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United States v. Faison

United States District Court, E.D. Kentucky, Central Division, Lexington

February 16, 2017




         This case is before the Court on remand from the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit directed this Court to conduct an evidentiary hearing to cure certain factual infirmities in the record and to reassess whether Faison's counsel provided him with ineffective assistance of counsel. The Court held a hearing on October 4, 2016 during which Cullen Gault, Faison's CJA appointed attorney, and Ron Walker, the Assistant U.S. Attorney prosecuting the case, both testified.

         As set forth below, this Court's conclusion remains the same: Faison's ineffective assistance of counsel claim fails. The Court finds that the entirety of the record conclusively shows that Faison is not entitled to relief under 28 U.S.C. § 2255.

         I. Background

         The record in this case is well documented. (DE 786; DE 814). Therefore, the Court will recite only the facts related to the issues in the present matter.

         On November 24, 2009, Cullen Gault was appointed to defend Faison on charges of conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess with intent to distribute a controlled substance, in violation of § 841(a)(1). See 21 U.S.C. § 846.

         On December 15, 2009, Gault sent Faison a letter along with a proposed Plea Agreement. In the letter, Gault noted that he “had an ethical obligation to forward [Faison] the . . . documents.” (DE 860, Def. Ex. 2). He also sent Faison an email on the same day reiterating the contents of the letter. (DE 860, Def. Ex. 2). Two days later, on December 17, 2009, Gault sent Faison another email, confirming that he would meet with Faison in Cincinnati, Ohio on December 22, 2009. (DE 860, Def. Ex. 2). In preparation for the meeting, Gault reached out to Assistant U.S. Attorney Walker inquiring as to whether Walker could provide him with the names of potential witnesses who might testify against Faison in the event of a trial. In response, Walker pointed Gault to a few names and noted that “[t]his was the best I can do until pleas are reached with [Faison's co-defendants].” (DE 860, Def. Ex. 2).

         Faison and Gault met in Cincinnati to discuss the case. (DE 860, Ex. 1 at 3). There were no documented discussions between Gault and Faison until a few weeks later, when Gault sent Faison a series of emails between January 6 and January 13 discussing, among other topics, the Federal Sentencing Guidelines and discovery materials. (DE 860, Ex.1 at 2). Nothing in the email exchange mentioned the offer of a plea deal by the government.

         On January 14, 2010, Gault made a series of phone calls. He called the Court's chambers to confirm the deadline of January 18, 2010 by which to file a motion for a change of plea. Also, Faison and Gault spoke by telephone regarding the status of the case. As indicated by Gault's follow-up email, Faison at that point “still desire[d] to go to trial.” (DE 860, Def. Ex. 2). In that same email, Gault further outlined an anticipated sentencing guideline range based upon Faison's criminal history. He stated: “It is my opinion this places you in a Criminal History Category IV. If you then review the Federal Sentencing Guidelines, the recommendation to the Court would be 121-151 months. I used a base level of 29.” (DE 860, Def. Ex. 2). The email also referenced a conversation Gault and Walker had the same day. (DE 860, Ex. 1 at 4). The CJA records indicate that Gault spoke to Walker about the nature of the case and that Walker was willing to participate in a conference call with Faison regarding the same. As Gault's email to Faison noted: “ Walker, the prosecutor, wanted me to inform you that the base level could increase because it is his opinion the Jury will find a greater quantity of drugs were sold that was contained in your proposed Plea Agreement. If that comes to fruition, your base level would be higher and the sentence recommendation to the Court could be higher.” (DE 860, Def. Ex. 2).

         Later that day, Gault, Walker, and Faison all spoke by telephone conference. The subject of that conversation was to inform Faison of, in Walker's words, “the fact that there was a real probability that there was going to be a superseding indictment and that that would not be in [Faison's] best interest to let that happen because it could increase his guidelines and other enhancements could be imposed upon him if he did not accept the plea agreement that was presented to him at that time.” (DE 862, p. 86, ¶ ¶ 10 -17). Further, during the call, Walker explained to Faison that if there was no guilty plea entered, “[the United States] would be filing a superseding indictment.” (DE 862, p. 89 ¶ 24).

         Four days later, on January 18, 2010, Gault again emailed Faison, this time to confirm that the two had discussed Faison's options and that Faison had authorized Gault to file a motion requesting a change of plea. In the same message, Gault relayed to Faison the government's position that if the case went to trial, “[the U.S.] could prove additional amounts of narcotics were sold above what was detailed in the Plea Agreement.” (DE 860, Def. Ex. 2). Gault noted that the additional amounts, if proven, would “recommend a higher sentence that (sic) what I projected in an e-mail dated 1/14/10. Please remember that Sentencing Guidelines are recommendations for the Judge.” (DE 860, Def. Ex. 2). Gault informed Faison that he spoke to the U.S. Attorney about Faison's intentions to cooperate and that doing so would “hopefully lead to . . . a 5K1.1 Motion for a downward departure.” (DE 860, Def. Ex. 2).

         Faison then changed his mind and decided not to cooperate. On January 21, 2010, Gault confirmed Faison's declination in an email and further informed him that “[he] would forgo the option of the U.S. filing a 5K1.1 Motion to request the Judge reduce your sentence based on your cooperation.” (DE 860, Def. Ex. 2). Later the same day, Gault informed Faison that a hearing for change of plea had been scheduled for January 25, 2010. (DE 860, Def. Ex. 2).

         About thirty minutes before the January 25 hearing, Gault received an email from Walker confirming the previous telephone conversation he had with Gault and Faison eleven days earlier on January 14, 2010. In the email, Walker also informed Gault of the government's position that the plea agreement needed to be adjusted. Walker wrote:

During our telephone conversation with Faison, I referred to base offense level as a level 34 based upon 6000 OC 80 mg pills in looking at the plea agreement it has a level 32 and 4000 pills. The plea agreement also does not have a leadership calculation. Those are errors in the plea agreement. . . . My position at sentencing will be that they do apply if we are unable to make these changes.

(DE 860, Def. Ex. 2).

         Faison and Gault then appeared before the Court for rearraignment. At the beginning of the proceedings, however, Gault informed the Court that Faison had contacted another attorney, Mr. Halpern, about representing him in the case. (DE 351, p. 4 ¶ 20-22). Gault requested a continuance, which the Court granted. The Court then advised Faison that in view of his change of counsel, the proceedings would be continued because it did not “want [him] to do anything [he was] not prepared to do here today.” (DE 351, p. 5, ¶¶ 19-20). Faison responded, “All right.” (DE 351, p. 5 ¶ 21). No signed plea agreement ...

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