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United States v. Thompson

United States District Court, E.D. Kentucky, Southern Division, London

August 3, 2017

UNITED STATES OF AMERICA Plaintiff/Respondent,
JOHN THOMPSON, Defendant/Movant. Civil Action No. 6: 16-130-DCR


          Danny C. Reeves, United States District Judge

         John Thompson has a problem telling the truth. When he chose to testify about the quantity of drugs he was peddling, he lied. And because of that lie, he received an enhanced sentence for obstruction of justice and lost credit for acceptance of responsibility. Not a good decision on his part.

         Thompson tells another tale through his § 2255 motion: his defense counsel supposedly was engaged in an illicit-fee-agreement relationship with a government witness. He argues that, because of this alleged relationship, counsel had an actual conflict of interest and his guilty plea should be vacated. But the truth has a way of creeping in. There was no such “fee agreement, ” there is no evidence of an illicit relationship, and the government's witness was never a government's witness. Finally, perhaps expecting his conflict-of-interest story to crumble with adversarial testing, Thompson makes a new claim. For the first time, he asserted while testifying at the evidentiary hearing that counsel told him to lie about the quantity of drugs. The United States Magistrate Judge found the latest claim lacking in credibility and the undersigned agrees completely. In short, Thompson's claims lack evidentiary support and his § 2255 motion will be denied.


         On November 15, 2013, Thompson pleaded guilty to one count of conspiring to distribute oxycodone and one count of distributing oxycodone, in violation of 21 U.S.C. § 846 and § 841(a)(1). [Record Nos. 20, 97] In light of a factual dispute over the quantity of pills in issue, an evidentiary hearing was held on January 10, 2014. [Record No. 102] In findings published on January 13, 2014, the Court found defendant Thompson to have received a total of 8, 750 oxycodone 30 milligram pills over the course of the conspiracy, despite Thompson's testimony alleging a much smaller quantity.[1] [Record No. 104] Thompson was sentenced on March 28, 2014, to 190 months' incarceration, followed by a three-year term of supervised release. [Record Nos. 138 and 139]

         In light of Thompson's false testimony during the evidentiary hearing, the defendant did not receive credit for acceptance of responsibility in connection with his non-binding guideline calculation. [See Record No. 154.] Instead, he received a two-level increase for obstruction of justice. [Id.] Thompson appealed his sentence, challenging the Court's drug-quantity findings, along with his obstruction enhancement and denial of acceptance credit. [See Record Nos. 140 and 171.] The Sixth Circuit later affirmed [Record Nos. 171 and 172] and on June 22, 2015, the Supreme Court denied the defendant's petition for a writ of certiorari. [Record No. 188]

         Exactly one year later, Thompson filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.[2] [Record No. 202] Thompson alleges six theories of ineffective assistance of counsel. His primary claim was that his then-defense counsel, Warren Scoville (now deceased), had an actual conflict of interest. In accordance with local practice, this motion was referred to United States Magistrate Judge J. Gregory Wehrman for initial consideration. A briefing order was set, and response and reply briefs were filed. [Record Nos. 204, 211, 215]

         On September 29, 2016, Magistrate Judge Wehrman issued a Report and Recommendation concluding that the Thompson's motion should be denied. [Record No. 217] Magistrate Judge Wehrman found that “most of defendant's claims are too generic and conclusory to warrant §2255 relief.” [Id. at 4] However, with respect to counsel's alleged conflict of interest, Magistrate Judge Wehrman concluded that Thompson's did not meet “his steep burden to show deficient performance and/or prejudice, ” especially in light of the shaky evidentiary basis presented. [Id. at 8] Thompson filed objections to the Magistrate Judge's Report and Recommendation, signed and dated October 18, 2016, which were filed in the record on October 24, 2016. [Record No. 220] The objection strenuously asserts that counsel had an actual conflict of interest. [See, e.g., Id. at 6.] Thompson included a purported affidavit of “Brooke Williams” together with his objections. [Record No. 220-1] Because that affidavit tended to support Thompson's allegation of an actual conflict, the Court referred the matter back to the Magistrate Judge for further consideration, including to consider the applicability of Cuyler v. Sullivan, 446 U.S. 335 (1980). [Record No. 225]

         Thompson was appointed counsel and an evidentiary hearing was scheduled based on the newly-filed affidavit. [Record No. 232] The evidentiary hearing was held before Magistrate Judge Wehrman on March 23 and 34, 2017. [See Record Nos. 250-254.] Testimony was taken from Thompson as well as from both individuals from whom affidavits were submitted. [Id.] A Report and Recommendation was issued thereafter. [Record No. 255] Magistrate Judge Wehrman recommends denial of Thompson's motion for lack of evidence of an actual conflict. [Id.] Objections were timely filed by counsel.[3] [Record No. 256] The objections assert in a cursory fashion that the Report and Recommendation is wrong regarding concurrent representation of Thompson and his co-defendant Osborne. Thompson argues that there was concurrent representation (Scoville represented Osborne on state charges while representing Thompson on federal charges), that it occurred at a critical stage, and that Scoville's loyalty was divided because of his desire to have an affair with Osborne's fiancé (and alleged government witness): Brooklyn Williams. [Id.] The objections further argue that Scoville's advice was tainted and that the Report and Recommendation fails to consider the allegation that Scoville instructed Thompson to lie about the pill quantity (which, it alleges, is strong evidence of unethical and constitutionally ineffective assistance). [Id.]

         This Court must make a de novo determination of those portions of the Magistrate Judge's recommendation to which objections are made. 28 U.S.C. § 636(b)(1)(C). However, “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Nevertheless, the Court has examined the record de novo and agrees with the Magistrate Judge that denial is appropriate.


         As ably explained in the Report and Recommendation, a defendant claiming ineffective assistance of counsel must typically show “(1) that his or her attorney ‘made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment, ' and (2) that the attorney's deficient performance was so prejudicial that it ‘deprive[d] the defendant of a fair trial, a trial whose result is reliable.'” Harris v. Carter, 337 F.3d 758, 761 (6th Cir. 2003) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). This is known as the Strickland standard: errors and prejudice. However, the Supreme Court has recognized exceptions to the Strickland standard. Under certain scenarios, defendants are relieved of their burden to show prejudice. See Mickens v. Taylor, 535 U.S. 162, 176 (2002) (explaining the exceptions as a “needed prophylaxis in situations where Strickland itself is evidently inadequate to assure vindication of the defendant's Sixth Amendment right to counsel.”). One such scenario, typified by the case of Cuyler v. Sullivan, 446 U.S. 335 (1980), is where counsel is laboring under a conflict of interest. Where a defendant can show that “an actual conflict of interest adversely affected his lawyer's performance, ” a defendant need not show prejudice.[4] Id. at 348. The confusion lies in what types of conflicts of interest the lower Cuyler standard applies.

         In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme Court suggested, without deciding, that Cuyler may only apply to scenarios where counsel can be shown to have “actively represented conflicting interests.” Id. at 175 (quoting Cuyler, 446 U.S., at 350). While the Sixth Circuit has trimmed its application of Cuyler in light of Mickens, in 2003 the Court applied Cuyler to a scenario where counsel had represented a co-defendant during the pre-indictment stage, and proceeded to represent the defendant during trial, in the same action. Moss v. United States, 323 F.3d 445 (6th Cir. 2003). However, the Court denied relief, finding no adverse effect. Id. at 470.

         Thompson argues ineffective assistance of counsel both based on the dual representation of him and his co-defendant Michael Osborne, and based on counsel's alleged illicit relationship with Osborne's fiancé (Shannon “Brooke” or “Brooklyn” Williams, a potential government witness). The Court finds that, regardless of the standard applied, Thompson cannot prevail on his conflict of interest claim.

         a. Conflict of Interest Based Upon Concurrent Representation

         Warren Scoville was a prominent defense attorney for years preceding his death and, without question, represented both John Thompson and Michael Osborne (Osborne being a co-defendant in the underlying criminal case). However, he did not represent them in the same proceeding. Scoville represented Osborne in a state-court proceeding, and later represented Thompson on unrelated federal charges.[5] Osborne's state-court charge was dismissed on August 19, 2013, as established during the evidentiary hearing. [See Record No. 255 at 3] Thompson and Osborne were indicted on federal charges on August 22, 2013 [Record No. 20], and were arraigned on August 28, 2013 [Record Nos. 39 and 40]. Thompson retained Scoville as counsel, in anticipation of the federal charges, on June 26, 2013. [Record No. 255 at 2] Therefore, Scoville provided concurrent representation, but only “off-the-record.” [Record No. 255 at n.6]

         Despite the period of concurrent representation, the Report and Recommendation concludes that Cuyler does not apply because “Cuyler covers only cases of ‘joint representation at trial.'” [Record No. 255 at 11 (quoting Benge v. Johnson, 474 F.3d 236, 244 (6th Cir. 2007))] As a gloss on “joint representation at trial, ” the Report and Recommendation also concludes that, because Scoville did not jointly represent Osborne and Thompson during a “critical stage” of Thompson's proceedings, Cuyler does not apply. [Id.] There is no suggestion of interactions with prosecutors or law enforcement prior to Thompson being indicted, hence no arguable “critical stage.”[6]

         Thompson argues in his objections “the concurrent representation did occur at a critical stage of [his] proceedings.” [Record No. 256 at 2 (emphasis added)] He does not further elaborate on what counts as a “critical stage.”[7] [Id.] Neither will the Court elaborate, because adopting the “critical stage” language under Cuyler created a potential conflict under existing Sixth Circuit caselaw. In Moss, the Sixth Circuit applied Cuyler based on pre-indictment representation of co-defendant, but never opined on whether the pre-indictment period contained a “critical stage.” 323 F.3d 445. More recent cases, applying Cronic, have found pre-indictment stages not to be critical stages. See Kennedy v. United States, 756 F.3d 492, 493 (6th Cir. 2014) (holding that pre-indictment plea negotiations, together with pre-indictment interrogations and pre-indictment identifications, are not “critical stages”). But no definitive answer is necessary here. Regardless of whether Thompson must show prejudice (Strickland) or adverse effect (Cuyler), he can show neither based upon only the fact of the off-the-record concurrent representation. As Magistrate Judge Wehrman states, “[t]here is no evidence that Scoville altered his representation of Thompson in the federal drug case in any way because of his representation of Osborne. . .” [Record No. 255 at 13] The state court drug proceeding was wholly unrelated to the federal prosecution. [See Id. at 1-2; Evid. Hrg. Tr. 03/23/17 at 53-54] The representation-conflict nexus is the alleged illicit fee agreement.[8] Without the alleged fee agreement, Thompson's claim largely evaporates.

         b. Conflict of Interest Based Upon Relationship with Government Witness

         The gravamen of Thompson's claim is not that joint or concurrent representation with Osborne, in and of itself, created a conflict of interest. It is, instead, that Scoville had an illicit-fee-agreement relationship with Osborne's then-girlfriend, Shannon Brooklyn Williams, who was a likely government witness against Thompson. Thompson previously submitted an affidavit, purportedly sworn to by Williams, that was suggestive of such an agreement. [Record No. 220-1]

         The purported Williams affidavit was, in large part, the trigger for the evidentiary hearing in this matter. See Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting Blanton v. United States, 94 F.3d 227, 235 (6th Cir.1996)) (“An evidentiary hearing is required unless ‘the record conclusively shows that the petitioner is entitled to no relief.'”). The purported-affidavit suggests, at the very least, that Scoville proposed that Williams provide him with sexual favors in exchange for his representation of Osborne. [Record No. 220-1] The purported-affidavit also suggests that Williams was a possible government witness against Thompson, and that Scoville was aware of this fact. [Id.] The evidentiary hearing revealed that the affidavit was both substantially false, and that it was never actually sworn to by Williams, nor was it notarized in her presence.

         Osborne testified at the hearing. When pressed on whether he had an agreement (or even so much as a conversation) with Scoville regarding offering sex with Williams in exchange for a fee waiver, Osborne answered “No.” Under cross-examination by the United States, Osborne testified as follows:

Q. … Did [Warren Scoville] ever suggest to you that he have sex with Brook Williams in exchange for representing ...

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