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Fearon-Hales v. United States

August 9, 2010

NANCY FEARON-HALES, MOVANT,
v.
UNITED STATES OF AMERICA, RESPONDENT.



OPINION AND ORDER

On July 23, 2008, Nancy Fearon-Hales ("Fearon-Hales" or "Movant"), proceeding prose, filed this motion (the "Motion") pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence imposed on her by this Court. The Court has jurisdiction of Fearon-Hales's claims pursuant to 28 U.S.C. § 1331. Movant asserts various arguments challenging the integrity of the trial and the fairness of the sentence. Movant also asserts that she received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. Among her ineffective assistance of counsel claims is a claim premised upon her attorney's alleged recommendation that she reject a plea offer purportedly made by the Respondent.*fn1 By order of the Court, Movant, Respondent, and Movant's trial and appellate counsel, Alan Seidler, Esq. ("Defense Counsel" or "Seidler"), expanded the record by providing affidavits regarding this allegation. The Court has thoroughly considered all of the parties' submissions. For the following reasons, the Motion is dismissed in its entirety.

BACKGROUND

On March 11, 2004, a grand jury indicted Fearon-Hales on one count of conspiracy to import more than one kilogram of heroin into the United States (Case No. 04 Cr. 231, docket entry no. 1), a charge that carries a mandatory minimum sentence of ten years' imprisonment, 21 U.S.C. § 960(b)(1)(A). A superseding indictment dated March 31, 2005, corrected a typographical error in the original indictment but did not alter the crime charged in any material respect. (Case No. 04 Cr. 231, docket entry no. 16.) On April 13, 2005, a jury convicted Fearon-Hales of one count of conspiracy to import heroin in violation of 21 U.S.C. § 963. The jury also found that the importation conspiracy involved more than one kilogram of heroin. On October 21, 2005, the Count sentenced Fearon-Hales to a prison term of 151 months, to be followed by a five-year term of supervised release. FearonHales appealed the judgment, which was affirmed by the Second Circuit on May 21, 2007. Familiarity with the prior proceedings and decisions is presumed.

The Evidence Presented at Trial

In 2003, after Alexander Becker ("Becker") provided an unsolicited confession revealing his participation as a drug courier in a drug-smuggling conspiracy, German law enforcement authorities began court-authorized monitoring of telephone calls among a drug courier named Nak Kusi ("Kusi"), Becker, and Fearon-Hales. Shortly thereafter, Kusi was arrested at an airport in Germany while in possession of less than one kilogram of heroin. The court-authorized intercepts revealed that, shortly before his arrest, Kusi spoke with Fearon-Hales.

At Fearon-Hales's trial, the Government's evidence included testimony from Becker and Kusi, records of wire transfer payments that corroborated the Government's allegations, and intercepted telephone conversations implicating Fearon-Hales in the drug conspiracy.*fn2 Kusi testified, from a courtroom in Germany, through an interpreter via a two-way teleconferencing system. On direct examination, Kusi explained that a woman named "Nancy," whom he identified as FearonHales, had instructed him to meet with a supplier and transport drugs that were hidden in the soles of shoes. The testimony of both Becker and Kusi established that the men had met with Fearon-Hales on more than one occasion. On cross-examination, defense counsel sought to raise an inference that Kusi was a biased witness motivated by the possibility of a reduced sentence in Germany, a non-prosecution agreement from United States authorities, and the release of his girlfriend from custody.

The Government introduced evidence of wire transfers from Kusi to an address in London that Fearon-Hales confirmed was her home address. The Government also introduced evidence of telephone conversations between Kusi and a person whom he addressed as "Auntie," concerning the drug conspiracy. Kusi identified "Auntie" as Fearon-Hales and the conversations involved phone numbers linked to Fearon-Hales. The jury was able to compare the voice alleged to be Fearon-Hales's in these conversations with a recording of Fearon-Hales's voice obtained while she was in pre-trial detention. In addition, Fearon-Hales's passport was admitted into evidence, which revealed that she had traveled to New York at the same times that Kusi and Becker traveled to New York to execute drug transactions, allegedly for Fearon-Hales, in 2002 and 2003.

Fearon-Hales did not testify, call any witnesses, or present any other evidence. Defense counsel considered calling Fearon-Hales's brother, Louis Dugbartey, to testify in her defense but ultimately chose not to do so. After a jury trial, Fearon-Hales was convicted of the sole count of conspiracy to import more than one kilogram of heroin into the United States, in violation of 21 U.S.C. § 963.

The Sentencing

Fearon-Hales's conviction carried with it a mandatory minimum sentence of 120 months, pursuant to 21 U.S.C. § 841(b)(1)(A). The applicable Sentencing Guidelines recommended a term of imprisonment between 151 to 188 months, based on an offense level of 34 and Criminal History Category I. The offense level was determined by: (1) the amount of heroin involved in the offense, which established a base offense level of 32; and (2) Fearon-Hales's supervisory role in the organization, which resulted in a two-level increase. The Court sentenced Fearon-Hales to a term of 151 months' imprisonment (the low end of the applicable Guidelines range) to be followed by a five-year term of supervised release. The Court also imposed the mandatory $100 special assessment.

Fearon-Hales's Appeal

Fearon-Hales appealed her conviction to the United States Court of Appeals for the Second Circuit asserting, inter alia, that: (1) the testimony of Government witness Kusi, who testified via teleconference from Germany, was impermissibly coached and therefore inadmissible; (2) the sentence imposed was unreasonable; and (3) the Court's decision not to grant a downward departure on the basis of the sentences given to Fearon-Hales's German accomplices was plain error.*fn3 The Court of Appeals rejected Fearon-Hales's claims and affirmed the judgment of the District Court. United States v. Fearon-Hales, 224 Fed. App'x 109 (2d Cir. 2007). The Supreme Court denied a petition for a writ of certiorari on October 1, 2008.

DISCUSSION

In order to prevail under 28 U.S.C. § 2255, Movant must demonstrate that: (1) her sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C.A. § 2255. Generally, if a movant asserts a claim in a Section 2255 motion that she failed to raise on direct appeal, the claim is procedurally barred and the district court may not consider it. Zhang v. United States, 506 F.3d 162, 166 ...


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