# Jordan v. United States

> District Court, W.D. North Carolina · February 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10260880

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** February 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:22-cv-17-RJC
(3:16-cr-145-RJC-DCK-2)

ZAVIAN MUNIZE JORDAN, )
)
Petitioner, )
)
vs. ) ORDER
)
UNITED STATES OF AMERICA, )
)
Respondent. )
__________________________________________)

THIS MATTER is before the Court on Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255 [Doc. 1], on the Respondent’s Motion to Dismiss [Doc. 4], and
on Petitioner’s Motion to Amend [Doc. 9].
I. BACKGROUND
Law enforcement was investigating heroin and cocaine trafficking in Charlotte in 2016.
[3:16-cr-145 (“CR”) 148 at 75, 271]. A confidential source (“CS”) was arrested on April 21, 2016
in possession of 20 grams of heroin, and officers found firearms, additional heroin, and U.S.
currency in his residence. [Id. at 76, 780]. The CS agreed to cooperate with officers, provided
information about his supplier, “Zee,” who drove a white Dodge Ram 1500 truck, and from whom
the CS purchased a half-kilo of heroin every seven to 10 days for the past year-and-a-half. [Doc.
75 at 8-10 (Suppression Hearing Transcript)]. The CS placed a recorded phone call to Zee on April
24, 2016. [Id. at 81-83; Doc. 1-3 (recorded phone call); see also Doc. 1-5 (transcription)]. The
recording reflects that the following transpired in relevant part:
[CS] … [H]ey, um … well my shit got damn boy. I only got a select few
over here that I can god damn do right now, boy. Goddamn my shit
looking slim. I know we got a couple of singles over there but uh …
when we gonna get back right boy? Uh … I’m getting a little scary
over here.

JORDAN Yeah … uh… soon. Well uh … we going to be good.

[CS] Yeah I’m gonna, I’mma, I’mma gonna holler at Little
[unintelligible]. BG has got something over there. I’m gonna holler
at him to probable, you know, get a little … probably a couple of
zips you know what I’m saying but … I’m trying to do the same
thing on the [unintelligible]. I mean. I don’t know how that shit is
… I’m not trying to stretch out too far not trying to get
[unintelligible]. Know what I’m saying? They all in my business and
shit. You know what I’m saying?

JORDAN Just hold up before you do that.

[CS] I mean, you think it’s gonna be this week?

JORDAN Yeah.

[CS] Ok. Ok.

JORDAN Something like that. I just ain’t wanna talk… you know what I’m
saying?

[CS] Say no more, say no more, say no more. We good. We good. You
know how I get when I get low man, god damn.

JORDAN Yeah man. I … You know I gotta … god damn. [Unintelligible]
keep that under wraps though…. You know what I mean?

[CS] I got you. Say no more, say no more. We will see about that…. I’m
fixing to god damn stretch out, and do what I do.

JORDAN Don’t. Don’t panic.

[CS] Alright, alright. Ok, ok say no more. Feel better now.

[Docs. 1- 3, 1-5].
The following day, April 25, officers obtained a search warrant to track the location of the
cell phone to which the CS had placed the recorded phone call. [Id.; Doc. 1-6 (Warrant
Application)]. The supporting Affidavit includes the following information:
In early April of 2016, [the CS] was identified as a Charlotte, NC based
multi-ounce heroin source of supply. Based on an ongoing DEA investigation, on
April 21, 2016, [the CS] was arrested in Charlotte, NC after being found to be in
possession of approximately 22 ounces of heroin, 3 guns, and drug proceeds.

During his post-Mirandized statements, [the CS] provided officials with
information regarding his primary source of heroin supply who was also based in
Charlotte, NC. According to [the CS], for the past 15 months, he had been
purchasing approximately ½ kilogram of heroin every 6 to 10 days from a subject
he knew only as “ZEE.” [The CS] went on to tell law enforcement officials what
“ZEE” looked like, what vehicle “ZEE” typically drove (make, model and color
only) and how transactions between [the CS] and “ZEE” typically took place.

[The CS] also authorized law enforcement officials to conduct consensual
searches of the cellular telephones that were in his possession at the time of his
arrest. In one of [the CS’s] phones, telephone number 980-406-1700 (SUBJECT
TELEPHONE) was saved in the contacts of the phone as “ZEE” and [the CS]
confirmed that it was the telephone number for the subject which [the CS] would
contact when he needed to purchase additional heroin.

On April 24, 2016, a consensually monitored and recorded telephone call
was made by [the CS] to “ZEE” at [the above number]. During the recorded
conversation, [the CS] told “ZEE” that he was in need of some additional
heroin and wanted to know if “ZEE” would be available to provide
approximately ½ kilogram of heroin to [the CS] the following day (April 25,
2016). “ZEE” responded that at that time, he only had a couple of ounces of
heroin available to sell to [the CS] but that if [the CS] was willing to wait a few
days, “ZEE” expected a shipment of heroin to arrive. Once “ZEE” had
received his heroin shipment, “ZEE” could provide [the CS] with the ½
kilogram of heroin which he had requested. “ZEE” then went on to tell [the
CS] that he would call [the CS] as soon as the shipment of heroin arrived and
he (“ZEE”) was ready to complete the drug transaction.

[Doc. 1-6 at 9-10] (emphasis added; paragraph numbers omitted).
The CS cooperated with law enforcement between April 21 and 24. At some point between
April 24 and May 11, the CS stopped being in regular contact with law enforcement; officers felt
that he was no longer being a “full cooperator” and that he was not being “100 percent honest”
with law enforcement, he stopped returning their phone calls, and he eventually dropped the phone
through which law enforcement had contacted him. [Doc. 75 at 22-23].
James Billings, a Drug Enforcement Administration (“DEA”) special agent, drove to the
area provided by the cell phone company on the morning of April 26, 2016. He located, within a
two-block radius of the latitude/longitude coordinates provided by the cell phone company, a white
2004 Dodge Ram 1500 pickup truck matching the description that the CS had provided, parked in
the driveway of a home on Cullingford Lane that was registered to Petitioner. [Doc. 1-7 at 7-8].
Officers then submitted a warrant application to place a GPS tracker on the white truck in which

they reiterated the information from the CS that was contained in the first warrant, plus Agent
Billings’ observations on April 26. [CR Doc. 148 at 89; see Doc. 1-7 at 7-8]. Officers were granted
a warrant and they began following Petitioner’s movements. [CR Doc. 148 at 89-90].
On May 11, 2016, officers including Agent Billings and Clint Bridges, a DEA task force
officer, set up a surveillance team on Petitioner’s Cullingford Lane residence. [Id. at 93, 135-36].
Officers saw Petitioner’s vehicle stop at a residence on Lyles Court, travel to a parking garage in
downtown Charlotte for about an hour, then travel to a residence on Ravencroft Avenue. Petitioner
went inside the Ravencroft home for 20 to 30 minutes, he exited with a white bag containing an
item about size of a shoebox which he left in his truck, he retrieved a smaller package which he

took into the house, and then he returned to the vehicle empty-handed a few minutes later. [Id. at
94, 136-41].
Detective Christopher Newman, a Charlotte-Mecklenburg Police Department narcotics
unit and canine officer, followed Petitioner’s vehicle when it left the Ravencroft residence and
conducted a traffic stop. [Id. at 32-34]. When Detective Newman patted Petitioner down for
weapons, he saw a small tied-off glove in Petitioner’s pocket. [Id. at 36-37]. After backup arrived,
Detective Newman deployed his drug dog, which gave a positive indication at Petitioner’s driver’s
door; Petitioner admitted that he had some cocaine on him. [Id. at 38]. Detective Newman searched
Petitioner and his vehicle and recovered: the packet of cocaine an approximately $2,000 from
Petitioner’s pocket; a gun under the vehicle’s center console; a white shoe bag containing $26,000
in U.S. currency; a small electronic device to detect electronic surveillance around the vehicle; and
a total of six cell phones, one of which matched the number that the CS used in the recorded phone
call. [Id. at 42-44, 47-48].
Petitioner was arrested and taken to the police station where he was interviewed in a

recorded room by Agent Billings and Officer Bridges.1 Petitioner was warned of his Miranda
rights, and Petitioner indicated that he understood. [CR Ex. 10 at 15:42:26-15:43:14]. Petitioner
admitted that: he had dropped off about nine ounces of cocaine at the Ravencroft residence and
received about $26,000 in cash; he charges $1,200 per ounce of cocaine; and he had been dealing
with the individual at Ravencroft on and off for about a year-and-a-half. Petitioner explained that
the cash he received at Ravencroft did not correspond to the price for nine ounces of cocaine that
he left there because that person owed him money. [Id. at 15:52:45].
Almost 16 minutes after the interview began, Petitioner said “I thought you said I can get
a lawyer to talk to me.” [Id. at 15:59:18-15:59-19]. Agent Billings responded “You can, but once,

once you do that, once today is gone, because we can’t get you a lawyer right now, there’s none
in the hallway waiting for you, but once you get a lawyer then we’re done, and I can’t help you at
all, ok? But that is your absolute choice, ok?” [Id. at 15:59:20-15:59:33]. Petitioner did not request
counsel and continued to answer the officers’ questions. The interview continued and Petitioner
explained, inter alia, that he uses the Lyles residence, his deceased grandmother’s home, to
package drugs; he had approximately $30,000 at his Cullingford home from the sale of a trucking
business, a truck, and a trailer; and there is a firearm at the Cullingford home that belongs to his
girlfriend. [Id. at 16:00:40-16:10:05].

1 The recorded interview was Government Exhibit 10 at trial.
On May 11, 2016, Agent Billings submitted an Application to search Lyles, Ravencroft,
and Cullingford residences. [Doc. 1-8 at 4-5]. The Affidavit reiterates the information from the
prior Applications, as well as evidence that was gained on May 11 including the officers’
observations, evidence seized during the traffic stop, and Petitioner’s admissions during the
custodial interview as follows:

After locating the suspected drugs, guns, and other contraband, officers
arrested JORDAN, who is a convicted felon, and transported him to a CMPD
division office. SA Billings and a DEA task force officer then interviewed
JORDAN after advising him of his Miranda rights. JORDAN indicated that he
understood his rights and stated the following:

a. With respect to TARGET PROPERTY 3 (the 2909 Ravencroft),
JORDAN admitted that earlier on May 11 he delivered 9 ounces of cocaine
at TARGET PROPERTY 3 to a subject []. JORDAN stated that [the
individual] gave him (JORDAN) a bag containing approximately $26,000
in exchange for the 9 ounces of cocaine and as a payment for previous drug
debt. JORDAN’s admissions were consistent with what officers observed
at TARGET PROPERTY 3 earlier that day, when JORDAN exited the
residence holding a white plastic bag and returned with a smaller item that
he left inside. JORDAN stated that he had obtained the cocaine earlier in
the day from a subject [] at a parking garage in downtown Charlotte, which
is also consistent with law enforcement’s observations during the
surveillance earlier in the day.

b. With respect to TARGET PROPERTY 2 (501 Lyles Court),
JORDAN explained that after obtaining the cocaine from [the individual at
the parking garage], he (JORDAN) went to TARGET PROPERTY 2, where
he weighed and repackaged the drugs for delivery to [the individual at
Ravencroft]. When asked if there were drugs located at TARGET
PROPERTY 2, JORDAN denied that there were drugs but admitted that
TARGET PROPERTY 2 contained scales and drug packaging materials.
JORDAN stated that TARGET PROPERTY 2 had belonged to his now
deceased grandmother and that he had a key to access the residence.
JORDAN advised that there was no one else located at TARGET
PROPERTY 2.

c. With respect to TARGET PROPERTY 1 (8435 Cullingford),
JORDAN stated that he lived there along with his girlfriend and three minor
children. JORDAN admitted that there were firearms inside TARGET
PROPERTY 1 but claimed that they did not belong to him. JORDAN also
admitted that there was approximately $30,000 in the residence but claimed
the cash was profits from the sale of a trucking business and not drug
proceeds. JORDAN also denied that there were any drugs inside the
residence.

[Doc. 1-8 at 10-13] (paragraph numbers omitted).
Officers were granted all three warrants and they recovered evidence from the Lyles
residence including: five bags of China white heroin totaling approximately 275 grams; a Glock
next to digital scales; drug packaging paraphernalia; ammunition and magazines. [CR Doc. 148 at
95-99, 104-06]. Evidence recovered from the Ravencroft residence included: 753.81 grams of
cocaine; marijuana and methamphetamine; and a loaded pistol. [Id. at 108-10, 173-77]. Evidence
recovered from the Cullingford residence included: a stolen firearm; a machinegun-style firearm;
a bulletproof vest; a high-capacity drum magazine; and $24,200 in U.S. currency.2 [Id. at 276-79,
283].
Petitioner was charged with: conspiracy to possess with intent to distribute one kilogram
or more of heroin and 500 grams or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1)
(Count One); possession with intent to distribute 100 grams or more of heroin in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B) (Count Five); distribution and possession with intent to distribute
cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Count Six); possession of a firearm in
furtherance of a drug trafficking crime, i.e., Counts One and Six, in violation of 18 U.S.C. §
924(c)(1)(A) (Counts Eight and Nine); and possession of a firearm by a convicted felon in violation
of 18 U.S.C. § 922(g)(1) (Count Ten). [3:16-cv-145 (“CR”) Doc. 68].
Petitioner moved to suppress all of the evidence obtained as a direct and indirect result of
the search, seizure, and arrest of Petitioner on May 11 including evidence seized from his person
and vehicle, his confessions, and all evidence gathered from the three residences. He argued inter

2 A firearm in Petitioner’s girlfriend’s name was not confiscated. [CR Doc. 148 at 283].
alia that the traffic stop was pretextual an overly prolonged, the CS was no longer cooperating
after April 24, and the search warrants were invalid. The Court denied the Motion following an
evidentiary hearing. [CR Doc. 75]. The Court specifically found that the length of the traffic stop
was reasonable, the officers’ constructive knowledge at the time of the stop was “overwhelming,”
and the information supporting the traffic stop was not stale. [Id. at 111-14].

The matter proceeded to a jury trial. The defense theory of the case was of insufficient
evidence, i.e., that the Government relied on people with criminal histories and that “the three Ps,”
that is, “[finger]prints, … pics [photographs or videos], and phone records” failed to establish
Petitioner’s guilt. [See CR Doc. 148 at 22-25; see also CR Doc. 149 at 30 (arguing in closing that
officers failed to conduct adequate fingerprint testing, and that no DNA report was introduced to
show that Petitioner “touched and possessed” the guns that were seized)].
The Government presented evidence at trial including relevant portions of the recorded
phone call3 and recorded interview, video footage from Detective Newman’s dashcam, and
evidence seized from Petitioner’s person, vehicle, and all three residences. Officer Bridges testified

inter alia that he sees “minimizing” constantly during drug investigations as follows:
Minimizing is when someone obviously possesses something they want to
minimize their – I guess their exposure to that item when you interview.

So say, for instance, if someone delivers three guns, they may say one. Or
if someone delivers this weight, they might say less. Or they might say marijuana,
instead of cocaine, to minimize their exposure to that item.

[Id. at 128]. Officer Bridges explained that he was not surprised to find nearly a kilogram of drugs
at the Ravencroft residence because that amount was more consistent with the amount of money
found in the Petitioner’s vehicle when he was arrested, and with the street price for that amount of

3 Officer Bridges testified that drug traffickers routinely use code words when speaking on the phone about drugs.
[CR Doc. 148 at 69-71]. The Court found that the recorded phone call was admissible at trial, but Officer Bridges was
not allowed to decode the phone conversation as an expert. [Id. at 4-6, 87].
drugs. [Id. at 128-29]. The Government addressed minimization in closing arguments as follows:
I asked Mr. Bridges about minimization. How drug dealers will, sometimes
when they know they’re caught, admit to not everything. Yeah, I put my hand in
the cookie jar but I only had two cookies. I didn’t take six cookies. Not
understanding that law enforcement is going to search the house. They will be
thorough. This is a professional investigation. They had a tracker already on his car.
They were already searching his phone, and then they go to the residences and what
did they find?

… We know also that when law enforcement searched Ravencroft, they find
the roughly 753 grams of cocaine ….

[CR Doc. 149 at 9-11].
The jury found the Petitioner guilty of all of the counts but it found that the amount
reasonably foreseeable by Petitioner in Count One was 100 grams or more. [CR Doc. 130]. In a
Judgment entered on November 10, 2017, the Court sentenced Petitioner to a total of 420 months’
imprisonment (60 months for Counts One, Five, Six, and Ten, concurrent, and 300 months for
Count Nine, consecutive) followed by four years of supervised release. [CR Doc. 217].
On direct appeal, the Petitioner argued that: (1) under the Fourth Amendment, the Court
erred by failing to suppress evidence gathered from the traffic stop that led to his arrest and
subsequent incriminating statements; (2) under the Sixth Amendment’s Confrontation Clause, the
Court erred in admitting evidence relating to a phone call between Petitioner and an informant who
did not testify at trial; (3) the Court erred in failing to merge his two § 924(c) firearm convictions
for sentencing purposes; (4) Section 403 of the First Step Act should apply to lower the mandatory
minimum sentence for the second § 924(c) conviction; and (5) counsel was ineffective for failing
to challenge certain search warrants. The Fourth Circuit affirmed on March 3, 2020. United States
v. Jordan, 952 F.3d 160 (4th Cir. 2020). It found that the claim of ineffective assistance of counsel
claim should be raised, if at all, in a § 2255 motion because no conclusive evidence of ineffective
assistance appeared on the face of the record, and found no error with regards to the other claims.
Id. The United States Supreme Court denied certiorari on January 11, 2021. Jordan v. United
States, 141 S.Ct. 1051 (2021).
Petitioner filed the instant Motion to Vacate through counsel on January 11, 2022. [Doc.
1]. He argues that trial counsel was ineffective for failing to: (1) move to suppress evidence
obtained pursuant to search warrants; (2) object to opinion testimony and argument that

commented on Petitioner’s credibility; (3) present exculpatory DNA evidence;4 and (4) move to
suppress Petitioner’s custodial statements. [Doc. 1]. Petitioner seeks an evidentiary hearing and
the vacatur of his convictions and sentences. [Id.]. The Government filed a Motion to Dismiss,
arguing that Petitioner’s claims are meritless and should be denied without an evidentiary hearing.5
[Doc. 4]. Petitioner filed a Response [Doc. 5] and the Government filed a Reply [Doc. 8].
On December 12, 2022, Petitioner filed a Motion for Leave to Amend his Motion to Vacate
so that he may raise a claim challenging the calculation of his guideline range. [Doc. 9]. The
Government filed a Response arguing that the Motion to Amend should be denied because: it does
not relate back to his original claims and is untimely; and it is futile because Petitioner’s challenge

to the Court’s sentencing guideline calculation is not cognizable under § 2255. [Doc. 10].
Petitioner has not replied and the time to do so has expired. Having been fully briefed, these matters
are ripe for consideration.
II. STANDARD OF REVIEW
A federal prisoner claiming that his “sentence was imposed in violation of the Constitution

4 In the Motion to Vacate, Petitioner argued that counsel was ineffective for failing to obtain the DNA report that
would have established that Petitioner’s DNA was not found on the firearm that was seized from his vehicle. [See
Doc. 1-1 at 23-24]. In the Response to the Motion to Dismiss, however, Petitioner agreed that the report was timely
provided to trial counsel. [See Doc. 5 at 9]. He now argues only that counsel was ineffective for failing to introduce
the DNA report at trial. [Id.].

5 The Government also argued that Petitioner failed to affirm his Motion to Vacate, however, it concedes in its Reply
that any such error has been remedied. See [Doc. 8 at 1].
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 argument
presented by the Petitioner can be resolved based on the record and governing case law and that
no evidentiary hearing is warranted. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
Accordingly, Petitioner’s request for an evidentiary hearing is denied.
III. DISCUSSION
1. Motion to Vacate6
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, Petitioner must first establish deficient performance by
counsel and, second, that the deficient performance prejudiced him. See Strickland v. 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).

6 Petitioner’s claims have been reorganized and restated.
To establish prejudice, the petitioner must demonstrate there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. It is not sufficient to show the mere “‘possibility of
prejudice.’” Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1994) (quoting Murray v. Carrier, 477

U.S. 478, 494 (1986)). 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. The Petitioner's
claims of ineffective assistance are addressed in turn.
A. Suppression
A “refined” version of the Strickland analysis applies when a petitioner claims ineffective
assistance based on counsel’s failure to file a suppression motion. United States v. Pressley, 990
F.3d 383, 388 (4th Cir. 2021) (quoting Grueninger v. Director, Va. Dep’t of Corr., 813 F.3d 517,
524 (4th Cir. 2016)). The inquiry for the performance prong is whether the “unfiled motion would
have had ‘some substance.’” Id. at 524-25 (citing Tice v. Johnson, 647 F.3d 87, 104 (4th Cir.

2011)). If the motion would have had some substance, then the question is whether reasonable
strategic reasons warranted not filing the motion. See id. at 529; Tice, 647 F.3d at 104-05. To
satisfy the prejudice prong, the petitioner must show that: (1) “the [suppression] motion was
meritorious and likely would have been granted, and (2) a reasonable probability that granting the
motion would have affected the outcome of his trial.” Grueninger, 813 F.3d at 525.
i. Search Warrants
Petitioner argues that counsel should have moved to suppress the evidence obtained
pursuant to the search warrants for his cell phone location data, vehicle tracker, and residences,
and requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), because the warrant
applications contained material misstatements and omissions. [Doc. 1 at 4; Doc. 1-1 at 11-16].
Specifically, he argues that officers misrepresented the contents of the recorded phone call by
inserting their own interpretations of its coded language; and that they omitted their conclusion
that the CS was not reliable. [Doc. 1-1 at 11-16].

The purpose of Franks is to determine whether, but for the inclusion of intentional or
reckless misstatements by the affiant, an affidavit would not support a finding of probable cause.
United States v. Clenney, 631 F.3d 658, 663 (4th Cir. 2011). A defendant challenging the validity
of a warrant is entitled to a hearing if he makes a preliminary showing that: “(1) the warrant
affidavit contain[s] a ‘deliberate falsehood’ or statement made with ‘reckless disregard for the
truth’ and (2) without the allegedly false statement, the warrant affidavit is not sufficient to support
a finding of probable cause.” United States v. Fisher, 711 F.3d 460, 468 (4th Cir. 2013) (quoting
Franks, 438 U.S. at 155-56).
Petitioner’s argument about the coded language fails because an affiant “cannot be

expected to include every piece of information gathered in the course of the investigation.” United
States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990). Mere negligence in recording the facts
relevant to a probable cause determination is not enough to show deliberate falsehood or reckless
disregard for the truth. Franks, 438 U.S. at 171. Here, the warrant application reflects officers’
reasonable interpretation of the coded language used during the phone call along with information
gleaned from the circumstances of their investigation. Additional narrative including direct quotes
from the recorded phone call, and the officers’ thought process in drawing reasonable conclusions
from that call, do not negate the existence of probable cause to track Petitioner’s cell phone.
Nor did the omission of information about the CS’s reliability negate probable cause. An
informant’s “reliability is ‘key’ to a magistrate’s probable cause analysis when the search warrant
application contains information provided by an informant.” United States v. Lull, 824 F.3d 109,
116 (4th Cir. 2016) (citing United States v. Wilhelm, 80 F.3d 116, 119 (4th Cir. 1996)). Resolving
questions about a source’s reliability requires an assessment of the totality of the circumstances
with a particular focus on “the informant’s ‘veracity’ or ‘reliability’ and his or her ‘basis of

knowledge.’” Wilhelm, 80 F.3d at 119 (quoting Illinois v. Gates, 462 U.S. 213, 233 (1983)).
Another important consideration is whether officers have been able to corroborate the source’s
information. United States v. Hodge, 354 F.3d 305, 309 (4th Cir. 2004). But “[t]here is no set
requirement that all tips be corroborated by subsequent police investigation in order to be
considered credible.” United States. v. DeQuasie, 373 F.3d 509, 519 (4th Cir. 2004) (quoting
United States v. Blount, 123 F.3d 831, 836 (5th Cir. 1997) (en banc)).
Here, the evidence demonstrates that officers believed that the CS was cooperating at the
time he provided information about “Zee” and placed the recorded phone call. It was not until after
officers gained that information that the CS failed to remain in contact with officers, which

ultimately led officers to conclude at some point after the recorded call that he was no longer being
fully truthful and cooperating. Petitioner does not explain how the CS’s discontinuation of his
cooperation undermines the information that officers gained during his cooperation, including the
recorded phone call. Nor does he explain how the CS’s discontinuation of the cooperation tainted
the evidence that officers learned during their subsequent investigation on which they relied to
obtain search warrants for GPS tracking of the white truck and for searches of the three residences.
Petitioner has failed to demonstrate that he would have been granted a Franks hearing had
counsel requested one, much less a reasonable probability that a motion to suppress based on the
foregoing would have been granted and would have affected the outcome of trial. Accordingly,
Petitioner’s challenges to counsel’s failure to seek suppression of the warrants and the fruits of the
investigation that followed, are denied.
ii. Petitioner’s Custodial Statements
Petitioner also argues that counsel should have moved to suppress his statements that were
obtained during the custodial interview in violation of Miranda v. Arizona, 384 U.S. 436 (1966).

[Doc. 1 at 8].
A defendant is entitled to suppression of his incriminating statements if law enforcement
officers failed to provide Miranda warnings during a “custodial interrogation.” See United States
v. Giddins, 858 F.3d 870, 879 (4th Cir. 2017). If the suspect effectively waives his right to counsel
after receiving the Miranda warnings, law enforcement officers are free to question him. Davis v.
United States, 512 U.S. 452 (1994) (citing North Carolina v. Butler, 441 U.S. 369, 372-376 (1979).
If a suspect requests counsel at any time during the interview, he is not subject to further
questioning until a lawyer has been made available or the suspect himself reinitiates conversation.
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). However, this request for counsel must be

“unambiguous[],” that is, the suspect “must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would understand the
statement to be a request for an attorney.” Davis, 512 U.S. at 459.
Here, Petitioner stated that he understood his Miranda rights, then answered the officers’
questions for approximately 16 minutes at which point he suddenly said “I thought you said I can
get a lawyer to talk to me.” [Id. at 15:59:18-15:59-19]. This was not an unambiguous request for
counsel. Davis, 512 U.S. at 459. Even if it were considered such, however, Petitioner has failed to
identify any statement that he made after asking about counsel that was introduced at trial and, if
it were suppressed, had a reasonable probability of affecting the trial outcome. See United States
v. Dyess, 730 F.3d 354, 359-60 (4th Cir. 2013) (vague and conclusory allegations in a § 2255
petition may be disposed of without further investigation by the court). Reasonable counsel could
have concluded that seeking suppression of the interview would have been fruitless based on
Petitioner’s admissions that preceded his statement about counsel, and the other strong evidence
of his guilt. Petitioner has failed to demonstrate prejudice for the same reasons. Petitioner’s claim

of ineffective assistance in this regard is, therefore, denied.
B. Testimony Regarding “Minimization”
Petitioner argues that counsel was ineffective for failing to object to Officer Bridges and
Agent Billings’ “expert” testimony about “minimization” because it improperly commented on
Petitioner’s credibility. [Doc. 1-1 at 20-22].
The Federal Rules of Evidence permits lay opinion testimony that is “rationally based on
the witness’s perception, helpful to clearly understanding the witness’s testimony or to determining
a fact in issue, and not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Fed. R. Evid. 701. A witness who has been qualified as an expert may offer

opinion testimony under specified circumstances. Fed. R. Evid. 702. The Fourth Circuit has noted
the “fine line” between lay opinion admissible under Rule 701 and expert opinion testimony that
must comply with the strictures of Rule 702, finding that an expert must have some specialized
knowledge or skill. United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006). Further, “lay
opinion testimony must be based on personal knowledge,” while expert testimony may, but need
not, be based on direct observation. Id. at 155-56.
Here, Officer Bridges and Agent Billings’ testimony about minimization summarized
findings and observations that they made regarding the investigation of the currency they found in
Petitioner’s vehicle, and the amount of drugs that they recovered from the Ravenscroft residence.
See generally United States v. Bennett, 738 F. App’x 140 (4th Cir. 2018) (finding that an officer’s
testimony that, in his experience, the simple fact that a vehicle is titled in a person’s name does
not by itself indicate that the vehicle belonged to that person, and that individuals involved in
illegal activities try not to create a paper-trail of those activities, was permissible lay testimony
summarizing the findings of his investigation). Reasonable counsel could have concluded that

objecting would have been fruitless.
Even if counsel was deficient for failing to object, however, Petitioner cannot demonstrate
prejudice because there is no reasonable probability that the testimony affected the verdict, in light
of the extremely strong evidence of Petitioner’s guilt including officers’ observations of his
activities, the evidence seized from his person and vehicle, his admissions, and the evidence seized
from the three residences.
C. Closing Argument Regarding “Minimization”
Similarly, Petitioner argues that counsel was ineffective for failing to object to counsel’s
closing argument addressing “minimization.” [Doc. 1-1 at 22].

The test for prosecutorial misconduct in the context of closing argument is “whether the
prosecutor’s comments ‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). A defendant alleging prosecutorial misconduct must
show: “(1) the prosecutor’s remarks or conduct were improper and (2) that such remarks or conduct
prejudicially affected his substantial rights so as to deprive him of a fair trial.” United States v.
Caro, 597 F.3d 608, 624 (4th Cir. 2010).
Here, the prosecutor’s closing argument addressing minimization asked the jury to draw a
fair inference from admissible evidence presented at trial, and was not improper. See Section B
supra; see, e.g., United States v. Littlejohn, 802 F. App’x 760, 764-65 (4th Cir. 2020) (argument
that a ski mask was Littlejohn’s based on DNA evidence was not improper because it was a fair
inference from the evidence).
Even if the argument about minimization exceeded the bounds of propriety, Petitioner
cannot demonstrate prejudice because there is no reasonable probability that it affected the verdict

in light of the extremely strong evidence of Petitioner’s guilt. See Section B, supra.
D. Exculpatory Evidence
Petitioner argues that counsel was ineffective for failing to present at trial a DNA report
that would have shown that Petitioner did not possess the firearm that was found in his vehicle.
[Doc. 5 at 9].
To support an ineffective assistance claim based on the failure to investigate, a petitioner
must present specific information to show what favorable evidence the investigation would have
produced. See Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996). If there is “no reasonable
probability that a possible defense would have succeeded at trial,” counsel’s failure to investigate
such a defense is not prejudicial. Savino v. Murray, 82 F.3d 593, 599 (4th Cir. 1996). Decisions

about what types of evidence to introduce “are ones of trial strategy, and attorneys have great
latitude on where they can focus the jury’s attention and what sort of mitigating evidence they can
choose not to introduce.” Pruett v. Thompson, 996 F.2d 1560, 1571 n.9 (4th Cir. 1993).
Petitioner’s DNA claim fails because he has not identified any exculpatory evidence that
reasonable counsel would have presented. The report shows that DNA testing on the firearm found
in Petitioner’s vehicle yielded inconclusive results. [Doc. 4-1]. Reasonable counsel could have
decided to argue, as defense counsel did in Petitioner’s case, that there was insufficient evidence
of Petitioner’s guilt. Because the DNA report was inconclusive, rather than exculpatory, counsel
cannot be deemed ineffective for failing to introduce it at trial. See, e.g., Penson v. United States,
1:19-cv-14-MR, 2019 WL 498852 at *4 (W.D.N.C. Feb. 8, 2019) (concluding that reasonable
counsel was not ineffective for choosing to focus on the absence of DNA testing rather than on
inconclusive DNA results which may have been damaging to the defense). Nor has Petitioner
demonstrated a reasonable probability of a different outcome had counsel introduced the

inconclusive DNA report at trial. Accordingly, this claim is denied.
2. Motion to Amend
Motions to vacate filed pursuant to 28 U.S.C. § 2255 are subject to a one-year statute of
limitations, which runs from the latest of:
(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed,
if the movant was prevented from making a motion by such governmental
action;

(3) the date on which the right asserted was initially recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).
An otherwise untimely claim relates back to the original timely-filed pleading if “the
amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set
out—or attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). The
“original pleading” to which Rule 15 refers is the motion to vacate in a § 2255 proceeding. See
Mayle v. Felix, 545 U.S. 644, 655 (2005) (discussing a habeas corpus petition pursuant to 28
U.S.C. § 2254). For the Court to find that an otherwise untimely claim relates back to the original
timely filed petition, the amended claim must arise from a “common core of operative facts,” and
may not be dependent on events that are separate both in time and in the substance of the facts
upon which the original claims depended. Mayle, 545 U.S. at 664.
Here, the Petitioner’s conviction became final for purposes of § 2255(f)(1) on January 11,
2021, when the United States Supreme Court denied certiorari. See Clay v. United States, 537 U.S.
522, 524-25 (2003). The Petitioner therefore had one year from January 11, 2021 to file a motion

to vacate. The instant Motion to Amend was filed 11 months late on December 12, 2022. The
present sentencing claim does not relate back to the timely-filed claims of ineffective assistance of
counsel. Accordingly, the Motion to Amend is untimely under § 2255(f)(1), and Petitioner has
failed to show that the Motion should be considered timely under any other theory. The Motion to
Amend is, therefore, time-barred.
Even if the Motion to Amend were timely filed, it would be denied as futile. A sentencing
error is not cognizable on § 2255 review unless it is constitutional, jurisdictional, or amounts to a
“fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 346 (1974). Barring “extraordinary circumstances, ... an error in the

application of the Sentencing Guidelines cannot be raised in a § 2255 proceeding.” United States
v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999); United States v. Mikalajunas, 186 F.3d 490, 495-
96 (4th Cir. 1999) (“misapplication of the [sentencing] guidelines typically does not constitute a
miscarriage of justice.”). This includes a career offender designation that is applied under an
advisory guideline scheme. See United States v. Foote, 784 F.3d 931, 936 (4th Cir. 2015). Because
Petitioner seeks to raise a sentencing guideline calculation error and no extraordinary
circumstances are present, Petitioner’s claim is not cognizable on § 2255 review. Accordingly, the
Motion to Amend will be denied.
IV. CONCLUSION
For the foregoing reasons, the Government’s Motion to Dismiss is granted, Petitioner’s §
2255 Motion to Vacate is dismissed and denied, and Petitioner’s Motion to Amend is denied..
IT IS, THEREFORE, ORDERED that:
1. The Government’s Motion to Dismiss [Doc. 4] is GRANTED.
2. Petitioner’s § 2255 Motion to Vacate [Doc. 1] is DISMISSED and DENIED.
3. Petitioner’s Motion to Amend [Doc. 9] is DENIED.
4. 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).
5. The Clerk is respectfully instructed to close this case.

Signed: February 28, 2024

Otef$ 4 Cr Of
Robert J. Conrad, Jr. as
United States District Judge ee

21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10260880. Public record. Not legal advice.