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Cockrell v. United States

United States District Court, E.D. Texas, Sherman Division

March 22, 2017




         The Report and Recommendation of the Magistrate Judge (the “Report”) (Civ. Dkt. 26), [1] which contains her findings, conclusions, and recommendation for the disposition of this action, has been presented for consideration. The Report recommends that the above-styled Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1) be denied and the case dismissed with prejudice. Petitioner has filed written objections (Civ. Dkt. 30). Having made a de novo review of the objections, the court concludes that the findings, conclusions, and recommendation of the Magistrate Judge are correct.

         I.T he Magistrate Judge Did Not Err When Relying on Both the Trial Record and Undisputed Factual Findings from the Fifth Circuit to Establish the Factual Background of the Case

         Movant objects, first, to the Magistrate Judge's citation of the Fifth Circuit's factual findings on direct appeal, arguing that it was improper for the Magistrate Judge to rely solely on the Fifth Circuit's findings to establish the factual background for her Report. See Civ. Dkt. 30 at 2-3. The court finds it readily apparent from the Report that the Magistrate Judge considered and cited relevant portions of the trial record in her resolution of each of Movant's substantive claims. See Civ. Dkt. 26 at 8, 10, 11. Moreover, the portion of the Fifth Circuit opinion cited in the Report sets forth a narrative account of the facts related to the underlying criminal investigation, trial testimony, and ambulance records introduced at trial. See Civ. Dkt. 26 at 2 (citing United States v. Cockrell, 587 F.3d 674, 677 (5th Cir. 2009)). The Government set forth a substantially similar, albeit more detailed, version of these facts in its response to the § 2255 motion. See Civ. Dkt. 16 at 2-4. Movant has conceded that this recitation of the facts of the case is accurate. See Civ. Dkt. 21 at 3 (“The AUSA correctly sets out most of the underlying criminal proceedings as to Petitioner's charging and trial proceedings.”). The court, therefore, finds Movant's objection to this version of the facts of the case without merit.

         II. Movant's Allegations of Conflict of Interest and Violation of Attorney-Client Privilege are Entirely Speculative and Do Not Support His Ineffective Assistance Claim

         Next, Movant objects to the Magistrate Judge's determination that his trial counsel did not render ineffective assistance when cross-examining Government witness, Jonathan Kollman. Kollman was represented by Thomas G. Pappas, whose partner, Michael P. Gibson, purportedly represented Movant in an earlier, unrelated criminal matter. See Civ. Dkt. 21 at 12. Movant claims Pappas also appeared on Movant's behalf “at a minimum of one court appearance” in the earlier proceedings. See Id. According to Movant, this earlier representation created a conflict of interest and a violation of the attorney-client privilege, which prejudiced Movant at trial. See Civ. Dkt. 30 at 3-5. Movant claims that trial counsel should have further cross-examined Kollman as to the nature of his representation by Pappas or otherwise raised the issues of conflict of interest and attorney-client privilege at trial. See Civ. Dkt. 1 at 4; Civ. Dkt. 21 at 12-14; Civ. Dkt. 30 at 5.

         Movant has made no factual allegations and offered no evidence to support the conclusion that the earlier criminal matter was in any way related to the events underlying his conviction in the current case. That the earlier criminal case purportedly involved “a drug charge . . . in a different jurisdiction” is not enough to establish that the earlier matter was substantially related to the present one. Civ. Dkt. 30 at 5. Movant has also failed to show that either Pappas or Gibson appeared in the present case adverse to him or represented a party with interests adverse to his own. Thus, Movant has made only conclusory allegations of a conflict of interest.

         Similarly, Movant has offered only speculation that knowledge Pappas and Gibson could have acquired during the earlier representation was somehow beneficial to Pappas' client Kollman. Movant has insinuated that Kollman could have used information related to the earlier criminal matter to glean favor from the Government in the current, albeit unrelated, case. And, without so much as one factual allegation, Movant has conjectured that Pappas violated the rules of professional conduct and suborned perjury by “coach[ing Kollman] on the manner and means of the defendant against which he was testifying . . .” and “ask[ing] suggestive questions to help the witness ‘remember' facts that are not necessarily the true set of facts.” Civ. Dkt. 21 at 12. These purely speculative arguments are not well taken and, as the Magistrate Judge concluded, do not sustain a constitutional claim on collateral review. See Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); United States v. Johnson, 679 F.2d 54, 58-59 (5th Cir. 1982).

         III. Movant's Complaint that Defense Counsel Did Not Engage Medical Experts or Obtain a Toxicology Report Does Not Raise a Constitutional Claim

         In his final objection, Movant raises two arguments. First, he argues the only way the Government could bear its burden of proving causation was by presenting toxicology reports and expert witnesses identifying heroin as the only drug in the victims' systems in injury-causing quantities at the time of their overdoses. He contends that since no such evidence was presented, the Government failed to carry its burden of proof. The court construes this argument as a challenge to the sufficiency of the evidence supporting his conviction. Because Movant failed to raise this insufficient evidence claim on direct appeal, it is only subject to the court's federal habeas review upon a showing of cause for the procedural default and actual prejudice. See Engle v. Isaac, 102 S.Ct. 1558, 1572-73 (1982). Movant has made no such showing and, moreover, his claim lacks merit.

         Movant was charged with conspiracy to possess with intent to distribute heroin, resulting in serious bodily injury, in violation of 21 U.S.C. §§ 841 and 846. See Crim. Dkt. 887. To obtain a conviction on the “serious bodily injury” penalty enhancement provision pursuant to 21 U.S.C. § 841(b)(1)(C), the Government bore the burden of proving that heroin supplied by Movant was an independently sufficient or “but-for” cause of the victims' serious bodily injury-here, the victims' overdoses and related injuries. See Burrage v. United States, 134 S.Ct. 881, 892 (2014).

         In some cases involving drug overdose, establishing but-for causation might, as Movant suggests, require the Government to employ toxicology reports and experts to interpret them. For example, in cases where the victim dies or sustains serious injury after ingesting multiple drugs, medical testing, reports, or expert opinion might be necessary to establish that the victim's death or injury resulted from one drug as opposed to another. See, e.g., id. (where evidence established that victim died following an extended drug binge that lasted approximately twenty-four (24) hours and involved ingestion of multiple narcotics, expert testimony was necessary to determine which drug or drugs caused death and the likelihood that each drug contributed to death); U.S. v. Ford, 750 F.3d 952, 954-55 (8th Cir. 2014) (where evidence established the victim died from polydrug toxicity, evidence that the mixture of heroin defendant distributed to the victim was merely a contributing factor, with methamphetamine being the major contributing drug, was not sufficient to establish that distribution of the mixture of heroin was the but-for cause of victim's death); United States v. Houston, 406 F.3d 1121, 1125-26 (9th Circuit 2005) (sufficient evidence supported defendant's conviction under § 841(b)(1)(C) for distribution of methadone resulting in death where testimony of medical examiner established that victim, who had multiple illicit substances in her system at time of death, died specifically from methadone toxicity). Moreover, where tests and reports are inconclusive, such that a jury might reasonably conclude the victim died or was injured as a result of ingesting multiple narcotics, including the one distributed by the defendant, a defendant may not be convicted under the penalty enhancement provision of § 841(b)(1)(C). See Burrage, 134 S.Ct. at 892; Ford, 750 F.3d at 955.

         However, there is no bright-line rule requiring toxicology reports or expert testimony to prove but-for causation in every case that involves drug overdose. Where the evidence clearly establishes the victim's death or serious injury results solely from ingestion of the drug supplied by the ...

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