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United States v. Rogers

United States District Court, Fourth Circuit

October 22, 2013

TERRELL ROGERS Criminal No. WMN-09-467


WILLIAM M. NICKERSON, Senior District Judge.

Petitioner Terrell Rogers filed a Motion to Vacate Sentence, ECF No. 130, pursuant to 28 U.S.C. § 2255 on February 6, 2013, supplemented by a subsequent Motion to Amend filed on August 26. ECF No. 136. Additionally, he filed a Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense on September 3, 2013. ECF No. 137. For the reasons stated herein, the Motion to Amend will be granted, the Motion to Vacate Sentence will be denied, and the Motion to Modify will be denied.


Petitioner Terrell Rogers, a.k.a. Tavon, was indicted pursuant to a superseding indictment on the following four counts: (1) possession of a firearm by a person convicted of a crime punishable by imprisonment exceeding one year (18 U.S.C. § 922(g)(1)); (2) narcotics conspiracy (21 U.S.C. § 846); (3) possession with intent to distribute cocaine base (21 U.S.C. § 841(a)(1)); and (4) conspiracy to commit witness tampering (18 U.S.C. § 1512(k)). The indictment arose out of an altercation outside of a bar between Rogers and a man named Troy Cook. Rogers, who was driving a vehicle with a friend, apparently rounded the corner adjacent to the bar at such a high speed that it startled and upset Cook's girlfriend, which led to the altercation. The fight between Rogers and Cook became physical and, at one point, Rogers ran around to the passenger's side of the car and retrieved a gun from the center console of the vehicle. After realizing that Rogers was armed, Cook ducked into the vehicle. Rogers followed suit, and, following a physical exchange inside the vehicle, Rogers pointed the gun at Cook's head. Cook pushed the gun down away from his head, and the gun fired, shooting Cook in the abdomen at close range. Rogers and his friend fled on foot. Although Cook remained hospitalized for some time, the gunshot wound was not fatal.

Rogers was later identified as the shooter by Cook's girlfriend, and the police were able to trace the vehicle left at the scene to Rogers. Rogers apparently attempted to convince the vehicle's owner, Cook's girlfriend, and a third individual to mislead police or repudiate their identification of Rogers as the shooter. The third individual, who asserted that Rogers was her drug dealer, assisted the police ultimately in apprehending Rogers by calling him to set up a drug deal. After observing Rogers complete a transaction, the police arrested him and recovered a quantity of crack cocaine from his vehicle.

Prior to trial, Rogers sought severance of Counts One and Four from the narcotics charges in Counts Two and Three, arguing that no nexus existed among the counts and joinder would result in prejudice to Rogers. ECF No. 39. The Court severed Count Two (narcotics conspiracy), but denied Rogers's motion as to Count Three (possession with intent to distribute). ECF No. 71. The jury ultimately returned a guilty verdict as to all three remaining counts of the indictment on June 9, 2010, and Rogers was sentenced on December 2, 2010 by this Court to 292 months as to Counts One and Three, and 120 months as to Count Four, to run concurrently. In reaching that sentencing determination, the Court considered, as relevant conduct under the Sentencing Guidelines, Rogers's actions in shooting Cook, finding that Rogers used a firearm during an attempted murder. Additionally, the Court considered Rogers's extensive criminal history. Ultimately, the Court determined that 292 months, which was at the bottom of the applicable Guidelines range, was an appropriate sentence.

Rogers appealed his sentence to the Court of Appeals for the Fourth Circuit, arguing that this Court erred in applying the attempted first degree murder cross-reference as relevant conduct and failed to adequately explain the reasons for the imposition of the sentence. The Fourth Circuit, in an unpublished per curiam opinion, affirmed Rogers's sentence, holding that this Court properly calculated the applicable Guidelines range by applying the first degree murder cross-reference and adequately explained on the record its reasons for imposing a sentence of 292 months. United States v. Rogers, 457 F.App'x 268, 270-71 (4th Cir. 2011).

Rogers filed the present Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, alleging a variety of defects in his original proceedings before this Court and before the Fourth Circuit Court of Appeals, stemming from alleged ineffective assistance of counsel.[1] Specifically, Rogers asserts the following defects: (1) the District Court erred in denying his request to sever the gun charge from the drug charge; (2) the District Court committed error in applying the base offense level for attempted murder through cross-reference; (3) trial counsel was ineffective in permitting a stipulation detailing the name and nature of a prior conviction; (4) counsel was ineffective in waiving Rogers's right to confront a witness against him without his consent; (5) trial counsel was ineffective in failing to object to hearsay evidence regarding the interstate commerce element of § 922(g); (6) trial counsel was ineffective when he failed to advise Rogers that the decision of whether to testify belonged to Rogers, and not counsel; and (7) insufficient evidence exists to support Rogers's conviction under § 922(g). For those issues not relating to the ineffective assistance of trial counsel, Rogers appears to also allege ineffective assistance of appellate counsel for failure to raise the issues before the Fourth Circuit Court of Appeals. Rogers also filed an amendment to his § 2255 motion, asserting that his sentence violated his Sixth Amendment right to a trial by jury under the Supreme Court's decision Apprendi v. New Jersey , 530 U.S. 466 (2000), and its progeny.


To state a claim for relief under 28 U.S.C. § 2255, a federal defendant must prove one of the following: (1) his or her sentence was "imposed in violation of the Constitution of the United States;" (2) "the court was without jurisdiction to impose such a sentence;" or (3) "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." § 2255(a). In a § 2255 motion, the defendant bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States , 261 F.2d 546, 547 (4th Cir. 1958). Generally, proceedings filed by pro se defendants are construed more liberally than those drafted by attorneys. Haines v. Kerner , 404 U.S. 519, 596 (1972).


Rogers asserts a variety of claims challenging both his conviction and sentence. As to each claim, he contends that either his trial counsel was ineffective, or that his appellate counsel was ineffective for failing to raise, on direct appeal, what he views as serious errors in the trial proceedings. The Sixth Amendment right to counsel includes the right to the effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 686 (1984). To prevail on a claim for ineffective assistance of counsel, whether regarding trial or appellate counsel, see Smith v. Murray , 477 U.S. 527 (1986); Smith v. Robbins , 528 U.S. 259 (2000), a petitioner ordinarily must show, first, that "counsel's representation fell below an objective standard of reasonableness." Strickland , 466 U.S. at 687-88. The court, in considering a habeas petition on these grounds, "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Second, if counsel's performance is deemed deficient, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome, '... and [t]he likelihood of a different result must be substantial, not just conceivable.'" Richardson v. Branker , 668 F.3d 128, 139-40 (4th Cir. 2012) (quoting Strickland , 466 U.S. at 694; Harrington v. Richter , 131 S.Ct. 624, 792 (2011)) (emphasis in original). In evaluating a claim of ineffective assistance of counsel, the Court need not necessarily address first whether counsel's performance was deficient. Rather, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed." Strickland , 466 U.S. at 697.

A. Challenges to Conviction

a. Trial Court's Failure to Sever Indictment

Rogers first argues that the District Court erred in declining to sever the drug-related counts from the gun charge, and that appellate counsel was ineffective for failing to raise the argument on appeal. Because a finding of ineffective assistance of counsel requires that, but for counsel's alleged errors, the result would have been different, the Court will evaluate first the merits of Rogers's argument regarding the prejudice caused by the alleged error.

Under Federal Rule of Criminal Procedure 8(a), "[t]he indictment or information may charge a defendant in separate counts with two or more offenses if the offenses charged are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Under Rule 8(a), "very broad joinder" is permitted "because of the efficiency in trying the defendant on related counts in the same trial[;]" thus, joinder is the "rule rather than the exception." United States v. Cardwell , 433 F.3d 378, 385 (4th Cir. 2005); United States v. Acker , 52 F.3d 509, 514 (4th Cir. 1995). Where the joinder of offenses "appears to prejudice a defendant or the government, [however, ] the court may order separate trials of counts...." Fed. R. Crim. P. 14(a).

A defendant seeking separate trials under Rule 14 "has the burden of demonstrating a strong showing of prejudice." United States v. Goldman , 750 F.2d 1221, 1225 (4th Cir. 1984). "Furthermore, whether joinder is so prejudicial as to warrant severance is a matter committed to the discretion of the district court." United States v. Mir , 525 F.3d 351, 357 (4th Cir. 2008). Thus, in order for Rogers's appellate counsel to prevail on his severance argument, had she raised it, she would have needed to demonstrate that the district court abused its discretion in declining to sever the drug charge, and that the resulting error was prejudicial to the defendant. See generally United States v. Lane , 474 U.S. 438, 445-446 (1986) ("[A]n error involving misjoinder affects substantial rights' and requires reversal only if the misjoinder results in actual prejudice because it had substantial and injurious effect or influence in determining the jury's verdict.'" (quoting Kotteakos v. United States , 328 U.S. 750, 776 (1946))).

Rogers argues that, "because the gun and drug charges were for the most part unrelated to each other and simply constitute two separate events that occurred on different dates and were not part of the same transaction or plan, " much of the evidence presented at trial was not relevant to the firearm possession charge and it was therefore improperly joined. ECF No. 130 at 17. The Government, by contrast, asserts that the trial court properly denied severance of Counts One, Three, and Four. Specifically, it contends that, because the facts underlying the counts were intertwined, the jury necessarily would have heard information concerning witness tampering and drug possession in conjunction with the firearm possession charge. Thus, severance would have resulted in "needless duplication of judicial effort in light of the legal, factual, and logistical relationship between the charges." See Mir , 525 F.3d at 357.

Rogers cannot demonstrate that the District Court[2] abused its discretion in declining to sever the charges, nor that the result of the appellate proceeding would have been different had severance been raised in the initial appeal. As the Government notes, the facts concerning the three charges were intertwined - the drugs were found when Rogers was arrested for the altercation with Cook, the witness tampering charges stemmed from the altercation with Cook, and the witness tampering investigation ultimately led to the arrest and drug discovery. An attempt to prosecute any of those three claims would have necessarily included the factual background underlying one or both of the other charges. Thus, the purposes of Rule 8(a) were met by joining the charges. Moreover, the trial judge's decision to sever one of the original counts from the superseding indictment suggests that he gave ...

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