REPORT AND RECOMMENDATION
CANDACE J. SMITH, Magistrate Judge.
This matter is before the Court on Defendant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 and amendment thereto. (R. 525; R. 541). In November 2013 Defendant pleaded guilty to one count of conspiracy to distribute cocaine, one count of possession with intent to distribute marijuana, and fourteen counts of possession with intent to distribute cocaine. (See R. 150). The Court on February 14, 2014, sentenced Defendant to 276 months of imprisonment (see R. 228), a sentence which was subsequently reduced in October 2015 to 254 months based on amendment to the Sentencing Guidelines (see R. 463).
In his § 2255 Motion, Defendant argues generally that counsel was ineffective because he failed to challenge the two-point increase in his base offense level for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. (R. 525). Specifically, Defendant argues that counsel failed to challenge whether Defendant knowingly maintained such a premises and that counsel's failure to object to hearsay testimony by the investigating FBI agent deprived Defendant of the right to confront a witness against him. (Id.). Finally, Defendant argues that counsel should have requested a hearing under Federal Rule of Criminal Procedure 32(i)(2) in order to secure use of the rules of evidence. (R. 541). For the reasons set forth below, Defendant's § 2255 Motion should be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Following entry of his plea, Defendant and two of his brothers, who were co-conspirators, unsuccessfully appealed their convictions to the Sixth Circuit Court of Appeals. The relevant underlying facts are from that Court's opinion:
The investigation of this case began in 2012 when an informant told the FBI that the Blackwell brothers were trafficking cocaine in Covington, Kentucky. During the months that followed, law enforcement officers conducted extensive physical and electronic surveillance on the Blackwell brothers and set up numerous controlled purchases from the brothers and their gang. Using information obtained through an informant, the officers were able to track Rolando's many cell phones and, after obtaining warrants, to intercept his cell phone calls and text messages. Gradually, the officers pieced together the identities of the gang members and the modus operandi of the group. By July 10, 2013, law enforcement had gathered enough information to procure arrest warrants for thirteen individuals involved in the trafficking conspiracy. Ten members of the gang were taken into custody on that day, among them the Blackwell brothers.
United States v. Blackwell, 636 F. App'x 668, 669 (6th Cir.), cert. denied, 136 S.Ct. 2425 (2016). On appeal, Defendant argued that there was insufficient evidence to support his plea and that the Court erred in determining the quantity of drugs it attributed to him. (Id. at 671-72). Neither of those issues is pertinent to Defendant's § 2255 Motion.
Defendant, who entered his guilty plea without benefit of a signed agreement, summarized and admitted to his illegal activities during his November 15, 2013 rearraignment. A Presentence Investigation Report (PSR), which set forth in detail additional facts regarding the distribution of drugs throughout Northern Kentucky and Cincinnati by Defendant and his co-defendants. (R. 261, at 5-9). Based on those facts, the probation officer determined, in pertinent part, that Defendant "maintained a premises for the purpose of manufacturing or distributing a controlled substance" and recommended a two level increase in Defendant's offense level (the premises enhancement). (R. 261, at 10). The probation officer did not specifically identify which of several premises mentioned in the PSR was or were maintained for the purpose of enhancing Defendant's offense level. However, both the Defendant and the United States presumed, not necessarily correctly,1 that the probation officer was only referring to a premises located at 278 Helen Street, Cincinnati, Ohio, and they primarily couched their arguments accordingly. As in the analysis section below, the Defendant's focus on 278 Helen Street is misplaced.
In its Sentencing Memorandum, the United States argued the premises enhancement was appropriate because: Defendant spent most of his time at the Helen Street address, which he was renovating; he "directed co-defendants and others to go and/or meet him" there; he "stored drugs there;" "items . . . indicative of drug trafficking" were seized there; and Defendant directed a codefendant, Donald Hallenbeck, "to retrieve a quantity of cocaine from inside the residence because [Defendant] was expecting workers" to arrive there. (R. 213, at 5). In his Sentencing Memorandum, Defendant objected to the premises enhancement arguing that: while the United States attributed fourteen sales to Defendant and his co-defendants, none of those sales took place at 278 Helen Street; no cash or cocaine was stored or found there; drug paraphernalia was found at that address, but the paraphernalia had no cocaine residue; and, although Defendant did tell Hallenbeck to retrieve something from 278 Helen Street during a recorded phone conversation, there was no mention of cocaine. (R. 214, at 3-4).
To assist the court in resolving this issue, at sentencing the United States called FBI agent Glenn Van Airsdale to testify. (R. 226). The issues raised by Defendant revolve around Agent Van Airsdale's testimony, counsel's failure to object to that testimony, and the Court's imposition of the premises enhancement. Additional facts are set forth below as necessary.
II. STANDARD OF REVIEW
The Supreme Court has held that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). To meet this standard, the Court set forth a two-part test. First, a defendant is required to show that counsel's representation fell "below an objective standard of reasonableness." Id. at 687-88. In reviewing this prong, the lower court is to apply a deferential standard; there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. If a defendant satisfies the first prong, he must also establish that counsel's deficient performance prejudiced him. Id. at 691-94. Specifically, he must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Thus, an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error did not affect the judgment. Id. at 691.
III. ANALYSIS
As set forth above, Defendant makes a number of allegations regarding counsel's failure to adequately contest the premises enhancement. Those allegations primarily flow from Agent Van Airsdale's testimony at the sentencing hearing and involve counsel's failure to object to hearsay testimony by Agent Van Airsdale, which allegedly deprived Defendant of his right to confront witnesses against him. Additionally, Defendant complains that counsel failed to present evidence that he did not knowingly maintain the Helen Street premises for the purpose of manufacturing or distributing a controlled substance and that counsel failed to request a Criminal Rule 32(i)(2) hearing, which would have forced a more strict application of the rules of evidence. For the reasons set forth below, Defendant's arguments fail because he has not established that he was prejudiced by counsel's alleged failures.
A. Defendant Has Not Shown that Agent Van Airsdale's Testimony Prejudiced Him.
Under the second prong of Strickland, a defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Defendant has not met his burden under this prong.
During the sentencing hearing, Agent Van Airsdale testified that audio surveillance contained a telephone conversation between Defendant and Hallenbeck wherein Defendant asked Hallenbeck to retrieve something from the Helen Street premises. (R. 329, at 35-36). Shortly after that telephone conversation, video surveillance showed Hallenbeck walking into the Helen Street premises with nothing in his hands. Thereafter, Hallenbeck came out of the Helen Street premises holding what appeared to be a coffee mug. (Id.). Agent Van Airsdale then testified that, in a subsequent interview, Hallenbeck confirmed the preceding and stated that the coffee mug contained cocaine. (Id. at 37). Although the Court advised Defendant's counsel that he could object to Agent Van Airsdale's testimony, he did not do so. (Id. at 8). Defendant now argues that Agent Van Airsdale's testimony regarding the contents of the coffee mug was hearsay and would have been excluded if counsel had objected. According to Defendant, without that testimony by Agent Van Airsdale, there was insufficient evidence for the Court to apply the premises enhancement. Furthermore, Defendant argues that permitting Agent Van Airsdale to testify without objection impeded Defendant's right to confront Hallenbeck, a right he could have enforced if counsel had requested a Rule 32(i)(2) hearing. Defendant's arguments are faulty for two reasons. First, Defendant's argument that the Court, without Agent Van Airsdale's testimony regarding the contents of the coffee mug, would not have imposed the premises enhancement is factually incorrect. In addition to his testimony about the coffee mug, Agent Van Airsdale testified as follows:
Q: Your indication or at least what you believe based on your testimony, was that transactions took place at the Helen Street house. I thought that's what you said.
A: Yes.
Q: What led you to believe that?
A: Looking at the intercepted calls, and the calls were made where it appeared that deals were being arranged, and then telling people to come to the building and then observing on the video surveillance that people did then come to the building, some of which we were able to identify and knew, others we were not.
Even in those cases where we didn't know who the individual was or the number that was being called — not the target's number but the number he was calling or was calling him, observing those or reviewing those calls for the content, which led us to believe they were referring to a drug transaction that was going to take place, and then matching that up with activity we observed at 278 Helen via video surveillance. That's why we arrived at that conclusion. That's why I arrived at that conclusion.
(Id. at 56-57).
Q: And your surveillance, is it fair to say there was a lot of — other than what you believe to be drug activity related to this conspiracy, there was also a lot of hanging out activity, a lot of smoking marijuana over there [at 278 Helen Street]? I mean, they did a lot of things at this house?
A: Yes.
Q: And did people ever — no one ever spent the night?
A: Correct. I do not recall — I remember, in reviewing the video surveillance, never seeing an indication that someone had stayed overnight. As you saw from the photos, or in reviewing the photos, there did not appear to be any furniture in there of any substance.
(Id. at 61-62). With regard to the contents of the coffee mug, the Court stated as follows:
You would think if there was a mug containing coffee creamer, there wouldn't be a need to get it out of the house. I don't know. We don't know what it is. We are relying on — I have to rely on Hallenbeck with respect to that. But they did see him go in with nothing and come out with a mug.
That's kind of a tricky one for you, [defense counsel], because it it's not something that's illegal, you generally wouldn't have to go in and get it. That was not a taped call. That was just a video surveillance from a pole cam.
(Id. at 71). In rendering its findings regarding the premises enhancement, the Court found as follows:
With respect to the 2D1.1(b)(12) enhancement, the recommended enhancement for the maintenance of a premises for purposes of distribution, the Court finds that enhancement is . . . supported by the facts here, as the defendant maintained a premises at 278 Helen Street for the purposes of distribution of cocaine and his brother co-defendant, Rodriquez Blackwell, maintained a premises at 937 Highland Avenue for purposes of distribution of cocaine. The defendant is responsible for [the] latter premises under relevant conduct principles.
278 Helen Street, the evidence shows that while people may have congregated there, it was never being used as a residence. During the search, it was found not to have any furniture or personal items. It was under renovation.
Audio and video surveillance, the taped, recorded calls and the video surveillance that Agent Van Airsdale referenced show quite a bit of pedestrian traffic in and out — — in and around, if you will, that location. There was steady traffic indicating that it was a likely place where Mr. Rolando Blackwell kept drugs for sale.
Significantly here, we have Mr. Hallenbeck. The video and audio surveillance reflects that the defendant asked Mr. Hallenbeck to retrieve something from the house. He retrieved cocaine from the residence because workers were going to be renovating it. The defendant clearly didn't want the cocaine to be found. So that shows that cocaine was being stored at that location.
As set forth in the Johnson case, cited by both parties here, 737 F.3d 444, Sixth Circuit 2013, a case from a couple months ago, one of the primary factors is how frequently the premises was used for distributing controlled substances versus lawful purposes.
The Court finds that based upon the video and audio surveillance of the traffic and the intercepted calls, it was very frequently used for that purpose. It was used for unlawful purposes far more than it was for lawful purposes.
There was indicia of trafficking found there, digital scales and baggies, tools of the trade in drug trafficking. Defendant told others to meet him there for purposes of distribution. For all of these reasons, the Court finds that [Defendant] maintained that residence at 278 Helen for purposes of distribution. The Court makes that finding by a preponderance [of the evidence.]
With respect to 937 Highland, the defendant's brother and co-defendant, Rodriquez Blackwell, distributed quantities of cocaine from that location as well. Video surveillance established it was a distribution location for the drug trafficking there. It also was a place, according to Agent Van Airsdale, based upon GPS tracking or some other tracking mechanism, where the Garcia source of supply explained that's where he met to do the larger bulk transactions, at 937 Highland.
The Defendant is responsible for 937 Highland under relevant conduct principles under 1B1.3. As I said earlier, the video and audio surveillance shows the defendant's source of supply delivered his cocaine to the defendant at 937 Highland. That makes sense, because that's where the person who had the money, Mr. Rodriquez Blackwell, was staying.
Both locations support the two-level enhancement for maintaining a premises for distribution pursuant to Section 2D1.1(b)(12) so the objection [to the premises enhancement] will . . . be overruled.
(Id. at 101-03).
It is clear from the preceding that, while the Court took into account Agent Van Airsdale's testimony regarding Hallenbeck's statement, said testimony was only one of many factors the Court considered. If Defendant's counsel had objected to Agent Van Airsdale's testimony regarding Hallenbeck's statement and that testimony had been excluded, there would have been more than sufficient other evidence to support the Court's finding regarding the Helen Street premises.
Additionally, as the Court plainly pointed out at sentencing, its decision to deny Defendant's objection to the premises enhancement was also based on his use of the Highland Avenue property. Defendant has not objected to any of that evidence and has not objected to the court's findings regarding Highland Avenue, findings which are, in and of themselves, sufficient to support the imposition of the premises enhancement. In other words, even if all evidence regarding the Helen Street premises had been excluded, the Court could have imposed the premises enhancement based solely on the evidence regarding the Highland Avenue property.
Second, Defendant has not put on any evidence that Agent Van Airsdale's testimony regarding Hallenbeck's statement was erroneous or that Hallenbeck, if he had been present, would have testified differently. Therefore, even if counsel erred by failing to keep out Agent Van Airsdale's testimony, thus forcing the United States to call Hallenbeck to testify, Defendant has not shown that any such error was harmful.
B. Because Defendant Cannot Show Any Harm by the Admission of Agent Van Airsdale's Testimony, the Remainder of His Claims Are Without Merit.
Defendant initially argued that his counsel should have objected to Agent Van Airsdale's testimony based on hearsay. (R. 525, at 25). The United States, in its response, argued that sentencing hearings are governed by Federal Rule of Evidence 1101(d)(3), which provides that the rules of evidence do not apply in such hearings. (R. 528, at 5). Defendant then moved to amend his motion to clarify that counsel's ineffectiveness arose from his failure to request a Federal Rule of Criminal Procedure 32(i)(2) hearing, which he believes would have triggered a more strict application of the evidentiary rules. (R. 541-1). Applying these stricter evidentiary standards, Defendant argues that counsel could have and should have required the United States to produce Hallenbeck to testify rather than introducing his statement through Agent Van Airsdale. (Id.). In its response to Defendant's motion to amend, the United States argued that the Court did hold a Rule 32 hearing and counsel's decision not to require Hallenbeck's testimony was likely strategic. (R. 542, at 2).
While these arguments are interesting from a procedural standpoint, the fact remains that there was more than sufficient evidence to support the Court's imposition of the premises enhancement absent Agent Van Airsdale's testimony regarding Hallenbeck's statement. In fact, as pointed out above, the Court had sufficient evidence to impose that enhancement absent all evidence regarding the Helen Street premises. Because Defendant cannot show harm, the Court need not address whether counsel erred by not requesting a Rule 32 hearing or by not objecting to Agent Van Airsdale's testimony regarding Hallenbeck's statement.
Finally, Defendant argues that the United States failed to show that he "knowingly" used the Helen Street premises for the distribution of controlled substances, and counsel failed to argue that point to the Court. (R. 525, at 29). Based on the audio and video recordings there was ample evidence that Defendant knowingly used the Helen Street premises for distribution of controlled substances, i.e. he scheduled numerous meetings at the premises wherein it was logical to infer from the conversations that drug transactions took place. Furthermore, as noted above, the Court imposed the premises enhancement based on activities at the Highland Avenue property as well as activities at the Helen Street premises. Defendant does not challenge the findings with regard to the Highland Avenue property, which were supported by more than ample evidence that Defendant's use of that property was knowing, i.e. he and his brothers arranged to purchase and did purchase large amounts of cocaine at the Highland Avenue property. Therefore, it would have been fruitless for counsel to challenge the evidence that Defendant's actions were knowing and "counsel cannot be ineffective for failure to raise an issue that lacks merit." Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).
IV. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Federal Rules Governing Section 2255 Proceedings, the district court must issue or deny a certificate of appealability (COA) when it enters a final order adverse to the applicant. A certificate may issue only if a defendant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a "substantial showing of the denial of a constitutional right" in Slack v. McDaniel, 529 U.S. 473, 484 (2000) (addressing issuance of a certificate of appealability in the context of a habeas petition filed under 28 U.S.C. § 2254, which legal reasoning applies with equal force to motions to vacate brought pursuant to 28 U.S.C. § 2255). In cases where a district court has rejected a petitioner's constitutional claims on the merits, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. "When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
In this case, reasonable jurists would not debate the denial of the Defendant's § 2255 Motion or conclude that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it will be recommended that a certificate of appealability be denied upon the District Court's entry of its final order in this matter.
V. CONCLUSION AND RECOMMENDATIONS
Accordingly, for the reasons stated above, IT IS RECOMMENDED that:
1) Defendant Rolando Blackwell's § 2255 Motion as amended (R. 525; R. 541) be denied;
2) a Certificate of Appealability on the claims arising under 28 U.S.C. § 2255 be denied by the District Court in conjunction with the Court's entry of its final order;
3) Judgment in favor of the United States be entered contemporaneously with the District Court's entry of its final order; and,
4) this action be stricken from the active docket of the Court.
The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights and mechanics concerning this Report and Recommendation, issued under subsection (B) of the statute. See also Rules Governing Section 2255 Proceedings, Rule 8(b). Within fourteen (14) days after being served with a copy of this Report and Recommendation, any party may serve and file specific written objections to any or all findings or recommendations for determination, de novo, by the District Court. Failure to make a timely objection consistent with the statute and rule may, and normally will, result in waiver of further appeal to or review by the District Court and Court of Appeals. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981).
