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United States v. Jones

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

October 17, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
ANGELO JONES, Defendant/Petitioner.


          Joseph M. Hood, Senior U.S. District Judge.

         Federal 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.

         In this 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.

         I. Procedural and Factual Background

          On 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].

         Jones 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].

         On 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].

         Prior 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].

         On May 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].

         Jones 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].

         Jones 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.

         II. Standard of Review

         “To 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 Cir. 2012)).

         III. Analysis

         A. Ineffective Assistance of Counsel

         An 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)).

         “To 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 687).

         Prejudice 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).

         Meeting “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.

         (1) Pre-Trial Ineffective Assistance of Counsel Claims

         a. Failure to Investigate Potential Defense Witnesses

         First, 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.

         The law 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)).

         First, 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].

         Counsel 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].

         Alternatively, 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].

         Here, 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 trafficking.

         Additionally, 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.

         Second, 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. [Id.].

         Still, 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 undeliverable. [Id.].

         Here, 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, ...

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