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Jefferson v. United States

United States Court of Appeals, Sixth Circuit

September 12, 2013

Kenneth Andrew Jefferson, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

Argued: June 20, 2013

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. Nos. 2:98-cr-80812-3; 2:04-cv-73288—Paul D. Borman, District Judge.

COUNSEL

ARGUED:

Elizabeth L. Jacobs, Detroit, Michigan, for Appellant.

Bruce C. Judge, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

ON BRIEF:

Elizabeth L. Jacobs, Detroit, Michigan, for Appellant.

Bruce C. Judge, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: MOORE and GRIFFIN, Circuit Judges; SARGUS, District Judge. [*]

OPINION

KAREN NELSON MOORE, Circuit Judge.

In this case, an internal investigation by the U.S. Attorney's Office found evidence suggesting that during the trial of Petitioner-Appellant Kenneth Jefferson ("Jefferson") on drug-conspiracy charges, the prosecution failed to disclose to the defense the extent of the promises of leniency that the prosecution made to several cooperating witnesses. In a motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255, Jefferson alleged that he was denied a fair trial because the prosecutor violated his obligation under Brady v. Maryland to disclose material impeachment evidence. Although the district court initially denied Jefferson's motion, we remanded the case so that the district court could make additional findings of fact regarding whether some of Jefferson's claims were filed within the statute of limitations, and whether equitable tolling should be applied. On remand, the district court again denied Jefferson's motion, finding that Jefferson's claims were not timely filed, that equitable tolling was not warranted, and that even if timely, Jefferson's Brady claims failed on the merits. We reject the district court's conclusion that Jefferson failed to exercise due diligence in these circumstances, and hold that a § 2255 petitioner is permitted to rely on the government's representation that it has fulfilled its Brady obligations. Reasonable diligence does not require a § 2255 petitioner repeatedly to scavenge for facts that the prosecution is unconstitutionally hiding from him. Nonetheless, assuming that Jefferson's claims were timely filed, we agree with the district court that Jefferson's Brady claims fail on the merits, because the undisclosed impeachment evidence was not prejudicial. Accordingly, we AFFIRM the judgment of the district court.

I. BACKGROUND

This appeal stems from Jefferson's conviction in June 1999 for conspiring to distribute and to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. See United States v. Stines, 313 F.3d 912, 913 (6th Cir. 2002). The evidence at trial established that Jefferson was part of a gang organized in the late 1980s in Ypsilanti, Michigan, by codefendant Joseph Stines ("Stines") for the purpose of processing and distributing crack cocaine. See id. at 914. In statements to law enforcement agents following his arrest, Jefferson "admitted that he had started selling crack in Ypsilanti in the summer of 1996, " that "[an unindicted coconspirator] was one of his principal suppliers[, ] and that he often bought one-eighth of a kilogram, but on two occasions he had purchased a half kilogram." Id. at 915.

Several coconspirators, including Tali Alexander ("Alexander"), Reese Palmer ("Palmer"), Rasul Warren ("Warren"), and Eva Taylor ("Taylor"), cooperated with the government in exchange for favorable plea agreements and testified as to the nature of the conspiracy and defendants' connections to it. On cross-examination, these witnesses testified that the sentences the government agreed to recommend pursuant to the plea agreements were far lower than the sentences they would face for the full scope of criminal activity to which each admitted. Another witness, Samuel Mullice ("Mullice"), testified that in 1996 Jefferson gave him a ride home from the parole office and told Mullice that "he was doing something" and that if Mullice "need[ed] to do something, get in contact." R. 331 (Trial Tr. at 2767) (Page ID #6749). Mullice interpreted this statement to mean that Jefferson was selling drugs. Id. at 2768 (Page ID #6750). Witness Labron Nunn ("Nunn") testified that in 1997 he bought two and a half ounces of crack cocaine from Jefferson, and that Jefferson asked Nunn to join "the family." Stines, 313 F.3d at 915. The jury returned a verdict of guilty as to all defendants, and Jefferson was sentenced to 240 months of imprisonment, followed by five years of supervised release.

In July 1999, one of Jefferson's codefendants filed a motion for a new trial, joined by Jefferson, asserting that their trial was tainted by prosecutorial misconduct because "the government clearly had either a tacit agreement or an overt agreement with . . . witnesses [including Alexander] that they would receive certain additional consideration following their testimony which they did not reveal and which the Government did not reveal." R. 209 (Mot. for New Trial at 5) (Page ID #9090). The district court denied the motion for a new trial. R. 240 (Dist. Ct. Order) (Page ID #9259). The following year, in June 2000, Stines filed a renewed motion for a new trial, which Jefferson joined. See R. 305 (Am. Mot. for New Trial) (Page ID #9749). The amended motion repeated the allegation that the prosecution failed "to disclose the full extent of their agreements with the[] witnesses" who testified against the defendants, including Alexander, Warren, and Palmer, and that the prosecutor "knowingly allowed perjured testimony to be given." Id. at 19 (Page ID #9772). This motion was not considered on the merits by the district court, because at the time the motion was filed, the case was already on appeal. See R. 370 (Dist. Ct. Order) (Page ID #10201).

In 2002, we affirmed Jefferson's conviction and sentence on direct appeal. Stines, 313 F.3d at 913. Jefferson was not a party to the petition for a writ of certiorari from the Supreme Court filed by some of his codefendants, and accordingly, Jefferson's "conviction became final on May 12, 2003, upon the expiration of the 90-day period for seeking the writ." Jefferson v. United States, 392 F.App'x 427, 429 (6th Cir. 2010). Jefferson filed a motion to vacate his sentence under 28 U.S.C. § 2255 on August 26, 2004, raising four grounds for relief. R. 486 (§ 2255 Pet.) (Page ID #213). Jefferson concedes that these claims were untimely under § 2255(f)(1), and he does not pursue any of these claims in the instant appeal. Appellant Br. at 11; see Jefferson, 392 F.App'x at 429.

In March 2004, five months before Jefferson filed his initial § 2255 motion, Alexander, in a letter to the district judge presiding over his criminal case, stated that he had expected AUSA Richard Convertino ("Convertino"), the prosecutor in charge of his case (and in charge of Jefferson's and Stines's prosecutions), to make a recommendation for a downward departure to reduce Alexander's sentence. Jefferson, 392 F.App'x at 432. This letter prompted a closer look at the Alexander case, and the district court identified an absence of downward departure motions and yet sentences were below amounts identified in plea agreements. Subsequently, the U.S. Attorney's Office ("USAO") began an internal investigation into Convertino's conduct in the Alexander case. Interviews with witnesses Alexander, Warren, Palmer, and Hans Thomas ("Thomas"), who also testified in Jefferson's trial, revealed that they had all been sentenced far below the downward-departure sentences the government had agreed to recommend in their respective plea agreements, and extremely far below the maximum sentences agreed to in the plea agreements. The investigation culminated in a report known as the Schools Memorandum, which we previously summarized as follows:

Without recounting the information set forth in that Memorandum, we note that it suggests there is evidence that Convertino met with some cooperating witnesses in this case without defense counsel; entered written plea agreements and made some, at least tacit, promises of further sentencing reductions; had witnesses testify without revealing the additional understandings; moved orally at sentencing or in Rule 35 motions for downward departures; and had the sentencing records of these witnesses sealed. The fairness of Jefferson's trial was not the focus of the investigation, but it produced evidence that the government felt compelled to disclose to Jefferson.

Jefferson, 392 F.App'x at 432. Adding to concerns regarding Convertino's conduct as an AUSA was United States v. Koubriti, in which the district court dismissed—with the agreement of the government—terrorism charges against several convicted defendants. The district court in Koubriti found that the prosecutors, including Convertino, failed to turn over exculpatory evidence to the defense and "materially misled the Court, the jury and the defense as to the nature, character and complexion of critical evidence that provided important foundations for the prosecution's case." 336 F.Supp.2d 676, 680–81 (E.D. Mich. 2004).

On March 25, 2005, Jefferson filed an Amended Motion for New Trial or in the Alternative Defendant's Renewed Motion for Mistrial and for Evidentiary Hearing and a Motion to Recall Mandate or, In the Alternative, Motion under Fed.R.Civ.P. 60(b)(5) (together, the "March 2005 motions"). R. 517 (Am. Mot. for New Trial) (Page ID #691); R. 519 (Mot. to Recall) (Page ID #717). Jefferson's amended motion for a new trial was a verbatim repetition of Stines's 2000 Amended Motion for a New Trial. The 2005 motion (consisting of a photocopy of Stines's 2000 motion) stated that "Defendant has recently discovered that the Government made additional deals with various witnesses which was withheld from the Defendant." R. 517 (Am. Mot. for New Trial at 2) (Page ID #692). Jefferson's motion to recall the mandate asserted a new claim that Nunn provided perjured testimony at trial that was contradicted by his testimony at an earlier trial. R. 519 (Motion to Recall at 2) (Page ID #718). Both of these motions were construed by the district court as motions to amend Jefferson's initial § 2255 motion.[1]R. 533 (Mag. J. R&R at 1) (Page ID #784); R. 614 (Dist. Ct. Op. at 1–2) (Page ID #2391–92).

Six months after Jefferson filed these motions, on September 30, 2005, the government disclosed to Jefferson memoranda of interviews with Thomas, Warren, and Alexander conducted in late 2004 in connection with the internal investigation into Convertino's conduct. See Appellant Br. at 14–15. Following these disclosures, as well as Stines's counsel's efforts to unseal sentencing records for several of the witnesses who testified at Stines's and Jefferson's trial, Stines filed a supplemental motion on March 27, 2006, adding to his previously filed § 2255 motion. See R. 552 (Supp. Arguments in Supp. of Pet.) (Page ID #913). Jefferson ...


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