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Jones v. United States

United States District Court, N.D. Georgia, Atlanta Division

May 13, 2019

CURTIS JONES, BOP REG # 55887-019, Movant,
v.
UNITED STATES, Respondent.

         MOTION TO VACATE 28 U.S.C. § 2255

          MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          JUSTIN S. ANAND, UNITED STATES MAGISTRATE JUDGE

         Movant, Curtis Jones, filed a 28 U.S.C. § 2255 motion to vacate his sentence, proceeding pro se (Doc. 156); followed by two counseled superseding § 2255 motions (Doc. 181 (filed by appointed counsel, Giles Jones); Doc. 189 (filed by first retained counsel, Rodney Zell)); and a final explanation of Movant's claims, filed by second retained counsel, Stephen Reba, in a post-hearing brief (Doc. 207) and reply brief (Doc. 209) following the November 21, 2018 hearing on this matter (see Doc. 206 (Hearing Tr.)).

         IT IS RECOMMENDED that the § 2255 motion be DENIED.

         I. Background

         The government has laid out the factual and procedural background to this case in great detail on two separate occasion. (See Doc. 196 (Gov't 1st Resp. Br.) at 4-20; Doc. 208 (Gov't Post-Hrg. Resp. Br.) at 7-21). The Eleventh Circuit has also done so, as set forth in part below. (See Doc. 154 (11th Cir. opinion affirming Movant's convictions) at 2-13). Represented by Steve Sadow, Movant was convicted after a jury trial on two counts of cocaine trafficking and sentenced to 180 months in prison. At sentencing and on appeal, Movant was represented by new counsel, Adam Hames, who claimed on appeal that this Court had erred by (1) enhancing Movant's sentence based on the possession of a firearm in relation to the drug trafficking crimes and (2) admitting into evidence lay opinion testimony from law enforcement officers about the meaning of intercepted telephone calls played at Movant's trial, recordings of wiretaps obtained for the telephones of Movant and others. (Id. at 14, 18). The Eleventh Circuit rejected these claims. (See Id. at 17 (“Jones's challenge to Special Agent Connolly's testimony concerning the intercepted calls, though preserved on appeal, ultimately fails. First, Special Agent Connolly did not interpret specific code words during his testimony or indicate particular calls referred to cocaine transactions. Instead, he stated as a general matter drug traffickers often use coded language in phone calls. Moreover, even if Special Agent Connolly had testified regarding the meaning of specific code words in the intercepted calls, his testimony would have been proper lay testimony under our case law.” (footnote omitted))).

         The Eleventh Circuit summarized the factual background as follows:

In early January 2013, agents from the Drug Enforcement Agency (“DEA”) began a wiretap investigation of a suspected cocaine trafficker, Jonathan Crutcher. On January 15, 2013, agents intercepted a call between Crutcher and another male, later identified as Curtis Jones, in which Jones advised Crutcher he had just received some drugs. Agents intercepted another call between Crutcher and Jones on January 29, 2013, in which they arranged for a drug transaction to take place later that day. The agents established surveillance on Crutcher and observed him meeting with Jones in a convenience-store-parking lot. After he met with Crutcher, the agents followed Jones to a residence located at 3964 Stonewall Tell Road in Atlanta, Georgia, and observed a number of vehicles coming and going from that residence over the course of the afternoon, including Crutcher's vehicle and a red Dodge Ram.
Based on several intercepted calls between Jones and Crutcher during that time period, the agents learned Crutcher had turned over a large sum of money to Jones. In turn, Jones provided the drug proceeds to his source of supply, whom agents believed was driving the Dodge Ram. When the Dodge Ram left the Stonewall Tell Road residence, agents directed a local police officer to conduct a traffic stop of the vehicle. Three large bags of money were recovered from the vehicle, containing $614, 811 in cash. The following day, January 30, 2013, agents intercepted a call between Jones and Crutcher in which Crutcher asked Jones for another four or five kilograms of cocaine. Following that call, the agents sought and obtained a wiretap for Jones's phone.
On February 16, 2013, agents intercepted a call between Jones and an unidentified male, in which they discussed a future drug transaction. Two days later, on February 18, 2013, agents intercepted several calls between Jones and a person identified as “Dee, ” which led them to believe the planned drug transaction would take place that day. The agents established surveillance on Jones at 2170 High View Road in Atlanta. Agents observed a number of vehicles coming and going from the High View Road residence, including a blue Chrysler Pacifica and a gray Nissan Maxima. When the Pacifica left the High View Road residence, the agents directed local law-enforcement officers to conduct a traffic stop of the vehicle. The officers recovered a one-kilogram package of powder cocaine and a bag containing crack cocaine in the backseat of the vehicle. The agents likewise directed local law enforcement to conduct a traffic stop of the Maxima, when it left the High View Road residence. The officers recovered two kilograms of cocaine under the hood of the vehicle and eight kilograms of cocaine from trap compartments under the floorboards.
Following the conclusion of the wiretap investigation, DEA agents conducted a “takedown, ” in which they simultaneously arrested the various individuals involved in the investigation. R. at 1038. The takedown took place on January 15, 2014; DEA Special Agent Michael Connolly, the co-case agent for the investigation, was assigned arresting Jones. Special Agent Connolly arrested Jones at a Hampton Inn in East Point, Georgia. He subsequently took Jones to 515 Platoro Court, Jones's residence, because Special Agent Connolly had a seizure warrant for Jones's BMW, which was located at that address. When they arrived at Platoro Court, Special Agent Connolly advised Jones of his Miranda rights.
Jones waived his rights and gave Special Agent Connolly consent to search his Platoro Court residence. In the family room of the residence, the agents found a home-security- system monitor, a loaded firearm, and extra magazine under the couch cushions. In one of the kitchen cabinets, the agents found a money counter. They also recovered a number of plastic baggies from the residence. In the master bedroom, agents found another security-system monitor, a collection of watches, and a collection of sneakers that Jones stated was worth approximately $10, 000.
Jones told Special Agent Connolly he lived at Platoro Court, and a barber and his son also had stayed there. When asked whether there were any firearms in the house, Jones stated the barber may have left a gun in the house. When Special Agent Connolly asked Jones about his involvement in narcotics trafficking, Jones admitted he was a marijuana trafficker. Jones initially denied any involvement in cocaine trafficking but later stated he could get five to ten kilograms of cocaine from “the Mexicans.” R. at 1064.
Special Agent Connolly asked Jones about a house located at 1980 Childress Drive, which Jones had stated he owned. Special Agent Connolly requested permission to search that residence; Jones gave his consent. After the search at Platoro Court concluded, Special Agent Connolly drove Jones to the Childress Drive residence. On the ride there, Special Agent Connolly asked Jones whether he had a large stash of money somewhere; Jones admitted there was approximately $250, 000 in the trunk of his BMW. Agents later searched the BMW and found three bags in the trunk of the car containing a total of $274, 668 in cash.
At Childress Drive, Special Agent Connolly observed a security system monitor in the living room of the residence. In the kitchen, agents discovered marijuana in the oven and in a hidden compartment behind the kick plate on the cabinets. They also found a scale in one of the cabinets and a firearm on top of one of the cabinets. In a kitchen drawer, Special Agent Connolly found a money ledger of the type commonly seen in drug-trafficking cases.

(Doc. 154 at 2-6 (emphasis added; footnote omitted)).

         II. The § 2255 Motions

         In his original, pro se § 2255 motion, Movant raised eight claims of ineffective assistance of trial counsel, for failing to do the following:

1. conduct any pre-trial investigation;
2. move to suppress the wiretaps because the tapes were not sealed per the requirements of 18 U.S.C. § 2518(8)(a) and allow Movant an opportunity to review the tapes;
3. interview, subpoena, and call material witnesses;
4. investigate the statement given by Sheneka Smith;
5. object to the wiretaps being played in open court;
6. properly advise Movant regarding his right to testify;
7. inform Movant of any government plea offer or seek plea negotiations;
8. fully advise Movant of the strength of the government case, the application of the sentencing guidelines should he be convicted, and the benefits of a guilty plea.

(Doc. 156-1 at 6-18). Movant also raised a claim of ineffective assistance of sentencing counsel. (Id. at 16).

         The Court determined, based on the Government's response, that an evidentiary hearing was required on certain issues and appointed counsel, Giles Jones, for Movant on March 10, 2017. [165]. The Court originally set an evidentiary hearing for May 9, 2017. [166]. The date for this hearing was re-set four separate times between May 9, 2017 and February 21, 2018, at Movant's request. [168, 174, 177, 179]. In the meantime, because there was obvious confusion as to what issues Movant was still asserting, and the Government requested clarity in this regard, the Court also ordered Movant to file, with the benefit of counsel, an amended § 2255 Motion that properly identified the issues currently being pursued, by January 22, 2018. [179].

         Attorney Jones thus filed an amended § 2255 motion. [181]. Jones concentrated on the eighth claim, arguing that Movant most likely would have pled guilty had trial counsel properly informed him of the strength of the government's case and the benefits of pleading guilty:

[Movant] would show that if [] Sadow had met with him more than three times, [he] might not have gone to trial. If [] Sadow had reviewed with [him] the discovery and evidence, [he] would not have gone to trial. Had [] Sadow discussed with [him] the federal statutes and the sentencing guidelines and what [would happen were he to be] found guilty at trial, [he] more [likely than] not [would not have gone] to trial.

(Id. at 15).

         However, by the time Attorney Jones filed the amended motion, the relationship between him and Movant had broken down, and he indicated that Movant would be hiring new counsel. Thus, Attorney Jones explained that while his January 22, 2018 filing was his best effort to comply with the Court's deadline, he acknowledged that his client, who had become ...


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