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United States v. Maxwell

United States District Court, E.D. Kentucky, Northern Division

January 16, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
LAZELLE MAXWELL, Defendant/Movant.


          Hanlv A. Ingram United States Magistrate Judge

         Federal 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.

         The 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.


         The 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.

         Initially, 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.

         On 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 the conspiracies:

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 Kentucky.

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.

         In June 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.”[1] D.E. 269 at 18 (internal quotation marks omitted).

         On 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.

         Maxwell's 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, [2] 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. 319.


         Under 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 assistance.

         In the § 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) (per curiam).


         The 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.

         The 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).

         As an 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.

         Still, 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 ...

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