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Gordon v. United States

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

May 20, 2019

RODELL GORDON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE

         Petitioner, an inmate at the Satellite Camp of the United States Penitentiary in Lompoc, California, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons set forth below, the Court REPORTS and RECOMMENDS the § 2255 motion be DENIED without an evidentiary hearing, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         A. Indictment and Pretrial Proceedings

         On December 3, 2015, the grand jury in the Southern District of Georgia charged Petitioner and one co-defendant in a five-count indictment. United States v. Gordon, CR 115-108, doc. no. 1 (S.D. Ga. Dec. 3, 2015) (hereinafter “CR 115-108”). Along with naming Petitioner in a forfeiture allegation, the grand jury charged Petitioner with: conspiracy to distribute and possess with intent to distribute marijuana and hashish oil, possession with intent to distribute marijuana and hashish oil (Counts One and Two), and possession of firearms in furtherance of drug trafficking crimes (Count Three). Id. Counts One and Two carried a possible statutory sentence of not more than five years imprisonment. Id., doc. no. 2. Count Three carried a possible term of not less than five years and up to life imprisonment consecutive to any other sentence. Id.

         Petitioner was arrested in the Eastern District of California, released on bond, and appeared in the Southern District of Georgia for arraignment on January 26, 2016. Id., doc. nos. 13, 22. The Court appointed attorney David Stewart to represent Petitioner. Id., doc. no. 28. Petitioner remained free on bond pursuant to the conditions of release set by the Eastern District of California. Id., doc. no. 22. Mr. Stewart filed a motion to adopt four motions of Petitioner's co-defendant, including the motion for disclosure of exculpatory material under Brady v. Maryland, 373 U.S. 83 (1963), as well as a motion to sever Petitioner's trial from that of his co-defendant. Id., doc. nos. 16, 29, 30. Both Petitioner and his co-defendant entered into plea agreements with the government prior to trial. Id., doc. nos. 43, 77.

         B. Agreement to Plead Guilty

         On April 13, 2016, Petitioner appeared with counsel and pled guilty to Count One, conspiracy to distribute and possess with intent to distribute marijuana and hashish oil. Id., doc. nos. 42-44. In exchange for the guilty plea, the government agreed to (1) dismiss the remaining counts against Petitioner in the indictment; and (2) not object to a recommendation for a two-point acceptance of responsibility reduction and move for an additional one-point reduction under the Sentencing Guidelines if Petitioner's offense level was sixteen or greater prior to the acceptance of responsibility reduction. Id., doc. no. 44, (Plea Agreement), pp. 3-4.

         Petitioner's Plea Agreement contained the following factual basis for his guilty plea:

The elements necessary to prove the offense charged in Count One are (1) that two or more persons in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, as charged in the indictment; (2) that the Defendant, knowing the unlawful purpose of the plan, willfully joined in it; and (3) that the object of the unlawful plan was to distribute and possess with intent to distribute a quantity of marijuana and hashish oil, as charged.
Defendant agrees that he is, in fact, guilty of this offense. He agrees to the accuracy of the following facts, which satisfy each of the offenses' [sic] required elements:
On or about October 22, 2014, and prior thereto, the exact beginning date being unknown, to an including January 20, 2015, and thereafter, in Richmond County, within the Southern District of Georgia, and elsewhere, the defendant, RODELL GORDON, aka “Rodie, ” did knowingly and intentionally combine, conspire, confederate, and agree with other persons, known and unknown, to commit certain offenses against the United States, that is, to distribute and to possess with intent to distribute marijuana and hashish oil, Schedule I controlled substances, in violation of Title 21, United States Code, Sections 841(a)(1), (b)(1)(D); all done in violation of Title 21, United States Code, Section 846.

Id. at 1-2. With his signature on the Plea Agreement, Petitioner agreed he read and carefully reviewed it with Mr. Stewart, understood each provision, voluntarily agreed to it, and “stipulate[d] that the factual basis set out therein is true and accurate in every respect.” Id. at 10.

         By signing the Plea Agreement, Petitioner further agreed to “entirely waive[] his right to a direct appeal of his conviction and sentence on any ground” unless the Court (1) sentenced him above the statutory maximum, (2) sentenced him above the advisory Sentencing Guidelines range, or (3) the government appealed the sentence. Id. at 7. Further, Petitioner waived his right to collaterally attack his conviction and sentence on any ground other than ineffective assistance of counsel. Id. By signing the Plea Agreement, Petitioner additionally attested Mr. Stewart had “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 8.

         At the guilty plea hearing, Chief United States District Judge J. Randal Hall first confirmed no one had threatened or pressured Petitioner into pleading guilty and he clearly understood where he was and why he was in court. Id., doc. no. 78 (Rule 11 Tr.), p. 3. Judge Hall explained there were three charges against Petitioner in the indictment, but he specifically focused on the charge in Count One to which Petitioner was pleading guilty. Id. at 6. Judge Hall explained the three elements the government would have to prove in order to convict Petitioner of Count One. Id. at 17. Petitioner confirmed he had as much time as needed to review the charges with Mr. Stewart. Id. at 6. Petitioner also testified under oath he was satisfied with the assistance he had received from Mr. Stewart and that he had read and reviewed the Plea Agreement with counsel before signing it. Id. at 7, 9.

         Judge Hall also explained the rights Petitioner would be waiving by pleading guilty, and Petitioner affirmed he clearly understood those rights. Id. at 7-9. Among the rights explained, Judge Hall reviewed the right to trial by jury, the presumption of innocence, the government's burden to prove guilt beyond a reasonable doubt, the right to present and cross-examine witnesses, and the right to remain silent. Id. Judge Hall also specifically reviewed the appeal and collateral attack waiver provisions of the Plea Agreement. Id. at 11. Judge Hall confirmed that other than the Plea Agreement, no one on behalf of the government had promised anything to procure the guilty plea. Id. at 12. Additionally, Judge Hall reviewed the potential for a five-year term of imprisonment for conviction on Count One. Id. at 13. When asked, Petitioner confirmed that he understood the possible imprisonment penalty, as well as the potential $1, 000, 000 fine and two years of supervised release after completion of the term of imprisonment. Id.

         Judge Hall further explained that upon entry of the guilty plea, he would order the preparation of a Presentence Investigation Report (PSI), and Petitioner's sentence would be based on the information in the PSI. Id. at 14-15. Judge Hall specifically explained the PSI would calculate an advisory Sentencing Guidelines range, but he could sentence Petitioner within the range, below the range, or above the range. Id. at 15-16. Petitioner stated that he understood the sentencing process described by Judge Hall and that no one had promised him he would receive a particular sentence. Id. at 16.

         Judge Hall next heard a factual basis for the guilty plea from Special Agent Ronald Rhodes with the Bureau of Alcohol, Tobacco, and Firearms. Id. at 18-23. SA Rhodes testified that on January 20, 2015, he and an FBI agent met Petitioner's co-defendant outside his apartment at Huntington Apartments in Augusta to interview him about a separate firearms investigation. Id. at 18-19. SA Rhodes was present to identify firearms related to the other investigation which ultimately resulted in terrorism-related charges. Id. When the agents asked to interview the co-defendant, he requested the interview occur at the apartment complex office rather than in his apartment. Id. at 19. The co-defendant was cooperative and agreed to let the agents go back to his apartment to examine three firearms. Id. Petitioner was inside the co-defendant's apartment when the agents returned from the apartment complex office. Id. at 20.

         Once inside the apartment, SA Rhodes saw four firearms near a plastic bag with green leafy residue and the smell of marijuana. Id. The co-defendant asked to speak with SA Rhodes outside and explained Petitioner brought marijuana to the apartment, the co- defendant used marijuana, and he would not give consent to search the apartment because he did not know what Petitioner brought into the house. Id. SA Rhodes requested assistance from the Richmond County Sheriff's Department to obtain a search warrant. Id. Upon execution of the warrant, officers found a total of twelve firearms, 3, 597 grams of marijuana, and 398.9 grams of hash oil. Id. at 20-21. SA Rhodes was also able to tie Petitioner to another investigation where a federally licensed firearms dealer admitted he received and delivered shipments of marijuana from Petitioner. Id. On cross-examination, Mr. Stewart elicited from SA Rhodes the related firearms investigation resulted in a firearms dealer pleading guilty to state charges for which he received a sentence of probation. Id. at 22.

         After SA Rhodes concluded his testimony, Judge Hall asked Petitioner if there was anything he disagreed with in the testimony, to which Petitioner answered, “No, Your Honor.” Id. at 23. Judge Hall further confirmed Petitioner still wanted to plead guilty, and that he was in fact guilty of the crime charged in Count One. Id. at 23-24. Petitioner responded affirmatively. Id. at 24.

         Judge Hall then summarized the proceedings as follows:

With the entry of the signed plea into the record of this proceeding, the Court finds that the Defendant, Mr. Gordon, is competent. He fully understands the charge against him. There is an independent factual basis to support his plea of guilty containing each of the essential elements of this offense. He knows the statutory punishment that could be imposed on the charge and he knows his jury rights which he has knowingly and voluntarily waived.
I further find that Mr. Gordon's decision to plead guilty this afternoon was voluntary, knowing, and not as a result of any force, pressure, threats, or promises other than the promises made by the government in the Plea Agreement. Therefore, Mr. Gordon's plea is accepted, and I adjudge him guilty of Count One of the Indictment based upon that plea.

Id. at 24.

         C. Motion to Withdraw Guilty Plea

         Less than three weeks later, Petitioner expressed a desire to withdraw his guilty plea, and Mr. Stewart filed a motion to withdraw because Petitioner was alleging ineffective assistance of counsel. Id., doc. nos. 45, 49. After conducting an ex parte hearing, the Court appointed new counsel, Jason Blanchard, to represent Petitioner.[1] Id., doc. nos. 53, 62, 83. Mr. Blanchard filed a motion to withdraw Petitioner's guilty plea, arguing Mr. Stewart provided ineffective assistance by failing to (1) provide Petitioner with all the discovery material prior to entering the guilty plea; and (2) discuss and file a motion to suppress based on an allegedly faulty search warrant. Id., doc. no. 81.

         Judge Hall held a hearing on the motion on October 18, 2016, taking testimony from both Mr. Stewart and Petitioner. Id., doc. no. 112 (“Mot. Hr'g Tr.”). Mr. Stewart testified he reviewed all the discovery material with Petitioner for over three hours immediately following the arraignment, discussing strengths and weaknesses of the case, sufficiency of the evidence, and how to proceed. Id. at 9-11. They reviewed the search warrant, SA Rhodes' report, and Petitioner's recollections of the day the search warrant was executed. Id. at 12-13. Mr. Stewart did not believe there was a viable motion to suppress to be filed based on the search warrant, and from that initial meeting, Petitioner expressed his desire to accept responsibility for his marijuana and plead guilty. Id. at 13-14, 55.

         After that initial meeting after arraignment, Mr. Stewart communicated with Petitioner after he returned to California while on pretrial release via telephone, text, email, and letters. Id. at 17, 52, 67. They continued to discuss the case discovery as questions arose, as well as plea-related issues and the sentencing guidelines. Id. at 18. In addition to reviewing the discovery provided by the government, Mr. Stewart went to the Richmond County Sheriff's Office to review the physical evidence and met with SA Rhodes to review the evidence, taking pictures and transmitting them to Petitioner in California. Id. at 53-54. As to documents Petitioner believed to be missing from the government's discovery, for example an ATF report with only one signature instead of two, Mr. Stewart made efforts to locate the documents, but he did not believe the additional documentation Petitioner sought was missing exculpatory evidence, and in any event, by pleading guilty, the requests would be moot. Id. at 28-30.

         Petitioner, on the other hand, testified he only reviewed a portion of the discovery with Mr. Stewart at the initial meeting after arraignment, and the two had never discussed any potential defenses, the search warrant, or the possibility of filing a motion to suppress. Id. at 66-68. Petitioner further testified he did not believe Mr. Stewart had investigated his case, and if had seen the entirety of the government's discovery, he would not have pleaded guilty. Id. at 68-69. However, Petitioner also conceded his testimony at the motions hearing conflicted with his Rule 11 sworn testimony that he wanted to plead guilty, was satisfied with his attorney, and had sufficient time to discuss his case with Mr. Stewart. Id. at 76-77. Petitioner also ...


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