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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

(at Covington)

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

V.

LAZELLE MAXWELL,

Defendant/Movant.

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Criminal Action No. 2: 09-33-DCR
Civil Action No. 2: 12-7223-DCR

MEMORANDUM OPINION

AND ORDER

*** *** *** ***

This matter is pending for consideration of Defendant/Movant Lazelle Maxwell’s motion

to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 244]

Consistent with local practice, the motion was referred to United States Magistrate Judge Robert

E. Wier for consideration under 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Wier filed a

Recommended Disposition on April 3, 2013. [Record No. 264] Based on his review of the

record and the applicable law, Magistrate Judge Wier recommended that Maxwell’s motion be

denied. However, he also recommended that the Court grant a Certificate of Appealability

regarding the second claim raised in Maxwell’s § 2255 motion. The United States filed an

objection to the magistrate judge’s recommendation on April 17, 2013, and Maxwell filed his

objections on April 30, 2013. [Record Nos. 265, 268] Having reviewed all matters relevant to

Maxwell’s motion, the Court concludes that the Recommended Disposition should be adopted

in full. Therefore, Maxwell’s motion will be denied.

-1-

I.

Maxwell was charged on April 9, 2009 with two counts of conspiracy to distribute and

possess with intent to distribute a controlled substance — namely, cocaine base (crack cocaine)

and heroin — in Kenton and Campbell Counties in Kentucky. [Record No. 1] Attorney David

Fessler was appointed to represent Maxwell on May 29, 2013. [Record No. 46] On June 11,

2009, the grand jury returned a Superseding Indictment, which amended the second count to

specify that the conspiracy involved 100 grams or more of heroin and added two counts of

forfeiture to the conspiracy charges contained in the original Indictment. [Record No. 65]

Following a six-day trial, on September 23, 2009, a jury found Defendant Maxwell guilty

of conspiracy to distribute over 50 grams of cocaine base (crack cocaine) and conspiracy to

distribute over 100 grams of heroin in violation of 21 U.S.C. § 846. Maxwell was later

sentenced to a combined term of imprisonment of 360 months for these crimes, followed by ten

years of supervised release. [Record No. 208] Specifically, Maxwell received 240 months’

imprisonment for Count One and 120 months’ imprisonment on Count Two, to be served

consecutively. [Id., p. 2] The total sentence imposed was at the bottom of the United States

Sentencing Guidelines range of 360 months to life.1 [Record No. 226, p. 15] Maxwell appealed

his conviction and sentence, but the United States Court of Appeals for the Sixth Circuit

affirmed the Judgment on March 18, 2011. [Record No. 233] The Supreme Court denied

Maxwell’s petition for a writ of certiorari on June 20, 2011. [Record No. 236]

Although Maxwell qualified as a career offender, the total offense level for the grouped counts

1
resulted in a higher total offense level under the Guidelines. [Record No. 226, p. 15]

-2-

Maxwell filed his motion to vacate under 28 U.S.C. § 2255 on June 18, 2012. [Record

No. 244] The United States responded to the motion on August 21, 2012, and Maxwell filed a

reply on October 16, 2012. [Record Nos. 251, 255] On January 4, 2013, Magistrate Judge Wier

ordered the United States to file a supplemental brief stating its position on: “(1) The effect, if

any, of Rutledge on the prejudice argument previously made by the Government; and (2) The

merits of Maxwell’s argument concerning the separate conspiracy counts.” [Record No. 259,

p. 3] The United States filed this brief on January 15, 2013 and Maxwell replied on February

7, 2013. [Record Nos. 260, 261]

II.

The Court reviews de novo those portions of the Recommended Disposition to which

Maxwell objects. See 28 U.S.C. § 636(b)(1)(C). In his § 2255 motion, Maxwell claims that his

trial counsel provided ineffective assistance by failing to: (1) challenge the Superseding

Indictment’s open-ended beginning date for the conspiracy; (2) challenge the Superseding

Indictment’s charging structure; and (3) object to the testimony of two law enforcement officers.2

[Record No. 244] Although Magistrate Judge Wier rejected all of these claims in his

Recommended Disposition, Maxwell filed detailed objections to each of those conclusions.

Therefore, the Court will review all three of Maxwell’s claims.

Claims of ineffective assistance of counsel are evaluated using the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the defendant must first

2
Maxwell’s § 2255 motion also alleges that his appellate counsel was constitutionally ineffective;
however, he expressly withdrew these claims on October 16, 2012. [Record No. 255, p. 2; see Record No.
268, p. 2]

-3-

establish “that counsel’s performance was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Id. at 687. When evaluating an ineffectiveness claim, the Court “must

indulge a strong presumption” that counsel rendered effective assistance. Id. at 689. The second

prong of the Strickland inquiry is whether the defendant was prejudiced by his attorney’s

deficient performance. Id. at 687. To satisfy the prejudice requirement, a “defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. at 694. If either part of the Strickland test is not

met, the Court’s inquiry ends.3 Id. at 697. Here, the Magistrate Judge correctly determined that

Maxwell’s ineffective-assistance claims fail under Strickland.

A.

Temporal Parameters

Counts One and Two of the Superseding Indictment state that the conspiracy occurred

“[o]n a date unknown and continuing through on or about May 21, 2008.” [Record No. 65] In

his § 2255 motion, Maxwell claims that his trial counsel erred by not objecting “to the

conspiracy counts’ failure to charge a beginning date for the conspiracy.” [Record No. 244,

p. 10] He alleges that this failure constituted ineffective assistance of counsel because, in the

absence of a defined start date, he was unable to prepare a proper defense to the charges, offer

an alibi defense, or allege double jeopardy.

The Supreme Court has instructed that “there is no reason . . . to address both components of the

3
inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.

-4-

Magistrate Judge Wier found that Maxwell’s trial counsel did not err in deciding to forgo

challenging the temporal parameters of the Superseding Indictment. He noted that there is a

factual disagreement between Maxwell and his counsel on this issue: “Counsel Fessler avers that

the defense fully discussed the theory and opted against a baseless attack. Maxwell avers that

Fessler promised to make a defensive motion and failed to do so against his wishes.” [Record

No. 264, p. 5] However, the magistrate judge ultimately determined that this dispute was not

dispositive because the Superseding Indictment was “invulnerable to attack in this scenario.”

[Id.] Maxwell objects to this conclusion, arguing that he was denied a fair trial as a result of the

Superseding Indictment’s failure to allege a defined start date for the conspiracy. [Record No.

268, pp. 6-12]

An indictment is sufficient if it “‘first, contains the elements of the offense charged and

fairly informs a defendant of the charge against which he must defend, and, second, enables him

to plead an acquittal or conviction in bar of future prosecutions for the same offense.’” United

States v. Anderson, 605 F.3d 404, 411 (6th Cir. 2010) (quoting Hamling v. United States, 418

U.S. 87, 117 (1974)). An indictment that fails to place the offense within any defined time frame

does not meet these requirements; however, the start date need not be as specifically defined as

the end date. Thus, “[c]ourts have found indictments insufficient where they are open-ended as

to both beginning and end dates, but sufficient where they fix the end of the conspiracy and

provide an approximate start date.” United States v. Vassar, 346 F. App’x 17, 19-20 (6th Cir.

2009) (finding indictment sufficient where conspiracy was alleged to take place “on or before

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January 1, 2004, until on or about August 24, 2005”) (internal citation omitted). Thus, “an

indictment that is open-ended as to beginning dates but not end dates suffices.” Id. at 22.

In short, the failure to identify a specific start date in the indictment does not render it

constitutionally deficient. Indeed, other circuits have upheld indictments using the same or

similar language as that employed in the Superseding Indictment in this case. United States v.

Forrester, 616 F.3d 929, 940-41 (9th Cir. 2010) (upholding indictment that alleged an offense

beginning on a “date unknown” because “an indictment that specifies an end date is sufficient

to apprise defendants of the charges and enable them to prepare a defense”); United States v.

Rawlins, 606 F.3d 73, 79 (3d Cir. 2010) (finding indictment sufficient where it alleged a

conspiracy beginning at “a time unknown”); United States v. Pease, 240 F.3d 938, 943 (11th Cir.

2001) (concluding that indictment charging a conspiracy beginning on an “unknown date” was

sufficient to inform the defendant of the charges against him). Maxwell argues that in each of

these cases, “there were ways to determine a time frame from the indictment, such as overt acts

being charged in the same indictment.” [Record No. 268, p. 9] It is true that in Forrester, the

Ninth Circuit stated “uncertainty regarding a conspiracy’s beginning and ending dates does not

render an indictment fatally defective so long as overt acts alleged in the indictment adequately

limit the time frame of the conspiracy.” 616 F.3d at 941. However, the court went on to explain

that an indictment that “tracks the language of the conspiracy statute, identifies a location and

co-conspirators, and alleges the purpose of the conspiracy” is sufficient despite its “semi-discrete

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time period.”4 Id. Here, as in Forrester, the Superseding Indictment’s description of the

conspiracy adequately limited the time frame at issue.

The conspiracy charges contained in the Superseding Indictment were not deficient

despite the open-ended start date. Moreover, as the magistrate judge points out, the United

States committed itself to a start date of on or around January 2008 in its bill of particulars and

proposed statement of the case. [Record No. 264, p. 6; see Record Nos. 43, 109] Therefore,

Maxwell’s assertion that the Superseding Indictment’s failure to allege a specific start date

prevented him from preparing his defense or “offering a reliable alibi defense” is unavailing.5

[Record No. 268, p. 6] This conclusion is supported by Fessler’s affidavit, in which he states

that he called “several witnesses to talk about the Defendant’s whereabouts on particular dates

and particular spans of dates.” [Record No. 251-1 ¶ 11] A review of the trial transcripts

confirms this assertion. [Record No. 219, pp. 71-82 (questioning Chris Shields about Maxwell’s

whereabouts from December 2007 through May 2008); id., pp. 102-06 (questioning William

Johnson regarding same time period); id., pp. 113-16 (questioning Betty Maxwell regarding

same time period); id., pp. 123-27 (questioning William James Maxwell, Jr. regarding same time

period); id., pp. 135-47 (questioning Teresia Diane Maxwell regarding same time period)] The

The indictment in Rawlins was more specific, detailing “at least fifteen overt acts taken in furtherance
4
of [the] conspiracy, and the approximate date of each.” 606 F.3d at 79. Such specificity provides strong
support for the sufficiency of the indictment; however, a court may find an indictment sufficient even if it
lacks similarly detailed allegations.

5
For the same reasons, the Court finds unpersuasive Maxwell’s argument that his trial was
“fundamentally unfair” because the United States had “an unlimited time period[] in which to prove the
aggravated drug amounts.” [Record No. 268, p. 12]

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Court thus rejects Maxwell’s claim that he received ineffective assistance of counsel because

Fessler did not object to the temporal parameters of the Superseding Indictment.

B.

Charging Structure

Maxwell also claims that his trial attorney erred by failing to object to the Superseding

Indictment’s “charging of two conspiracies for the same conduct in Counts One and Two.”

[Record No. 244, p. 13] He argues that the indictment was multiplicitous — i.e., it improperly

charged “the same offense in more than one count of a single indictment,” Black’s Law

Dictionary (9th ed. 2009) — and thus violated double jeopardy principles. The United States

counters that “existing case law in effect at the time of the trial supported the bringing of

separate indictments for conspiracy to traffic in crack cocaine and conspiracy to traffic in

heroin.”6 [Record No. 260, p. 1] Although Magistrate Judge Wier opined that this issue is a

“close call,” he ultimately concluded that Maxwell has failed to demonstrate that Fessler’s

decision not to object to the indictment constitutes a violation under Strickland. [Record No.

264, p. 8]

As explained above, Counts One and Two of the Superseding Indictment charge

conspiracy to distribute certain controlled substances, in violation of 21 U.S.C. § 846. This

statute provides: “Any person who attempts or conspires to commit any offense defined in this

subchapter shall be subject to the same penalties as those prescribed for the offense, the

The United States also maintains that Maxwell waived this claim because he failed to raise the issue
6
on direct appeal. However, this argument ignores the fact that Maxwell has couched his allegations in the
context of a claim for ineffective assistance of trial counsel under Strickland. It is well-established that a
defendant’s “failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim
from being brought in a later, appropriate proceeding under § 2255.” Massaro v. United States, 538 U.S. 500,
509 (2003). The government’s argument is, therefore, incorrect.

-8-

commission of which was the object of the attempt or conspiracy.” 21 U.S.C. § 846. The two

counts allege identical dates, participants, and locations. They only differ with respect to the

drug involved in the conspiracy. As a result, Maxwell asserts that the Superseding Indictment

alleges a single offense that should have been “charged as one count.” [Record No. 268, p. 13]

The magistrate judge first considered the merits of Maxwell’s claims under Braverman

v. United States, 317 U.S. 49 (1942), which considered an indictment that contained multiple

counts charging violations of the same conspiracy statute — the predecessor to 18 U.S.C. § 371.

In Braverman, the Supreme Court rejected the separation of charges based on the various objects

of the conspiracy, explaining as follows:

Whether the object of a single agreement is to commit one or many crimes, it is
in either case that agreement which constitutes the conspiracy which the statute
punishes. The one agreement cannot be taken to be several agreements and hence
several conspiracies because it envisages the violation of several statutes rather
than one.


317 U.S. at 53. Thus, under Braverman, it is improper to charge multiple violations of the same

conspiracy statute where there is only one alleged agreement. See id. at 54 (“The single

agreement is the prohibited conspiracy, and however diverse its objects it violates but a single

statute.”).

The Sixth Circuit has repeatedly relied on Braverman in rejecting duplicity arguments

against charges arising under conspiracy statutes, including 21 U.S.C. § 846.7 In United States

v. Campbell, 279 F.3d 392 (6th Cir. 2002), the court held that an indictment charging conspiracy

7
Duplicity, as opposed to multiplicity — the basis for the claim asserted by Maxwell in this § 2255
motion — occurs when “joining two or more offenses in the same count of an indictment.” Black’s Law
Dictionary (9th ed. 2009).

-9-

to distribute marijuana, cocaine, and crack cocaine in a single count was not duplicitous,

explaining that “‘[a] single conspiracy may have as its objective the distribution of two different

drugs without rendering it duplicitous.’” Id. at 398 (quoting United States v. Dale, 178 F.3d 429

(6th Cir. 1999)) (emphasis omitted). Based on this authority, Magistrate Judge Wier logically

concluded that “[i]f charging a single § 846 conspiracy to commit multiple controlled substances

act crimes is proper . . . then splitting that one conspiracy into multiple charges would spread a

singular crime over plural counts, thus violating Braverman.” [Record No. 264, p. 11]

Assuming that this case involved a single conspiracy to distribute two different controlled

substances — and there is very little evidence in the record from which to conclude otherwise

[see Record No. 264, pp. 12-13 (cataloguing United States’ descriptions of offense as single

conspiracy)] — the Superseding Indictment would appear to be multiplicitous.

However, the Sixth Circuit also rejected a similar multiplicity claim in United States v.

Dunn, 269 F. App’x 567 (6th Cir. 2008). In Dunn, the defendant was charged with two counts

of conspiracy: one count for conspiracy to distribute more than 50 grams of cocaine base, and

another count for conspiracy to distribute more than 5 kilograms of powder cocaine. Id. at 573.

The court concluded that this charging structure did not implicate double jeopardy concerns

because “[c]harging a defendant with separate counts for different statutory criminal offenses

does not violate the multiplicity rule.” Id. Although he noted the inconsistency between Dunn

and Braverman, Magistrate Judge Wier found that Fessler “may reasonably have viewed Dunn

as answering the question as to a conspiracy under § 846 involving multiple controlled

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substances as trafficking objects.”8 [Record No. 264, p. 16] Therefore, the magistrate judge

found that there was no Sixth Amendment violation despite Fessler’s failure to object to the

structure of the Superseding Indictment.

Maxwell objects to the magistrate judge’s conclusion. He repeats many of the same

arguments from his § 2255 motion regarding double jeopardy. However, he also asserts that “at

no time[] did Fessler state that his research led him to discover United States v. Dunn.” [Record

No. 268, p. 14] Additionally, he points out that it is just as likely that Fessler would have found

a case that supported the decision to challenge the Superseding Indictment’s charging structure

as it was that he would have come across Dunn first. [Id. (citing Montgomery v. United States,

871 F.2d 1088, at *1 (6th Cir. 1989) (table)] Thus, he maintains that Fessler’s performance was

deficient. Further, he asserts that he was prejudiced by the error under Rutledge v. United States,

517 U.S. 292 (1996), because he “has the stigma of two aggravated felony drug convictions

when there should be only one.” [Id., p. 15]

Due to the nature of Maxwell’s § 2255 claims, this issue must be analyzed under the

framework established by Strickland, not as a separate due process or double jeopardy violation.

And the “Sixth Amendment does not require perfect performance but permits a ‘wide range of

professionally competent assistance,’ especially regarding strategic choices made by ‘reasonable

investigation.’” Peters v. Chandler, 292 F. App’x 453, 459 (6th Cir. 2008) (quoting Strickland,

Moreover, the magistrate judge found that because Maxwell could be convicted as a career offender
8
under the Guidelines, it was not unreasonable for Fessler to view the “separate charges as functionally
irrelevant to a bottom-line concern of time in custody.” [Record No. 264, p. 17] He concluded that Dunn
could be read to support such an opinion. Indeed, the Dunn court opined that the error alleged in that case
would not have affected the defendant’s substantive rights because the “merger of the first and second
[counts]” had no “practical effect” on the sentence. 269 F. App’x at 574.

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466 U.S. at 690-91). Here, Fessler has stated that he reviewed the Superseding Indictment,

conducted research, and “found no law supporting any Objections and/or Motions to Dismiss

the Indictment.” [Record No. 251-1 ¶ 9] The Court finds no error in Fessler’s decision not to

challenge the structure of the Superseding Indictment where there was a rational basis for that

course of conduct. At the time of Maxwell’s trial, there was Sixth Circuit authority which

indicated that the charging structure at issue would pass constitutional muster. Therefore,

Fessler’s performance was not objectively deficient.9

C.

Dual-Role Witnesses

Finally, Maxwell asserts that he received ineffective assistance of counsel with respect

to the testimony of government witnesses Matthew Rolfsen of the Northern Kentucky Drug

Strike Force and Bill Birkenhauer of the Campbell County Police Department. He maintains that

his attorney failed to object to these witnesses testimony “concerning their opinion on seized

evidence without being qualified as expert witnesses” and that Fessler erred when he did not

request a curative instruction to prevent jury confusion. [Record No. 244, p. 14] The United

States counters that proper procedure was followed at trial and that the “record amply

demonstrates the qualifications of the two witnesses as to the opinion evidence they offered and

justifies the admission of those opinions.” [Record No. 251, p. 10] Additionally, it contends that

Because Maxwell’s claim fails on the deficiency prong of Strickland, the Court need not address his
9
arguments regarding prejudice. However, the Court notes that Counts One and Two were grouped at
sentencing, and this “grouping inure[d] to the benefit of the defendant.” [Record No. 226, p. 11] Thus, the
Guidelines range would have been the same whether Maxwell was sentenced for one count only, two grouped
counts, or as a career offender. [Id., pp. 14-15; see Record No. 264, p. 18 n.13]

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the jury instruction was adequate to cure any jury confusion created by the “limited opinion

evidence” given by Rolfsen and Birkenhauer.10 [Id.]

After reviewing the testimony of both witnesses, Magistrate Judge Wier rejected this

claim. The magistrate judge found that both witnesses were qualified to testify as experts on the

issues raised at trial. Thus, he concluded that Fessler’s decision not to object was a strategic

choice that is entitled to deference under Strickland. Additionally, Magistrate Judge Wier

averred that the jury instructions contained “adequate dual-role protections.” [Record No. 264,

p. 23] Objecting to these findings, Maxwell argues that “Fessler’s failure to object allowed both

Rolfsen and Birkenhauer to give both lay and expert testimony without being accepted as expert

witnesses,” thus allowing them to “enhance their lay testimony.” [Record No. 268, p. 23] As

a result, he maintains that this testimony violated his due process rights and “rendered the entire

proceeding unfair.” [Id., p. 24]

The Court concludes that Maxwell’s trial attorney did not provide inadequate assistance

of counsel by refraining from seeking to qualify these witnesses as experts or objecting to their

testimony at trial. Maxwell argues that Rolfsen and Birkenhauer should have been qualified as

experts so that his counsel “would have had an opportunity to voir dire them.” [Record No. 244,

p. 14] However, such a procedure was not necessary and may, in fact, have resulted in the jury

placing more emphasis on their testimony than would have occurred otherwise. “When a court

Both witnesses primarily testified as fact witnesses regarding their investigations into the offenses
10
at issue in this matter. [Record No. 217, pp. 9-39 (Rolfsen); id., pp. 39-77 (Birkenhauer)] In addition,
Rolfsen gave opinion testimony regarding “drug ledgers,” the use of baggies for packaging drugs, the
economics of drug trafficking, the use of disposable phones in drug trafficking, and “cutting agents.” [Id.,
pp. 14-15, 19-20, 25, 29-32] Birkenhauer testified about the purpose and use of line-ups and identification
procedures. [Id., pp. 85-869, 106-07]

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certifies that a witness is an expert, it lends a note of approval to the witness that inordinately

enhances the witness’s stature and detracts from the court’s neutrality and detachment.” United

States v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007) (disapproving practice of court certification

of expert witnesses unless considering an objection). As the magistrate judge pointed out, both

witnesses were highly qualified and had previously testified as experts in both state and federal

cases. Moreover, Fessler “plainly had experience with both witnesses.” [Record No. 264, p. 20

(citing Record No. 217, pp. 35, 37, 88)] Thus, his decision not to object may have been a

“strategy to avoid elevating [the witnesses’] testimony to expert status before the jury,”

especially since their testimony was mostly factual in nature. United States v. Cobbs, 233 F.

App’x 524, 541 (6th Cir. 2007). In short, Fessler’s decision not to object to the expert

qualifications of Rolfsen or Birkenhauer was a matter of legitimate trial strategy.

Maxwell also argues that Fessler provided inadequate assistance of counsel by failing to

ensure the proper safeguards against jury confusion. Maxwell cites United States v. Lopez-

Medina, 461 F.3d 724 (6th Cir. 2006), in support of this position. However, Lopez-Medina does

not compel the result urged by Maxwell. In that case, the Sixth Circuit found that it was error

for the trial court to allow an agent to testify in a dual capacity where “no instruction on expert

witness testimony was given, let alone an instruction on the agents’ dual role as fact and expert

witnesses.” Id. at 744. However, the court specifically stated that “[i]n past cases we have

permitted an officer’s dual testimony as a fact and expert witness when an adequate cautionary

jury instruction was provided.” Id. at 743. And a jury instruction on the weight to be given to

opinion testimony is sufficient to safeguard against jury confusion. Id. at 743-44; United States

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v. Thomas, 74 F.3d 676, 683 (6th Cir. 1996) (finding no error where trial court allowed dual

testimony but gave jury instruction on expert opinion evidence).

The Court finds United States v. Dodson, 450 F. App’x 505 (6th Cir. 2011), controlling

here. In Dodson, the district court allowed a law enforcement officer to testify as both a fact and

expert witness, but gave a jury instruction on opinion testimony that was “substantially identical”

to Sixth Circuit Criminal Pattern Jury Instruction 7.03. Id. at 511. The Sixth Circuit found no

error, holding that the district court had sufficiently guarded “‘against the risk of confusion

inherent when a law enforcement agent testifies as both a fact witness and as an expert witness.’”

Id. (quoting Lopez-Medina, 461 F.3d at 744). Here, as in Dodson, the Court gave a jury

instruction that tracked the language of Sixth Circuit Criminal Pattern Jury Instruction 7.03

regarding opinion testimony. [Record No. 143, p. 28] Therefore, Maxwell received adequate

protections from any potential jury confusion caused by the testimony of Rolfsen and

Birkenhauer. Fessler’s performance was not deficient and, even if he had erred, his decision not

to seek any additional cautionary instructions did not prejudice Maxwell at trial.11

III.

A Certificate of Appealability may be issued “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

“substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2), “a

Lopez-Medina does not apply “to circumstances in which there were no other evidentiary errors.”
11
United States v. Vasquez, 560 F.3d 461, 470-71 (6th Cir. 2009). Maxwell has not alleged any additional
evidentiary errors in his § 2255 motion. Even if there was error with respect to Rolfsen’s and Birkenhauer’s
dual-role testimony, Maxwell would have to show that it had an “actual effect on the outcome of the case.”
Lopez-Medina, 461 F.3d at 745. In light of the substantial amount of evidence supporting Maxwell’s
conviction, Maxwell is unable to make such a showing. See United States v. Shields, 415 F. App’x 692, 703-
04 (6th Cir. 2011) (describing evidence against Maxwell).

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petitioner who has been denied relief in a district court ‘must demonstrate that the issues are

debatable among jurists of reason; that a court could resolve the issues [in a different manner];

or that the questions are adequate to deserve encouragement to proceed further.’” Lozada v.

Deeds, 498 U.S. 430, 432 (1991) (emphasis and brackets in original) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983)). Maxwell has not made a substantial showing of a denial

of a constitutional right with respect to his first and third claims. Likewise, he has not

demonstrated that the issues he now seeks to raise are debatable among jurists of reason or that

the questions are adequate to deserve encouragement to proceed further.

However, the magistrate judge recommended that the Court certify an appeal on

Maxwell’s second claim. He averred that this claim, “alleging multiplicity and a Strickland

failure, is fairly debatable.” [Record No. 264, p. 24] Thus, he concluded that there is adequate

merit to support the issuance of a Certificate of Appealability. The United States objects to this

recommendation. It contends that if the Court were to re-sentence Maxwell, it “would likely

result in the same total sentence.” [Id.] Although this may be true, it ignores certain

consequences of the prior sentence, such as separate special assessments, potential stigma, and

collateral consequences. The United States also argues that Dunn provided guidance to trial

counsel by “affirming separate convictions for multiple conspiracy counts involving a single

conspiracy distributing different controlled substances.”12 [Record No. 265, p. 2] However, for

The United States acknowledges the inconsistencies between Dunn and Braverman, but argues that
12
there are “factual distinctions between the cases which may justify” the differing results. [Record No. 265,
p. 3] However, the United States fails to identify those distinctions or explain why they would control the
disparate outcomes.

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the reasons explained above, an attorney who conducted more thorough research into the issue

would have reason to doubt the holding in Dunn.

The Court will issue a Certificate of Appealability with respect to Maxwell’s second

claim, concerning the charging structure of the Superseding Indictment. Although this Court has

concluded that Fessler did provided competent assistance, another court might view the issue

differently, determining instead that Fessler “should have delved deeply enough to uncover a

meritorious argument.” [Record No. 264, p. 24] In other words, a reasonable jurist could debate

the question of Fessler’s performance. Maxwell has made a “substantial showing” that his Sixth

Amendment right to adequate assistance of counsel was violated when his trial counsel opted

not to challenge the Superseding Indictment as multiplicitous.

IV.

Based on the foregoing analysis and discussion, it is hereby

ORDERED as follows:

1.

The Recommended Disposition of Magistrate Judge Robert E. Wier [Record No.

264] is ADOPTED and INCORPORATED by reference.

2.

Defendant/Movant Lazelle Maxwell’s motion to vacate, set aside, or correct his

sentence [Record No. 244] is DENIED.

3.

Maxwell’s objections to the Recommended Disposition [Record No. 268] are

OVERRULED.

4.

The United States’ objections to the Recommended Disposition [Record No. 265]

are OVERRULED.

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5.

6.

This habeas proceeding is DISMISSED and STRICKEN from the docket.

A Certificate of Appealability shall issue regarding Maxwell’s second claim. The

issue that is certified is “whether Maxwell’s trial counsel erred under Strickland v. Washington,

466 U.S. 668 (1984), by failing to challenge the charges against Maxwell in Counts One and

Two of the Superseding Indictment as multiplicitous.”

This 4th day of June, 2013.

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