USA v. Cloud et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:20-cr-385-MEO-DCK-9
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) MEMORANDUM AND ORDER
)
KENNETH JEROME WATKINS, )
)
Defendant. )
____________________________________)
THIS MATTER is before the Court on Defendant’s pro se Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence (Doc. No. 417).
I. BACKGROUND
The Defendant was charged along with eight codefendants with conspiracy to distribute
and possess with the intent to distribute a controlled substance, i.e., a detectable amount of cocaine,
cocaine base, methamphetamine (actual), and eutylone, in violation of 21 U.S.C. §§ 841(a)(1) and
846. (Doc. No. 93: Third Superseding Indictment).
The Defendant proceeded to a three-day jury trial. See United States v. Watkins, 111 F.4th
300, 304-06 (4th Cir. 2024) (case summary). The Government presented evidence that codefendant
Steven “Ziggy” Cloud operated a Charlotte, North Carolina-based record label. (Fourth Cir. Case
No. 23-4094 Joint Appendix (“JA”) 56-60); Suspecting that Cloud and others involved with his
label were dealing drugs, investigators obtained a wiretap for Cloud’s cellphone. (JA 72).
Investigators eventually determined that Kenneth “KennyMan” Watkins—an Atlanta, Georgia-
based rap musician who operated a recording studio called K3Soundz—dealt drugs with Cloud.
(JA 62-63, 195). Evidence introduced at trial centered around three trips that Cloud directed two
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couriers to take from Charlotte to Atlanta to obtain pills for him. (JA 62). The first trip, in the
summer of 2020, involved Jonquilla Sanders. (JA 121). At Cloud’s instruction (but without any
money from Cloud), Sanders traveled to Atlanta to “pick up some pills.” (JA 122). While there,
Sanders received what she estimated to be 10,000 pills from someone she described as a tall, light-
skinned black man who drove a red sportscar—a man she later testified was not Watkins. (JA 122-
23, 153-54). Sanders then drove back to Charlotte and left the pills in Cloud’s car. (JA 123).
The second trip took place from October 16 to 17, 2020. (JA 124). Cloud told Sanders that
it would be “[t]he same thing” as before. (JA 125). Unlike the first trip, however, Cloud handed
Sanders a stack of cash, which she never counted. (JA 134). Also unlike the first trip, Sanders did
not travel alone; Cloud sent along a man called “Reggie.” (JA 134-35). During this second trip,
investigators intercepted calls among Sanders, Cloud, and Watkins. (JA 136-37). Those calls
linked the three of them and suggested that Sanders was obtaining drugs from Watkins in Atlanta.
The calls reflect that Sanders was to meet Watkins at Club Diamonds, where Watkins was
performing—although Watkins explained over the phone that he would not “have it in there.” (JA
138-39). Cloud also instructed Sanders to give the cash to Watkins and to speak only to him.
(Fourth Cir. Case No. 23-4094 Supplemental Appendix (“SA”) 8). Sanders duly complied.
The intercepted calls and Sanders’s testimony further established that, after Watkins
finished performing at Club Diamonds, he and Cloud directed Sanders to drive to K3Soundz.
Watkins eventually arrived at the studio and told Sanders that he still did not have “what [she] was
coming to get.” (JA 142). Sanders followed Watkins in her vehicle to a residence located about
fifteen minutes away. (Id.). Watkins entered the house and soon emerged with a box, which he
gave to Sanders. (JA 143). Sanders never looked inside the box, but assumed that it contained pills
based upon her past dealings with Cloud and his remark about the “same thing.” (JA 159, 163,
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168). She returned to Charlotte and delivered the box to Cloud. (JA 145-46).
The third drug-supply trip to Atlanta occurred later that month. Rather than Sanders, this
trip involved another woman, Latisha Anderson. (See JA 191). A week before the trip, Anderson
texted Cloud, asking, “You have pills” and Cloud responded yes. (SA 43). He followed with
another text telling Anderson that someone had “let sumone steal my bag wit 4000 in it last nite.”
(Id.). Anderson responded, “Damn omfg,” to which Cloud replied, “Yea man shit got me tight.”
(Id.). Two days later, Anderson texted Cloud and told him that she “needed pills but I guess I’ll
get them tomorrow.” (SA 41). Cloud inquired of Anderson: “I’m almost ready again u gone take
dat trip?” (Id.). Anderson asked when, and Cloud stated that he did not know but had about “2000
left.” (SA 42).
Anderson drove to Atlanta on October 24, 2020. She arrived at ten o’clock in the morning,
around the time the transaction was scheduled to take place. Frustrated after waiting an hour,
Anderson began to return to Charlotte when Cloud finally called her at 11:25 a.m. (JA 291).
Anderson complained that she had been on the road since 6:30 a.m. (SA 11). Cloud said he would
try to call Watkins. Cloud then managed to connect Watkins to the call and explained that
Anderson had been waiting for an hour. Watkins responded, “I’m fixing to go straight to her right
now.” (SA 12). Cloud gave Anderson the address to K3Soundz, which Anderson said was
seventeen minutes away. (SA 13). Twenty minutes later, at 11:54 a.m., Watkins told Cloud to let
Anderson know he was on the way and would arrive in ten minutes. At 12:02 p.m., Cloud relayed
the message to Anderson. (SA 15). At 12:42 p.m., Cloud called Anderson and asked if she was
“situated” and Anderson responded, “Yeah.” (SA 16).
Based on their monitoring of Cloud’s phone and the similarities with Sanders’s earlier trips,
investigators believed that Watkins had supplied Anderson with drugs. (See JA 187-90). They
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arranged for a uniformed local police officer to stop Anderson on the interstate highway between
Atlanta and Charlotte. (JA 190). After a drug canine alerted for narcotics, police discovered in the
car $4,638 in cash in the driver’s center console and 8,909 pills inside a Versace box. (JA 217,
220-21, 242). The pills were divided into eleven plastic bags by color and shape. (JA 242-43).
Eleven of the pills—one from each of the plastic bags—were later tested and found to
contain the Schedule I controlled substance eutylone, a part of the cathinone family. (JA 242-45).
A crime lab analyst testified that the rest of the pills were visually consistent with the 11 pills that
he tested. (JA 245-46).
The Defendant’s theory of the case was that he is a Muslim man who has never done drugs,
that he has never been to Charlotte, that his relationship with Cloud is limited to their music, and
that the FBI “had the wrong man.” (See JA 396). Counsel planned to call “about a baker’s dozen
witnesses” addressing Defendant’s lack of involvement in the drug transaction, and about Sanders’
activities and the unopened box. (JA 295). The defense called Latisha Anderson, Lashanda
O’Neill, and Kizzy Childs in support of this theory. (JA 297, 332, 344).
Anderson testified about her traffic stop on October 24 during which drugs were found in
the vehicle she was driving. (JA 300). She testified that she does not know the Defendant, and that
she kept telling the Government that “they got the wrong guy.” (JA 305-08, 311). However, she
refused to identify the person to whom the pills allegedly belonged. (JA 315).
O’Neill testified that the Defendant is a family friend from whom she rents work space.
(JA 334). She testified that she saw a man, who was not the Defendant, give Anderson a Versace
box at a gas station on October 24, 2020. (JA at 338).
Childs testified that she is the Defendant’s “Islamic wife” and the mother of his children.
(JA 345). She testified that the Defendant’s relationship with Cloud was limited to their music,
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that the Defendant is a “very” good father who is “into his religion,” and that it is “not in his
character to do drugs.” (JA 353-54). On cross-examination, the Government asked Childs whether
the Defendant’s music is “gangster rap,” and whether she recognized some of the Defendant’s
song lyrics. (JA 357-61). Defense counsel objected and the Court held a sidebar discussion as
follows:
THE COURT: Your objection?
MR. RAEL: I just don’t see the relevance of all of that.
THE COURT: What’s the relevance?
MR. GUINN: Well, Your Honor, this has already been entered into Direct. First
was inquiry into the types of performances and type of music the Defendant does
and the types of collaborations he does with Steven Cloud. Those are both inquired
into on Direct.
Additionally, Mr. Rael elicited character evidence about his client from his wife;
that he’s a good Muslim and anything like this is out of character.
THE COURT: Normally I would prohibit this kind of cross on lyrics, but I do
think the door was open wide on character evidence on Direct with respect to
character traits of the defendant. so I think this is responsive to it and covered by
Rules 404 and 405. And so any objection I’ll deny, but I will say that it’ll get
cumulative soon.
(JA 359-60). In all, the jury heard a few lines of the Defendant’s lyrics including “I’m doper, for
real” and “I’ve got truckloads and bales, don’t even put it on a scale.” (JA 357-61, 364). Childs
testified that she was familiar with those lyrics. (JA 360-61, 364). At the conclusion of Childs’s
testimony, defense counsel announced that the defense would rest without calling any further
witnesses, and that the Defendant had decided not to testify. (JA 365-66).
The jury found the Defendant guilty as charged. (Doc. No. 260: Verdict).
The Presentence Investigation Report (“PSR”) estimated that approximately 4,391 grams
of eutylone were reasonably foreseeable by the Defendant. (Doc. No. 291: PSR at ¶¶ 37-39). After
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applying the 1:380 gram ratio applicable to synthetic cathinones, the converted drug weight was
1,668.58 kilograms, resulting in a base offense level of 30 pursuant to U.S.S.G. § 2D1.1(a)(5).
(Doc. No. 291: PSR at ¶¶ 41, 46). The Defendant had three criminal history points and a criminal
history category of II. (Id. at ¶¶ 60-61). The resulting advisory guideline range was between 108
and 135 months’ imprisonment and three years of supervised release. (Id. at ¶¶ 85, 88).
The Defendant filed PSR objections with regards to the drug amount and the converted
drug weight calculation, inter alia: only the drugs actually seized by law enforcement should be
included; only the 11 pills that were actually tested and found by the laboratory to be eutylone
should be included; the law enforcement estimate that 2,000 grams of eutylone were involved in
the October 16-17 transaction should not be included; the “Typical Weight Per Pill Table” for
MDMA should be used pursuant to U.S.S.G. § 2D1.1 Application Note 9 to arrive at the converted
drug weight with a 1:250 milligram conversion ratio. (Doc. No. 289). The Defendant also
requested a downward departure sentence pursuant to U.S.S.G. § 2D1.1 Application Note 27(D)
because the substance is a rare synthetic cathinone. (Id.; Doc. No. 321).
The Defendant stated at the sentencing hearing that he had the opportunity to read the PSR,
understood it, and had sufficient time to review it with counsel. (Doc. No. 347: Sentencing Tr. at
3). Counsel presented argument regarding Defendant’s objections to the drug weight and
calculation, and the request for a downward departure. (Id. at 6-9). With regards to the argument
that the drug amount should only be based on the 11 pills actually analyzed by the chemist, the
Court noted that “[s]ampling of drugs is routine thing in Federal Court,” and asked whether any
of the pills seized that were chemically tested turned out not to be a controlled substance. (Id. at
5). Defense counsel responded, “I don’t see any, no.” (Id.).
The Government requested a sentence of more than 144-months’ imprisonment because a
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lesser sentence would be inadequate to sufficiently deter Defendant’s criminal conduct. (Id. at 23).
The Court overruled the drug weight and conversion objections, and found that: the offense
level is 30; the ratio of 1:380 for the drug conversion was correct; the October 24 transaction,
alone, very closely approached the 30 base offense level; the phone messages and testimony about
the boxes made the government estimate reasonable as to the October 16-17 transaction; and a
downward departure was not warranted. (Id. at 16-17). The Court sentenced the Defendant within
the advisory guideline range to 120 months’ imprisonment followed by three years of supervised
release. (Id. at 26; Doc. No. 341: Judgment).
The Defendant argued on direct appeal inter alia that the Court erred by: permitting inquiry
about Defendant’s music lyrics because such is highly prejudicial hearsay and propensity evidence
pursuant to Rule 404(a)-(b); calculating the drug quantity attributable to the Defendant; calculating
the converted drug weight; and denying a downward departure. The Fourth Circuit affirmed on
August 2, 2024. United States v. Watkins, 111 F.4th 300 (4th Cir. 2024).
As to the rap lyrics, the Fourth Circuit found that the Court reasonably concluded that
Childs’s testimony that it was not in Defendant’s character to do drugs, and about his faith,
fatherhood, and work ethic was character evidence that opened the door to rebuttal character
evidence pursuant to Rule 404(a)(2)(A). However, the prosecution “[d]id not even go that far” in
that it did not “offer evidence” at all. Id. at 312. Rather, pursuant to Rule 405(a), the prosecution
only inquired into specific instances of Defendant’s conduct, i.e., whether Childs was “familiar”
with certain lyrics and it accepted Childs’s answer each time without pushing for more detail. Id.
“So while the prosecution might have exploited Watkins’s decision to ‘open the door’ to character
evidence even more than it did, the district court did not err by permitting the limited inquiry into
Watkins’s lyrics.” Id. at 312-13.
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As to sentencing, the Fourth Circuit found that the Court “properly relied upon the testing
performed by the prosecution’s forensic chemistry expert, which concluded that the 8,909 seized
pills contained 2.39 kilograms of eutylone;” the expert’s procedure established the drug quantity
by a preponderance of the evidence; and the Court “quite reasonably concluded that Watkins
delivered to Sanders a box containing an estimated two kilograms of eutylone.” Id. at 314-15. It
found no error in calculating the converted drug weight because eutylone is a synthetic cathinone
to which the 1:380 gram ratio applies. Id. at 315. It further found that the Court understood its
authority to depart downward under the guidelines, but that it did not believe that such was
warranted by the facts of the case such that the departure decision is not reviewable. Id. at 315-16.
The Defendant filed the instant Motion to Vacate on February 24, 2025.1 (Doc. No. 417).
He argues that: (1) counsel was ineffective for failing to properly challenge the admissibility of
prejudicial rap lyrics, address the drug quantity calculation and testing before trial, at trial and at
sentencing, challenge the offense level; argue for a downward departure, call witness who would
have undermined the Government’s case, and present the Defendant with a plea offer that would
have likely resulted in a shorter sentence and which Defendant would have accepted; and (2) the
prosecution violated the Defendant’s due process rights by using prejudicial rap lyrics, failing to
allow independent testing of physical evidence, and failing to disclose material evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). (Docs. 417, 417-1). The Defendant asks the
Court to grant an evidentiary hearing, vacate his conviction and sentence, and grant any other relief
to which he may be entitled. (Doc. No. 417 at 13; Doc. No. 417-1 at 1). The Government filed a
1 The Defendant filed the Motion pro se. Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing
the prisoner mailbox rule); Rule 3(d), 28 U.S.C. foll. § 2255 (addressing inmate filings). Counsel
later appeared and filed a Reply on Defendant’s behalf. [See Doc. 430).
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Response opposing relief.2 (Doc. No. 428). The Defendant filed a Reply. (Doc. No. 430). This
matter is ripe for disposition.
II. SECTION 2255 STANDARD OF REVIEW
A federal prisoner claiming that his “sentence was imposed in violation of the Constitution
or the 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, may move the court which imposed the sentence to vacate, set aside or correct
the sentence.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to
promptly examine motions to vacate, along with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims
set forth therein. After examining the record in this matter, the Court finds that the arguments
presented by Defendant can be resolved without an evidentiary hearing based on the record and
governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
II. DISCUSSION3
1. Ineffective Assistance of Trial Counsel
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions,
the accused has the right to the assistance of counsel for his defense. See U.S. Const. Amend. VI.
To show ineffective assistance of counsel, a petitioner must first establish deficient performance
by counsel and, second, that the deficient performance prejudiced him. See Strickland v.
2 The Government has filed materials including an Affidavit from Defendant’s trial attorney. (Doc.
428-2). The Court finds the affidavit unnecessary to resolve Defendant’s claims. As such, the Court
need not make any credibility determinations and no evidentiary hearing is required.
3 The claims have been reorganized and restated.
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Washington, 466 U.S. 668, 687-88 (1984). The deficiency prong turns on whether “counsel’s
representation fell below an objective standard of reasonableness ... under prevailing professional
norms.” Id. at 688. A reviewing court “must apply a ‘strong presumption’ that counsel’s
representation was within the ‘wide range’ of reasonable professional assistance.” Harrington v.
Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). The prejudice prong
inquires into whether counsel’s deficiency affected the judgment. See Strickland, 466 U.S. at 691.
A petitioner must demonstrate “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. A petitioner “bears
the burden of affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir.
2008). If the petitioner fails to meet this burden, a reviewing court need not even consider the
performance prong. Strickland, 466 U.S. at 670.
A. Plea Offer
The Sixth Amendment right to the effective assistance of counsel “extends to the plea-
bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). Counsel has a duty to
communicate formal offers from the prosecution to the defendant, Missouri v. Frye, 566 U.S. 134,
145 (2012), and “to inform a defendant of the advantages and disadvantages of a plea agreement
and the attendant statutory and constitutional rights that a guilty plea would forego,” Libretti v.
United States, 516 U.S. 29, 50-51 (1995).
“To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or
been rejected because of counsel’s deficient performance,” a petitioner must “show a reasonable
probability that the end result of the criminal process would have been more favorable by reason
of a plea to a lesser charge or a sentence of less prison time.” Frye, 566 U.S. at 147. Namely, a
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petitioner must “show the outcome of the plea process would have been different with competent
advice.” Lafler, 566 U.S. at 163. That is, he must show that “but for the ineffective advice of
counsel there is a reasonable probability” that he would have pleaded guilty on terms that the
prosecution and the court would have accepted, and the conviction or sentence under the plea
“would have been less severe than under the judgment and sentence that in fact were imposed.”
Id. at 164.
The Defendant contends that: he “has been informed that the Government offered a plea
agreement to his counsel, which … would very likely have resulted in a shorter sentence than the
one imposed by the Court;” counsel never presented a plea offer to Defendant; counsel told the
Defendant that “he would receive no more than seven years if found guilty at trial;” and, “[i]f
counsel had shown [Defendant] the plea agreement and explained that [he] likely faced 10 years
if convicted, [he] would have accepted a plea agreement.” (Doc. No. 417-1 at 7-8).
The Defendant fails to identify the circumstances in which he allegedly learned of an
unconveyed plea offer, nor does he proffer the offer’s terms. Absent that information, the
Defendant cannot demonstrate that there is a reasonable probability he would have accepted the
offer, that it would have been acceptable to the Court, and that it would have resulted in a more
favorable outcome. See generally United States v. Dyess, 730 F.3d 354 (4th Cir. 2013) (vague and
conclusory allegations contained in a § 2255 petition may be disposed of without further
investigation by the district court). This vague, conclusory, and speculative claim is, therefore,
dismissed and denied.
B. Music Lyrics
The Defendant contends that counsel was ineffective for failing to “properly” object on
First Amendment and Rule 403 grounds when Defendant’s rap lyrics were introduced “as evidence
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of criminal conduct….” (Doc. No. 417-1 at 2). The Defendant argues that this prejudiced him
because “[t]he government heavily relied on the lyrics in arguing [his] guilt, using them to paint
him as a drug dealer….” (Id.).
The Defendant’s Rule 403 argument fails because, as the Fourth District found on direct
appeal, the lyrics were not introduced as evidence. See Watkins, 111 F.4th at 311-12; see
Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (claims decided on direct
review may not be recast “under the guise of collateral attack”); see also United States v. Roane,
378 F.3d 382, 396 n. 7 (4th Cir. 2004) (absent “any change in the law,” defendants “cannot
relitigate” previously decided issues in a § 2255 motion). Although Childs opened the door to
Defendant’s character, the prosecutor merely asked whether Childs recognized a few of the
Defendant’s rap lyrics pursuant to Rule 405(a) in a manner that was not cumulative. (See JA 359-
60). The Fourth Circuit has already determined that this brief inquiry was proper. See Watkins,
111 F.4th at 311-12. The Defendant’s present conclusory argument that counsel should have
argued that this extremely limited inquiry violated Rule 403, is rejected. See generally United
States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994) (holding that when the defendant “‘opened the
door’ by soliciting favorable opinions about his character, the district court properly allowed the
government to rebut the offered testimony”); see, e.g., United States v. Jaensch, 552 F. App’x 206,
212–13 (4th Cir. 2013) (limited rebuttal testimony about the defendant’s criminal record was
invited by the defense and was not of the character to inflame the passions of the jurors or to cause
them to disregard the facts of the case). The Defendant’s contention that he was prejudiced because
the Government relied on the lyrics in the closing argument is conclusively refuted by the record.
(See JA 382-95, 403-07).
The Defendant’s First Amendment argument also fails. “[T]he Constitution does not erect
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a per se barrier to the admission of evidence concerning one’s beliefs and associations at
sentencing simply because those beliefs and associations are protected by the First Amendment.
Dawson v. Delaware, 503 U.S. 159, 165 (1992). Whether the Defendant had a First Amendment
right to rap about drugs is irrelevant to whether Childs’s character testimony opened the door to
the foregoing inquiry under Rule 405. Counsel was not deficient for declining to present these
frivolous arguments and, had counsel raised them, they would have been rejected.
C. Uncalled Witness
The Defendant contends that counsel was ineffective for failing to call Janae Epps and Asia
Spalding at trial because they “witnessed [Defendant] give a box of concert flyers on October 16
or 17,” and these witnesses’ testimony “would have shown what was inside the box that Ms.
Sanders received.” (Doc. No. 417-1 at 7).
“[T]he decision whether to call a defense witness is a strategic decision demanding the
assessment and balancing of perceived benefits against perceived risks, and one to which we must
afford enormous deference.” United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004) (quotation
marks, brackets, and ellipses omitted). To demonstrate prejudice based on a claim of uncalled
witnesses, a petitioner “must show not only that this testimony would have been favorable, but
also that the witness would have testified at trial.” Alexander v. McCotter, 775 F.2d 595, 602 (5th
Cir. 1985). A defendant claiming ineffective assistance of counsel based on an uncalled witness
should make a proffer of testimony from the uncalled witness. See Bassette v. Thompson, 915
F.2d 932, 940-41 (4th Cir. 1990).
The Defendant has failed to proffer the testimony that Epps and Spalding would have
presented at trial, and he has failed to demonstrate that they were available to testify. See, e.g.,
Howard v. Lassiter, 2013 WL 5278270, at *3 (M.D.N.C. Sept. 18, 2013) (unpublished) (holding
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claim of uncalled witnesses failed where petitioner did not specify the identity of the witnesses,
the substance of their anticipated testimony, or how this testimony would have produced a different
outcome at trial). Defendant’s vague suggestion that these witnesses would have testified that they
saw the Defendant give a box of fliers to someone at some point during a two-day period during
which a drug transaction also occurred, is insufficient to demonstrate either deficient performance
or prejudice. See, e.g., United States v. Sutherland, 103 F.4th 200 (4th Cir. 2024) (denying
ineffective assistance claim where the defendant failed to show how the proffered testimony would
have in any way undermined his conviction); Dyess, 730 F.3d at 354. There is no reasonable
probability that, even if these witnesses were available for trial and would have testified about a
box of fliers, this would have changed the case’s outcome in light of the strong evidence of the
Defendant’s guilt including cell phone records and recorded phone calls. [See, e.g., JA 128-29,
143, 155). Accordingly, this claim is dismissed and denied.
D. Drug Amount
The Defendant contends that counsel was ineffective with regards to the drug amount by
failing to: challenge the Government’s “speculative” drug quantity evidence, including the
estimated two kilos that Sanders transported on October 16-17; challenge the Government’s
laboratory testing and methodology, including the conclusion that the substance is eutylone, a
synthetic cathinone; compare eutylone to MDMA and argue that the “typical weight per pill table”
should be used; request funds and samples for independent testing; file a Daubert motion and
request a hearing on the same; and preserve a portion of the drugs for later testing. The Defendant
contends that this “could have” supported a lower drug quantity calculation and offense level.
(Doc. No. 417-1 at 4-6).
These claims are conclusively refuted by the record insofar as counsel raised many of these
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issues before the Court and on direct appeal. (See Docs. 289, 321, 347). The Fourth Circuit
concluded that: the seized pills contained 2.39 kilograms of eutylone; the expert’s procedure
established the drug quantity by a preponderance of the evidence; the finding that the Sanders box
contained two kilograms of eutylone was reasonable; and the 1:380 gram conversion ratio applies
because eutylone is a synthetic cathinone. Watkins, 111 F.4th at 312-15. The Defendant’s attempt
to revisit these issues is rejected. Boeckenhaupt, 537 F.2d at 1183; Roane, 378 F.3d at 396 n. 7.
The Defendant’s additional arguments, including that counsel should have hired an independent
expert, filed a Daubert motion, and preserved drugs for future testing, are vague, conclusory and
speculative. See Dyess, 730 F.3d at 354. Moreover, the Defendant has failed to establish prejudice.
His contention that raising these issues “could have supported” a lower drug quantity calculation
fails to establish a reasonable probability that raising any of these arguments would have resulted
in a lower sentence. See Dyess, 730 F.3d at 354; United States v. Rangel, 781 F.3d 736, 746 (4th
Cir. 2015) (defendant was not prejudiced by counsel’s allegedly ineffective assistance with regards
to the court’s drug weight finding where he pointed to no argument or factor that his counsel should
have raised that the district court failed to consider and which might have changed its view). The
Defendant’s claims about the drug quantity are, therefore, dismissed and denied.
E. Downward Departure
The Defendant contends that counsel failed to present a “comprehensive” motion for
downward departure pursuant to Application Note 27(D) of the U.S. Sentencing Guidelines. (Doc.
No. 417-1 at 6). This, he argues, resulted in a higher base offense level which prejudiced him.
This claim is conclusively refuted by the record in that counsel moved for a downward
departure based on Application Note 27(D), and presented argument about the same at the
sentencing hearing. (See Doc. No. 321 at 10; Doc. No. 347 at 9). The Fourth Circuit concluded on
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direct appeal that the Court understood that it had discretion to award a downward departure and
that it felt that such was not warranted in this case. Watkins, 111 F.4th at 315-16. The Defendant
has not identified any additional argument or evidence that reasonable counsel would have
presented in this regard which had a reasonable probability in resulting in a lower sentence. Dyess,
730 F.3d at 354. This vague, conclusory, and speculative argument is, therefore, dismissed and
denied.
2. Prosecutorial Misconduct
The Defendant asserts that the prosecutor engaged in misconduct by: (1) using Defendant’s
lyrics as evidence of criminal conduct which improperly prejudiced him; (2) refusing to permit
independent drug testing of the seized pills; and (3) failing to disclose Brady evidence. (Doc. No.
417-1 at 9-11).
A. Procedural Default
A § 2255 motion is not a substitute for a direct appeal. See Bousley v. United States, 523
U.S. 614, 621-22 (1998); Sunal v. Large, 332 U.S. 174, 178-79 (1947). Claims of error that could
have been raised on direct appeal, but were not, are procedurally barred unless the petitioner shows
both cause for the default and actual prejudice or demonstrates that he is actually innocent of the
offense. Bousley, 523 U.S. at 621-22; United States v. Bowman, 267 F. App’x 296, 299 (4th Cir.
2008). “[C]ause for a procedural default must turn on something external to the defense, such as
the novelty of the claim or a denial of effective assistance of counsel.” United States v.
Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999).
To show actual prejudice, a petitioner must demonstrate that errors in the proceedings
“worked to his actual and substantial disadvantage” and were of constitutional dimension. United
States v. Frady, 456 U.S. 152, 170 (1982). To show actual innocence, a petitioner must demonstrate
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that he “has been incarcerated for a crime he did not commit.” United States v. Jones, 758 F.3d
579, 584 (4th Cir. 2014). Actual innocence is based on factual innocence and “is not satisfied by
a showing that a petitioner is legally, but not factually, innocent.” Mikalajunas, 186 F.3d at 494.
The Defendant has procedurally defaulted his prosecutorial misconduct claims about
independent drug testing and a Brady violation insofar as he did not raise them at trial and on direct
appeal. The Defendant has not overcome his procedural default of these claims. That is, because
his claims of ineffective assistance on these issues lack merit, he has not shown cause to overcome
his procedural default. He has also failed to show prejudice, where he has not shown prosecutorial
misconduct in the first instance and, therefore, that any alleged misconduct worked to his actual
and substantial disadvantage. Nor has the Defendant shown actual, factual innocence of the charge.
See Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997) (holding mere allegations that
exculpatory evidence exists is insufficient to support a claim of actual innocence). The Defendant’s
claims regarding a Brady violation and independent drug testing, therefore, will be dismissed. All
of the Defendant’s claims of prosecutorial misconduct fail on the merits in any event.
B. Merits
To establish prosecutorial misconduct, a defendant must demonstrate: (1) that the
prosecutor’s conduct was improper, and (2) that the improper conduct prejudicially affected his
substantial rights so as to deprive him of a fair trial. United States v. Mitchell, 1 F.3d 235, 240 (4th
Cir. 1993).
a. Music Lyrics
The Defendant contends that the prosecution violated his due process rights by using his
“artistic expression as evidence of criminal conduct…,” and that this “created an unacceptable risk
that the jury would make its decisions based on improper prejudices and stereotypes rather than
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actual evidence.” (Doc. No. 417-1 at 9). The prosecution did not present the lyrics as evidence of
criminal conduct, and such did not prejudice the Defendant for the reasons previously discussed.
See Section 1(B), supra. This claim, is therefore, dismissed and denied.
b. Independent Drug Testing
Under California v. Trombetta, “[w]hatever duty the Constitution imposes” to preserve
evidence is “limited to evidence that might be expected to play a significant role in the suspect’s
defense.” 467 U.S. 479, 488 (1984). Thus, “the evidence must both possess an exculpatory value
that was apparent before the evidence was destroyed, and be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489.
The failure to preserve “‘potentially useful evidence’ does not violate due process ‘unless a
criminal defendant can show bad faith on the part of the police.’” Illinois v. Fisher, 540 U.S. 544,
547-48 (2004) (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988)) (emphasis added). To
establish bad faith, an officer must have “intentionally withheld the evidence for the purpose of
depriving the [defendant] the use of that evidence during his criminal trial.” United States v. Fridie,
442 F. App’x 839, 842 (4th Cir. 2011) (quoting Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000)).
The Defendant contends that he “was never allowed to have his own expert independently
test the pills to verify or challenge the government’s conclusions,” and that this deprived him of a
meaningful opportunity to challenge the reliability of the drug sampling and testing methodology.
(Doc. No. 417-1 at 9-10). This claim is conclusively refuted by the record insofar as the
Government’s chemist testified about the sampling methodology and testing results. (See JA 242-
46). The Defendant’s speculation that additional independent testing may have been favorable to
the defense is too vague and conclusory to demonstrate prosecutorial misconduct. (See, e.g., Doc.
No. 347 at 5 (acknowledging that there was no evidence that any of the chemically tested evidence
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turned out not to be a controlled substance)]; Fisher, 540 U.S. at 547-48; Fridie, 442 F. App’x at
842. This claim is, therefore, dismissed and denied.
c. Brady Violation
In Brady, the Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at
87. “Therefore, a Brady violation contains three elements: the evidence was (1) favorable to the
accused, (2) suppressed by the government, and (3) material to the verdict at trial.” Nicolas v.
Attorney Gen. of Md., 820 F.3d 124, 129 (4th Cir. 2016). Evidence is “material” if there is a
“reasonable probability that [its] disclosure would have produced a different outcome.” United
States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001) (citation omitted). “Both information that
undermines the prosecution’s case and information that supports the defendant’s case constitute
Brady material that must be disclosed.” Nicolas, 820 F.3d at 129.
The Defendant contends that the prosecution violated Brady by “failing to disclose material
evidence related to the pills’ testing,” i.e.:
- Complete laboratory protocols and procedures used in testing the pills;
- Quality control and calibration records for testing equipment;
- Notes and bench sheets from the forensic chemist;
- Any negative or inconsistent test results; and
- Chain of custody documentation for the samples.
(Doc. No. 417-1 at 10). He contends this information is material because “it could have been used
to challenge the reliability of the government’s testing and sampling methodology.” (Id. at 11).
This claim is conclusively refuted by the record insofar as an exhaustive controlled
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substance analysis report was provided to the defense during discovery, and the chemist’s
testimony adequately established the drug weight at trial. (See Doc. No. 428-1: Controlled
Substance Analysis Report; JA 242-46). The Defendant has failed to support his present
allegations with any evidence. His speculation that the foregoing information would have been
favorable and could have been used to challenge the Government’s testing and sampling
methodology is too vague and conclusory to demonstrate that a Brady violation occurred. This
claim is, therefore, dismissed and denied.
IV. CONCLUSION
For the foregoing reasons, Defendant’s § 2255 Motion to Vacate is dismissed and denied.
IT IS, THEREFORE, ORDERED that:
1. The Defendant’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255
(Doc. No. 417) is DISMISSED AND DENIED.
2. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section
2254 and Section 2255 Cases, this Court declines to issue a certificate of appealability. See
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (in order to satisfy
§ 2253(c), a petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong); Slack v. McDaniel,
529 U.S. 473, 484 (2000) (when relief is denied on procedural grounds, a petitioner must
establish both that the dispositive procedural ruling is debatable and that the petition states
a debatable claim of the denial of a constitutional right).
IT IS SO ORDERED.
Signed: January 16, 2026
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