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United States v. Duplessis

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

November 1, 2018



          Edward B. Atkins, United States Magistrate Judge

         This Court conducted an evidentiary hearing in this matter on October 5, 2018 [R. 120], following the Sixth Circuit Court of Appeals' April 20, 2018 Order vacating the Court's Judgment [R. 92], and remanding this case for a hearing on the ineffective assistance of counsel claims found in Duplessis's Motion to Vacate pursuant to 28 U.S.C. § 2255 [R. 75; R. 100; R. 101]. Having reviewed the record, and in light of the recently-held evidentiary hearing, this matter is ripe for consideration and preparation of recommended disposition. 28 U.S.C. § 636(b)(1)(B).


         Norshawn Michael Duplessis, a pro se federal prisoner “pleaded guilty to possession with intent to distribute 100 or more grams of heroin, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).” [R. 100] (citing United States v. Duplessis, No. 14-6558 (6th Cir. Feb. 3, 2016) (order)); [R. 74]. Duplessis received a 120-month sentence for possession of heroin, running consecutive to a sixty-month sentence for possession of a firearm. [R. 59]. Thereafter, Duplessis appealed to the Sixth Circuit Court of Appeals; however, the Court dismissed his appeal pursuant to the appellate waiver provision in his plea agreement. [R. 60]; [R. 74]. Nevertheless, the Court noted that Duplessis's appellate-waiver provision did not prevent him from challenging his ineffective assistance of counsel claim, but that this issue would not be considered on direct appeal. [R. 74 at 3].

         In September 2016, Duplessis filed a Motion to Vacate pursuant to 28 U.S.C. § 2255, raising several claims, including two ineffective-assistance-of-trial-counsel claims. First, Duplessis claimed that he received ineffective assistance during the change-of-plea proceedings because his attorney failed to provide him with correct advice concerning the elements of a § 924(c) offense. [R. 75 at 4]. Second, Duplessis claimed that his attorney should have moved to have the firearm subjected to DNA and fingerprint testing. [Id. at 5]. Duplessis also requested an evidentiary hearing and sought to have counsel appointed to represent him at the hearing. [R. 75-1 at 17]. On March 30, 2017, this Court concluded that Duplessis's ineffective assistance of counsel claims failed on the merits, and ultimately denied his motion to vacate and declined to issue a Certificate of Appealability. [R. 91]. Further, because the Court found the record to conclusively demonstrate that Duplessis was not entitled to relief on these claims, his requests for an evidentiary hearing and the appointment of counsel were also denied. [Id.].

         On April 28, 2017, Duplessis filed a Notice of Appeal pertaining to this Court's denial of his Motion to Vacate and the denial of a Certificate of Appealability. [R. 93]. On October 23, 2017, the Sixth Circuit Court of Appeals granted Duplessis's Certificate of Appealability application and Motion to Proceed in forma pauperis, as well as directed the Clerk to set a briefing schedule on the question whether Duplessis is entitled to an evidentiary hearing on his ineffective assistance claims. [R. 98 at 5].

         On April 20, 2018, having found this Court erred in denying Duplessis's claims without conducting an evidentiary hearing, the Sixth Circuit Court of Appeals vacated this Court's Judgment [R.92], and remanded this case for the purpose of holding an evidentiary hearing. [R. 100 at 2]. In relevant part, the Sixth Circuit Court of Appeals concluded:

A § 2255 petitioner must receive an evidentiary hearing on his claims “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Duplessis's ineffective-assistance claims depend on credibility determinations and the content of conversations between him and his attorney[, Steven Scharg, ] that occurred off the record. Consequently, an evidentiary hearing is required to resolve his claims.

Id. (citing MacLoyd v. United States, 684 F. Appx'd 555, 561- 62 (6th Cir. 2017)). Thus, pursuant to 18 U.S.C. § 3006A, this Court appointed Patrick Nash, Esq., as counsel for Duplessis, and set the matter for an evidentiary hearing. [R. 102 at 3].

         Findings from the October 5, 2018 Evidentiary Hearing

          On October 5, 2018, on remand from the Sixth Circuit Court of Appeals regarding Duplessis's Motion to Vacate under 28 U.S.C. § 2255, this matter appeared before the undersigned for a limited evidentiary hearing. [R. 120].[1]

         1. Steven Scharg

         Duplessis's former attorney, Steven Scharg (“Scharg”) was the first witness to be called to the stand. Scharg's testimony began with an account of his first meeting with Duplessis, who had conceded to the charge of knowingly possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1), but was in denial to the charge of knowingly possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). [6:45]; [R. 7].

         Duplessis had been offered a plea agreement which he allegedly told Scharg he was going to take. [10:27]. On direct examination, Scharg was asked whether he had spoken to Duplessis about what was necessary to prove the elements of a § 924(c) offense, and whether he had explained the idea of a “nexus.” Scharg responded:

I told him that the negativity of going to trial would be the fact that it was his apartment, in his name. He indicated to me that he was the only one that was residing there…I told him that if we went to trial, he probably would have to testify to explain the situation…The testimony is going to come out that no one else was residing there, [and] that when he moved in, I'm sure a landlord would [tell him] that, [he] had a chance to look in [his] apartment before [he] got there, and I'm sure if…if [he] noticed there was a gun there, [he] would have either thrown it out, or gave it to local authorities or whatever. But, if it wasn't [his] gun, [he] wouldn't leave it there. And I [told him that] it's going to be very hard to get around to the fact that there were drugs in your apartment, and that, in drug cases, sometimes drug traffickers keep a weapon near the door, they can argue, because [if] someone comes to rob you or comes to the door you'll have the gun right at access there…A juror could look at it that way. That diminishes your credibility when you get on the witness stand, denying everything.

[11:18 - 12:24]. After having this conversation, Scharg testified that Duplessis wanted to enter a guilty plea because “he didn't want to take a chance.” [13:47].

         Regarding Duplessis's plea agreement, Scharg testified that it had been mailed out to Duplessis ahead of time to review. [15:50]. Prior to the first re-arraignment, on July 7, 2014, Scharg stated that there was no indication that Duplessis had issues with the plea, and that he was “shocked” when Duplessis could not make the factual basis for the § 924(c) charge. [16:14 - 16:40]. “He admitted that the gun was in his apartment, but he didn't know it was there, ” Scharg said. [16:43]. Therefore, the Court did not accept the plea and the matter was set for trial. [16:54]; [R. 34]. Scharg then told Duplessis, “For me, the worst thing you can do is - if you can't make the factual basis, then don't embarrass us; we can just set it for trial.” [17:13]. According to Scharg, he and United States Attorney, Robert M. Duncan, Jr., sat down with Duplessis, and again advised him about what was necessary to prove the elements of the §924(c) offense. [17:54 - 18:44].

         To address Duplessis's concerns about the time he was facing, Scharg testified that he spoke to Mr. Duncan to see if the government would agree to a polygraph test. [18:44 - 19:24]. Scharg told Duplessis that it would be his “only shot, ” in either getting the count dismissed or amended. [Id.]. Thereafter, the polygraph test was set up; Scharg was informed that Duplessis did not pass, or at least, was not truthful as to the Count 2 issue. [19:38- 20:25].

         Regarding the allegations against him, Scharg stated that, at no point, did he tell Duplessis that “[he is] guilty because the gun was in [his] apartment, ” or never did he “force[] him into entering a plea” because he would receive a life sentence if he went to trial. [21:31-22:00]. “I would never tell him that [he would] get life imprisonment because… I would never do that, ” Scharg said. [22:35]. Scharg also denied Duplessis's allegations that they did not see each other outside of court dates and argued that he had been responsive to all his phone calls. [23:05]. In reference to Duplessis's request for a DNA and fingerprint testing of the firearm, Scharg testified that, from his experience in trial work, the prints could come back inconclusive. Thus, it would be more advantageous for them to not conduct the testing of the firearm, and instead, bring to the jury's attention the government's decision to not conduct the testing. [24:50].

         Upon being informed that Duplessis did not want to go to trial, Scharg filed another motion for re-arraignment, and Duplessis received a second plea agreement. [28:26]; [R. 41]. Accordingly, on September 8, 2014, Duplessis signed the agreement and entered a guilty plea as to Count 2 of the indictment. [R.44]. During this change-of-plea hearing, Duplessis confirmed that he had reviewed the indictment and discussed the charges with Scharg, as well as confirmed that he was satisfied with the advice and representation that he had been given. [R. 73 at 6]. Likewise, Duplessis acknowledged that he was given the opportunity to read the plea agreement with Scharg and discussed it with him prior to signing it. [Id. at 7]. Notwithstanding, on November 25, 2014, Duplessis sent a letter prior to the sentencing hearing, arguing that Scharg had misled him regarding his guilty plea to Count 2. [29:41]; [R. 48]. Scharg testified that he was “shocked” when he read Duplessis's letter and did not see this coming. [Id.]. Thereafter, Scharg filed a Motion to Withdraw Duplessis's Plea of Guilty, as to Count 2 only; however, this motion was denied. [31:17]; [R. 49; R. 53].

         On cross-examination, Scharg was confronted about the amount and frequency of contact that he had exercised throughout the course of his representation with Duplessis. [33:08]. It was revealed that Scharg had met with Duplessis a total of six times at the courthouse: on a “pre-indictment occasion”, at the arraignment, at the first change of plea hearing on July 7, 2014, at the polygraph test, at the second change of plea hearing on September 8, 2014, and at the sentencing hearing on December 17, 2014. [33:45]. Scharg was again asked how he had advised Duplessis about the elements of the § 924(c) charge. [35:35].

SCHARG: I would just advise him that the gun was - and I agreed with him near the beginning of my representation- that the gun was in a spot in the closet. I believe it was in the front closet… There has to be a nexus to it; so, in other words, if he just believed that there was a gun in the house, that's not enough to show in furtherance of drug trafficking… I had to explain to him…constructive possession. You could have access to get to that weapon. It could be looked at by a jury, that possibly, they could… find you guilty of that or they can find you not guilty, and say well, because it was in a computer bag, in a closet, maybe you didn't know. But with regard to the drugs that were found in the house, that he was the sole occupant… I believe it makes our, or your credibility, if you had to testify, a little harder to get around. I don't believe a jury would find you as credible if you tried to explain it. [36:06-37:12]. … NASH: So, you felt like, based on these conversations, that he understood the elements?

[37:42-37:46]. Scharg was then questioned regarding the accessibility of the gun in the closet, and whether he and Duplessis had spoken about how “accessible the closet was vis a vis the front door.” [37:57].

NASH: As I understand it, the gun, according to the police, was found in this closet we're talking about?
NASH: And, as you said, the closet was very near the ...

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