Forrest v. United States

DEANDRE FORREST, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. 2:20-CV-00775

CRIM. NO. 2:17-CR-00158

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

April 16, 2021

JUDGE JAMES L. GRAHAM

Magistrate Judge Kimberly A. Jolson

ORDER AND REPORT AND RECOMMENDATION

Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. (Doc. 152). The Court granted Petitioner's request for an evidentiary hearing on his claim that his lawyer unconstitutionally conceded his guilt. (Doc. 167). And, on February 10, 2021, the Court held the hearing, making the case ripe for review. This matter is before the Court on the Motion to Vacate, Respondent's Return of Writ, Petitioner's Reply and Supplemental Brief, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that the claims in the Motion to Vacate under 28 U.S.C. § 2255 (Doc. 152), Claims One, Two, and Three, be DISMISSED.

Additionally, on December 17, 2020, Petitioner filed a Second Supplemental Brief in Support in which he raises seven new claims for relief. (Doc. 182). The Court construes Petitioner's Second Supplemental Brief as a request to amend the Motion to Vacate under 28 U.S.C. § 2255. Respondent is DIRECTED to file a Response to the Second Supplemental Brief within twenty-one (21) days. Petitioner may file a Reply within fourteen (14) days thereafter.

I. BACKGROUND

Petitioner challenges his convictions after a jury trial on one count of conspiracy to distribute and to possess with intent to distribute 280 grams or more of cocaine base; three counts of distribution of cocaine; two counts of distribution of 280 grams or more of cocaine base; and one count of possession of firearms in furtherance of a drug trafficking crime. The Court sentenced him to an aggregate term of 180 months' imprisonment. (Amended Judgment, Doc. 105). On February 15, 2019, the United States Court of Appeals for the Sixth Circuit affirmed that Judgment. United States v. Forrest, 763 F. App'x 466, 468-69 (6th Cir. 2019). The Sixth Circuit summarized the facts as follows:

Defendant Deandre Forrest is a drug dealer. Operating out of his apartment in Columbus, Ohio, Forrest manufactured crack cocaine, and sold both crack and powder cocaine to customers. His activities eventually caught the eye of local and federal law-enforcement authorities and he was convicted of multiple drug and firearm counts.

***

Law enforcement officials began investigating Forrest's drug-dealing activities in 2016. The investigation led to several controlled drug buys of distribution-level amounts of cocaine between a confidential informant and Forrest, and the execution of a search warrant on Forrest's apartment in June 2017. Just before officials were about to enter Forrest's apartment to effectuate the warrant, they observed Young enter the rear of the apartment and leave moments later, carrying what appeared to be a brown grocery bag. Forrest's own video surveillance system showed that Young entered carrying a bag, retrieved something inside, and left holding something in his left hand—all within thirty seconds. Officers stopped Young's car and discovered a brown grocery bag that contained four plastic sandwich bags, each containing 125 grams of crack cocaine—for a total of nearly half a kilogram. The crack cocaine was recently manufactured, and not in a form or size conducive to individual, one-gram-a-dose use. Officers found other significant evidence of drug trafficking and recent manufacturing activity inside Forrest's apartment. In addition, they located a bag containing about $27,000 in cash, "tied up with ... rubber bands."

A few days later, Young, Forrest, and an unidentified woman spoke on a recorded jailhouse phone call. During the call, Forrest discussed how the authorities were going to try to get Young to cooperate, described Young as "my bro," and suggested that if Young cooperated, "then I don't know what you are talking about." Forrest reiterated he had Young's "back," and promised to "get that paper"—i.e., money for Young's legal expenses.

Id.

On February 10, 2019, Petitioner filed the now ripe Motion to Vacate under 28 U.S.C. § 2255. (Doc. 152). He asserts that his convictions violate the Fourth Amendment (claim one); that he was denied the effective assistance of counsel (claim two); and that his convictions violate due process (claim three). It is the Respondent's position that Petitioner's claims fail.

Also, on December 17, 2020, Petitioner filed a "Second Supplemental Brief in Support." Yet, rather than supplement, Petitioner raises seven new claims for relief in that brief. (Doc. 182).

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

To obtain relief under 28 U.S.C. § 2255, a prisoner must allege either "(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." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted). In addition, "it is well-established that a § 2255 motion 'is not a substitute for a direct appeal.'" Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003)). Accordingly, if a claim could have been raised on direct appeal, but was not, the Court will not consider the claim via a § 2255 motion unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claim previously; or (2) that he is "actually innocent" of the crime. Ray, 721 F.3d at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).

III. DISCUSSION

Petitioner's three ripe claims—and his seven proposed claims—are addressed below.

A. Claim One

In his first claim, Petitioner asserts that police illegally searched the residence at 1197 S. 22nd Street, seizing a video recording from Petitioner's security camera, in violation of the Fourth Amendment. Petitioner appears to have withdrawn this claim as an independent issue and now raises it in the context of ineffective assistance of counsel. (See Reply, Doc. 165, PAGEID # 1471). Yet, out of an abundance of caution, the Court addresses the issue. Regardless of how it is raised, it has no merit.

The Constitution does not guarantee the right to have "the evidentiary fruits of an illegal search or seizure suppressed at trial." Winters v. United States, Nos. 1:12-CR-102-HSM-SKL-1, 1:16-CV-400-HSM, 2019 WL 1556669, at *4 (E.D. Tenn. Apr. 10, 2019) (citing Davis v. United States, 564 U.S. 229, 236 (2011). Thus, "[b]ecause questions regarding the admissibility of otherwise relevant evidence seldom touch upon the 'basic justice' of a conviction, the Supreme Court bars Fourth Amendment claims from habeas review." Id. (citing Northrop v. Trippett, 265 F.3d 372, 378 (6th Cir. 2001). A prisoner must show that he has been denied the opportunity for a "full and fair litigation" of his Fourth Amendment claim before he may obtain review of that claim in federal habeas corpus proceedings. Ray v. United States, 721 F.3d 758, 762 (6th Cir. 2013) (quoting Stone v. Powell, 428 U.S. 465, 486 (1976)). Petitioner does not allege, and the record does not reflect, that these are the circumstances here. Therefore, this claim does not provide Petitioner a basis for relief.

The Court will address the issue, however, as raised by Petitioner in the context of his claim of ineffective assistance of counsel.

B. Claim Two

Petitioner's second claim has two sub parts. He asserts that both his trial counsel and his appellate counsel provided constitutionally deficient representation. "In all criminal prosecutions," the Sixth Amendment affords "the accused . . . the right . . . to Assistance of Counsel for his defence." U.S. Const. amend. VI. "Only a right to effective assistance of counsel serves the guarantee." Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011) (citation and quotations omitted). The United States Supreme Court set forth the legal principles governing claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a movant claiming ineffective assistance of counsel to demonstrate that his counsel's performance was deficient and that he suffered prejudice as a result. 466 U.S. at 687. To show deficient performance, a petitioner must demonstrate that his counsel's representation "'fell below an objective standard of reasonableness.'" Richardson v. Palmer, 941 F.3d 838, 856 (6th Cir. 2019) (quoting Strickland, 466 U.S. at 688). "Regarding prejudice," a petitioner "must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Richardson, 941 F.3d at 856 (quoting Premo v. Moore, 562 U.S. 115, 121 (2011)). "A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689).

1. Ineffective Assistance of Trial Counsel

Petitioner claims his trial counsel violated his constitutional rights by not pursuing a plea deal, not filing a motion to suppress, conceding his guilt, and otherwise erring during trial.

Plea Negotiations: Petitioner asserts that he was denied the effective assistance of counsel because his...