United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE
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.
Indictment and Pretrial Proceedings
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.
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.
Agreement to Plead Guilty
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.
Plea Agreement contained the following factual basis for his
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
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.
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.
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.
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
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.
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.
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.
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.
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
Id. at 24.
Motion to Withdraw Guilty Plea
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. 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.
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.
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.
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