United States v. Jones

453 F.Supp.3d 858

UNITED STATES of America

v.Oshay Terrell JONES, Defendant.

Case No. 7:13-CR-0038

United States District Court, W.D. Virginia, Roanoke Division.

Signed April 9, 2020

Matthew M. Miller, Ronald Andrew Bassford, Laura Day Rottenborn, United States Attorneys Office, Roanoke, VA, for United States of America.

MEMORANDUM OPINION

Michael F. Urbanski, Chief United States District Judge

"Allowing the procedural posture of this case to overrun an individual's liberty undermines the integrity of the Court system and the value society places on judges to get things right." United States v. Black, 388 F. Supp. 3d 682, 689 (E.D. Va. 2019).

This case is fraught with mistakes - by the petitioner proceeding pro se; by his trial counsel; by the prosecution; by probation; and by the court.¹ In his petition brought pursuant to 28 U.S.C. § 2255, Oshay Terrell Jones ("Oshay Jones")² asks the court to look past the many procedural mistakes in this case and reach the substance of his two ineffective assistance of counsel claims. Oshay Jones argues first that, but for bad legal advice from his trial counsel, he would have taken a favorable plea deal.³ Oshay Jones also contends his trial counsel erred in failing to object to the drug weight calculated in the PSR, particularly the amount of crack cocaine Brandon Snead purchased from Oshay Jones.⁴ While this case is procedurally complicated, Oshay Jones asks the court to address only these two instances of ineffective assistance of counsel. For its part, the government, while acknowledging the erroneous advice of Oshay Jones’ trial counsel, stands on procedure and insists that the court lacks jurisdiction to provide a remedy.

The court agrees with the government that Oshay Jones is procedurally barred from raising the Plea Offer Claim but disagrees that the Snead Drug Weight Claim is likewise barred. "In short, too much went wrong here." United States v. Lockhart, 947 F. 3d 187, 199 (4th Cir. 2020) (Wilkinson, J., concurring).

Accordingly, the court will GRANT in part and DENY in part Oshay Jones’ Rule 60(b) motion as to his habeas corpus petition. As detailed herein, the court will GRANT habeas relief as to the Snead Drug Weight Claim and set the case down for resentencing. However, because the Fourth Circuit Court of Appeals has ruled that Oshay Jones abandoned the Plea Offer Claim, the court must DENY habeas relief on that claim.

I. Background Procedural History of Oshay Jones’ § 2255 Petition.

Oshay Jones was indicted on May 16, 2013 for conspiracy to distribute 280 grams of crack cocaine and went to trial in January 2014. During trial preparation, Oshay Jones was advised by his trial counsel, based on counsel's reading of the recent decision of the Supreme Court of the United States in Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), that the 280-gram quantity alleged in the indictment was an element of the offense. As such, trial counsel told Oshay Jones that if the 280-gram quantity was not proven at trial, he would be acquitted. Relying on that constitutionally ineffective advice, Oshay Jones dismissed any interest in plea negotiations, including a favorable plea deal orally communicated to his prior counsel and another even more favorable deal extended to his brother, Dominique Jones, on the eve of trial.

Oshay Jones, his brother Dominique Jones, and three others went to trial and were convicted of the drug conspiracy, but not at the 280-gram level charged in the indictment. Rather, relaying on a waterfall instruction given by the court over defendants’ objection, the jury found that it was reasonably foreseeable to the defendants that the conspiracy involved 28 grams of crack cocaine. At sentencing, Oshay Jones was assigned a sentencing guidelines base offense level of 34, based on the court's finding that he was responsible for 1.4 kilograms of crack cocaine.⁵ With enhancements for a firearm, criminal livelihood, and role, Oshay Jones topped the total offense level chart at 42. With a criminal history category of I, Oshay Jones’ advisory sentencing guideline range was calculated at 360 to 480 months imprisonment. The government recommended a sentence at the low end of the guideline range, and the court, noting his criminal history and rough upbringing, varied downwards and sentenced Oshay Jones to 280 months in federal prison.

After the Fourth Circuit Court of Appeals denied Oshay Jones’ direct appeal, he filed a pro se motion under 28 U.S.C. § 2255 challenging his conviction. Mot. to Vacate, ECF No. 448. Claim One of his original habeas petition expressly asserts ineffective assistance of counsel as regards the PSR's calculation of drug weight, both as to the amount seized during the conspiracy and the Snead Drug Weight Claim. Id. at 17-18. Oshay Jones filed a number of amendments to his § 2255 petition, and on May 5, 2016 sought leave to amend his petition to add the Plea Offer Claim as Claim 7. Mot. to Amend, ECF No. 464. On June 13, 2016, the court entered an order allowing Oshay Jones to amend his petition to add the Plea Offer Claim as Claim 7.

On July 15, 2016, the government responded to the Plea Offer Claim, captioned as follows: "Response to Ground Seven - Jones Can't Take Advantage of a Plea Offer That Never Existed." Mot. to Dismiss, ECF No. 475, at 9. The government's motion explained:

Finally, Jones charges that his attorney misadvised him on the law of lesser included offenses, and because of this bad advice, he turned down a plea offer that would have resulted in him receiving a sentence of ten years with no enhancements. He now wants the benefit of that plea agreement.

An initial problem with this argument is that no such plea offer existed. The government has searched its files, and found only a draft plea agreement offered early in the case when Jones was represented by Mr. Beers, hereinafter attached. The agreement is assuredly not an agreement for 10 years, and contains enhancements. Exhibit 7: Unsigned Plea Agreement. Nor, considering the scope of Jones’ involvement in the drug trade and the strength of the evidence available against him, would it have been either reasonable or likely for the government to have offered him such a low sentence.

Id. at 9.⁶ The unsigned plea agreement attached as Exhibit 7 to the government's motion to dismiss was anything but favorable to Oshay Jones, containing guideline stipulations of a base offense level of 36, founded upon 2.8 to 8.4 kilograms of crack cocaine, and five enhancement points for being a leader, organizer or manager and possession a dangerous weapon. Unsigned Plea Agreement, ECF No. 475-6, at 3. The government's motion to dismiss further noted that although Oshay Jones’ trial counsel David Walker had filed an affidavit on April 27, 2016 supporting the § 2255 petition, that affidavit only addressed the sufficiency of the evidence presented at trial concerning drug weight, and did not address the claim that defense counsel advised Oshay Jones that he would be acquitted if the government failed to prove the existence of 280 grams. See First Walker Aff., ECF No. 460, at 2-5. The government's motion to dismiss concluded as follows: "In sum, Jones wants the benefit of an imaginary plea agreement based on an imaginary error committed by his otherwise highly experienced counsel. This claim fails because it is unsupported by fact, and is otherwise incredible." Mot. to Dismiss, ECF No. 475, at 10.

Oshay Jones filed a response to the government's motion to dismiss on August 11, 2016, in which he summarily stated that "Petitioner Moves this court to strike claims 6 and 7 from the record." Pet'r Resp., ECF No. 491, at 1. Although his response goes on for thirty pages, Oshay Jones nowhere else refers to Claim 7 (the Plea Offer Claim). Rather, the response focuses on issues concerning the drug weight attributable to Oshay Jones and guidelines enhancements for use of a firearm and his role in the conspiracy.

The court granted the government's motion to dismiss without holding an evidentiary hearing in a memorandum opinion entered on January 18, 2017. Mem. Op., ECF No. 520. In that opinion, the court addressed each of Oshay Jones’ claims, making no mention of the one line from Oshay Jones’ August 11, 2016 response in which he moved to "strike claims 6 and 7 from the record." Pet'r Resp., ECF No. 491, at 1. In addressing the merits of Claim 7 (the Plea Offer Claim), the court found no prejudice resulting from counsel's faulty advice, concluding as follows:

But even assuming that counsel erroneously advised Jones regarding lesser-included offenses, Jones cannot show that there is a reasonable probability that he would have pleaded guilty had he been correctly advised because there is no evidence that the alleged ten-year plea deal existed. The government asserts that it never offered a ten-year deal. The government found only a draft agreement providing for a base offense level of 41, including various enhancements, which did not provide for a specific sentence. Plea Agree. at 3, ECF No. 475-6. Even allowing for a three-level reduction for acceptance of responsibility, had Jones agreed to the plea, he would have faced a potential advisory guideline range of 235 to 293 months. Jones does not claim, in his § 2255, that he would have been willing to take the plea deal that the government provided. Finally, he was sentenced to 280 months’ incarceration, which falls within that potential advisory range of the plea agreement. Accordingly, Jones cannot establish a "likelihood of a result more favorable" to him had he agreed to plead guilty. Strickland [v. Washington,] 466 U.S. [668,] at 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 [ (1984) ].

Mem. Op., ECF No. 520, at 6.

On the issue of drug weight, the court's opinion did not address Oshay Jones’ claim that trial counsel was ineffective for not challenging the United States Probation Officer's finding in paragraph 41 of the PSR that Snead "bought one...