United States v. Jermarl Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-8064
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JERMARL ALBERT JONES, a/k/a Jamal Miles,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:06−cr−00057−CCB−3; 1:10−cv−02771−CCB)
Argued: October 29, 2014 Decided: December 19, 2014
Before GREGORY, AGEE, and DIAZ, Circuit Judges.
Vacated in part and remanded with instructions by unpublished
per curiam opinion.
ARGUED: Neal Lawrence Walters, SCOTT KRONER, PLC,
Charlottesville, Virginia, for Appellant. John Francis Purcell,
Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermarl Albert Jones was convicted of conspiracy to possess
with the intent to distribute heroin, and his conviction was
affirmed on appeal. United States v. Jones, 345 F. App’x 872
(4th Cir. 2009). Subsequently, Jones filed a motion to set
aside, vacate, or correct his sentence under 28 U.S.C. § 2255,
which the district court denied. United States v. Jones, No.
1:10-cv-02771-CCB, 2012 WL 5832461 (D. Md. Nov. 14, 2012). We
granted a certificate of appealability on the question of
“whether [Jones’ trial] counsel rendered ineffective assistance
by failing to argue that Jones had standing to move to suppress
[certain] evidence seized” and later used at Jones’ trial. See
Order, United States v. Jones, No. 12-8064 (4th Cir. Apr. 24,
2014), ECF No. 16. Based on the record –- or rather, the lack
of a record permitting adequate appellate review –- we conclude
that an evidentiary hearing is warranted. For that reason, we
vacate the district court’s order in part 1 and remand with
instructions to grant Jones an evidentiary hearing on his
ineffective assistance of trial counsel claim.
1
Before the district court, Jones also argued that his
appellate counsel rendered ineffective assistance. Because we
did not grant a certificate of appealability as to that issue,
the district court’s judgment as to appellate counsel is
unaffected.
2
I.
We review the district court’s legal conclusions de novo.
United States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007).
When the district court denies § 2255 relief without conducting
an evidentiary hearing, we review the facts in the light most
favorable to the § 2255 movant. Id. We also review a district
court’s failure to conduct an evidentiary hearing for abuse of
discretion. Cf. Conaway v. Polk, 453 F.3d 567, 582 (4th Cir.
2006) (applying abuse-of-discretion standard in § 2254 appeal).
But see United States v. Lemaster, 403 F.3d 216, 221 n.3 (4th
Cir. 2005) (suggesting that standard of review may be an open
question in § 2255 context).
II.
In 2005, a federal grand jury indicted Jones, Calvin
Wright, and Johnnie Butler for possession with intent to
distribute heroin and conspiracy to possess with intent to
distribute heroin. The indictments resulted from the arrests of
the three codefendants when a police officer and a property
manager entered Apartment H of the Breezy Tree Court apartment
complex in response to complaints of loud music. They found no
furnishings in the apartment except two plastic tables covered
in a white powder residue, drug-cutting materials, and other
items indicating that it was being used to manufacture illegal
3
drugs. Police obtained a search warrant, and the subsequent
search revealed more than $100,000 worth of heroin and other
evidence that the apartment was a drug stash house. Police then
observed two black males drive up and approach the apartment.
As the driver, Calvin Wright, used a key to open the door to
Apartment H, police arrested both he and Jones, the car’s
passenger. At the time of arrest, Wright held a key to the
apartment, but Jones did not. Continued surveillance of the
apartment led to the arrest of Butler, who also had a key to
Apartment H when arrested.
Wright moved to suppress the evidence found in the search
and testified at his suppression hearing that the apartment
leaseholder -- Linnea Worthington -- rented Apartment H for him.
Wright also testified that Worthington gave him one of two keys
to the apartment and that Butler had the other. In addition,
Wright said that he had paid the apartment’s rent and had been
in the apartment by himself, had slept on the floor twice, and
would have slept in the apartment on the night of the arrest.
According to Wright, Jones did not have a key to the apartment.
Because authorities had been unable to locate Jones to arrest
him on the federal indictment, neither Jones nor his counsel
attended the hearing.
Based on Wright’s testimony, the Government conceded that
Wright had a legitimate expectation of privacy in Apartment H --
4
and therefore had standing to challenge the search. Based in
part on that concession, the district court then suppressed the
Apartment H evidence as to Wright as the product of an
unreasonable search. The Government later dropped its case
against Wright and, eventually, Butler as well.
In 2007, federal agents arrested Jones while he was staying
in a hotel room booked under Worthington’s name. Unlike Wright,
Jones’ counsel did not move to suppress the Apartment H evidence
–- although he did challenge, unsuccessfully, two post-arrest
searches of other apartments. Instead, Jones’ counsel, Stanley
Needleman, conducted Jones’ defense on the theory that the
Government could not prove a connection between Jones and
Apartment H.
At trial, Needleman argued that Jones should be acquitted
because the Government could not prove a connection between
Jones and Apartment H. In response, the Government presented
evidence showing Worthington as the leaseholder on the Apartment
H lease and noted that Jones was staying at a hotel under her
name at the time of his arrest. Needleman sought to discredit
this connection by emphasizing that the Government did not
present Worthington’s testimony at trial or otherwise connect
Worthington to Jones. Jones’ first trial ended in a mistrial,
but a second jury found him guilty of the conspiracy charge.
5
Following an unsuccessful direct appeal, Jones filed a
§ 2255 motion contending that Needleman’s failure to move to
suppress the Apartment H evidence was ineffective assistance of
counsel. In support, Jones filed his own affidavit and two from
Worthington, all of which were short, bare-bones documents. In
pertinent part, Jones’ affidavit states:
I told Mr. Needleman that the apartment at 10 H BREEZY
TREE Court was rented by My Girlfriend Ms. Linnea
Worthington, and that I let Calvin Wright and Johnny
Butler use it from time to time.
I told Mr. Needleman that I wanted him to suppress the
evidence found at 10 H BREEZY TREE Court and he stated
that that would be to[o] risky a strategy.
Mr. Needleman added that in order for me to suppress
evidence from BREEZY TREE Court, I would have to show
that I was connected in a meaningful way to that
apartment.
Mr. Needleman stated that if I took the stand at
suppression, any admission of or ties to BREEZY TREE
Court would be used at Trial to prove my guilt.
I relented.
Mr. Needleman assured me that there was no
consequential evidence linking me to the crime of
conspiracy so he was not going to complicate the
matter by introducing any evidence that would tie me
to BREEZY TREE Court.
(J.A. 269.)
Worthington’s two affidavits covered less than one page of
statements combined. Worthington represented that she rented
Apartment H for Jones at his request and “Mr. Jones had total
dominion and control over the said premises and paid the rent
6
and all other attendant expenses.” (J.A. 273.) She also stated
that she did not give Butler and Wright keys or know how they
obtained keys.
The Government presented no evidentiary exhibits. Of
particular note, there was no affidavit from Needleman and no
explanation for its absence in the record.
Without holding an evidentiary hearing, the district court
denied Jones’ § 2255 motion. The district court determined that
Needleman’s decision not to move to suppress was a “virtually
unchallengeable” “strategic decision” and reflected competent
legal counsel because moving to suppress would have (1) required
Jones to admit a connection to the apartment and (2) provided a
witness (namely, Worthington) who the Government had otherwise
been unable to find. Jones, 2012 WL 5832461, at *2.
Furthermore, it concluded that Jones had not established
prejudice from any allegedly deficient performance, as the
evidence in the record did not show that Jones would have had
standing to challenge the search.
Jones requested a certificate of appealability, which we
granted on the limited issue of whether Needleman provided
ineffective assistance of counsel in failing to move to suppress
the evidence from Apartment H. We have jurisdiction over Jones’
appeal pursuant to 28 U.S.C. §§ 1291 and 2253.
7
III.
The Sixth Amendment provides, “In all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const. amend.
VI. The right to counsel includes “the right to the effective
assistance of counsel.” Poindexter, 492 F.3d at 267 (quoting
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Jones’
ineffective assistance claim is governed by the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984), which
requires Jones to prove “that counsel’s performance was
deficient” and “that the deficient performance prejudiced the
defense.” Id. at 687.
A.
Jones asserts that Needleman provided constitutionally
deficient assistance by failing to challenge the Apartment H
search. Specifically, he argues that Needleman either
misunderstood or ignored Simmons v. United States, 390 U.S. 377
(1968), in failing to move to suppress. In Simmons, the Supreme
Court held “that when a defendant testifies in support of a
motion to suppress evidence on Fourth Amendment grounds, his
testimony may not thereafter be admitted against him at trial on
the issue of guilt unless he makes no objection.” Id. at 394.
In effect, Jones contends that a reasonably competent criminal
defense attorney would know that a defendant is not forced to
8
choose between forfeiting a potential Fourth Amendment objection
and forfeiting a later defense at trial. See Simmons, 390 U.S.
at 392-93.
To determine if Needleman did in fact base his Apartment H
suppression decision on a Simmons-related mistake, we must
evaluate Needleman’s “perspective at the time.” Griffin v.
Warden, Md. Corr. Adjustment Ctr., 970 F.2d 1355, 1359 (4th Cir.
1992) (quoting Strickland, 466 U.S. at 689). And while we
cannot “rely on hindsight to reconstruct the circumstances of
counsel’s conduct,” Winston v. Pearson, 683 F.3d 489, 504 (4th
Cir. 2012), we must indulge a “strong presumption” that
Needleman’s conduct was reasonable, United States v. Galloway,
749 F.3d 238, 241 (4th Cir. 2014) (quoting Strickland, 466 U.S.
at 689). Unfortunately, the Government did not submit an
affidavit from Needleman and Jones’ short affidavit is the only
account now in the record of Needleman’s contemporaneous
perspective on his trial strategy.
The parties’ arguments thus center upon how to interpret
Jones’ affidavit. Jones represented in the affidavit that
Needleman said “if [Jones] took the stand at suppression, any
admission of or ties to BREEZY TREE Court would be used at Trial
to prove [his] guilt.” (J.A. 269.) Jones contends that this
statement conflicts with the rule recognized in Simmons.
9
The Government counters that the affidavit demonstrates
Needleman’s strategic decisionmaking in that he was
appropriately concerned that the Government could use derivative
evidence from a suppression hearing to Jones’ detriment at
trial. Specifically, the Government posits that Jones’ argument
asserting his standing as to Apartment H would have likely
required Worthington’s testimony to have a realistic chance at
success, particularly since Jones had no key, was not a
signatory to the lease, and codefendant Wright had testified as
to his (Wright’s) entitlement via Worthington to the apartment.
However, the Government had been unable to locate her.
Because Jones’ affidavit can be read to support Jones’ and
the Government’s positions, it is ambiguous. On the one hand,
the affidavit creates a colorable claim that Needleman believed
that the Government could use Jones’ suppression hearing
testimony as direct evidence against him at trial to prove his
guilt. If the affidavit’s representation of Needleman’s concern
is factually accurate, then, in light of the recognized rule in
Simmons, Needleman may well have performed deficiently by
failing to challenge the seized evidence. See, e.g., Owens v.
United States, 387 F.3d 607, 608-09 (7th Cir. 2004) (describing
that counsel could be considered ineffective by making decisions
based on an unfamiliarity with Simmons). On the other hand, the
affidavit also states that Needleman “assured [Jones] that there
10
was no consequential evidence linking [him] to the crime of
conspiracy so [Needleman was not going to complicate the matter
by introducing any evidence that would tie [Jones] to BREEZY
TREE Court.” This statement, as the Government posits, suggests
defense counsel’s strategic decision. In particular, Simmons
might not have prevented the Government from presenting
Worthington’s suppression testimony or other derivative evidence
at trial if the suppression motion failed. See United States v.
Boruff, 870 F.2d 316, 320 (5th Cir. 1989) (“The Fifth Amendment
. . . does not protect the testimony of individuals who are not
incriminating themselves and who have only supported another
individual’s invocation of his Fourth Amendment rights.”).
Jones’ affidavit thus does not conclusively establish Jones’
claim of ineffective assistance nor does it definitively support
the Government’s claim that counsel’s conduct was clearly a
strategic decision.
At bottom, the difference here between constitutionally
deficient performance and sound trial strategy turns on what
Needleman meant when he allegedly said that the Government could
use Jones’ “admission of or ties to” Apartment H. We do not
believe the district court could make an informed judgment as to
what Needleman meant on this limited record. At the outset, the
question involves something of a credibility determination: the
district court must decide whether it believes Jones’ accounts
11
of his conversations with Needleman in the face of any other
evidence. The court must also determine what Needleman’s
statements truly meant. Credibility determinations normally
call for an evidentiary hearing. See Raines v. United States,
423 F.2d 526, 530 (4th Cir. 1970).
But Jones’ credibility is not the only point indicating the
prudence of an evidentiary hearing. Noticeably absent from the
record is an affidavit or testimony from Needleman describing
his decisionmaking process, his trial strategy, and the
substance of his discussions with Jones. It would be imprudent
to find counsel constitutionally ineffective without affording
him an opportunity to explain his actions. See United States v.
Mandello, 426 F.2d 1021, 1023 (4th Cir. 1970) (per curiam) (“It
would be grossly unfair to the trial counsel to fault his
representation without having in the record some statement from
him. Courts must be equally vigilant to protect counsel from
the unfair imputation of professional neglect as to assure to
the defendant effective representation.”). In short, it is
simply not known how “counsel would respond to a charge of
ineffective assistance.” Sneed v. Smith, 670 F.2d 1348, 1355
(4th Cir. 1982). “[U]ntil it is[,] we think the colorable claim
made here . . . cannot properly be resolved.” Id.
Title 28 U.S.C. § 2255(b) requires a “prompt hearing” on a
petitioner’s § 2255 petition unless “the motion and the files
12
and records of the case conclusively show that the prisoner is
entitled to no relief.” We conclude that the present record
does not “conclusively” foreclose Jones’ claim of deficient
performance. See United States v. Witherspoon, 231 F.3d 923,
927 (4th Cir. 2000) (holding that the record did not
“conclusively” foreclose § 2255 relief where it was “not clear”
that “counsel dispute[d] the facts alleged” by the petitioner).
B.
Even though we conclude that the district court prematurely
decided Strickland’s performance prong, remand is not automatic.
Jones must also carry his burden of establishing that
Needleman’s alleged deficient representation prejudiced him.
Consequently, remand would be unnecessary if we agreed with the
district court that Jones failed to make such a showing.
When counsel’s deficiency is based on the litigation of a
Fourth Amendment claim, the § 2255 movant must prove prejudice
by showing “that his Fourth Amendment claim is meritorious and
that there is a reasonable probability that the verdict would
have been different absent the excludable evidence.” Kimmelman
v. Morrison, 477 U.S. 365, 375 (1986).
To succeed in his Fourth Amendment challenge, Jones would
first need to establish that he has standing to challenge the
search of Apartment H. In other words, Jones must show that he
had “a legitimate expectation of privacy” in the apartment.
13
United States v. Gray, 491 F.3d 138, 144 (4th Cir. 2007)
(quoting Minnesota v. Carter, 525 U.S. 83, 89 (1998)). An
expectation of privacy is legitimate if it is objectively
reasonable in light of the totality of the circumstances. See
United States v. Castellanos, 716 F.3d 828, 846 (4th Cir. 2013).
Relevant factors in this analysis include “whether the person
claims an ownership or possessory interest in the property, the
individual’s control of the area searched, his efforts to ensure
his privacy in the object or area, the purposes for which the
individual uses the property, his historical use of the
property, and society’s common understanding as to areas that
deserve Fourth Amendment protection.” Id. (internal citations,
quotation marks, and alterations omitted).
The district court held that Jones did not have a
reasonable expectation of privacy in the apartment because the
court “likely . . . would have concluded that Jones was merely
‘running a drug ring’ out of the apartment of a third party.”
Jones, 2012 WL 5832461, at *2.
Here again, we conclude that an evidentiary hearing is
necessary to resolve the credibility disputes inherent in the
conflicting versions of Jones’ status vis-à-vis the apartment.
The testimony of Jones’ codefendant, Wright, and Jones’ and
Worthington’s affidavits present contradictory accounts of
Jones’ relationship to Apartment H –- and, consequently, his
14
standing to claim a privacy interest. We routinely remand for
further proceedings when conflicting testimony like this appears
in the record. 2 See, e.g., United States v. Diaz, 547 F. App’x
303, 304 (4th Cir. 2013) (per curiam); United States v. Wright,
538 F. App’x 237, 237 (4th Cir. 2013) (per curiam); accord
United States v. Rivas-Lopez, 678 F.3d 353, 359 (5th Cir. 2012).
The reason is obvious: the district court is best able to assess
the credibility of conflicting accounts through an evidentiary
hearing. See generally Walters v. Harris, 460 F.2d 988 (4th
Cir. 1972) (reversing the district court’s denial of a § 2255
movant’s ineffective assistance claim and remanding for an
2
As the matter may arise on remand, we address one
evidentiary dispute that the parties reference on appeal.
Without citation to authority, Jones argues it would violate his
right to due process to consider facts produced at codefendant
Wright’s suppression hearing. We disagree.
The Wright suppression hearing testimony could be properly
considered at Jones’ § 2255 evidentiary hearing so long as Jones
is afforded a fair opportunity to challenge the veracity and
accuracy of that testimony. See Smith v. United States, 206
F.3d 812, 813 (8th Cir. 2000) (per curiam) (finding no due
process concern in use at sentencing of testimony from a
codefendant’s trial even though the defendant “was not present,
represented, or able to confront and cross-examine witnesses at
his codefendant’s trial”). As in a sentencing hearing, the
rules of evidence do not apply with equal force in § 2255
proceedings. See 1 Randy Hertz & James S. Liebman, Federal
Habeas Corpus Practice & Procedure § 19.5 (6th ed. 2011)
(“[H]earsay, best evidence, authentication, and other
evidentiary rules are [chiefly] abandoned.”). While Wright’s
testimony bears indicia of reliability as a sworn statement
given in open court, Jones would have the right to call Wright
in the § 2255 hearing as his witness or cross-examine him should
the Government present him as their witness.
15
evidentiary hearing to assess the credibility of witnesses who
previously only testified through conflicting affidavits),
overruled on other grounds by United States v. Whitley, 759 F.2d
327 (4th Cir. 1985) (en banc); cf. United States v. Nicholson,
475 F.3d 241, 252 (4th Cir. 2007) (reversing a district court’s
denial of § 2255 movant’s ineffective assistance claim and
remanding because the inquiry was “heavily fact dependent” and
“there are material factual issues yet to be addressed and
determined in this case”).
As with our analysis of the performance prong, the bare
bones record does not permit us to properly perform our
appellate review function and augurs for an evidentiary hearing
so that the district court can make an informed determination
upon a properly developed record.
C.
We have always declined to create a rigid rule that would
override a district court’s “common sense and sound discretion”
when determining whether an evidentiary hearing must be held for
a § 2255 motion. Raines, 423 F.2d at 530. However, where the
circumstances point to an evidentiary hearing to fairly resolve
the issues presented and provide an adequate record for
appellate review, we have required such a hearing. The scant
record before the district court simply does not “conclusively”
show that Jones is entitled to no relief. See 28 U.S.C.
16
§ 2255(b). Neither does it clearly establish that Jones is
entitled to the relief he seeks. For these reasons, the
district court should hold an evidentiary hearing in order to
develop an adequate record upon which a fully informed
adjudication of Jones’ motion can be conducted and a proper
appellate review of any judgment may be performed.
IV.
For the reasons stated, the order of the district court is
hereby
VACATED IN PART AND REMANDED WITH INSTRUCTIONS.
17