United States District Court, D. Maryland
CATHERINE C. BLAKE, District Judge.
David Ellerby, a federal prisoner, was convicted in 2008 of various drug crimes and sentenced to a mandatory term of life imprisonment. He now challenges his convictions and sentence through a motion filed under 28 U.S.C. § 2255. He has also filed numerous related motions, including several motions to appoint counsel. For the reasons stated below, Ellerby's motion under § 2255 will be denied except as to two of his claims of ineffective assistance of counsel. The court will order an evidentiary hearing as to those two claims, and his most recent motion to appoint counsel will be granted to assist him in that hearing. The remainder of his motions will be denied.
Ellerby and a co-defendant, Jermall Lilly, were arrested on February 1, 2007, following the controlled purchase of cocaine by a confidential informant ("CI") and the execution of search warrants at locations associated with Ellerby and Lilly. On February 13, 2007, Ellerby was indicted on a single count of conspiracy to distribute and possess with intent to distribute cocaine and "crack" cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). On January 16, 2008, a superseding indictment was returned including the following five counts: (1) conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine and crack, in violation of 21 U.S.C. § 846 ("Count One"): (2) distribution of 50 grams or more of crack, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) ("Count Two"); (3) distribution of 50 grams or more of crack, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) ("Count Three"); (4) distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ("Count Four"); and (5) possession with intent to distribute cocaine and 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and (b)(1)(C) ("Count Five"). The evidence introduced at trial established the following facts.
CI Wallace Sanchez periodically received drugs from Ellerby, sold them, and provided Ellerby a portion of the proceeds. Sanchez was incarcerated in 2005, and in June 2006 began to cooperate with law enforcement. Sanchez was then released from prison. Part of his cooperation included performing controlled purchases of drugs from Ellerby under the supervision of Baltimore City Police Department ("BCPD") Detective James Bradley. BCPD officers gave Sanchez a phone to facilitate the transactions and allow officers to record conversations concerning drug sales. Officers recorded a series of such conversations between Sanchez and Ellerby, and Sanchez engaged in several controlled purchases of cocaine and crack from Ellerby and Lilly during late 2006 and early 2007.
After one such controlled purchase, officers executed a search warrant at an apartment associated with Ellerby. Inside, officers found Ellerby along with several hundred heroin-filled gel caps, more heroin, cocaine powder, a scale, various other drug paraphernalia, and phones whose numbers matched those Sanchez had used to communicate with Ellerby and Lilly regarding the controlled purchases.
During the seven-day jury trial, which began on July 28, 2008, defense counsel attacked Sanchez's credibility, eventually eliciting testimony that Sanchez acquired and sold drugs during the period of the investigation but without the government's knowledge or permission. It also came to light that Sanchez had written a letter expressing a desire to harm someone he believed gave him counterfeit money in exchange for drugs. The court required the government to produce certain policies regarding informants, and permitted the defense to re-call Bradley for further cross-examination. Ultimately, however, the jury convicted Ellerby on all counts and convicted Lilly on Count One of conspiring to distribute cocaine (but not crack) and on Count Four. At Ellerby's sentencing on November 14, 2008, the court determined that Ellerby was a career offender and had two previous felony drug convictions, and sentenced him to a mandatory term of life imprisonment as to Counts One, Two, and Three, and 360 months to run concurrently on Counts Four and Five.
Ellerby appealed on the following two issues: (1) whether the court committed reversible error in denying the defendants' motion for a mistrial or a continuance based on the government's late disclosure of impeachment evidence to the defense; and (2) whether the court committed reversible error in denying the defendants' post-trial motion for a new trial to call an expert to testify on the integrity of the investigation of the defendants, and in particular the alleged mishandling of the CI. The Fourth Circuit affirmed the defendants' convictions. United States v. Ellerby, 408 F.Appx. 696 (4th Cir. 2011) (unpublished per curiam).
Ellerby's filings assert various grounds for three main categories of relief: ineffective assistance of counsel, prosecutorial misconduct, and general error by the court. The court will address each category, and will then address the numerous other motions Ellerby has filed.
I. Ineffective Assistance of Counsel
"[A]n ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003). When a petitioner alleges a claim of ineffective assistance of counsel, he must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, a petitioner must overcome the "strong presumption' that counsel's strategy and tactics fall within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). That presumption accords to defense counsel "considerable latitude with respect to proper strategy." Tice v. Johnson, 647 F.3d 87, 102 (4th Cir. 2011). To demonstrate prejudice, a 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." Strickland, 466 U.S. at 694.
Ellerby was represented by Ivan Bates through a pretrial hearing concerning a motion to suppress. Bates withdrew as counsel when a potential conflict came to light in February 2008. Idus Daniel then entered his appearance and represented Ellerby through trial. Francis Pommett represented Ellerby on appeal. Ellerby asserts that all three of his lawyers were constitutionally ineffective. Each of his arguments will be addressed in turn.
A. Suppression Hearing
Before trial, Ellerby's initial counsel, Bates, filed a motion to suppress evidence obtained through the execution of the search warrant, raising arguments concerning, among other things, the particularity of the warrant's description of the location to be searched and the accuracy of the supporting affidavit's representations concerning the location. One issue centered on the warrant's specificity as to which apartment was to be searched; the warrant targeted the "second floor apartment" at the address in question, but the building had two second-floor apartments. The court held a hearing on the matter on October 24, 2007, and denied the motion to suppress.
During the hearing, Special Agent Michael Groth of the Bureau of Alcohol, Tobacco, Firearms and Explosives testified that it was his understanding that the second floor had just one apartment. (Hearing Tr. 10/24/07 at 50-51.) Groth testified that Sanchez told him that the correct door to enter on the second floor was the second door, but that Sanchez had never said there were two apartments. ( Id. ) Groth also testified that he reviewed the records of a 911 call from the address in question that described the caller, Shanetra Williams, as calling from the "second floor" of the address without specifying a particular apartment. ( Id. at 52.) He further testified that officers had twice requested subscriber information from Baltimore Gas and Electric ("BGE"), and both times BGE returned information indicating that only one subscriber was registered for the second floor. ( Id. at 52-56.)
Ellerby now argues that a "phone bill statement" of Tyrah Robinson demonstrates the falsity of statements in the affidavit supporting the search warrant, and of Groth's testimony. (ECF No. 198-1 at 6 ¶ 1.) He says that, had Bates provided the court with this document, the court would have authorized a hearing under Franks v. Delaware, 438 U.S. 154 (1978), and suppressed the evidence against him. Ellerby also argues that Bates was ineffective for failing to present Robinson's testimony, ( id. at 10 ¶ 7), as well as the testimony of Williams, who Ellerby says leased the apartment in question, ( id. at 9 ¶ 5). In an affidavit supporting his reply, Ellerby explains that Robinson's phone bill statement would have shown that the 911 call came from her phone number, not Williams's, and that Robinson's and Williams's testimony would have bolstered this conclusion. (ECF No. 222-2 at 13-14 ¶ U.)
Ellerby has failed to show either deficient performance or prejudice. First, Bates's failure to produce the phone record (if, in fact, he possessed such a record) did not render his performance deficient. Ellerby fails to recognize that the point of Groth's testimony concerning the 911 call was that the record merely indicated that the call came from the "second floor" apartment, and therefore suggested that there was only one apartment on the second floor. Whether the call came from a number associated with Williams, Robinson, or anyone else, the record's indication that the call came from the "second floor" apartment remains true. To the extent Ellerby says Bates should have done more to show Groth was lying, Bates had already obtained and produced for the court a number of related pieces of evidence, including the affidavits of both Robinson and Williams and BGE records for two separate second-floor apartments. ( See Ellerby's Suppl. Mem. Supp. Mot. Suppress Exs. 3-7, ECF No. 22.) Those affidavits and records tended to contradict Groth's testimony. Nevertheless, the court credited that testimony, and denied the motion to suppress. Bates's failure to produce the phone record, therefore, does not render his performance deficient. Nor was there prejudice, as Ellerby has failed to show that the result of the hearing would have been different had the court seen a phone record that would have done little, if anything, to impeach Groth's testimony. Though Ellerby argues otherwise, his "conclusory allegations are insufficient to establish the requisite prejudice under Strickland. " United States v. Terry, 366 F.3d 312, 316 (4th Cir. 2004). Accordingly, this claim fails.
B. Trial Strategy
Next, Ellerby argues that Daniel, his trial counsel, was constitutionally ineffective for focusing on discrediting Sanchez rather than putting on a defense that conceded Ellerby's guilt as to the sale of powder cocaine and focused only on contesting his guilt as to the sale of crack. (ECF No. 198-1 at 6-7 ¶ 2.) He also says Daniel was ineffective in soliciting testimony from Sanchez concerning his request for a gun from Ellerby. ( Id. at 17 ¶ 16.) But where a strategy "might be harmful to the defense, " an attorney does not perform deficiently in failing to pursue that strategy. Harrington v. Richter, 562 U.S. 86, 108 (2011); see also id. at 107 ("Counsel was entitled to formulate a strategy that was reasonable at the time...."). Given the strong presumption that Daniel's strategic decisions fell within the wide range of reasonable professional assistance, and that Ellerby's preferred strategy would have conceded his guilt on Count One, Daniel's performance in this regard was not deficient. Further, Ellerby has failed to show a reasonable probability that Ellerby's preferred strategy would have led to a different result as to either his conviction or sentence, or that not asking Sanchez about the gun would have done so. Accordingly, this argument fails.
C. Duty to Investigate
Ellerby also asserts that Daniel failed to "investigate, locate, and present the testimony" of a number of witnesses, including Nicole Nettles, Sheneika Longhorn, Eugene Foster, Joseph Vaughn, Latia Dillards, Elberta Saunders, and Tenesia Saunders. (ECF No. 198-1 at 7-14 ¶¶ 3-11.) Ellerby says that Nettles, Longhorn, Foster, Vaughn, and Dillards would have provided testimony concerning Sanchez's credibility, and Elberta and Tenesia Saunders would have testified that the recorded conversations between Ellerby and Sanchez actually concerned the sale of clothing. As to the first set of witnesses, Ellerby's defense was, in fact, already focused on attacking Sanchez's credibility. There is nothing to suggest that more testimony concerning Sanchez's drug sales, or his involvement in other illegal activity, would have swayed the jury. And as to the second set of witnesses, their testimony would do nothing to counter the fact that large quantities of drugs and items related to drug sales were found in the apartment with Ellerby, or to counter the video evidence. Accordingly, Ellerby has not shown a reasonable probability that the result at trial would have been different with the testimony of these individuals.
D. "Paid Informant" Instruction
Ellerby says Daniel's failure to ask the court to provide the jury with a "paid informant" instruction rendered his performance constitutionally ineffective. ( Id. at 14-15 ¶ 12.) But the court did, in fact, instruct the jury to examine Sanchez's testimony "with caution, and weigh it with great care." The court further instructed the jury to consider whether Sanchez had an incentive to testify falsely because of his plea agreement with the government, whether he would benefit more by lying or by telling the truth, and whether he was motivated by "hopes of personal gain." Ellerby has failed, therefore, to demonstrate deficient performance or prejudice.
E. Plea Deal and Ellerby's Review of Video Evidence
Ellerby also says he rejected a plea offer because Bates failed to show him video evidence despite his repeated requests. ( See ECF No. 198-1 at 16 ¶ 13; ECF No. 222-2 at 11-12 ¶¶ O-R.) "The Sixth Amendment right to the assistance of counsel during criminal proceedings extends to the plea-bargaining process." Merzbacher v. Shearin, 706 F.3d 356, 363 (4th Cir. 2013) (citing Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012)). Thus, "[d]uring plea negotiations defendants are entitled to the effective assistance of competent counsel.'" Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). "[T]he same two-part standard" set forth in Strickland is "applicable to ineffective-assistance claims arising out of the plea process." Hill v. Lockhart, 474 U.S. 52, 57 (1985). In all cases, including those involving the plea process, deficient performance is that which falls below an objective standard of reasonableness, overcoming the presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Merzbacher, 706 F.3d at 363. As to prejudice, "[i]n the context of pleas a defendant must show the outcome of the plea process would have been different" but for counsel's deficient performance." Lafler, 132 S.Ct. at 1384. Where the allegedly deficient performance led to a plea offer's rejection,
a defendant must show that but for the ineffective advice of counsel there is a reasonable probability  that the plea offer would have been presented to the court ( i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances),  that the court would have accepted its terms, and  that the conviction or sentence, or both, under the ...