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United States v. Alexander

United States District Court, M.D. Louisiana

October 17, 2019

UNITED STATES OF AMERICA
v.
KENDRICK D. ALEXANDER

          RULING AND ORDER

          JOHN W. deGRAVELLES JUDGE

         This matter comes before the Court on the Motion under 28 U.S.C § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Docs. 166) filed by Petitioner Kendrick D. Alexander (“Petitioner, ” “Defendant, ” or “Alexander”). The United States of America (“Government” or “United States”) opposes the motion. (Doc. 174.) Alexander has filed a reply (Doc. 175) and a supplemental memorandum (Doc. 181). A hearing is not necessary. (See, infra.) The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule.

         For the following reasons, Alexander's motion is denied in part and deferred in part. The motion is deferred in that Petitioner is hereby given thirty (30) days to supplement the record and submit additional evidence establishing that he was allowed to withdraw his state court Alford plea on a constitutional ground such as ineffective assistance of counsel. In all other respects, Petitioner's motion is denied.

         I. Relevant Factual Background

         A. Pre-Trial

         Alexander was charged by Superseding Indictment with one count of attempting to knowingly and intentionally possess with the intent to distribute oxycodone, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a)(1). (Doc. 14.) Alexander was represented by attorneys Harry Daniels and Todd Clemons (collectively, “defense counsel”).

         Alexander elected to go to trial. However, he asserts in a declaration attached to the instant motion that, when he “specifically asked [his] defense counsel about whether [the Government] had offered [him] a plea, ” Mr. Daniels “told [him] that the Government had not offered [him] a plea, stating that since [Alexander] only had a one count indictment there were no charges for the government to drop and no plea offer available.” (Pet'r's Decl. ¶¶ 14-15, Doc. 166-2 at 21.) Alexander declares (1) that he was “erroneously advised by defense counsel that trial was [his] only option, because [his] case only involved one Indictment” (sic); and (2) that his “[d]efense counsel never advised that [Alexander] could still plead guilty and that by doing so, [he] would have been able to get at least a 2 point ‘acceptance of responsibility' reduction in [his] base sentencing category.” (Pet'r's Decl. ¶¶ 16-17, Doc. 166-2 at 21.) Alexander further claims that, “at no point did either . . . defense counsel discuss plea options with [him]” or “advise [him] of the sentencing range for a plea as opposed to a guilty plea after trial.” (Pet'r's Decl. ¶¶ 18-19, Doc. 166-2 at 21.) According to Alexander, if the “advantages of accepting responsibility [had] been explained to [him], [he] would have [pled] guilty and [] would have received at least a 2-point reduction in [his] base offender level for sentencing purposes, ” which would have reduced [his] sentence by 33-38 months. (Pet'r's Dec. ¶¶ 20-21, Doc. 166-2 at 21.)

         Prior to trial, the Government sought to introduce evidence of Alexander's 2001 conviction for possession with intent to distribute cocaine. (See Pet'r Ex. 2, en globo, Doc. 166-2 at 6-12.) The Government urged that this evidence was admissible under Fed.R.Evid. 404(b) and, if the entrapment defense was used, Fed.R.Evid. 405(b). (See Pet'r Ex. 2, Doc. 166-2 at 6-12.) Defense counsel did not oppose the introduction of this evidence, and it was admitted. (See Pet'r Ex. 2, Doc. 166-2 at 6-12.)

         B. Trial, Pre-Sentencing, and Post-Trial Motion

         A trial was held in this matter from March 9-12, 2015. (Doc. 75-79.) At the conclusion, Alexander was found guilty as charged. (Doc. 79.)

         On May 29, 2015, the Presentence Investigation Report (“PSR”) was filed by the Probation Office. (Doc. 85.) The PSR contained the following language under the Acceptance of Responsibility section:

As of completion of the presentence investigation, the defendant has not clearly demonstrated acceptance of responsibility. In addition, this adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt and is convicted.

(Doc. 85 at 4.) On August 17, 2015, the Probation Office released a Revised Presentence Investigation Report (“Revised PSR”) that contained the same language about acceptance of responsibility. (Doc. 97 at 5.)

         Additionally, on August 17, 2015, the Probation Office issued an Addendum to the PSR. (Doc. 98.) The Addendum addressed thirteen objections made by defense counsel. (Doc. 98 at 4- 12.) The Probation Office agreed with two of defense counsel's objections and stated that the Revised PSR would reflect the changes resulting from these objections. (See Doc. 98 at 4, 7.)

         On September 18, 2015, Alexander filed a motion for new trial. (Doc. 100.) Alexander argued, among other things, an alleged Brady violation. (Doc. 100.)

         Following a hearing and additional briefing, on April 1, 2016, the Court denied Alexander's motion. The Court first found the “the allegedly suppressed evidence [wa]s cumulative” because it all “relate[d] to [the] credibility” of Hai Tran, the confidential informant who testified against Alexander. (Doc. 118 at 7-8.) The Ruling and Order also discussed the “considerable amount of evidence at trial concerning Hai Tran's credibility, ” detailed the “thirteen separate areas in which Hai Tran was impeached, ” and concluded that there was “no reasonable probability that the result would have been different if the evidence had been disclosed and if the Defendant had impeached Tran with fifteen grounds rather than thirteen.” (Doc. 118 at 8-10.)

         Second, the Court found that “Tran's testimony [wa]s strongly corroborated by other evidence, including audio recordings that confirm the Defendant's predisposition for the crime.” (Doc. 118 at 7-8.) This Court specifically detailed the audio recordings between Tran and Alexander. (Doc. 118 at 10-11.) The Court later explained:

         Defendant argues that there was insufficient evidence to show that he was predisposed to selling narcotics prior to meeting Hai Tran. Defendant claims that the only evidence showing predisposition was a 2001 drug conviction resulting from a 1999 arrest. . . . The Court rejects this argument. As shown above, there is ample evidence, including the recording of the August 5, 2014, conversation, to supporting a finding of predisposition and to reject the defense of entrapment.

(Doc. 118 at 16.)

         Alexander's sentencing was set for May 13, 2016. (Doc. 121.) Prior to that, defense counsel submitted a sentencing memorandum with a supplement. (Docs. 124, 126.) Defense counsel argued, among other things, that certain enhancements were not appropriate, that an upward departure was not warranted, and that a downward variance should be imposed because of Alexander's gambling problem. (See Doc. 124.)

         Additionally, on May 13, 2016, the Probation Office filed a Supplemental Addendum reflecting that a certain prior case involving Alexander had to be moved to the “Adult Criminal Conviction(s)” section of the PSR, as he entered an Alford plea to simple robbery. (Doc. 128.) The Supplemental Addendum went on to state that, as a result of this Alford plea, Alexander's criminal history category changed from II to III, and his guideline range went from 108 to 135 months imprisonment to 121 to 151 months. (See Doc 97 at 16; Doc. 128 at 2.)

         The sentencing hearing was later moved to June 24, 2016. (Doc. 129.) However, the United States moved (with Alexander's agreement) to reset the hearing for June 21, 2016. (Doc. 130.) The order was granted. (Doc. 131.)

         On June 16, 2016, Alexander submitted a letter to the Court related to an Alford plea he entered in state court. (Doc. 134-1.) The letter stated:

         Dear Honorable Judge John deGravelles:

I'm writing you in regards to the state conviction that I pled to after my federal conviction in April of 2015. I took an Alford plea in the state case that had been pending since 2007. The state decided to drop the charges and I was to plea[d] guilty to 2 years on simple robbery with no weapon running concurrent with whatever my federal sentence would be. They also agreed to give credit for the time I am serving now as I await federal sentencing, pretty much a no brainer as I was done with the time. As you can see with the transcript attached, my concern was whether this would affect my federal sentencing. I was told that if the sentencing was delayed until after my federal sentencing, it would not affect my case. And now that is not the case so clearly I was misled. I was offered a plea deal of one year in 2013 with credit for the previous 5 months served awaiting bond. (See email from the ADA previously attached as an exhibit in the bond hearing). I've maintained my innocence on that charge for nine years and was also ready and willing to go to trial on that case. I have now filed a motion to withdraw the guilty plea and the matter is set for October 13, 2016. I am represented by Julie Tizzard for that matter. I was represented by Harry Daniels, III at the plea in 2015 and was constantly told that it would not affect me if I pled guilty and delay sentencing until after my federal sentencing. I ask that the court do not penalize me for that conviction but I do not want to reset my federal sentencing again and wait for the state matter to be resolved. I just want your honor to know the truth of that matter because AUSA Cam Le will bring that up to paint a picture of me as a bad person. My plan was to ask for a continuance when this first came about, but there is no way I can stay here another four months due to the living conditions. Thanks for your time. Kendrick Alexander

(Doc. 134-1 at 1.)

         C. Sentencing

         Alexander's sentencing was held on June 21, 2016. (Doc. 135.) At the beginning of the hearing, the Court specifically asked Alexander if he wanted to delay the sentencing in light of his trying to withdraw the Alford plea in state court, and he specifically stated on the record that he did not want to delay the hearing. (Sentencing Tr. 3-4, Doc. 148.) The Court had the following colloquy:

Court: So despite the fact you've hired an attorney to withdraw the Alford plea, and the Alford plea may have an impact on your sentencing, you, nonetheless, do not want to continue this until the Court has ruled on that?
Alexander: Yes, Sir. I - I tried to get it done before the 21st, today, and they didn't have a date open and. . .
Mr. Clemons: But you do want to proceed today?
Alexander: I do want to proceed today, yeah.
The Court: Okay. Well that's the main thing I just wanted to get cleared up on the record.

(Sentencing Tr. 4, Doc. 148.) Additionally, Alexander also stated on the record that he had reviewed the Revised PSR and Addenda (which included the information about the higher criminal history category from the Alford plea), that he understood them, that he discussed them with his attorney, that Mr. Clemons answered any questions he had, and that he was “satisfied with the representation by Mr. Clemons[.]” (Sentencing Tr., Doc. 148 at 5-6.)

         Following the Court's ruling on Alexander's thirteen objections, Mr. Clemons argued that Alexander was an honorable man that had been out of the drug game for a long time but that had made a mistake. (Sentencing Tr. 148, Doc. 148.) Defense counsel also stated that Alexander “still maintains he was entrapped, but he never denied that he did what the Government was accusing him of doing and, Judge, that was before I got any discovery.” (Sentencing Tr. 148, Doc. 148.)

         Defense counsel also said:

He's already lost acceptance of responsibility, we had that conversation. He knew that when he went to trial that - it didn't go his way. We went through the guidelines. He knew, okay, well, I'm going to lose those points. Of course we fought for them, but he understood that if I take this to trial I'm going to lose that.

(Sentencing Tr. 150, Doc. 148.) Alexander never corrected this statement in open court before sentencing was pronounced. Defense counsel also asked that Alexander not be punished for going to trial and urged a sentence at the low-end of the guideline range. (Sentencing Tr. 149-150, Doc. 148.) Alexander was sentenced to just that: 121 months, the very bottom of his guideline range. (Doc. 137.)

         D. Appeal

         On June 28, 2016, Alexander filed a notice of appeal (Doc. 139). On April 6, 2017, the Fifth Circuit issued a mandate affirming the conviction and sentence. (Doc. 161.)

         The appellate court began its discussion by rejecting Alexander's argument that there was insufficient evidence to show that he was entrapped. The Fifth Circuit found sufficient evidence to support the jury finding both that “Alexander was not induced [and] that he was predisposed, ” even though only one of these would defeat his argument. (Doc. 161 at 8.) The Court based this on Alexander's “ ‘active, enthusiastic participation' after being approached by Tran, ” including his negotiating a low purchase price; his agreement to purchase 5, 000 tablets per week; his making arrangements with dealers to sell the tablets; his asking Tran about buying cocaine, marijuana, and codeine; Alexander's being motivated by profit (as evidenced by his negotiation of “a low price for a bulk order of the tablets”); and his “knowledge of drug trafficking by contacting partners and dealers to distribute the tablets and using slang terms for controlled substances in recorded conversations.” (Doc. 161 at 8-9.) Further, the jury was entitled to believe Tran that Alexander initiated the criminal activity, and, in any event, this is only “one factor in the analysis.” (Doc. 161 at 9.) Alexander complained about the jury improperly considering his 2001 conviction. The Fifth Circuit responded that, while this alone would have been insufficient, this too was only one factor, and “the government presented the additional evidence of predisposition discussed above.” (Doc. 161 at 9-10.)

         Additionally, the appellate court found that the government's conduct “did not rise to the level of inducement, or creative activity of law enforcement officials in spurring an individual to crime.” (Doc. 161 at 10 (citation and quotations omitted).) The Fifth Circuit stated, “There was more than sufficient evidence for the government to disprove inducement. If the jury believed Tran's testimony, which it was entitled to do, then Alexander independently initiated the drug deal and the government did no more than ‘provid[e] an opportunity or facilities to commit the offense.' ” (Doc. 161 at 10-11 (citation omitted).) Even if the jury believed Alexander that “Tran offered him the opportunity to buy drugs on up to five occasions before he finally accepted the invitation, ” they still would have been entitled to conclude that “the government's involvement did not rise to the level of inducement, ” based on prior Fifth Circuit case law. (Doc. 161 at 11.) Ultimately, the “jury's finding that Alexander was not entrapped was well within its discretion.” (Doc. 161 at 12.)

         Alexander next complained that this Court instructed the jury that, “ ‘in determining whether the Defendant lacked predisposition to commit this crime and was induced to commit the crime, you may consider the Defendant's prior conviction for possession with intent to distribute a controlled substance in 2001.' ” (Doc. 161 at 12.) The appellate court rejected his argument on two grounds. First, again, prior convictions are “a factor that tend to prove disposition.” (Doc. 161 at 12.) Second, the error was harmless because:

The evidence was overwhelming that Alexander was predisposed and not induced to commit the crime. Recordings indicate that Alexander asked Tran about oxycodone, not the reverse, and show that Alexander was an active and enthusiastic participant, motivated by profit, with ready connections to drug dealers, and familiar with and interested in purchasing a number of illegal substances. They show no resistance on Alexander's part and no threats, coercion, or appeals to sympathy on Tran's part. Considering the entire record, we are convinced the instruction did not affect the outcome of the case.

(Doc. 161 at 12-13.)

         The Fifth Circuit next addressed the government's alleged Giglio violations. The appellate court “agree[d] with the district court, however, that for two reasons the nondisclosures were not material”: (1) the “evidence was cumulative, ” as reflected by how this Court “chronicled thirteen instances in which Tran's credibility was impeached at trial, ” and (2) “Tran's testimony was not the only evidence at odds with entrapment, ” as “the recordings introduced at trial are strong evidence of predisposition; they show that, from August 5, 2014, onward, Alexander was active, enthusiastic, and knowledgeable participant in the crime.” (Doc. 161 at 13-15.) While Tran's word was the only evidence disputing what Alexander said happened before August,

there is no reasonable probability the jury would not have found Alexander predisposed to commit the crime even if it credited his testimony about inducement. Given the quantity and quality of reasons the jury had not to take Tran at his word even without the undisclosed evidence, and the strength of other evidence of Alexander's predisposition, the undisclosed evidence does not cast sufficient doubt on the verdict to merit a new trial.

(Doc. 161 at 15.)

         The Fifth Circuit also rejected Alexander's complaints about sentencing. Relevant here, the appellate court said: “We have previously rejected Alexander's position that a defendant who admits engaging in the alleged conduct, but argues entrapment, has accepted responsibility. Because an entrapment defense denies the mens rea element, it is the ‘denial of factual guilt' that makes a defendant ineligible for an acceptance-of-responsibility reduction.” (Doc. 161 at 16 (citation omitted).) The Court went on to overrule the other objections to his sentence.

         E. The Instant § 2255 Motion

         On March 26, 2018, Alexander filed the instant motion under 28 U.S.C. § 2255. (Doc. 166.) The details of that motion will be discussed below. On April 6, 2018, the United States filed its opposition. (Doc. 174.) Petitioner submitted a reply memorandum on April 19, 2018. (Doc. 175.) Alexander later submitted a supplemental memorandum on October 17, 2018. (Doc. 181.) On March 14, 2019, Petitioner filed a motion for a status conference (Doc. 182), which this Court granted on October 2, 2019.[1] At the October 7, 2019, status conference, the Court informed the parties that, within two weeks, the Court would either grant the request for a hearing or issue a ruling. The Court has chosen the latter option.

         II. Discussion

         A. Summary of Issues and Rulings

         Petitioner argues that his Fifth and Sixth Amendment rights were violated. He claims that “[r]elief is warranted on several grounds, including ineffective assistance of counsel, due process violations, and withdrawal of state conviction.” (Doc. 166-1 at 2.) Alexander complains about the following specific actions taken by defense counsel:

(1) their failure to object to the introduction of his 2001 conviction;
(2) their failure to conduct an adequate pretrial investigation that could have led to more ways of impeaching Hai Tran;
(3) their alleged failure to engage in plea negotiations or discuss plea options, which resulted in Alexander not getting acceptance of responsibility points at sentencing;
(4) their failure to adequately present the entrapment defense and to preserve certain defenses for Alexander's motion for acquittal;
(5) defense counsel's errors during sentencing, including failing to discuss the § 3553(a) factors and failing to make an argument about the market rate of oxycodone;
(6) appellate counsel's various errors, including the failure to raise an argument about the 2001 conviction, requiring Alexander to obtain a second lawyer to file a reply brief, and appellate counsel's inadequate briefing and oral argument; and
(7) one defense counsel's error in advising Alexander to take an Alford plea in state court, which resulted in him having a higher criminal ...

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