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United States of America v. Orlando M. Banks

September 6, 2011


The opinion of the court was delivered by: William W. Caldwell United States District Judge


I. Introduction

Defendant, Orlando Banks, filed a pro se motion under 28 U.S.C. § 2255

challenging his conviction and sentence. He makes the following claims of trial-counsel ineffectiveness: (1) Defendant requested that counsel take a direct appeal, in large part so that appellate review could be obtained of the denial of two suppression motions, but counsel failed to do so; (2) counsel failed to call as a witness at trial the confidential informant who supposedly set up the drug transaction that led to Defendant's arrest; and

(3) counsel failed to challenge the government's violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and 18 U.S.C. § 3500, which would have allowed successful motions for a judgment of acquittal under F. R. Crim. P. 29 or for a new trial under F. R. Crim. P. 33.

A hearing was held on the motion, where Defendant was represented by appointed counsel. For the following reasons, the motion will be denied.

II. Background

A. Pretrial and Trial Proceedings

In October 2009, Defendant was charged in a one-count indictment with possession with intent to distribute in excess of fifty grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The charges arose from two controlled buys of crack cocaine by a confidential informant from Defendant on July 9, and July 22, 2009, with the transactions observed by the police, including police observation of Defendant leaving his residence and traveling to meeting the informant without stopping in between. On September 15, 2009, police again directed the informant to meet with the Defendant for a third drug delivery. The confidential informant arranged the meeting by telephone call. However, the police, based on the previously observed deliveries, made a warrantless arrest of Defendant before he could meet with the informant. A search of Defendant's clothing at the police station revealed crack cocaine in his pants pockets. After the arrest, police obtained a search warrant for his residence. Among other things, when they executed the warrant, they found a substantial quantity of crack cocaine and cash.

Defendant filed two motions to suppress, one for the search incident to arrest and the other for the search of his residence. After a hearing, the court ruled on December 23, 2009, that the two July deliveries were sufficient to provide probable cause to arrest the Defendant and for a search warrant. (Doc. 27).

In January 2010, after a two-day trial, a jury found him guilty of the offense. The confidential informant did not testify. The evidence against Defendant was supplied by a police officer who witnessed the July drug buys. That officer testified concerning the July 9, 2009, buy; the July 22, 2009, buy; and the September 15, 2009, arrest of Defendant and the search of his residence, both prompted by the confidential informant's phone call arranging another buy for that day. The police officer identified Defendant as the seller in both of the July 2009 transactions. He also described the items seized as a result of the search of the residence, among them: numerous zip-lock sandwich bags; over 250 grams of crack cocaine found in numerous plastic baggies; and over $160,000 in cash. Another police officer testified as an expert on how drugs are packaged and sold, and the evidence that would indicate if a possessor of drugs intended to deliver or distribute them.

Defendant had no prior criminal record, so his criminal history category was I. His total offense level was 34. Defendant's guideline range was therefore 151 months to 188 months. At sentencing on April 21, 2010, the court granted a downward variance, and Defendant was sentenced to 120 months' imprisonment, the statutory mandatory minimum, along with five years of supervised release.

B. The 2255 Proceedings

At the 2255 hearing, trial counsel testified that Defendant had expressed a desire to appeal the suppression rulings immediately after they were made. However, he spoke with Defendant immediately before the sentencing, and Defendant agreed at that time that no appeal was necessary. At that meeting, the suppression issue was discussed in detail, and counsel expressed his opinion that the court's ruling on the suppression motions was well-founded. Counsel also made a handwritten note for his file, stating that Defendant "agrees no appeal necessary if guidelines sentence." (Doc. 63-1, CM/ECF p. 12). ...

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