United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
M. Hood, Senior U.S. District Judge.
prisoner Angelo Jones, proceeding pro se, has filed a motion
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct sentence by a person in federal custody. [DE 76]. The
United States has responded to the motion [DE 82] and Jones
has replied [DE 86], making this matter ripe for review.
case, the record refutes Jones's claims of ineffective
assistance of counsel that were properly presented in his
§ 2255 motion. Two of the claims alleging ineffective
assistance of counsel were waived because they were presented
for the first time in Jones's reply brief. Additionally,
Jones's substantive challenges to the firearm enhancement
and obstruction of justice enhancement are procedurally
defaulted because they were not raised on direct appeal.
Finally, Jones has failed to demonstrate that there were any
substantive issues with his sentence based on his drug
quantity calculation. Thus, Jones's petition for relief
under § 2255 is DENIED and the Court
declines to grant an evidentiary hearing, appoint counsel, or
issue a certificate of appealability.
Procedural and Factual Background
October 17, 2014, attorney G. Scott Hayworth was appointed as
counsel for defendant Angelo Jones [DE 6] in response to a
criminal complaint [DE 1]. On November 13, 2014, Angelo Jones
and his cousin, Paul Thornton, were indicted by a federal
grand jury for conspiring to distribute heroin and oxycodone,
distributing heroin, and firearms offenses. [DE 11,
Indictment]. Thompson pleaded guilty pursuant to a plea
agreement with the government. [DE 28, Plea Agreement]. Count
four of the indictment, which charged Jones with being a
felon in possession of a firearm, was severed upon motion of
the United States. [DE 32, Motion; DE 33, Virtual Order].
was tried on the remaining three counts at a jury trial on
February 4-5, 2015. [See DE 69, Trial Transcript Day
1 (February 4, 2015); DE 70, Trial Transcript Day 2 (February
5, 2015)]. At trial, Jones testified in his own defense and
denied that he sold heroin or oxycodone, assisted Paul
Thornton with selling drugs, or had knowledge of any weapons
in the home. [DE 70, at 38-66, Page ID # 450-78].
February 5, 2015, the jury convicted Jones on the two drug
counts but acquitted Jones of possession of a firearm in
furtherance of a drug trafficking offense. [DE 43, Verdict
Form at 1-3, Page ID # 169-71]. Subsequently, the United
States moved to dismiss count 4, which had been previously
severed. [DE 46, Motion]. The Court granted the motion
pertaining to count 4 and entered a judgment of acquittal on
count 3. [DE 48, Order; DE 47; Judgment].
to sentencing, the United States Probation Office conducted a
presentence investigation and calculated an adjusted offense
level of thirty-six. [DE 64, Presentence Report at 6-7, Page
ID # 232-33]. Additionally, based on his criminal history,
Jones was found to have a criminal history score of twelve
and a criminal history category of V. [Id. at 10,
Page ID # 236]. Based upon a total offense level of
thirty-six and a criminal history category of V, the
guideline sentencing range was between 292 and 365 months of
imprisonment. [Id. at 13, Page ID # 239].
15, 2015, sentencing was held. [DE 71, Sentencing
Transcript]. Jones was sentenced to a total term of
imprisonment of 240 months. [Id. at 18-19, Page ID #
554-55]. Jones was also sentenced to a six-year term of
supervised release. [Id. at 19, Page ID # 555].
filed notice of appeal on May 26, 2015. [DE 62]. On appeal,
Jones argued that there was insufficient evidence to support
his convictions, that the Court erred in attributing
quantities of heroin and oxycodone to Jones for sentencing
purposes, and that the sentence was procedurally and
substantively unreasonable based on an erroneous drug
quantity calculation. [See DE 72, Order at 2, Page ID # 561].
The United States Court of Appeals for the Sixth Circuit
affirmed Jones's conviction and sentence on April 28,
2016. [Id. at 6, Page ID # 565].
filed the present motion on April 28, 2017. [DE 76]. Jones
presently argues that his trial counsel provided ineffective
assistance of counsel and that there are errors pertaining to
his sentencing. First, Jones alleges that his attorney
provided ineffective assistance by failing to contact
potential defense witnesses before trial. Second, Jones
alleges that his attorney provided ineffective assistance at
trial by failing to object to the introduction of certain
text messages and failing to object to rebuttal testimony of
Sergeant Tom Beall. Third, Jones argues that his trial
counsel was ineffective for failing to object to the
sentencing enhancement for obstruction of justice. Finally,
Jones alleges errors at sentencing in determination of the
base offense level based on drug quantities and in
application of enhancements for possession of a firearm and
obstruction of justice.
Standard of Review
prevail on a motion under § 2255, a [petitioner] must
prove ‘(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid.'” Goward v. United
States, 569 Fed.Appx. 408, 412 (6th Cir. 2014) (quoting
McPhearson v. United States, 675 F.3d 553, 559 (6th
Ineffective Assistance of Counsel
ineffective assistance of counsel claim under
Strickland requires that a prisoner show (1) that
his “counsel's performance was deficient measured
by reference to ‘an objective standard of
reasonableness'” and (2) “resulting
prejudice, which exists where ‘there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been
different.'” United States v. Coleman, 835
F.3d 606, 612 (6th Cir. 2016) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984)).
establish deficient performance, a petitioner must
demonstrate that counsel's representation ‘fell
below an objective standard of reasonableness.'”
Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting
Strickland, 466 U.S. at 688)). Courts have
“declined to articulate specific guidelines for
appropriate attorney conduct and instead have emphasized that
‘[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional
norms.'” Id. (quoting Strickland,
466 U.S. at 688) (alterations in Wiggins). Still, a
court's review of this prong includes a “strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Petitioner carries the
burden of establishing that “‘counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment.'” Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at
results from a deficient performance when
“counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687.
“It is not enough ‘to show that the errors had
some conceivable effect on the outcome of the
proceeding.'” Harrington, 562 U.S. at 104
(quoting Strickland, 466 U.S. at 693).
“Strickland's high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371
(2010). The standard “must be applied with scrupulous
care, lest ‘intrusive post-trial inquiry' threaten
the integrity of the very adversary process the right to
counsel is meant to serve.” Harrington, 562
U.S. at 105. “Even under de novo review, the
standard for judging counsel's representation is a most
deferential one” because “[u]nlike a later
reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with
the judge.” Id.
Pre-Trial Ineffective Assistance of Counsel Claims
Failure to Investigate Potential Defense Witnesses
Jones alleges that his counsel was ineffective for failing to
investigate and contact potential defense witnesses before
trial. Specifically, Jones asserts that his attorney failed
to contact Angela Mosley and John Horvack.
is clear that “[c]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Towns v.
Smith, 395 F.3d 251, 258 (6th Cir. 2005) (quoting
Strickland, 466 U.S. at 691). Counsel's basic
function is “to make the adversarial process work in
the particular case.” Id. (quoting
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)).
Jones asserts that counsel failed to contact Angela Mosley,
whom Jones described as his girlfriend. [DE 76-1, Memorandum
at 6, Page Id. # 590]. Mosley was supposed to
testify that she had not seen Jones with a firearm. [DE 82-1,
Affidavit of Attorney G. Scott Hayworth at 2, Page
Id. # 623].
asserts that he conducted at least two telephone interviews
with Mosley, most recently on January 23, 2015, for
approximately twenty minutes. [Id.]. Counsel states
that when Mosley was asked about whether Jones was involved
in drug-related activity, Mosley asked, “Do I have to
tell the truth?” and stated that she did not want to
testify. [Id. at 2-3, Page Id. # 623-24].
Jones asserts that Hayworth never contacted Mosley but
provides no additional proof that Mosley was not contacted.
Furthermore, other than stating, “This was critical
because the government found drugs and guns in a residence
that Mr. Jones visited instead of residing (sic), ”
Jones does not indicate how Mosley's testimony would have
assisted his case. [See DE 76-1 at 6, Page ID # 590].
the record indicates that counsel conducted a proper
investigation into Angela Mosley as a potential witness by
contacting her on multiple occasions and having a
twenty-minute phone interview with Mosley before trial.
Furthermore, counsel's decision not to call Mosley is
strategically reasonable. Based on the January 23, 2015,
phone interview with Mosley, counsel reasonably believed that
Mosley had knowledge of Jones's involvement in
drug-related activity. In fact, Mosley's testimony could
have inculpated Jones on the counts related to drug
Jones was acquitted on count 3, possession of a firearm
during commission of a drug crime. As such, Mosley's
testimony that she had not seen Jones with a firearm would do
little to assist Jones's defense on the two drug counts.
Ultimately, counsel provided Jones with effective assistance
when he contacted Angela Mosley about being a potential
defense witness and made a reasonable strategic decision not
to call Mosley to testify when her testimony could have
inculpated Jones on the two drug-trafficking counts.
while Jones did not include the names of any other potential
witnesses that his attorney failed to contact before trial in
the memorandum in support of his motion, it appears that John
Horvath may be an additional witness that Jones feels his
attorney failed to contact. [See DE 76-1 at 6, Page ID #
590]. An affidavit from Horvath, a close friend of Jones, is
attached to Jones's reply brief. [DE 86-1, Affidavit of
John Horvath]. Horvath claims that he would have testified
that Jones did not stay at the 70 1/2 South Main Street
Residence where Jones was arrested because Jones stayed with
him at another residence in Winchester, Kentucky.
[Id. at 2, Page ID # 646]. Furthermore, Horvath
stated that he would have testified that the bullets found at
the Main Street Residence belonged to him and not Jones.
the record indicates that Jones's attorney made multiple
attempts to contact Horvath for an interview and was
unsuccessful. First, counsel called Horvath's employer,
DJ's Bar & Grille in Winchester, Kentucky. [DE 82-1
at 3, Page ID # 624]. The business confirmed that Horvath was
an employee but stated that he was not present.
[Id.]. Counsel claims that he left a message,
identifying himself as Angelo Jones's lawyer, and asked
Horvath to return the call. [Id.]. Horvath
acknowledges that counsel called his place of employment and
left a message but asserts that counsel did not leave his
number or contact information, so Horvath presumably never
returned the call. [See DE 86-1 at 2, Page ID #
646]. Second, counsel asserts that he sent a letter to
Horvath's last known address that was returned as
counsel made a sufficient effort to contact Horvath to
investigate whether he would make a suitable defense witness.
Horvath acknowledges that he received a message from counsel
pertaining to Angelo Jones's defense. Furthermore,