United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Keyessence Fountain, a person in federal custody. On February 4, 2014, Fountain plead guilty before this Court to the offense of interference with commerce by threat or violence and aiding and abetting the possession of a firearm in furtherance of a crime of violence and, on May 14, 2014, this Court sentenced Fountain to the Bureau of Prisons for a term of 120 months. Fountain's § 2255 motion, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.
On August 15, 2013, a grand jury for the Eastern District of Missouri, Southeastern Division, returned a two-count indictment against four defendants; Keyessence Fountain, Darryl House, Kevin Stitt and Charla Dinkins. Count I of that Indictment charged that the four defendants, aided and abetted by each other, committed the offense of Interference With Commerce by Robbery in violation of Title 18, U.S.C., §§ 1951 and 2. Count II of that Indictment charged that the four defendants, aided and abetted by each other, Possessed a Firearm in Furtherance of a Crime of Violence in violation of Title 18, U.S.C., §§ 924(c) and 2. The allegations of Count II provided that the firearm was brandished during the commission of that crime. At the time of the Indictment, Keyessence Fountain was incarcerated in state custody for the same offense conduct as the federal charge.
The offense conduct charged in the Indictment was that the four defendants brandished a firearm to commit an armed robbery of the Jayson Jewelry store in Cape Girardeau, Missouri, on September 23, 2009.
2. Arrest and Pretrial Motions.
On August 27, 2013, a writ was secured by the Government to transfer custody of the defendant to the federal courts. That writ was served on September 11, 2013. Fountain made her Initial Appearance before Magistrate Judge Lewis M. Blanton on that same date. Attorney Rebecca Burns was appointed to represent Fountain.
On October 18, 2013, Fountain appeared before Judge Blanton and waived her right to file pretrial motions.
On September 23, 2013, officers met with Keyessence Fountain to discuss the crime that she was charged with. That meeting was conducted pursuant to the terms of a "Proffer Letter, " a copy of which is attached to this Response. The terms of that proffer letter explain that Ms. Fountain wished to explore the possibility of cooperating with the Government regarding other defendants charged in her Indictment. That letter explained that Fountain was to give truthful responses to the questions asked of her by the officers attending that proffer interview. The letter explained that the Government would later determine whether to offer Fountain a cooperation agreement, based on the information obtained during the interview. If Fountain's information was truthful, and if the Government declined to offer her a cooperation agreement, the proffer letter provided that the Government would not use the proffer information against her as evidence in their case-in-chief. Fountain and her attorney signed this letter on September 23, 2013. Fountain then answered questions put to her by Cape Girardeau Police Detective Don Perry, ATF SA John Taylor and AUSA Keith D. Sorrell. Fountain's attorney was present during this interview.
During the interview, Fountain related the following facts about the robbery. Fountain moved to Memphis, Tennessee, to be with her boyfriend. She broke up with that boyfriend and had no support in Memphis. She was befriended by Charla Dinkins and Dinkins' boyfriend, Darryl House. Fountain said that she was invited by House and Dinkins to go somewhere for a few days in September, 2009, for a "vacation" and she agreed. Fountain stated that she did not know, at the time she left Memphis, that either House or Dinkins were planning to commit a robbery in Cape Girardeau. Another person, Kevin Stitt, went with them for the trip. Dinkins and House were talking at that time about getting married. The four drove to Cape Girardeau and stayed in a local motel the night before the robbery.
The day before the robbery, Fountain said that they all got up and drove to a location across the street from Jayson Jewelers. Fountain said that she had no idea why they were there. After a short time, the four of them drove over to the jewelry store. Fountain stated that House told her and Stitt to go in the jewelry store to "pick up a set of rings." Fountain stated that House was planning on buying wedding rings for him and Dinkins. Fountain and Stitt went into the store to look at rings. Fountain said that she did not say anything to the clerk, but relied on Stitt to do all the talking. Fountain said that after they had looked at rings for a very short time, House came in the store with a handgun. Fountain said that upon seeing House with the firearm, she became aware that the other three planned a robbery of the jewelry store at this time. Fountain stated that House ordered her to take the jewelry out of the jewelry case, that he pointed the handgun at her and told her got "get real normal." Fountain stated that she was unaware that House had a handgun and that she had not seen him with a handgun before the robbery.
After Fountain gave that version of the events, the officers challenged her story. Fountain then stated that, the evening before the robbery, that she was talking to Dinkins. Dinkins told Fountain that House came to Cape Girardeau to rob a store. Fountain remembered seeing House holding a handgun at an earlier date. Fountain stated that she and Dinkins were unwilling to perform their parts in the robbery, but felt forced to do so by House.
At the time of that interview, the Government was aware of the statements of Kevin Stitt that differed from those of Fountain. For example, Stitt described all four defendants as planning the robbery while they were still in Memphis and that all four knew the purpose of the trip to Cape Girardeau was to rob the jewelry store. Stitt described the four going to different stores the day before the robbery to try to locate a store that might be robbed. The jewelry store clerk that was robbed, Debra Drerup, was actually working in another Jayson Jewelers store in downtown Cape Girardeau the day before the robbery and spoke with Fountain when she came in the store. Fountain was carrying the same large handbag that she was carrying the next day. Fountain asked about wedding rings and asked why that store's rings were not mounted with diamonds. Drerup explained that they didn't mount their rings with diamonds until the customer bought them in that store, but that the Kingshighway store had pre-mounted rings. Fountain then left the store. Fountain denied entering the downtown store or speaking with Drerup.
Stitt stated that he and Fountain were to enter the jewelry store and play the part of a couple who were getting married and looking at wedding rings. Their part was to distract the clerk until House could come in the store with the handgun. Stitt said that they were holding hands as they walked in the store. Stitt began looking around the store for cameras. He said that Fountain jerked his hand as if to warn him to act more normal. When they entered the store, Stitt said that Fountain was on her cell phone with House, letting him know that there were no other customers in the store. Fountain denied making that call, but the clerk stated that she saw and heard Fountain on her cell phone when she and Stitt entered the store. Stitt said that Fountain discussed their business with the clerk, Debbie Drerup. Drerup testified that Fountain was the one who spoke with her. During her proffer, Fountain denied ever speaking to the clerk.
Based on those significant differences between the statements of Fountain and the other witnesses, and other smaller ones, the Government decided that Fountain was not being truthful in her proffer interview and declined to offer her a cooperation agreement. The Government notified Fountain's attorney of its decision. Fountain's attorney argued strenuously that her client should be allowed to cooperate at House's trial, but that offer was rejected.
4. Written Guilty Plea.
The Government prepared a written Plea Agreement for Fountain and her attorney to consider. That agreement was signed by all parties, including Fountain. The terms of that Plea Agreement that are relevant to his case, are set forth in this Response.
Fountain agreed to enter a guilty plea to both of the charges pending in her Indictment pursuant to the Plea Agreement. The Government agreed not to bring any other charges against her related to her participation in the robbery of the Jayson Jewelry store on September 23, 2009. (Plea Agmt., p. 1) Fountain admitted that she understood the elements of the two charges and that she committed those elements. (Plea Agmt., p. 2, 3) Fountain admitted her part in the events of the robbery, as set out in her plea agreement:
On September 23, 2009, at around 10:30 a.m., Charla Dinkins parked her rented vehicle across the street from the Jayson Jewelers store on Kingshighway Street in Cape Girardeau, Missouri. Kevin Stitt, Darryl House and Keyessence Fountain were in the car with Dinkins. The four had driven to Cape Girardeau from Memphis, Tennessee. Charla Dinkins had rented a vehicle for that trip. On that morning, the four of them had decided to commit an armed robbery of the Jayson Jewelers store. Dinkins, Fountain and Stitt had seen Darryl House with a handgun and knew that he was going to be use the handgun to commit the robbery. The plan was that Dinkins was to be left with the car as a getaway driver while the other three entered and took jewelry and other valuables from the store.
As soon as they could determine that the store was open and no customers were present, Dinkins drove her car to a location near the jewelry store. Kevin Stitt and Keyessence Fountain got out of the rental car and entered the Jayson Jewelers store, posing as a couple interested in wedding rings. Debra Drerup was the store clerk on duty that day. Ms. Drerup asked if she could help the couple. Stitt and Fountain replied that they would like to see some wedding rings. Ms. Drerup seated the couple at a counter and began to show them some rings. Shortly after that, Darryl House entered the store carrying a silver handgun. House pointed the handgun at Ms. Drerup. Drerup saw the handgun and realized that the three people were about to rob the jewelry store. Drerup, who was afraid of being hurt if she resisted, went with Stitt into a back room. Stitt placed handcuffs on her wrists, then wrapped duct tape on top of the handcuffs and over her eyes. Ms. Drerup was then left in the back room. House, Stitt and Fountain took jewelry and cash from the store, then walked out to a car being driven by Charla Dinkins. The four then left to return to Memphis, Tennessee. After a short while, Ms. Drerup pulled the tape off and was able to call the police. Officers arrived and discovered that $91, 216 in jewelry and $300 in cash had been taken from the store. No suspects were identified from the initial investigation. Samples from the store were submitted to the Missouri State Highway Patrol laboratory for their analysis.
On May 21, 2012, Cape Girardeau police officers received a report from the laboratory that DNA had been recovered from the handcuffs used to secure Ms. Drerup. That DNA matched a known sample taken from Kevin Stitt, who was in a prison in Tennessee at that time. Cape Police Sergeant Don Perry went to speak with Stitt at prison. After a short time, Stitt admitted that he, House, Fountain and Dinkins robbed the jewelry store. He said that the four drove from their homes in Memphis to Cape Girardeau for the purpose of robbing the jewelry store. House and Dinkins had purchased a set of handcuffs the night before to use in securing the store clerk. Stitt reported that House took the jewelry stolen from the store and disposed of it.
The jewelry stolen from Jaysons Jewelers was manufactured in a location other than the State of Missouri and affected interstate and/or foreign commerce. The location of the robbery of the Jayson Jewelry store was in Cape Girardeau County, within the Eastern District of Missouri.
By this plea, Keyessence Fountain admits that she participated in the armed robbery of the Jayson Jewelers store by distracting the store clerk and gathering jewelry from the store shelves and that she was part of an agreement between herself, House, Dinkins and Stitt to rob the jewelry store with Darryl House's firearm.
(Plea Agmt., pp.3-5)
The Plea Agreement provided that Fountain was aware of the ranges of punishment for her charges. The range of punishment for Count I was a term of imprisonment of not more than twenty years. The range of punishment for Count II was a term of imprisonment of a minimum of seven years and a maximum of life. The Plea Agreement informed Fountain that the sentence to be imposed for Count II was required to be imposed consecutively to the sentence imposed for Count I. (Plea Agmt., p. 5)
The parties agreed on the offense levels for Fountain's offense conduct and agreed that the Total Offense Level for Count I was 21 and that there was not an offense level applicable Count II because the term of imprisonment for that count was set by statute. (Plea Agmt., pp. 6, 7) Fountain agreed to waive her right to appeal all issues up to the time of her guilty plea, and, if the District Court imposed a sentence within the applicable Guideline range, that she would waive her right to appeal her sentence also. (Plea Agmt., pp. 7, 8) Fountain agreed to waive her rights to file a habeas petition, except for claims of prosecutorial misconduct or ineffective assistance of counsel. (Plea Agmt., p. 8)
Fountain agreed that she understood her rights attendant to a trial. In that respect, Fountain agreed with the following:
In pleading guilty, the defendant acknowledges, fully understands and hereby waives his rights, including but not limited to: the right to plead not guilty to the charges; the right to be tried by a jury in a public and speedy trial; the right to file pretrial motions, including motions to suppress or exclude evidence; the right at such trial to a presumption of innocence; the right to require the government to prove the elements of the offenses against the defendant beyond a reasonable doubt; the right not to testify; the right not to present any evidence; the right to be protected from compelled self-incrimination; the right at trial to confront and cross-examine adverse witnesses; the right to testify and present evidence and the right to compel the attendance of witnesses. The defendant further understands that by this guilty plea, the defendant expressly waives all the rights set forth in this paragraph.
The defendant fully understands that the defendant has the right to be represented by counsel, and if necessary, to have the Court appoint counsel at trial and at every other stage of the proceeding. The defendant's counsel has explained these rights and the consequences of the waiver of these rights. The defendant fully understands that, as a result of the guilty plea, no trial will, in fact, occur and that the only action remaining to be taken in this case is the imposition of the sentence.
The defendant is fully satisfied with the representation received from defense counsel. The defendant has reviewed the government's evidence and discussed the government's case and all possible defenses and defense witnesses with defense counsel. Defense counsel has completely and satisfactorily explored all areas ...