understood the allegations. (Id. at pp. 12-14.) Clark responded that he understood. (Id. at p. 14.) Judge Wood then explained to Clark “the essential elements” that the Government would have to prove in order to convict Clark of Counts One and Five, the Counts to which he was pleading guilty. (Id. at pp. 14-15.) As to Count Five, Judge Wood explained:

[T]here are two essential elements that the Government would have to prove beyond a reasonable doubt in order for you to be convicted of possession of firearm in furtherance of a drug trafficking crime. Those elements are first that you committed the drug trafficking crime charged in Count 1 of the indictment, and, second, that you knowingly possessed a firearm in furtherance of that crime as charged in the indictment.

(Id. at p. 15.) Clark testified that he understood and that by pleading guilty he would admit those elements were satisfied. (Id.)

         Judge Wood advised Clark of the penalties she could impose on the Counts to which he was pleading guilty. (Id. at pp. 13-14.) She specifically explained that Count Five carried a mandatory minimum of five years' imprisonment consecutive to any sentence on Count One. (Id. at p. 16.) Clark responded that he understood. (Id.) Moreover, Judge Wood explained to Clark that, in imposing a sentence upon him, she would have to take into consideration the advisory Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553. She then outlined the factors she would consider at sentencing. (Id. at p. 16-17.) Judge Wood asked Clark if he had any questions about sentencing, and he responded that he did not. (Id. at p. 17.) Upon questioning, Clark testified that no one had “promised [him] an exact sentence, ” to which Judge Wood replied, “That's good because at this point, all they could do is just give you their best guess or their best estimate, and that would never be binding upon me.” (Id.at 16-17.)

         Clark confirmed that he had given Mr. Hicks permission to negotiate a plea agreement with the Government. (Id.) Judge Wood then asked the Assistant United States Attorney (“AUSA”) to summarize the provisions of the plea agreement. AUSA Charlie Bourne stated:

The Government agrees not to object to a recommendation from probation that the Defendant receive a three-level reduction for acceptance of responsibility based on the timeliness of his plea, the earliness and provided he truthfully admits the conduct comprising the offenses of conviction and that he doesn't commit any further criminal conduct.
The Government also agrees not to file an 851 enhancement if applicable as to this Defendant. The Government also agrees to dismiss Count 4.
The Defendant agrees to plead guilty to Counts 1 and 5, acknowledge at the time of the plea the truth of the factual basis contained in the plea agreement, pay on the date of sentencing any assessments imposed by The Court. He waives his right to appeal with three exceptions and he entirely waives his right to collaterally attack his conviction and sentence with one exception, Your Honor, and that's the extent of the plea agreement.

(Id. at pp. 18-19.) Judge Wood asked Clark if AUSA Bourne's summarization of the plea agreement was consistent with the plea agreement he signed, and Clark stated it was. (Id. at p. 19.) Clark also stated he read the plea agreement and discussed it with Mr. Hicks before he signed it. (Id.) Clark affirmed that no one had made him any promises regarding the outcome of his case other than the provisions contained in the plea agreement. (Id.)

         Judge Wood then specifically addressed the direct appeal waiver with Clark, stating the following:

I want to pick back up on something that Mr. Bourne mentioned, and that is contained in that agreement that you're presenting is a waiver of certain appellate rights.
It states “Defendant entirely waives his right to a direct appeal of his conviction and sentence on any ground.” Now there are three exceptions to that waiver, that is, you get a direct appeal right if one of those three things were to occur: Number 1, if I sentence you above the statutory maximum, then you can appeal that directly; Number 2, if I were to sentence you above the advisory guideline range as found by me, then you could appeal that directly; or Number 3, if the Government were to file a direct appeal, then you too can file a direct appeal.
Otherwise, by virtue of that plea agreement you waive all other direct appellate rights; understand?

(Id. at p. 19-20.) Clark stated he understood the appeal waiver provision and that he had no questions about it. (Id. at p. 20.)

         Judge Wood also explained that the proposed plea agreement contained a waiver of certain of Clark's collateral attack rights:

Also contained in the agreement that you're proposing is a waiver of certain collateral attack rights. It states “Defendant entirely waives his right to collaterally attack his conviction and sentence on any ground and by any method including but not limited to a 28 USC Section 2255 motion.”
The only exception to that waiver of collateral attack rights is that you do retain the right to collaterally attack based on a claim of ineffective assistance of counsel; understand?

(Id.) Clark replied that he understood the collateral attack waiver provision and that he did not have any questions about the waiver. (Id. at pp. 20-21.)

         Judge Wood asked Mr. Hicks and AUSA Bourne whether they were aware of any impropriety on the part of the Government in handling Clark's case, and they both responded in the negative. (Id. at p. 21.) Judge Wood then asked Clark whether he still wished to plead guilty to Counts One and Five of the Indictment because he was in fact guilty of those Counts, and Clark answered in the affirmative. (Id. at p. 21.) Judge Wood also asked Clark whether he understood the rights and privileges he was waiving if she accepted his plea, and he said he did. (Id.) Judge Wood then summarized:

I've watched [Mr. Clark] this morning as he's participated in the hearing and listened carefully to the responses that he's given to my question[s].
I find in particular that Mr. Clark is participating in this hearing knowingly and intelligently. He has an appreciation for the charges that are pending against him, the essential elements that make up each charge. He understands the consequences of his plea and the rights that he waives. He understands the maximum possible penalty and the fact that there is a mandatory minimum sentence involved as to Count 5. He[] has the services of a competent defense attorney who has gone over the indictment, the plea agreement, the sentencing guidelines. They have discussed the facts and the law on multiple occasions.
With regard to Mr. Clark in particular, I did find it necessary to explore his bringing up the fact about transcripts and so forth, and I find in particular that Mr.
Clark and Mr. Hicks are both satisfied with the discussions that they've had and with Mr. Clark's interaction in his case.
Mr. Clark in particular says that he does not want to take any more time looking at any other discovery before he enters his plea. I find no reason to doubt the truth of that statement.
In summary I find that Mr. Clark has participated knowingly and intelligently in this hearing. I also find that his offer to plead guilty is voluntary; is that correct, Mr. Clark?

(Id. at pp. 22-23.) Clark responded in agreement with Judge Wood's conclusions. (Id. at p. 23.)

         Steven Hall, a special agent with the Federal Bureau of Investigation (“FBI”), provided the Government's factual basis for the plea. (Id. at pp. 22-24.) Agent Hall testified that he was involved in a coordinated federal and state investigation of a drug organization operating in Brunswick, Georgia. (Id. at pp. 23-24.) He explained that Clark was one of two main targets of the investigation and that the investigation involved numerous techniques, including search warrants, informants, pole cameras, and wiretaps. (Id. at p. 24.) The investigation recorded thousands of Clark's phone calls, some of which were pertinent to drug trafficking, and revealed that Clark was part of an organization that distributed cocaine and crack cocaine on Wolfe Street in Brunswick. (Id. at pp. 24-25.) Hall testified that members of the organization routinely had firearms for the purpose of “protecting their assets.” (Id. at p. 25.) A search of Clark's home revealed that he had several firearms-a 9mm Taurus pistol in the same room with Clark and two rifles and two additional pistols under Clark's house. (Id. at p. 25.) Hall stated that the search of Clark's home also uncovered cocaine, cash, and drug packaging materials. (Id.)

         Judge Wood then asked Clark whether he disputed any of Agent Hall's testimony. (Id. at p. 26.) Clark responded, “Only the dope. But the rest I don't know nothing about. I know about the dope.” (Id.) Judge Wood asked about the guns and Clark admitted that he “had one in possession.” (Id.) Thus, based on the record established during this proceeding, Judge Wood found that there was a factual basis for the plea of guilty, accepted Clark's plea, and adjudged him guilty of Counts One and Five of the Indictment. (Id. at pp. 26-27.) Judge Wood advised Clark that the United States Probation Office would prepare a Pre-Sentence Investigation Report (“PSI”), and the Court would schedule a sentencing hearing after the PSI was disclosed to the Government and the Defense. (Id.)

         II. Presentence Investigation Report and Objections

         Prior to Clark's sentencing hearing, United States Probation Officer Scott Riggs prepared a PSI. Probation Officer Riggs detailed Clark's offense conduct and criminal history and calculated Clark's advisory sentencing range under the Sentencing Guidelines. (Doc. 707.) The PSI indicated that the Indictment in this case grew out of the FBI's investigation of the criminal activity from two rival street gangs operating in Brunswick, Georgia. (Id. at ¶¶ 4-26.) The investigation revealed that Clark was the co-leader of one of the gangs, which the Probation Officer labeled the “Clark Drug Trafficking Organization” or “Clark DTO.” (Id. at ¶ 4.) The FBI's investigation of the Clark DTO included: undercover operations; visual surveillance; controlled purchases of drugs; confidential informants; surveillance and recording of incriminating telephone conversations and electronic communications through court-authorized wiretaps and pen registers; execution of search warrants; interviews with Clark and his co-conspirators; and interception of “jail calls” from the Glynn County Detention Center between Clark and his co-conspirators following their arrests. (Id. at ¶¶ 6-26.)

         The PSI detailed that Clark led, and was extensively involved in, a very active drug distribution operation centered in the Wolfe Street area of Brunswick. (Id.) For instance, a six-week surveillance of one co-conspirator's cellular telephone revealed approximately 100 conversations related to drug distribution. (Id. at ¶ 8.) Clark's own cellular telephone was monitored from November 6, 2014 to December 20, 2014. (Id. at ¶¶ 13-17.) Agents recorded conversations during which Clark negotiated the purchase of powder cocaine from various sources of supply, discussed personally cooking crack cocaine, directed the drug dealing activities of other members of the conspiracy, and coordinated sales of crack cocaine to numerous customers. (Id. at ¶¶ 13-17.) “For example, during the 2-day period of November 7 and November 8, 2014, Clark conducted a total of approximately 50 drug transactions involving the distribution of a total of at least $1, 250 worth (12.5 grams) of crack cocaine.” (Id. at ¶ 13.)

         The surveilled communications also revealed that Clark used a home located at 1107 J Street to facilitate his drug trafficking.[3] (Id. at ¶ 15-17.) Clark shared this home with Ebone Alvin, a woman with whom he had a romantic relationship. (Id. ¶ 15.) According to the PSI, Clark sent customers to the residence on J Street and directed Alvin to conduct drug transactions with the customers. (Id. ¶ 15.) During the time of the wire intercept, Alvin conducted approximately thirty such transactions. (Id.) The intercepted communications also uncovered that Clark cooked crack cocaine inside the J Street residence, stored crack cocaine in the residence for future sales, and directed Alvin to hide glass beakers used for cooking crack cocaine under the residence. (Id. ¶¶ 15-17.)

         Ultimately, the wiretap showed that Clark and other members of his DTO distributed at least 32.25 ounces of crack cocaine during the ten weeks of the wiretap investigation. (Id. at ¶ 26.) The Probation Officer stated that the total amount of distribution in this case was actually much higher than the amount distributed during the limited ten-week period. The investigation, including Clark's own statements, revealed that Clark and other members of the conspiracy distributed crack cocaine from at least January 1, 2014 through April 8, 2015. (Id.) Nonetheless, for the purpose of calculating Clark's ...


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