United States District Court, S.D. Illinois
DAVID R. HERNDON, District Judge.
I. Introduction and Background
This matter is before the Court on Wooten's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Docs. 1 & 8). The government opposes the motion (Doc. 7). Based on the following, the Court denies Wooten's petition. Further, having closely examined the record, the Court concludes that an evidentiary hearing is not necessary in this matter. It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255; Cooper v. United States, 378 F.3d 638, 641-42 (7th Cir. 2004) (district court did not abuse its discretion in denying petitioner an evidentiary hearing where petitioner did not provide additional facts or assertions that would warrant a hearing).
Wooten was convicted, after a second jury trial, of possession with intent to distribute over 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). United States v. Wooten, 10-CR-30088-DRH, Docs. 86, 97 & 89. Thereafter, the Court sentenced Wooten to a term of life imprisonment on July 8, 2011. Id. at Docs. 98 & 101. Wooten filed a direct appeal of his sentence and conviction. Id. at Doc. 103. Wooten raised three issues on appeal: (1) he challenged the sufficiency of the evidence presented by the government to prove that he intended to distribute crack; (2) he argued that the district court erred in admitting evidence of his prior conviction for distributing crack under Federal Rule of Evidence 404(b); and (3) he argued that the district court erred in concluding that he cannot benefit from the lower mandatory minimums established by the Fair Sentencing Act ("FSA"). See Id. at Doc. 129. The Seventh Circuit affirmed Wooten's conviction, but in light of Dorsey v. United States, 132 S.Ct. 2321 (2012), vacated his sentence and remanded for resentencing. On remand, the Court sentenced Wooten to 360 months in prison in accordance with the FSA on November 12, 2012. Id. at Docs. 136 & 137.
The Seventh Circuit succinctly summarized the extensive facts of this case, as reproduced below:
Cortez Wooten was sitting in the passenger seat of a car driven by his girlfriend when a deputy U.S. Marshal recognized him as having an outstanding warrant for his arrest. After arresting him, officers searched Wooten, his girlfriend, and the car; they found 51.2 grams of crack cocaine, a digital scale, and $159 in small bills. Wooten asserted that he stole the scale and drugs the night before and that he intended only to smoke the crack. He was charged with possessing crack with the intent to distribute, 21 U.S.C. § 841(a)(1), and after a hung jury at his first trial, a second jury found him guilty and returned a special verdict holding him responsible for at least 50 grams of crack. Because of the drug quantity and Wooten's prior drug convictions, the district court imposed a mandatory term of life imprisonment on the understanding that the Fair Sentencing Act of 2010, 124 Stat. 2372, was not retroactive. On appeal he argues that the FSA is applicable and would have reduced his sentence, that the evidence presented at trial was insufficient for a rational jury to find him guilty, and that the district court erred in admitting evidence of his prior conviction for distributing crack in 1998. We affirm Wooten's conviction, but in light of Dorsey v. United States, 132 S.Ct. 231 (2012), we vacate his sentence and remand for resentencing.
At trial both sides framed the primary issue as whether Wooten intended to distribute the drugs found in his pocket. The prosecution emphasized that a common-sense evaluation of the evidence found on Wooten, his videotaped interrogation, and testimony from his former cellmate would lead the jury to find him guilty. Wooten's attorney then set out the defense's primary theme at trial: that he was an addict who stole the drugs and intended only to consume them, and that the government could not adequately prove otherwise. In their opening statements neither side mentioned Wooten's prior conviction.
The government called two of the arresting officers, Deputy U.S. Marshal Dave Davis and police officer Keith Howard, who were working together as part of a task force. Davis and Howard testified that they were parked in their squad car in East St. Louis when Davis saw Wooten riding in the passenger seat of a passing car. Davis recognized Wooten from an investigation that led to Wooten's prior drug arrest in 1998 and knew that an arrest warrant was outstanding for Wooten. They followed the car until the driver parked; Howard then approached the vehicle to make the arrest. As he approached the car, Howard could see money fanned across Wooten's lap. While Howard put him in handcuffs, Wooten said, "I've got dope on me." He did not appear to be under the influence of drugs. Howard testified that he searched Wooten and found in his pockets the digital scale and the lump of crack weighing 51.2 grams, along with $159 in small bills on his lap. The officers also testified that a search of Wooten's girlfriend and the car revealed no further evidence; they did not find a crack pipe, lighter, or other drug paraphernalia. There was a bit of uncertainty about the girlfriend's purse: Davis testified that it had been searched, though Howard did not recall seeing a purse.
Howard then took Wooten to the Illinois State Police headquarters in Collinsville, Illinois, for questioning, where they were joined by Officer Dave Kitley. An audio and video recording of this interview was introduced at trial. Wooten first asserted that he stole the drugs and scale from an unlocked car the night before, that he was addicted to crack, and that he intended to smoke the drugs. When pressed, however, Wooten reluctantly told the officers that he was unemployed, that he needed money, and that he had been willing to sell some of the crack. When Officer Kitley said, "You just told me you were trying to get some money for your kids. For her kids, right?" Wooten responded, "Okay, bro, I smoke crack, I try to hustle." When Officer Howard asked, "Were you going to pinch a little for yourself and then try and make some money?" Wooten replied, "Bro, I'm gonna take it however it come.... I mean I am gonna smoke some, I'm gonna make some money, however, I gotta do it bro." Wooten emphasized this point: "[L]ike I told you, I get high. I ain't just saying I'm just gonna go out here and hustle some shit bro.... I'm gonna take care of my habit first, bro, and if there's some money to be made, I'm gonna make some, bro."
DEA special agent Mike Rehg provided expert testimony regarding crack use and distribution in East St. Louis. Agent Rehg testified that the quantity of crack found on Wooten could have brought him $1, 800 to $5, 100 depending on the manner of sale, and that this quantity is more commonly found on dealers than on addicts: A typical addict might consume about one gram a day, so 51.2 grams could last an ordinary user several weeks. He also testified that users typically have drug paraphernalia with them, as crack cannot be ingested without a pipe and a heat source. Dealers, in contrast, usually have access to a scale, and because the drug is commonly sold in small doses of.1 or.2 gram costing $10 or $20, deals will carry currency in small bills.
The government also introduced evidence concerning Wooten's conviction for distributing crack in 1998. Deputy Marshal Davis testified that he participated in the drug investigation into Wooten in 1998. Davis did not discuss the details of that investigation, however, as defense counsel successfully argued that allowing Davis to discuss the investigation in detail would be cumulative of testimony that the government planned to elicit later in the trial. Those details came out later when, following a limiting instruction cautioning the jury that it could consider Wooten's conviction only as proof of intent or motive, former police officer Jason Bridges testified that in 1998 he participated in a drug investigation into Wooten and twice watched him sell about 3 grams of crack to an informant. The prosecution then introduced a certified copy of Wooten's conviction. His former probation officer also testified concerning that past conviction, and said among other things that Wooten's supervised release was revoked after he tested positive for marijuana several times, that he was diagnosed by a drug treatment center as being "dependent" on marijuana, and that he confided to her that he never used crack. Wooten never objected to Bridges's or his probation officer's testimony, or to the introduction of the conviction record.
Finally, the government presented testimony from Wooten's former cellmate at the Fayette County jail, Marzell Travis, who admitted that he was cooperating in order to receive a reduced sentence. Travis, who did not testify at Wooten's first trial, explained that in November 2010 he came forward with information about Wooten because he was dissatisfied with his sentence. Travis said that, before he approached the authorities, Wooten had confessed in a jailhouse conversation that he bought the crack the day before his arrest and was on his way to sell it when he was caught. Travis also testified that in jail he and Wooten had smoked marijuana that Wooten had smuggled in through a straw wedged into a hole in the visitor's-room window.
As promised in his opening statement, defense counsel corss-examined the government's witnesses and called three witnesses of his own in trying to pain Wooten as a crack addict who stole the drugs solely for his own personal consumption. Wooten did not testify. To impeach Marzell Travis's testimony, he called the administrator of the Fayette County jail to testify that it would have been impossible for someone to have smuggled marijuana into the jail through the visitor's-room window and that no one ever had been caught with marijuana in the jail. Carolyn Lott, the mother of Wooten's two children, testified that she and Wooten had smoked crack together several times when they were dating in the early 1990s, though she had spoken to him only once since 1995. Finally, Wooten's sister testified that she knew he smoked marijuana and suspected, but could not be certain, that he also had started smoking crack.
The jury returned a verdict of guilty and a special verdict finding that Wooten intended to distribute ...