United States District Court, W.D. Missouri, Western Division
NANETTE K. LAUGHREY, District Judge.
The Court denies Dandrae Jones' pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. 1]. Jones' motion for leave to conduct discovery, Doc. 22, and motion for evidentiary hearing, Doc. 26, are also denied.
On February 11, 2010, a federal grand jury returned an indictment charging Jones and his alleged co-conspirators with conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. On June 30, 2011, following a four day trial, a jury found Jones and his co-defendants guilty of the charged crime.
Jones' presentence investigation report ("PSR") was completed by the United States Probation Office and reflected a base offense level of 38, with enhancements for obstruction of justice and possession of a firearm, resulting in a total offense level of 42. The PSR placed Jones in criminal history category 3. The Sentencing Guidelines range for this offense level was 360 months to life imprisonment. The Court adopted the PSR and its advisory Guidelines range and sentenced Jones to 360 months' imprisonment, entering judgment on February 22, 2012.
Jones timely filed a notice of appeal. The Eighth Circuit Court of Appeals affirmed Jones' conviction and sentence on January 17, 2013. The Supreme Court denied Jones' writ of certiorari on November 4, 2013.
B. Factual Background
The case against Jones arose out of a cocaine distribution conspiracy in Kansas City, Missouri. Investigation into the case lasted from 2004 to 2009. Thirty-three individuals were eventually charged in relation to the conspiracy. Five of these individuals were tried in a jury trial beginning on February 14, 2011 (the "Dunn trial"). See Case 4:09-cr-00188-BCW. Three more, including Jones, were tried in a separate jury trial beginning on June 27, 2011 (the "Jones trial"). See Case 4:10-cr-00045-GAF.
The government presented several of the same witnesses in these two trials, most notably Agent Mark King, Alejandro Corredor, and Terrence Harris. Agent King served as one of the primary Homeland Security investigators of the drug conspiracy. Corredor served as a primary liaison between the Mexican cartel supplying cocaine and a legion of cocaine distributors in Kansas City. Harris, Corredor's brother-in-law, was also intimately involved with the distribution ring.
Evidence was presented at the Jones trial that Jones was one of Corredor's cocaine distributors. The government presented evidence that on or around the time Corredor received his final 47 gram shipment of cocaine, Jones was at a residence out of which Corredor distributed cocaine (the "92nd place residence"). It also presented evidence of Jones' name in a drug ledger showing that Corredor routinely provided Jones cocaine. Corredor, Special Agent King, and other co-conspirators testified about this and other evidence at the Jones trial and described Jones' intimate involvement in the distribution ring. Following four days of trial, the jury found Jones guilty of conspiracy to distribute five kilograms or more of cocaine. Case 4:10-cr-00045-GAF, Doc. 188, p. 1.
A. Due Process Violation: Knowing Solicitation of Perjured Testimony
Jones contends that his due process rights were violated by the prosecutor knowingly soliciting perjured testimony at his trial that conflicted with evidence presented months earlier at the Dunn trial.
It is well established that the prosecution may not solicit false or perjured testimony or allow such testimony to go uncorrected. Giglio v. United States, 405 U.S. 150, 154 (1972); U.S. v. Martin, 59 F.3d 767, 770 (8th Cir. 1995). However, "[m]ere inconsistency between witnesses' testimony is not necessarily perjury, and not every contradiction is material. [A] challenge to evidence through another witness or prior inconsistent statements [is] insufficient to establish prosecutorial use of false testimony." Id. (citations and quotations omitted). In order to succeed on his claim, Jones must prove "(1) the prosecution used perjured testimony; (2) the prosecution knew or should have known of the perjury; and (3) there is a reasonable likelihood' that the perjured testimony could have affected the jury's judgment." Id. (citing United States v. Nelson, 970 F.2d 439, 443 (8th Cir. 1992)). Under this test, Jones must be able to do more than point to inconsistencies between witnesses' testimony at prior trials and their testimony at his trial; he must be able to prove there is a "reasonable likelihood" that these inconsistencies infected the jury's verdict. The government is under no obligation to impeach or correct every potential collateral issue raised by a witness's testimony. English v. United States, 998 F.2d 609, 611 (8th Cir. 1993).
Jones argues that the prosecution knowingly solicited five pieces of perjured testimony: (1) the location of the final 47 kilogram cocaine shipment, (2) the mathematical breakdown of how the cocaine was distributed, (3) Corredor's testimony regarding the quantities and times of cocaine deliveries, (4) Corredor's testimony that Jones was his "right hand man, " and (5) Harris' testimony that he purchased cocaine from Jones ...