CLERK': OFFICE .U S. DISX COURTAT ROANOKE, VA

FILED

AF2 2 6 2217

. U W CLERKW :

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IN TH E UN ITED STATES DISTRICT COURTFOR TH E W ESTERN DISTRICT OF W RGIN IA

ROAN OKE DIW SION

UN ITED STATES OF AM ERICA, CASE N O . 7:13CR00038-4

M EM OM N DUM OPIN ION

QWANESHA TYAN N M ORRIS,D efendant.

By: M ichael F. Urbansld

United States District Judge

Defendant Qwanesha Tyann Morzis was found gailty following a six-day taial of

conspiracy to clistribute 28 grams o.t mote of crack cocaine and was sentenced to 60 m onths

in prison. She filed a motion to vacate, set aside, or correct her sentence, undez 28 U.S.C.

j 2255, raising multiple clqims of ineffective assistance of counsel and prosecutorial

misconduct. The government responded and M orzis replied, maldng this m atler ripe foz

adjudication. After review of the zecord and bziefs, the cotut concludes that Morris has not

taised any m eritorious clnim s. Accordingly, the court will grant the Utzited States' modon to

disnliss and dismiss Morris' j 2255 motion.

L BACKGROUN D

On September 26, 2013, a federal grand jury sitting in Roanoke, Virgirlia charged

M orris and five codefendants in a one-count supezseding indic% ent with conspiracy to

distribute and possess with the intent to distribute 280 grams or m ore of a mixture or

substance containing crack cocaine, in violation of 21 U.S.C. j 841(a)(1), $)(1)(A) and 846.

Mords was appointed counsel. On January 21, 2014, Morris and four codefendants

proceeded to trial.l The government argued that M ozris was involved in a crack cocaine

ttafficking conspiracy by helping to collect money for the conspizacy when the two leaders

of the conspiracy were incarcerated and renting cazs that various members of the conspiracy

used to facilitate drtzg sales. Tt. Trans. at 8-19, ECF N o. 403. Prior to tdal, the government

and defense counsel stipulated that the rental car company records were business recotds

and tlzat the drug labs were suffcient to show the nature of the various geized substances.

Stlp. at 1, ECF N o. 248.

The jury was tasked with deterrnining whether Morris was /1.111 of conspiracy to

distribute crack cocaine; and, if so, whether the conspitacy involved 280 gram s or mote of

crack cocaine or, in the alternativej 28 gzams oz more of crack cocaine. The jury found

M orris /1111 of the lesser included offense of conspiracy to disttibute 28 grams or more of

crack cocaine. Vezdict, ECF No. 274.

The èrobation Department prepared a ptesentence investigation report (<TSRR') in

anécipation of sentencing. The PSR recommended a total offense level of 26,

corresponding to a dtug am ount of at least 28 grams but less than 112 gram s of crack

cocnine, and a crinûnal history category of Il, zesulting in an imprisonment range of 70 to 87

rnonths. PSR !( 90, ECF No. 344. Defense counsel did not make any objecdons to the

PSR. The govetnment, however, objected, atgtzing that Mottis should be held accountable

for a much latgez quantity of drugs as a member of the conspiracy. J-dx at 23. A probadon

officer declined to am end the PSR, conclucling that M otris' role was limited in the

conspiracy and thete was no indication that she had engaged in any ditect disttibuéon. J-C.L

1 One codefendant, Joshua Tyree Poindexter, pleaded gutl' ty and teséfied at thal as the prosecution's mainwittzess.

2

Onlune 23, 2014, the coutt held a sentencing hearihg. The government again

objected to the PSR'S dêug quantity calculation foz' Mozêis, azglzing that she was zesponsible

for at least 140 gtam s of crack cocaine; defense counsel responded that M orris was

peripherally involved in the conspitacy and the PSR should be adopted. Sent. Htk. Tran. at

42-44, ECF No. 406. The coutt sustained the government's objecéon, in part, and

concluded that M ortis' base offense level should be 28, zesulting in an increased advisory

guideline range of'87 to 108 months. J-ds at 47. The court then sentenced M orris to 60

months' imprisonment. Judgment at 2, ECF No. 331. The cotu:t imposed a downward

variance, concluding that M orris clid not actively patticipant in the conspitacy ita signihcant

ways and was sporadically involved compared to hez codefendants. Sent. Hr'g Tr. at t09,

ECF No. 406.

M orris appealed, cluiming that the trial court erred by sua sponte subrnitdng to the

juty a special verclict fozm that petnnitted the jury to make an alternative Hrllg weight fmding,

aclmitdng audio recordings of jailhouse conversations and otdering forfeiture. United States

v. Jones, 622 F. App'x 204 (4tJl Cir. Aug. 24, 2015). The Fouzth Circuit affimned on all

cllims. 1d. M orris timely filed this j 2255 motion. She asserts that counsel provided

ineffective assistance at trial by failing to m ove to dismiss the indictment, agreeing to

sépulations, fniling to raise defenses, and unsuccessfully m oving for acquittal. In addidon,

she clnim ed that counsel ptovided ineffective assistance at sentencing because counsel failed

to argue that M ozzis qualified for a safety valve reduction in sentencing, and that she

qualified for a rninoz role reduction. M ozzis also argues that the pzosecudon engaged in

H sconduct by presendng false testimony at the grand jury proceeding and tdal. In addidon,

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in hez response to the govetnment's m otion to disrniss, M orris raises three additional cl/ims

of ineffecéve assistance: (1) trail counsel failed to object to the drug weight atttibuted to her

at sentencing; (2) trial and appellate counsel failed to argue that the district court should have

given the jury an adcliéonal lesser-included-offense instructbn; and (3) appellate counsel

failed to azgue that the district court erred by denying her motion fot acquittal. Reply at 1,

ECF No. 507.

II. DISCUSSION

To state a viable clqim for zelief under j 2255, a petitionet must prove: (1) that the

sentence was ffimposed in violation of the Constitaztion or laws of the United Statesi'' (2)

that fTtlle cotlrt was without jurisdiction to impose such sentencei'' or (3) that ffthe sentence

was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.''

28 U.S.C. j 2255$). Morris bears tlne burden of proving grounds for a collatetal attack by a

prepondezance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cit. 1958).

A. Ineffective Assistance of Counsel

Criminal defendants have a Sixth Amendm ent right to fTreasonably effecéve'; legal

assistance. Stricldand v. Washin ton, 466 U.S. 668, 687 (198$.In order to establish that

counsel's assistance was not reasonably effective, a defendant must sadsfy a two-prong

analysis: the defendant must show 130th that counsel's performance fell below an objecéve

standatd of zeasonableness and that tlae defendant was prejudiced by counsel's alleged

deficient performance. J-I.L at 669. W hen considering the reasonableness prong of

Striclcland, courts apply a 'Tstrong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance.': Ld.x at 6899 see also Gra v. Branker 529 F.3d

220, 228-29 (4t.h Cir. 2008).Counsel's perfotmance is judged r<on the facts of the particular

casey'? and assessed <ffrom counsel's perspective at the tim e.7' Strickland, 466 U.S. at 689.

To sxtisfy the prejudice prong of Sttickland, a defendant must show that there is a

teasonable pzobability thatk but foz counsel's unprofessional error, the outcome of the

proceeding would have been different. 1d. at 694. TrA reasonable ptobability is a probability

sufficient to undernaine confidence in the outcom e.'' 1d.

(1) Tzial Erzors '

M orris flrst argues thât counsel was ineffective because he failed to m ove to disnniss

the indictm ent pzior to ttial as the governm ent did not have sufhcient evidence thu.t she was

involved in the conspitacy. However, the principal ptupose of an itfdictment is to appzise

the accused of the charges ag/inst hitta or her in order to prepaze a defense. United.states v.

Miller, 471 U.S. 130, 135 (1985). The purpose of a trial is to put the goveznment't eviden'ce

to the test, such that a jury may convict only if there is evidence of guilt beyond a teasonablt

doubt. United States v. Powell, 469 U.S. 57j 67 (1984). Although Morris asserts that ffthete

was no evidence in discoverf' to tie her to the conspitacy, the appropriate juncture fot

counsel to choerîge the evidence was at ttial, wllich he did. Howevet, a jury concluded that

M orris was, in fact, involved. Because there was no basis for het counsel to m ove to disnniss

the indictment, Morris cannot successfully asseltt deficient petformance or prejudice.

Strickland, 466 U.S. at 687.

Next, M orris azgues that counsel erred by m akir'lg various stipulations, including that

rental car company records were business records and that the drug lâbs wete sufficient to

show the natazre of the various seized substances. M orris does not explain how these

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stipulations ptejudiced her case. Counsel clid not make any stipulation affecting Mozris'

guilt, only regatding the viability and classifkation of records that would be introduced at

tdal. It was the province of the jury to detertnine whethet the rental car records and dlazg

labs established M otris' guilt. Accordingly, counsel's stipulations pre-tdal did not constim te

ineffective assistance of counsel. Id.

M orlis also argues that counsel failed to raise a Ttdefense7' at trial because he did not

challenge the goveznment's evidence of telephone calls involving her in which the term

ffcash out'' was used.Speciûcally, M orris argues that a telephone call in wbich she expressed

confusion regatding the term ffcash out,77 was not played for the juty, wllich would have cast

doubt on hez itwolvement in the conspitacy. Morris asserts that the Tfcumlzlative use of gthe

tet'm) 'cash out' thtoughout7' the ttial frheavily pzejudiced'; her. j 2255 Mot. at 16, ECF No.

478. However, counsel questioned a witness as to whethet M orris was asked whether she

understood what ffcash out': meant, and the vritness responded that he had not asked M orris

that queséon. Tr. Trans. at 124, ECF N o. 399.In addition, counsel challenged the

governm ent's use of the recorded telephone calls, and questioned whether the witness

teséfying about them had sufticient contact with M orris to idenéfy her voice. ld. at 121,

133-35. M orris does not explain how additional challenges to the tet.m Tfcash out'' would

have affected the outcom e of the ttial in light of the additional evidence presented by the

government that M orris rented many cazs which were used to carry out drug-telated

business. United States v. D ess, 73O F.3d 354, 359 (4th Cir. 2013) (noting that ffvague and

conclusory allegaéons contained in a j 2255 petition may be disposed of without furtlaet

investkation by the District Court7') (internal quotation omitted).

6

Finally, M orris argues that counsel was deficient for unsuccess6zlly moving for

acquittal. Counsel made a motion foz acquittal, argtzing that the evidence linking M orris to

the conspitacy was Kfalmost nonexistegntq,'' however the court denied the modon, conclucling

that the government presented evidence from which the jury could ûnd that Morris was

involved in a drlxg conspiracy. Tr. Trans. at 107, 111-12, ECF No. 400. M orris asserts that

counsel sholzld' have made addiéonal arguments because thete was no evidence that she

ffpossessed cmck cocaine.'' j 2255 Mot. at 16, ECF No. 478.Howevet, Morris was indicted

and convicted of conspiracy to disttibute crack cocaine. A defendant convicted of

conspiracy may be held accountable foz the total amount of drtzgs atttibutable to all

mem bers of the conspitacy, as long as it is zeasonably foreseeable to the defendant. See

United States v. Randall, 171 F.3d 195, 210 (4th Cit. 1999) (noéng that ffthe distdct coutt

may attribute to the defendant the total amount of dzugs involved in the conspiracy,

provided the cltnng quantities were reasonably fozeseeable to the defendant and are within the

scope of the conspitatorial agreement>); United States v. Sesere, 413 F. App'x 653, 659 (4th

Cir. 2011). Accordingly, Morris' focus on her lack of possession and distribuéon of drugs,

alone, is misplaced. Therefore, M orzis has failed to estabnsh that counsel erred with regatd

to his m oéon for acqtzittal. Stricldand, 466 U.S. at 687.

(2) Sentencin Etrors

M orris also argues that counsel provided ineffective assistance at the sentencing

phase of her ttial. Specifically, she argues that counsel failed to object when the govetnment

asserted that the PSR under-represented the amount of drugs attzibutable to her and failed

to make a motion for a nùnor-role reducdon to her sentence.A jury found Morris /.é11 of

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conspiracy to disttibute 28 gram s or m ore of crack cocaine. Tlzis convicdon carries a

mandatory rninimum sentence of 60 months' incarceration. 21 U.S.C. jj 841($(1)7) and

846. The court sentenced hez to 60 months incarcergdon. Thetefore, M orris cannot

establish that her counsel's conduct with regard to challenging her guidelines range

prejudiced her in any way. Stdckland, 466 U.S. at 694 (<fThe defendant must show that there

is a reasonable probability that, but for counsel's unprofessional errors, the result of the

pzoceeding wolzld have been different.7).

ln addiéon, M orris argues that she was eligible for a Tfsafet)r valve'' sentence and her

counsel erred by failing to make this atgum ent at sentencing. The safety valve provision

allows defendants in drug cases to receive a sentence below the statutory m andatoly

minimum sentence if certain criteria are met. 18 U.S.C. j 3553($. One such reqllitement is

that the defendant may not have mote than one criminal Vstory polnt. J.t.k j 3553(4(1).

Morris had two criminal llistory points.PSR !! 63, 64, ECF No. 344. Accordingly, she was

not eligible for safety valve relief. Therefore, her counsel did not etr by fniling to raise this

issue at sentencing. Stricldand, 466 U.S. at 687.

B . Prosecutorial M isconduct

M orris also makes numerous clninhs of pzosecutorial rnisconduct. These clnim s, too,

are without m edt.

1. Gr:ndlury Proceedings

M orris fust alleges that the prosecution knowingly presented false testimony ftom

Detective Vincent Haddox qt the grand jut'y proceeding when he said that ffthere was a bag

transported from Atlanta contining a kilo of cocaine.''j 2255 Mot. at 14, ECF No. 478.

8

Specifically, M orris argues that because the only person to discuss that ttip with law

enforcement was Joshua Poindexter, a witness who nevet talked to Haddox before the grand

jury proceeding, and who never said how much cocaine was transported because he did not

know, the testim ony was false. M orris adrnits, however, that Poindexter talked to two other

law enfozcement officers before the grand jury proceeding. .Lda at 15. Heatsay tesémony is

not subject to exclusion at a grand jury pzoceeding. Costello v. United States, 350 U.S. 359,

364 (1956) (concluding that the purpose of the gzand juty proceeding is to allow laymen tofçconduct theit inqllides unfettered by technical rules').

M oreover, Poindexter testified at trial that he believed that cocnine was purchased on

the Atlanta ttip and that he saw a codefendant handle ffhalf a brick'' of cocnine after the ttip,

wlzich is half a ldlogram of cocaine. Tr. Trans. at 153-54, ECF No. 403. Although

Poindexter testified that he nevez saw the drug ttansacdon, inconsistent testimony at a gtand

jury proceeding does not petnnit a challenge to the defendant's convicdon. See United States

v. Williams, 504 U.S. 36, 54 (1992) (noting that an indictment may not be challenged even

when theze is Tfinadequatey'' çfincompetent'' or Tfurlreliable'? evidence presented before the

grand juryl. At ttial, defense counsel cross-exannined Poindexter regarding the fact that he

did not see the drtzg transaction duting the Atlanta trip in order to cast doubt on ilis

credibility as a witness. The jury could then draw its own conclusions regatcling the

teliability of the evidence. Accordingly, Morris can establish neither ffactazal prejuclice,'' Bank

of Nova Scoéa v. United States, 487 U.S. 250, 256 (1988), nor ffwillful prosecutorial

naisconduct,'' United States v. Fetzrtado, 191 F.3d 420, 424 (4t.h Cir. 1999).

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2. Trial Sta e

N ext, M orris argues that the prosecution elicited false testimony from Haddox at ttial

when Haddox stated that he had never interrogated M orzis. M orzis provides a signed

affidavit, in which she asserts that H addox inteztogated her at the police stadon without

advising her of her rights, aftet she was arrested.j 2255 Mot. at 19-20, ECF No. 478.

Assurning this is trtze, M ozris does not explain what was said during the interrogation, and

the interrogation was never presented as evidence at trial. Because M orris cannot establish

that anything said at this alleged intetrogation was aclmitted at ttial, she cannot show that she

was prejudiced by this encountez or that the prosecution engaged in naisconduct at tdal.

United States v. Scheetz, 293 F.3d 175, 185 (4th Cit. 2002) (noting that in order to gnin telief

based on ptosecutorial tnisconduct, the defendant must show that ffthe conduct so infected

the trial with unfaitness as to make the resulting conviction a denial of due process').

C. Am ended Claim s

Finally Morris zaises three additional claims in her reply/motion to amend: (1) trial

counsel erred by fniling to make objections to the drug weight at sentencing; (2) ttial and

appellate counsel were ineffective for failing to argue K<a lesser offense involving drug

weighti'? and (3) appellate counsel was ineffective for failing to atgue a moéon of acqlzitlal

on appeal. Because these claims were raised aftet the governm ent responded to her itaiéal

j 2255 petidon, Morris must obtain leave of court or written consent of the pardes to nmend

her petition. Fed. R. Civ. P. 15(a)(2).Motris has not received such permission.

H owever, even if the court were to address her claim s on the merits, she would not

be endtled to relief. Her flrst claim that counsel's performance was defkient because he did

10

not contest. the dtug weight atttibutable to her during sentencing is unavliling because, as

explained above, Mpttis cannot establish pzejudice. She was subject to a stamtory

mandatory nlinimum sentence of 60 months, which is the sentence she received.

Accozdingly, any atgum ent regarding drug weight, which would have affected her guideline

range, but not the statutory m andatory rninimum, would not have affected her sentence.

Stricldand, 466 U.S. at 694.

Her second argum ent is that counsel shotzld have argued for a lesser included

offense, nam ely, that the conspiracy itwolved disttibution of less than 28 grams of crack

cocnine. M orris was inclicted fot conspiracy to distzibute 280 gram s of crack cocsine, but

following the tdal, the court sua s onte charged the juty with determining whethet the

defendants were guilty of a lesser included offense: 28 gtams to 279 gtams. See United

State-s-v. Cabrera-Beltran, 660 F.3d 742, 753 (4th Cir. 2011) (noting that a cout't may

pe= issibly charge a jury in a cltug case with detele ning whethet a defendant is /1111 of av ..'

lesser included offense- a smaller quantity of the same dzug- than that charged in the

indicM ent). Morris argues, however, that the court should have additionally required the

juty to determine whether the conspiracy was responsible for between one and 27 grams of

crack cocnine. A defendant is entitled to a lesser-included offense insttuction if requested

and the evidence justifies it.United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993).

Here, the evidence was sufficient to support M orris' convicdon, a conviction the Fotuth

Circtzit affitvned aftet reviewing the entire zecord. Jones, 622 F. App'x at 209. Accordingly,

her clsim that counsel etred by failing to argue that the jury should be instructed on an

additional lesser-included offense is without merit.Sttickland, 466 U.S. 694.

Finally, M orris argues that appellate counsel was ineffective for fniling to atgtze that

the disttict court erred by denying her acquittal m otion because there was no evidence that

28 grams of crack cocaine were seized while she was involved in the conspitacy. Appellate

counsel is presum ed to act teasonably in selecting which issues to raise f<to maximize the

likelihood .of success on appeal.': Srnith v. Robbins, 528 U.S. 259, 288 (2000)9 Prtzet't v.

Thom son, 996 F.2d 1560, 1568 (4th Cir. 1993).This prestzmption is overcome only when

ignored issues are clearly stronger than those presented. Srnith, 528 U.S. at 288. The denial

of the acquittal modon was not strongez than the issues taised on appeal as the government

presented evidence that M otris rented cars and collected some m oney foz tlie drug

conspiracy. Accordingly, M ozris cannot establish that had appellate counsel argued that she

was not, in fact, guilty of conspizacy to distribute even 28 gtams of crack cocnine, she would

have obtained a ffhaoze favorable'' result. Sttickland, 466 U.S. at 695.;

111.

For the reasons stated, the cotzrt GRAN TS the government's motion to dismiss,

ECF No. 498, and DISM ISSES M orzis' motion to vacate, set aside or correct her sentence

pursuant to 28 U.S.C. j 2255, ECF No. 478. Because Morris has failed to make a substandal

showing of the denial of a constitutional right as reqtzited by 28 U.S.C. j 2253(c) and Slack v.

McDaniel, 529 U.S. 473, 484 (2000), a certificate of appealability is DENIED.

EN TER: This day of April, 2017.

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