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United States v. Ramsey

United States District Court, D. Kansas

November 5, 2019




         On December 4, 2014, defendant Frederico Ramsey[1] filed a pro se motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence, based on his claims that his court-appointed attorney was ineffective before and during his trial and at his sentencing. (Doc. 784.) This court first addressed defendant's motion in a Memorandum and Order entered September 15, 2015, denying some of his claims but taking others under advisement. (Doc. 819.) Additionally, defendant's motion to appoint counsel (Doc. 817) was granted. Since that time, two evidentiary hearings have taken place before this court (Docs. 933, 937), and supplemental briefings were submitted by defendant (Doc. 958) and by the government (Doc. 970). The remaining issues raised in defendant's original motion are now in order for decision. For the reasons set forth below, the court denies the claims remaining in defendant's motion.


         As the court detailed in its earlier order, defendant was convicted by a jury in 2010 of four counts related to the possession and distribution of heroin, including one conspiracy count where death and serious bodily injury resulted. (Docs. 819, 258). On July 20, 2011, he was sentenced to just over 24 years in prison. (Doc. 598.) Defendant appealed his convictions and sentence on various grounds other than those argued in the present motion. In 2013, the appeal was denied, and his convictions and sentence affirmed by the Tenth Circuit. (Doc. 767.) This court also denied two subsequent motions; one to reduce sentence was denied in October 2014 (Doc. 780) and a motion for Order of Discovery was denied in November 2014 (Doc. 783).

         In his motion, as originally presented in 2014, defendant claimed that the appointed counsel who represented him during his jury trial and sentencing, Attorney Kenton Hall (“Hall”), provided constitutionally ineffective assistance in twenty-two ways. Defendant argued that, during the pretrial phase, Hall failed to adequately investigate and challenge the government's case by failing to arrange independent autopsies of the overdose victims; failing to interview all the government's cooperating witnesses; and failing to investigate defendant's alibi defense. Defendant also claimed that Hall did not review any of the government's discovery materials with him, and that he neglected to prepare a defense strategy. Defendant's objections to Hall's conduct during the trial included his failure to object to the composition of the jury; his failure to challenge video evidence purportedly depicting defendant selling heroin; his failure to object to voice recordings and to have those recordings analyzed and compared to voice exemplars; his failure to file a motion in limine to prevent all references to “crack cocaine” during the trial; his failure to subpoena the medical examiner to further explore the cause of the victims' deaths; and his failure to call an alibi witness. In connection with the sentencing, defendant alleged again that Hall failed to challenge the cause of the victims' deaths, and he argued that Hall's lack of sincere advocacy created a conflict of interest.

         The majority of these claims were dismissed in the court's first Memorandum and Order (Doc. 819), for the reasons stated therein. Three claims were taken under advisement: 1) whether defendant's brother Antonio Ramsey (“Antonio”) contacted Hall about, or Hall was otherwise apprised of, a potential alibi for defendant for two dates that the government claimed defendant sold heroin; 2) whether Antonio would have provided favorable testimony concerning the defendant's whereabouts on those key dates; 3) whether Hall timely shared discovery with defendant prior to the trial. (Doc. 819, at 14-15.)

         Ineffective assistance of counsel

         To establish that an attorney's assistance was so inadequate that it violated a criminal defendant's constitutional right to counsel, the defendant must satisfy a two-part test. United States v. Herring, 935 F.3d 1102, 1107 (10th Cir. 2019). First, the defendant must show that the attorney's performance “fell below an objective standard of reasonableness, ” Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and that the attorney was not “reasonably competent” in “skill, judgment and diligence, ” United States v. Voigt, 877 F.2d 1465, 1468 (10th Cir. 1989). This means that defendant must demonstrate that counsel's representation was not simply wrong-headed or unsuccessful, but that it was “completely unreasonable.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999) (citing Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997). Generally, the court defers to an attorney's strategic decisions and presumes that his or her performance was not deficient. Welch v. Workman, 639 F.3d 980, 1010 (10th Cir. 2011). The second part of the test requires defendant to show prejudice: that 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. In making its determination, the court may focus first, or exclusively, on the second part of the test. “The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” Id. at 697.


         The court turns first to defendant's claim that attorney Hall failed to review with him and “purposefully withheld all of the discovery materials from the petitioner throughout the entirety of the proceedings held on this case beginning during the pretrial stage and lasted throughout trial and sentencing.” (Doc. 1, at 4.) At the evidentiary hearing, defendant testified, repeating the claim that Hall did not show him any discovery, and that the first time he saw the government's video evidence (purporting to show defendant selling drugs) was at the trial. Although defendant conceded that Hall visited him in prison eight[2] times prior to the trial, he explained that they didn't use this time to prepare for the trial and did not review any of the government's evidence.

         In his supplemental memorandum, defendant argues that Hall's infrequent and short visits to the correctional facility prior to trial “made it impossible for Frederico to adequately review the voluminous discovery in order to make a knowledgeable and informed decision whether or not to proceed to trial.” (Doc. 958, at 7.) He argues further that Hall should have either spent more time reviewing the evidence with him, or notified the court that he had been unable adequately to do so which had resulted in defendant's inability to make an informed decision about whether or not to go to trial.

         The government rebutted these allegations first with an affidavit from attorney Hall, prepared in February 2015, and presented in connection with the court's initial review of defendant's motion. (Doc. 810-1.) Hall refuted defendant's claim that they didn't review the discovery: “I reviewed all discovery materials in the case as those materials were received with defendant in person on multiple occasions while the case was pending, including audio and video recordings, investigative reports, statements of co-defendants, confidential informants, cooperating witnesses, and physical evidence and exhibits.” (Doc. 810-1, at ¶ 8.) At the first evidentiary hearing, Hall was questioned by the government about the prison's visitors logs, and a letter to the prison's chief of security seeking permission to bring a laptop to the prison in order to review digital evidence with defendant. Hall testified that he received permission to bring the laptop in the fall of 2010, and subsequently brought it each time he visited defendant before and during the trial, with the visits ranging from one to two hours each time. He stated definitively that he reviewed the discovery with defendant on more than one occasion.

         In its response to defendant's supplemental memo, the government points out that its investigation of the drug trafficking operation included a telephone-pole mounted surveillance camera which recorded, 24 hours a day, from November 18, 2008, through February 5, 2009. (Doc. 970, at 30.) Reviewing all this footage would have been impractical, the government argues, and, consequently, it earmarked the video and produced still photos of the instances where defendant was depicted. Because of this, Hall and defendant would have been able to review the government's evidence in a relatively short period of time, and certainly within the time frame of Hall's prison visits to defendant, as documented by the visitors logs. The government also notes that when defendant's brother Antonio testified during the evidentiary hearing, he asserted that he and his family were provided with an inch-thick stack of discovery from the case, including reports about the pole camera and police body cameras, and that he had reviewed this material at his mother's house. Moreover, Antonio never recalled defendant mentioning that he had not seen the discovery during several visits to the prison and other conversations with defendant before and during the trial.

         Attorney Hall was an experienced criminal defense attorney, having practiced since 1988, served in the Missouri public defender's office for many years, and conducted numerous criminal trials in Kansas. He was compelled to retire from his practice in 2018 because of ill health and has recently passed away. It stretches the court's belief to imagine that Hall failed to share any of the government's evidence with defendant prior to the trial. In fact, Hall testified that he had advised defendant to accept a plea agreement and not go to trial. This is corroborated by defendant, who testified that Hall tried to talk him into accepting a plea deal. It seems logical that providing defendant with information about the government's evidence against him would have been a component of the advice to consider a plea agreement. The court's assumption is bolstered by the prison visitor logs and Hall's request for permission to bring his laptop to his visits with defendant. Those documents demonstrate that Hall visited defendant several times before and during the trial, and that those visits lasted between one and two hours. According to Hall those visits were spent reviewing the evidence, discussing a possible plea agreement, and preparing defendant for trial. According to defendant, those visits were devoted to Hall's trying to force him to take a plea and to ...

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