United States District Court, E.D. Kentucky, Northern Division
A. Ingram United States Magistrate Judge
prisoner Lazelle Maxwell claims that he is entitled to habeas
relief because he was denied due process and because his
counsel, David Fessler, was constitutionally ineffective. The
Court conducted an evidentiary hearing on the latter claim. A
review of the evidence reveals that Fessler diligently and
conscientiously prepared for trial and appropriately advised
Maxwell along the way. Fessler's account is corroborated
by a series of letters he exchanged with Maxwell and
bolstered by Fessler's sincere, candid, and self-critical
demeanor. On the other hand, Maxwell, recognizing that his
allegations are not supported by the written record, goes so
far as to accuse Fessler of withholding additional letters,
and he even questions whether Fessler had some nefarious
motive. There is no credible evidence to support
Maxwell's accusations. Maxwell also swears that Fessler
failed to advise him on fundamental aspects of his case such
as the nature of the conspiracy charge against him.
Court credits Fessler's account, rejects Maxwell's,
and therefore recommends that Maxwell's motion under 28
U.S.C. § 2255 (D.E. 314) be DENIED.
procedural history of this case is lengthy. However, a brief
overview will suffice for purposes of Maxwell's present
motion. Maxwell was first indicted in April 2009. D.E. 3. In
June 2009, a superseding indictment was returned which
charged Maxwell with conspiring to distribute and to possess
with the intent to distribute fifty grams or more of a
mixture or substance containing a detectable amount of
cocaine base (crack cocaine) and with conspiring to
distribute and to possess with the intent to distribute 100
grams or more of a mixture or substance containing a
detectable amount of heroin. D.E. 65 at 1-2. Following the
denial of his motion to suppress, Maxwell proceeded to a jury
trial. See D.E. 92; D.E. 133.
Maxwell was represented by attorney John Alig. D.E. 26.
However, after Alig withdrew from the case because of a
conflict of interest, Fessler was appointed to represent
Maxwell. D.E. 42; D.E. 46. Fessler represented Maxwell
beginning on May 29, 2009, which was before the superseding
indictment was returned, through his sentencing. See
D.E. 46; see also D.E. 205. Maxwell's jury trial
lasted six days. See D.E. 133; D.E. 135; D.E. 136;
D.E. 137; D.E. 139; D.E. 140. At the conclusion of the trial,
the jury found Maxwell guilty of both counts charged in the
superseding indictment. D.E. 146. Subsequently, District
Judge Reeves sentenced Maxwell to 240 months on the cocaine
conspiracy count and 120 months on the heroin conspiracy
count, to be served consecutively, for a total term of 360
months, to be followed by a total of 10 years of supervised
release. See D.E. 208 at 2-3.
direct appeal, the United States Court of Appeals for the
Sixth Circuit affirmed Maxwell's conviction and sentence.
See United States v. Shields, 415 Fed.Appx. 692, 705
(6th Cir. 2011); see also D.E. 233 at 23. In
addressing Maxwell's claim of insufficiency of the
evidence, the Sixth Circuit discussed the wealth of evidence
presented at trial identifying Maxwell as being involved in
In this case, eight witnesses, several of whom were
Maxwell's alleged co-conspirators, identified Maxwell as
the leader of a conspiracy to distribute large quantities of
crack cocaine and heroin in the Northern Kentucky area.
Additionally, cellular phones seized from the three locations
tied to the drug sales were linked via programmed numbers to
the phone number assigned to Maxwell. McIntosh, the
registered owner of the cellular phone with Maxwell's
assigned number, testified that she obtained this phone for
Maxwell at his request. This phone number either received or
made calls to Maxwell's sister on nine occasions in May
2008. Additionally, Ross, the alleged co-leader of the
conspiracy along with Maxwell, testified that the
co-conspirators sold approximately fifteen ounces of crack
cocaine and fifteen to twenty ounces of heroin in Northern
Shields, Fed.Appx. at 703-04; see also D.E.
233 at 20. The United States Supreme Court denied
Maxwell's petition for a writ of certiorari in June 2011.
Maxwell v. United States, 564 U.S. 1029 (2011)
(mem.); see also D.E. 236.
2012, Maxwell filed a motion to vacate under 28 U.S.C. §
2255. D.E. 244. Upon review, and on the recommendation of the
magistrate judge, Judge Reeves denied Maxwell's motion,
but issued a certificate of appealability on the limited
issue of “whether Maxwell's trial counsel erred
under Strickland v. Washington, 466 U.S. 668 (1984),
by failing to challenge the charges against Maxwell in Counts
One and Two of the Superseding Indictment as
multiplicitous.” D.E. 269 at 18 (internal quotation marks
appeal, the Sixth Circuit found the indictment to be
multiplicitous because the counts were based on the same
conspiracy. See Maxwell v. United States, 617
Fed.Appx. 470, 473 (6th Cir. 2015); see also D.E.
282 at 4. Further, in light of the United States'
concession that both prongs of the Strickland
analysis were met, the Sixth Circuit determined that Maxwell
received ineffective assistance at the trial level.
Maxwell, 617 Fed.Appx. at 473; see also
D.E. 282 at 4. As a remedy, the Sixth Circuit remanded
Maxwell's case to Judge Reeves with instructions to
vacate Maxwell's conviction for one of the two conspiracy
counts, vacate the special assessment for the vacated count,
and resentence him on the remaining count. Maxwell,
617 Fed.Appx. at 480; D.E. 282 at 17. At resentencing, Judge
Reeves vacated the heroin conspiracy conviction and
resentenced Maxwell to 360 months of imprisonment to be
followed by 10 years of supervised release on the cocaine
conspiracy conviction. See D.E. 295 at 1-3.
present § 2255 motion was docketed on March 19, 2018.
D.E. 314. Because he received a full resentencing following
his new judgment, his motion is not considered second or
successive, and this Court has jurisdiction to consider the
motion. See D.E. 319. Upon consideration, the
undersigned determined that factual disputes existed
concerning Maxwell's claims of ineffective assistance of
counsel and scheduled an evidentiary hearing to develop those
issues. See D.E. 328 at 5-6; D.E. 332; D.E. 335. At
the evidentiary hearing, held on December 21, 2018, Maxwell
was represented by counsel, Fessler and Maxwell both
testified,  and numerous exhibits were admitted into
evidence. D.E. 337. The Court has reviewed the record in
detail, and the matter now stands submitted to the
undersigned for a recommended disposition. See D.E.
the Antiterrorism and Effective Death Penalty Act of 1996,
the Court considers whether Maxwell's sentence was
imposed in violation of the Constitution or the laws of the
United States. See 28 U.S.C. § 2255(a). In his
motion, Maxwell claims that the government committed a
Brady violation and that he received ineffective
assistance of counsel based on his counsel's failure to
review all discovery with him and based on the advice his
counsel gave him regarding the law of conspiracy. He claims
he would have pled guilty had Fessler provided him effective
§ 2255 context, Maxwell bears the burden of proving his
allegations by a preponderance of the evidence. See Pough
v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
Additionally, the Court recognizes that Maxwell filed his
motion as a pro se litigant, that is without the
assistance of an attorney. Thus, the Court will construe
Maxwell's filings liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam); Castro
v. United States, 540 U.S. 375, 381-83 (2003);
Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985)
Court can easily dispense with Maxwell's first claim of
error: that the government failed “to disclose all
exculpatory evidence to the defense in violation of the Fifth
and Fourteenth Amendments.” D.E. 314-1 at 1. Here,
Maxwell submits that phone records were a crucial piece of
evidence in his case and that the government failed to
provide the defense with the telephone numbers it intended to
use at trial. See Id. at 2.
nature of the phone-related evidence is important to all of
Maxwell's claims. One critical issue in the case was
whether Maxwell was the conspirator known by the street name
of “Stone.” D.E. 340 at 11-12. Maxwell defended
the case on the bases that he was not Stone and that he had
nothing to do with the conspiracy. Id. at 12.
Through voluminous records concerning phone numbers contacted
by or associated with Stone's phone, the government
attempted to link Maxwell to Stone's phone number and the
conspiracy. Id. at 13. Fessler testified that the
potential link to Stone's phone was the “tangible
thing” the defense was concerned about. Id. at
83. He also testified that there were “hundreds and
hundreds of pages” of phone records filling “two
Bankers boxes.” Id. at 84, 121. The phone
records were material to the case. Maxwell claims that the
government did not respond to a request from Fessler, by
email, to provide a narrowed list of the phone numbers that
it intended to use at trial. See D.E. 314-1 at 2;
see also D.E. 323-1 at 17 (email from Fessler to the
government requesting evidence, including the phone numbers
the government thought were connected to cell phones owned or
used by Maxwell).
initial matter, the government argues that Maxwell has
procedurally defaulted his Brady claim by failing to
raise it on direct appeal. See D.E. 323 at 2-3. Upon
review of the record, that position appears well-founded
because Maxwell did not raise his Brady claim on
direct appeal, see Peveler v. United States, 269
F.3d 693, 698 (6th Cir. 2001), and he has not shown that
either cause and actual prejudice excuse his default or that
he is actually innocent, see Bousley v. United
States, 523 U.S. 614, 622 (1998)). Indeed, rather than
challenge the government's assertions concerning
procedural default on his Brady claim, Maxwell
argues the merits. See D.E. 327 at 4- 5.
even if the Court were to address Maxwell's
Brady claim on the merits, his claim would be
unsuccessful. Cf. King v. Morgan, 807 F.3d 154, 158
(6th Cir. 2015) (recognizing that, in certain situations, a
court may consider a Brady claim in a new habeas
petition when a defendant is challenging an underlying
conviction and/or a new sentence). Indeed, Maxwell has not
shown that the government withheld any evidence that was
favorable to him as the accused. See Brady v.
Maryland, 373 U.S. 83, 87 (1963) (holding that
“that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of
the prosecution”). This conclusion is not dependent
upon any factual dispute and was therefore not a part of the
evidentiary hearing. Instead, Maxwell's statements in his
own filings compel the finding that the information he sought
from the government was inculpatory rather than exculpatory.
See D.E. 327 at 5 ...