United States District Court, E.D. Kentucky, Central Division, Lexington
UNITED STATES OF AMERICA, Plaintiff, WILLIAM SEAN FAISON, Defendant.
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
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.
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.
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.
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.
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).
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
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).
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).
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).
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).
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).
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 ...