United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE.
Vann, an inmate presently incarcerated at Leavenworth, seeks
review of his sentence pursuant to 28 U.S.C. § 2255. In
his pro se motion, Vann asserts his attorneys
rendered constitutionally ineffective assistance because they
(1) failed to call certain witnesses at trial who would have
“cast doubt” on his possession of drugs; (2) did
not challenge the validity of incriminating statements he
made post arrest; and (3) prevented him from testifying on
his own behalf at trial. Acting under an order of reference
from United States Circuit Judge Paul J. Kelly, Jr. to
conduct proceedings, see 28 U.S.C. § 636, the
Court has considered the parties' submissions together
with the record and RECOMMENDS Vann's
motion be DENIED and this matter be
DISMISSED WITH PREJUDICE.
early April 2012, Vann flew from Omaha, Nebraska, where he
lived, to Los Angeles, California to negotiate the purchase
of marijuana and PCP. [Doc. 266, pp. 153-54].[1" name="FN1" id="FN1">1] After staying in
Los Angeles for about five days, Vann bought a one-way ticket
to Kansas City, Missouri aboard Amtrak's Southwest Chief
about two hours before its scheduled departure time.
[Id., pp. 103; 153-54]. This short window and the
fact Vann paid cash, both of which suggest to law enforcement
agents a possible drug transport, caught the attention of a
confidential informant within the Drug Enforcement Agency.
[Id., pp. 103-104]. The informant alerted DEA
Special Agent Kevin Small, an Albuquerque-based interdiction
specialist, that Vann, among other suspects, would be aboard
the Southwest Chief on April 9, 2012. [Id, pp.
trains in the United States do not screen luggage, trains are
prime targets for smugglers to use in transportation, and
interdiction agents utilize “consensual
encounters” as a tool for combatting the West-East
movement of drugs across the nation. [Id, pp.
95-96]. A “consensual encounter” in the
drug-interdiction world is a voluntary or consensual
conversation with a suspect to gather information as to
whether the person is transporting narcotics. [Id.,
pp. 95-96]. As the name implies, the suspect is under no
obligation to answer questions, and participates in the
conversation with the agent voluntarily. [Id.].
the train would make a scheduled stop in Albuquerque between
10:30 and 11:00 a.m., Agent Small prepared to board the train
and conduct a consensual encounter with Vann. [Id.,
pp. 114-121]. Agent Small was accompanied by two partners
from local law enforcement agencies, Task Force Officers
Danny Joseph and Jeannette Tate. [Id., pp. 115].
After boarding the Southwest Chief, Agent Small found Vann in
car 412 sitting in a window seat. [Id., p. 118].
Vann agreed to talk to Agent Small and allowed Agent Small to
search Vann's luggage, a laptop case and small duffle
bag. [Id., pp. 128-29]. Inside the duffle bag was a
large, pink gift box that spanned the entire length of the
bag, along with what appeared to be clothing for a small baby
or child's doll. [Id. pp. 128-30]. On the
exterior of the box was a crude, handwritten inscription to
“Aunt Bertha from the Washington Family.” [Doc.
238-2]. Agent Small immediately suspected the box contained
controlled substances and asked Vann to accompany him to the
lower level of the train car. [Doc. 266, pp. 129-30].
there, Vann initially denied that there were narcotics in the
box. [Doc. 281-1, p. 15]. However, when Agent Small pressed
Vann on the details of Bertha Carter, the box's
addressee, Vann immediately asked to make a deal with the
agent. [Id., p. 16]. Vann confessed that the gift
box contained “a bottle and a half” of codeine
cough syrup and “some [OxyContin] pills.”
[Id. p. 17]. Nonetheless, Vann refused Agent
Small's request to open and search the gift box.
[Id., p. 20]. Agent Small informed Vann that he
would be cuffed, escorted off the train, and taken to the DEA
office where Agent Small would prepare a search warrant.
[Id., p. 21].
Small obtained a warrant. Upon cutting into the gift box,
Agent Small smelt ether, which he knew to be indicative of
PCP. [Doc. 266, pp. 133-35]. Ultimately, Agent Small
extracted two bottles of cough syrup containing codeine, two
juice jars containing over 100 grams of PCP, and 25 OxyContin
pills. [Id., pp. 138; 147]. Because PCP is
dangerous, Agent Small enlisted the help of Agent Jeff
Mauldin, who is specially trained in handling hazardous
drugs, to take samples of the PCP for analysis at the DEA lab
in Dallas, Texas. [Id., pp. 142; 144]. A private
company later disposed of the remainder of the PCP not used
for samples because of the substance's volatility.
Agent Small retrieved the items from the box, he and Officer
Tate interviewed Vann. [Id., p. 152-53]. Agent Small
first informed Vann he was under arrest for the PCP and
codeine cough syrup. [Id.]. Vann waived his
Miranda rights and admitted he had gone to Los
Angeles to purchase a gallon of PCP and twenty pounds of
marijuana, which he did and which he said he shipped to Omaha
via UPS. [Id., p. 153-54]. Vann claimed to be
unaware that PCP was in the gift box. [Id., p. 153].
Vann further explained he planned to sell the drugs: he
bought the full bottle of the cough syrup for $120, the less
full bottle for $80, and planned to sell the full bottle for
$250. [Id., pp. 153-55]. Vann expected to receive
$1, 400 per pound for the marijuana on the street and said an
eight-ounce bottle of PCP would fetch $1200. [Id.].
Because the marijuana had been fronted to him, Vann
clarified, he had to pay $600 per pound, substantially more
than the $400 cash price had negotiated in February of 2012
in Los Angeles. [Id.]. As for the OxyContin, Vann
related he purchased the pills for $10 each and would sell
them in Omaha for $50 apiece. [Id.].
October 10, 2012, a grand jury returned a two-count second
superseding indictment charging Vann with possession with
intent to distribute 100 grams and more of a controlled
substance containing phencyclidine (PCP) contrary to 21
U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2
(Count 1); and possession with the intent to distribute a
controlled substance containing codeine, contrary to 21
U.S.C. § 841(a)(1) and (b)(1)(E)(3) and 18 U.S.C. §
2 (Count 2). [Doc. 64]. Vann pleaded not guilty [Doc. 72].
two-day jury trial on March 12 and 13, 2013, a jury convicted
Vann on both counts. [Docs. 179; 182; 183]. Judge Kelly
sentenced Vann, who represented himself at the October 1 and
18, 2013 sentencing hearings with his trial attorneys as
standby counsel, to 180 months incarceration followed by a
term of eight years supervised release on Count I and twelve
months incarceration along with a year of supervised release
on Count II, to run concurrently. [Doc. 227].
appealed his conviction and sentence on November 1, 2013.
[Doc. 231]. The Tenth Circuit affirmed in a published
opinion. See United States v. Vann, 776 F.3d 746
(10th Cir. 2015). The Court of Appeals rejected Vann's
claim that he was denied a fair trial when, notwithstanding
Batson v. Kentucky, 476 U.S. 79 (1986), the District
Court allowed the Government to use a preemptory strike to
excuse the only African-American in the venire panel. See
Vann, 776 F.3d. at 757. The court also
determined that the Agent Small's experience in
interdiction qualified him to testify reliably as an expert.
See Id. at 758. Further, under a plain error review,
the Court of Appeals found that the prosecution's
statements during closing were sufficiently grounded in the
record such that any discrepancy between the evidence
actually adduced and argument did not amount to misconduct.
See Id. at 762. Finally, the Court of Appeals
concluded that Vann validly waived his right to counsel
during sentencing. See Id. at 763.
Tenth Circuit issued its mandate on April 2, 2015. [Doc.
274]. Vann's conviction and sentence became final on
November 2, 2015, when the Supreme Court denied Vann's
petition for certiorari. [See Docs. 274-75]. Vann
timely filed the instant motion on October 31, 2016
collaterally attacking his 180-month sentence pursuant to
section 2255. [Doc. 277]. The Government responded on April
19, 2017. [Doc. 281]. Vann did not submit a reply.
STANDARD OF REVIEW
2255 authorizes a federal prisoner to move the court that
sentenced him to “vacate, set aside or correct the
sentence” on the grounds 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.” 28 U.S.C. § 2255(a). In
reviewing a motion under Section 2255, the Court presumes
that the proceedings leading to defendant's conviction
were correct. See Klein v. United States, 880 F.2d
250, 253 (10th Cir. 1989). To prevail, ...