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Morris v. United States

United States District Court, W.D. Kentucky, Bowling Green Division

July 6, 2017




         This matter is before the Court upon Movant/Defendant Kelly Dewayne Morris's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [DN 36.] Magistrate Judge Brennenstuhl recommends that Morris's motion be denied. [DN 58; DN 76.] Morris has filed objections to portions of the Magistrate Judge's reports. [DN 59; DN 77.] The Court must review de novo those portions of the Magistrate Judge's recommended disposition to which Morris objects. 28 U.S.C. § 636(b)(1)(C). After careful consideration of Morris's objections and the record, the Court agrees with the Magistrate Judge that Morris's motion is without merit. Therefore, for the following reasons, Wadlington's § 2255 motion to vacate [DN 36] is DENIED. Furthermore, the Court DENIES a certificate of appealability as to all grounds raised in his motion.

         I. Facts and Procedural History

         On September 4, 2014, this Court entered a judgment of conviction against Morris in Case No. 1:13-CR-39 on one count of possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2), one count of possession of body armor by a convicted felon, 18 U.S.C. §§ 931(2), 924(a)(7), and four counts of possession with intent to distribute cocaine base, 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(C). [DN 32.] These charges arose out of a series of transactions between Morris and a government confidential informant. Pursuant to a Rule 11(c)(1)(C) plea agreement, Morris pled guilty to the aforementioned six counts and was sentenced to a total of 151 months of imprisonment. Id. On July 8, 2015, Morris filed his motion to vacate under 28 U.S.C. § 2255, arguing ineffective assistance of counsel. [DN 36.] The Court referred Morris's motion to Magistrate Judge H. Brent Brennenstuhl for rulings on all non-dispositive motions, appropriate hearings, and findings of fact and recommendations on any dispositive matter. [DN 37.] After the United States' response, [DN 40], and Morris's reply, [DN 42], the Magistrate Judge held a hearing.

         At that hearing, Morris advanced two grounds for the vacation of his sentence under § 2255. First, Morris argued his trial counsel, Assistant Federal Defender Patrick J. Boudin, failed to pursue an entrapment defense, which Morris believes the evidence supports. See [DN 58 at 18.] On this point, Morris testified and presented video recordings of meetings he had with the government's confidential informant on October 10 and 16, 2013. [DN 51, Def.'s Ex. 1]; [DN 53 at 3-34.] Second, Morris argued Boudin failed to file a notice of appeal, which Morris says he requested. [DN 58 at 24].]

         Following the hearing, the Magistrate Judge issued findings of fact, conclusions of law, and a recommendation that Morris's motion be denied. [DN 58 at 28.] The Magistrate Judge explained that, in his view, “Attorney Bouldin made a sound strategic decision regarding the viability of an entrapment defense after consulting with Morris and considering the video recordings of the transactions between Morris and the CI.” [Id. at 21.] Because the evidence did not support an entrapment defense, Bouldin's decision to negotiate a plea agreement and recommend it to Morris was objectively reasonable, preventing Morris from establishing ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687 (1984). [Id. at 22-23.] The Magistrate Judge also concluded Morris “failed to demonstrate he gave Attorney Bouldin specific instructions to file a notice of appeal and that Attorney Bouldin disregarded those instructions, ” and therefore could not establish ineffective assistance of counsel under Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), with respect to his second ground for vacation of his sentence. [Id. at 27.]

         Morris filed objections to the Magistrate Judge's findings. See [DN 59.] He also filed a motion to reopen the hearing before the Magistrate Judge, seeking to introduce tapes of three additional conversations with the government's confidential informant that were not made available to him before the hearing. See [DN 60.] The Court granted Morris's motion, and the case went back to the Magistrate Judge for further consideration of Morris's entrapment defense. See [DN 63.]

         Morris argued the additional recordings - dated August 1, August 12, and September 19, 2013 - had been altered, and sought funds to procure an expert to conduct a forensic analysis of the recordings. [DN 67.] The Magistrate Judge granted Morris's motion in part, ordering Morris to pay half the expert fee. [DN 69.] The Magistrate Judge held a second evidentiary hearing on April 20, 2017, and issued a supplemental report and recommendation shortly thereafter.

         In his supplemental report, the Magistrate Judge again concluded Morris was not entitled to relief based upon his attorney's failure to pursue an entrapment defense. He pointed out that at the second evidentiary hearing, Morris's counsel admitted the three additional recordings contained no exculpatory evidence. [DN 76 at 3.] Further, Morris “offered only a bald assertion that the videos were altered.” [Id. at 5.] Lastly, even if the videos had reflected the conversations Morris alleged occurred, the Magistrate Judge said, “there is still no circumstance in which Morris could have satisfied the predisposition prong of an entrapment defense.” [Id. at 5.] The Magistrate Judge once again recommended Morris's § 2255 motion be denied, and no certificate of appealability should issue. [Id. at 6-7.] Morris filed objections to the Magistrate Judge's supplemental report as well. [DN 77.]

         II. Standard of Review

         A prisoner may request that his sentence be set aside on the grounds that it was “imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). “The statute does not provide a remedy, however, for every error that may have been made in the proceedings leading to conviction, ” but only “when the error qualifies as a ‘fundamental defect which inherently results in a complete miscarriage of justice.'” Slater v. United States, 38 F.Supp.2d 587, 589 (M.D. Tenn. 1999) (quoting Reed v. Farley, 512 U.S. 339 (1994)).

         The “right to counsel” implies the “right to effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 692 (1984). Under Strickland, a “petitioner must make two showings to qualify for relief: (1) ‘that counsel's performance was deficient'; and (2) ‘that the deficient performance prejudiced the defense.'” Howard v. United States, 743 F.3d 459, 464 (6th Cir. 2014) (quoting Strickland, 466 U.S. at 687). “An attorney's performance is deficient if ‘counsel's representation fell below an objective standard of reasonableness.'” Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013) (quoting Strickland, 466 U.S. at 688). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 694.

         III. Discussion

         In his § 2255 motion, Morris alleges his attorney, Patrick Bouldin, was ineffective in two ways. Morris says Bouldin failed to file the appeal he requested and failed to pursue a viable entrapment defense. See [DN 36.] After two evidentiary hearings, the Magistrate Judge found that neither theory entitles Morris to relief. As ...

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