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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA


















vs.



CHARLESTON DIVISION





ANDREW J. MALCOLM,







)

) No. 2:08-cr-00232-DCN-1

) No. 2:12-cv-00079-DCN

)

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)

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)
UNITED STATES OF AMERICA,
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)

____________________________________)



Petitioner,













Respondent.







ORDER




















This matter comes before the court on petitioner Andrew J. Malcolm’s

(“Malcolm”) motion to vacate judgment and sentence pursuant to 28 U.S.C. § 2255, as

well as the government’s motion to dismiss or, in the alternative, for summary judgment.

For the reasons set forth below, the court grants the government’s motion for summary

judgment, denies Malcolm’s motion for summary judgment, and denies a certificate of

appealability.

I. BACKGROUND

On November 8, 2007, a South Carolina Highway Patrol officer stopped

petitioner Andrew Malcolm for swerving his 18-wheeler into the emergency lane of

Interstate 95. Pet. for Relief ¶ 1. Malcolm gave the officer his driver’s license and his

trucking log book.1 Id. The officer issued Malcolm a warning and simultaneously asked

for and received consent to search Malcolm’s truck. Id. The officer discovered a large

quantity of methamphetamine in the sleeper cab of the truck and as a result, arrested

Malcolm. Id.



1 A log book “records a truck’s route, when it stopped, where it stopped and for how

long.” Pet. for Relief ¶ 7.



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On March 11, 2008, a grand jury indicted Malcolm for knowingly, intentionally,

and unlawfully importing 50 grams or more of methamphetamine from Canada pursuant

to 21 U.S.C. §§ 952(a), and 960(b)(1)(H) as well as possessing methamphetamine with

the intent to distribute pursuant to 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) . Id. at ¶ 10.

Prior to trial, Malcolm moved to suppress evidence that another trucker who drove for

Malcolm’s employer had been previously arrested on separate drug charges. Id. The

court denied that motion. Id.

Malcolm also moved to suppress his trucking log book, “which was seized . . . at

the time of the Defendant’s arrest,” Id. at ¶ 6, because the government never provided

him with a copy of the logbook in discovery. Id. The government informed Malcolm

and the court that it had no intention of offering the evidence. Id.

Malcolm’s trial began on January 26, 2009. At trial, the government called a

number of law enforcement officers who testified that Malcolm admitted to transporting

the drugs from Canada in an attempt to deliver them to a person known as “J” in Florida.

Id. at ¶¶ 3, 9. After two days, a jury found Malcolm guilty on both counts of the

indictment. On July 24, 2009, the court sentenced him to 292 months in prison. The

Fourth Circuit affirmed the verdict on September 9, 2010. United States v. Malcolm, 394

F. App’x 964 (4th Cir. 2010), cert. denied 131 S. Ct. 957 (2011).

On January 6, 2012, Malcolm filed the instant motion to vacate, set aside or

correct his sentence pursuant to 28 U.S.C. § 2255. The government responded on March

23, 2012 with a motion to dismiss or, in the alternative, for summary judgment. The

matter has been fully briefed and is ripe for the court’s review. 2



2 In deciding a § 2255 petition, the court shall grant a hearing, “[u]nless the motion and
the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28

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II. STANDARDS

With the assistance of counsel, petitioner proceeds under 28 U.S.C. § 2255, which

provides in relevant part:

A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may move the court which
imposed the sentence to vacate, set aside or correct the sentence.


28 U.S.C. § 2255(a). Malcolm, as the petitioner, must prove the grounds for collateral

attack by a preponderance of the evidence. See King v. United States, No. 05-0218, 2011

WL 3759730, at *2 (D.S.C. Aug. 24, 2011) (citing Miller v. United States, 261 F.2d 546,

547 (4th Cir. 1958)).



If, on a motion to dismiss, the court considers matters outside of the pleadings,

such as a party’s supporting memoranda and attachments, the court treats the motion as

one for summary judgment. Fed. R. Civ. P. 12(d). “The court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (2010). At

the summary judgment stage, the court must view the evidence in the light most

favorable to the non-moving party and draw all justifiable inferences in its favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Because, in this case, the

court considers matters outside the pleadings, it treats the government’s motion as one for

summary judgment.






U.S.C. § 2255(b). The court has reviewed the record in this case and has determined that a
hearing is not necessary.

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III. DISCUSSION



Malcolm raises five grounds for relief under Section 2255. He alleges four

separate incidents of ineffective assistance of trial counsel, as well as a conflict of interest

between his trial counsel and this court.

A. Ineffective Assistance of Trial Counsel

Malcolm alleges that his trial counsel provided ineffective assistance by: (1) not

introducing Malcolm’s cell phone records into evidence; (2) not presenting evidence that

another driver for Malcolm’s former employer had been previously arrested for

trafficking narcotics; (3) failing to obtain Malcolm’s logbook; and (4) failing to call a

forensic expert as a defense witness.

The Sixth Amendment to the United States Constitution guarantees the accused

the right to the assistance of counsel for his defense. The “right to counsel is the right to

the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 (1970).

In order to establish a claim of ineffective assistance of counsel, a petitioner must satisfy

a two-prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984); Fields v. Attorney

Gen. of Md., 956 F.2d 1290, 1297 (4th Cir. 1992).

The first prong, known as the performance prong, places the burden of proving

counsel’s representation fell below “an objective standard of reasonableness” on the

petitioner. Strickland, 466 U.S. at 688. In evaluating the performance prong, the court

maintains “a strong presumption that counsel’s conduct [fell] within the wide range of

reasonable professional assistance” based “on the facts of the particular case, viewed as

of the time of counsel's conduct.” Id. at 689-90. It is well settled that “once counsel

conducts a reasonable investigation of law and facts in a particular case, his strategic

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decisions are ‘virtually unchallengeable,’” and that a trial counsel’s “reasonable

professional judgments are not deficient.” Powell v. Kelly, 562 F.3d 656, 670 (4th Cir.

2009) (quoting Strickland, 466 U.S. at 690); see also Harrington v. Richter, 131 S. Ct.

770, 790 (2011) (“There is a strong presumption that counsel's attention to certain issues

to the exclusion of others reflects trial tactics rather than sheer neglect”) (internal quotes

omitted).

The second prong, known as the prejudice prong, requires a petitioner to show

“that there 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. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. Thus, “[t]he benchmark for judging any claim of ineffectiveness must be

whether counsel's conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.” Id. at 686. A

court may always begin with the prejudice prong if it desires, and if a petitioner does not

meet his burden of satisfying it, then the “reviewing court need not consider the

performance prong.” Fields, 956 F.2d at 1297. Additionally, “a fair assessment of

attorney performance requires that every effort be made to eliminate the distorting effects

of hindsight.” Strickland, 466 U.S. at 689.

Naturally, the more overwhelming the evidence pointing to the petitioner’s guilt,

the harder it is for the petitioner to show prejudice. Eaton v. Angelone, 139 F.3d 990,

994 (4th Cir. 1998) (holding no ineffective assistance of counsel where counsel allegedly

presented an inadequate case, failed to investigate exculpatory evidence, and failed to

admit mitigating evidence during the sentencing phase); see also Bray v. Cason, 375 F.

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App’x 466, 470-72 (6th Cir. 2010) (ruling counsel's failure to call informant as a witness

in drug possession trial did not prejudice where defendant confessed and officers

testified that he possessed three-and-a-half kilograms of cocaine when arrested); United

States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988) (finding petitioner not

prejudiced despite trial counsel’s omission of evidence where overwhelming evidence

pointed towards petitioner’s guilt). Furthermore, a petitioner must show a substantial, not

just conceivable, likelihood that a different result would have occurred but for counsel’s

omissions. Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).

1. Trial counsel’s failure to introduce Malcolm’s cell phone records.

Malcolm first argues that counsel’s failure to introduce his business cell phone

records into evidence constitutes ineffective assistance because the records would have

been exculpatory. Malcolm claims that his cell phone records would have shown the jury

he “was merely engaged in the lawful transport of cargo pursuant to his occupation.”

Pet’r’s Mem. in Supp. of § 2255 Pet. 5.

Contrary to Malcolm’s assertions, his cell phone records are not clearly

exculpatory. Malcolm’s phone records for November 8, 2007 indicate that Malcolm

made a 47 second outgoing phone call to “J” at 12:21 p.m. and that “J” made a 30 second

phone call to Malcolm at 12:23 p.m. Pet. for Relief ¶ 19. The cell phone records do not

reflect the substance of the phone calls, and the sequence of the calls tends to undermine

Malcolm’s assertion that he simply returned a missed call. In addition, Malcolm’s trial

testimony was highly inconsistent with regard to phone calls made on the day of his

arrest. Trial Tr. vol. 2, 62-63, 97-100, 122-125, Jan. 27, 2009. On direct examination,

Malcolm did not admit calling a person named “J” in Florida on November, 8, 2007. Id.

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at 62-63. However, on cross-examination, he variously claimed he did not recall whether

he made those calls, he probably did make those calls, he might have called the number,

and that he could not remember. Id. 97-100. On redirect examination, Malcolm again

claimed he did not remember who he called that day but then stated he returned missed

calls. Id. at 123. Finally, on re-cross-examination, Malcolm stated his memory had

improved over a break in the proceedings and claimed he did not recall if he answered the

phone when it rang but he did recall returning missed calls to a person in Florida. Id.

122-25.

Malcolm’s trial counsel aptly recognized that Malcolm’s cell phone records were

“inconsistent with [Malcolm’s] recollection” and “did not support his defense.” Aff. of

Andrew Savage, III and Lauren Williams ¶ 6. Malcolm’s cellphone records harm his

credibility, undermine his argument, and do not conclusively establish anything beyond

the time a call was dialed and terminated. Therefore, trial counsel’s decision to omit the

records from evidence was a reasonable decision and was not ineffective assistance. As a

result, Malcolm’s first claim fails.

2. Trial counsel’s failure to enter evidence of another employee’s arrest.



Next, Malcolm argues his trial counsel erred by not introducing “evidence

concerning the fact another trucker for [his] employer had been arrested for ecstasy

trafficking,” which he claims “is clearly exculpatory because it provides a likely source

of drugs found in the truck.” Pet’r’s Mem. 8-9.

As with Malcolm’s cell phone records, this evidence is not clearly exculpatory.

This evidence could just as easily have been interpreted by the jury to show “the

company was involved in a pattern of drug smuggling, using its drivers to distribute

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drugs in the U.S.” Resp’t’s Mem. in Supp. of Mot. for Summ. J. 7. Thus, it was

objectively reasonable for Malcolm’s trial counsel to prevent jurors from hearing this

potentially prejudicial information. Furthermore, even if omitting the evidence

constituted deficient performance on the part of trial counsel – which it does not –

Malcolm’s claim still fails as to the prejudice prong. The government did not need to

establish that Malcolm placed the drugs in his truck. Rather, it only needed to show that

Malcolm knowingly transported the drugs from Canada to the United States. Malcolm

has not demonstrated that his attorneys’ failure to enter evidence of another trucker’s

drug trafficking conviction prejudiced the outcome of his case.

Because evidence of another employee’s arrest for drug smuggling could have

damaged Malcolm’s case, trial counsel performed reasonably, and it is not substantially

likely the outcome would have been different but for the evidence’s omission.

Malcolm’s second ineffective assistance claim also fails.

3. Trial counsel’s failure to obtain Malcolm’s trucking log book.

Malcolm submits that his trial counsel’s inability to obtain his trucking log book

as the third way in which counsel rendered ineffective assistance. Pet’r’s Mem. 11.

According to Malcolm, the log book would have impeached Trooper English’s testimony

and corroborated his own. Id. at 11-14. Malcolm also contends that the government’s

prevention of its admittance into evidence was a violation of his due process rights. Id. at

12-13; Pet’r’s Reply 7.

The Fourth Circuit has already addressed Malcolm’s arguments in the context of

his direct appeal, stating: “Malcolm fails to establish that the logbook was clearly

exculpatory, or that the Government acted in bad faith” when it failed to produce his log

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book. United States v. Malcolm, 394 F. App’x 964, 968 (4th Cir. 2011). The Fourth

Circuit’s analysis remains apt. Malcolm has failed to show the exculpatory value of the

logbook and cannot demonstrate that the result of his trial would have been different but

for its omission. See Cullen, 131 S. Ct. at 1403. Therefore, Malcolm’s third ineffective

assistance claim fails both Strickland’s performance and prejudice prongs.

4. Trial counsel’s refusal to call an available defense witness.

Malcolm argues that trial counsel rendered ineffective assistance by failing to call

an available expert defense witness who could testify about police forensic procedures.

Pet’r’s Mem. 14. Malcolm asserts that the witness, a former state forensic investigator,

would have testified that “the police should have taken fingerprints and DNA evidence

from the packages recovered from the truck,” and that their failure to do so cast “doubt

on the veracity of the police investigation.” Id. Malcolm claims the witness’s testimony

“would have helped demonstrate that Malcolm had no knowledge of the packages found

inside the vehicle.” Id.

It is difficult to overcome the presumption that trial counsel’s decision to keep a

witness from testifying was unreasonable because ‘“the decision whether to call a defense

witness is a strategic decision’ demanding the assessment and balancing of perceived

benefits against perceived risks, and one to which ‘[the court] must afford . . . enormous

deference.’” United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004) (quoting United

States v. Kozinski, 16 F.3d 795, 813 (7th Cir. 1994)). Furthermore, demonstrating

prejudice is inherently difficult when an absent witness’s testimony would merely have

been cumulative. See Mantzke v. Province, 351 Fed. App’x 293, 295 (10th Cir. 2009)

(ruling attorney was not deficient for failing to call witness where witness’s testimony

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would be cumulative and defendant faced large amount of evidence pointing towards his

guilt); United States v. Harris, 408 F.3d 186, 191 (5th Cir. 2005) (“This Court has

previously refused to allow the omission of cumulative testimony to amount to

ineffective assistance of counsel.”); United States v. Stokes, 64 Fed. App’x 585, 592 (7th

Cir. 2003) (ruling trial counsel was effective despite not calling defendant’s ex-wife as a

witness, since her testimony was largely cumulative of testimony elicited through

investigating officers who already testified); United States v. Schaflander, 743 F.2d 714,

718 (9th Cir. 1984) (holding trial counsel was not deficient where it failed to call defense

witnesses who would have presented exculpatory testimony that would have been

cumulative).

Malcolm admits that the government’s law enforcement witnesses testified to the

particular shortcomings of the police investigation. See Pet’r’s Reply 7-9. Furthermore,

Malcolm concedes the defense witness “[p]resumably . . . would have corroborated

evidence” which had been established during cross-examination of the investigators. Id.

at 9. The available defense witness’s expert testimony would have been, by Malcolm’s

own admission, cumulative evidence. The defense expert would not have testified to any

information other than the information law enforcement officers already conceded. Thus,

the cumulative nature of the expert testimony prevents Malcolm from establishing

prejudice, and as a result Malcolm’s fourth claim fails.3



3 It is also important to note that it is unlikely that any of trial counsel’s alleged errors,

discussed above, would have created a different result. Courts have repeatedly held that an
attorney’s errors will not be considered constitutionally deficient when the overwhelming
evidence indicates a defendant’s guilt. Meyer v. Branker, 506 F.3d 358,372-73 (4th Cir. 2007)
(ruling trial counsel's failure to present mitigation testimony at capital sentencing hearing did not
prejudice defendant where state possessed overwhelming evidence of defendant's crimes and two
previous sentencing juries had heard testimony and sentenced defendant to death.); Haynes v.
Cain, 272 F.3d 737, 762 (5th Cir. 2001) (finding trial counsel’s questions implicating his client’s

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B. Counsel’s Failure to Withdraw Despite an Alleged Conflict of Interest.

As a fifth claim, Malcolm argues that his trial counsel was ineffective by not

withdrawing despite this court’s role as godfather to one of trial counsel’s children.

Although trial counsel informed Malcolm of this existing relationship, Malcolm now

insists that the “pseudo-family relationship” between his attorney and the court presented

an unwaivable conflict of interest. Pet’r’s Reply 10; Pet’r’s Mem. 17.

In order to prevail on an actual conflict of interest claim, a defendant must prove

“that (1) [his] lawyer operated under a ‘conflict of interest’ and (2) such conflict

‘adversely affected his lawyer's performance.’” United States v. Nicholson, 611 F.3d

191, 195 n.2 (4th Cir. 2010) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)).

When these two elements are proven, prejudice is presumed. Strickland, 466 U.S. at 692.

However, an “[a]dverse effect cannot be presumed from the mere existence of a conflict

of interest.” Rubin v. Gee, 292 F.3d 396, 401 (4th Cir. 2002). In order to establish an

adverse effect, a petitioner must show: (1) that his trial counsel might have pursued a

plausible alternative defense strategy; (2) that the strategy was objectively reasonable

under the facts; and (3) that trial counsel's failure to pursue that strategy was linked to the

actual conflict. Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001). See also Chandler


guilt and closing statement conceding overwhelming evidence of guilt were not prejudicial in
light of the negative overwhelming evidence); Reed v. Norris, 195 F.3d 1004, 1006 (8th Cir.
1999) (“We find it unnecessary to discuss the reasonableness of counsel's conduct because, given
the overwhelming evidence of guilt presented at trial, we find that it would be impossible for him
to demonstrate prejudice under Strickland.”); Eaton v. Angelone, 139 F.3d 990, 994-95 (4th Cir.
1998) (holding counsel’s alleged errors, including inadequate investigation, mishandled jury
selection, and failure to raise various objections, did not prejudice defendant in view of
overwhelming evidence of guilt). The large quantity of drugs located in the sleeping
compartment of Malcolm’s truck is damning evidence, as is his admission to a state highway
patrol officer that the drugs had been given to him in Canada and he was taking them to a person
named “J” in Florida. Trial Tr., vol. 1, 108:3-23, Jan. 26, 2009. Malcolm’s inconsistent
statements in court were likely detrimental as well. Therefore, Malcolm’s first four grounds of
ineffective assistance fail the prejudice prong of the Strickland test.

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v. Lee, 89 F. App’x 830, 839-41 (4th Cir. 2004) (finding no conflict of interest where

defense co-counsel previously represented prosecution’s key witness); Rubin v. Gee, 292

F.3d 396, 404-07 (4th Cir. 2004) (finding a conflict of interest and ineffective assistance

of counsel where “the lawyers’ desire to secure a $105,000 retainer fee” caused them to

improperly counsel their client and to delay her surrender to police); Fullwood v. Lee,

290 F.3d 663, 688-89 (4th Cir. 2002) (finding no conflict where defendant’s trial counsel

worked as an assistant district attorney during defendant’s resentencing where the lawyer

did not participate in the proceeding); McCuin v. Texas Power & Light Co., 714 F.2d

1255, 1264-65 (5th Cir. 1983) (finding recusal appropriate where trial judge’s brother-in-

law represented defendants); United States v. Sellers, 566 F.2d 884, 886-87 (4th Cir.

1977) (finding no conflict of interest where trial judge held stock in a bank that was

robbed and where trial judge’s brother was the bank’s CEO). In addition, 28 U.S.C.

§455(b)(5) requires a federal judge to recuse himself where “he or his spouse, or a

person within the third degree of relationship to either of them, or such a person . . . is

acting as a lawyer in the proceeding.” The statute does not require judicial recusal when

a judge’s friend or acquaintance acts as a lawyer in the proceeding.

In a futile attempt to gin up a viable conflict of interest claim, Malcolm lists a

series of hypothetical situations – ranging from silly to wildly inappropriate – that could

have led to personal disagreements between the court and Malcolm’s trial counsel.

Malcolm does not point to any specific action or inaction resulting from trial counsel’s

connection with the court. Pet’r’s Mem. 17-18. Nor does Malcolm explain how his trial

was “permeated” with prejudice “due to trial counsel’s relationship with the judge.” Id.

at 18. Because Malcolm fails to show either an actual conflict of interest or that such a

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conflict adversely impacted his lawyer’s performance, Malcolm’s final claim of

ineffective assistance fails.







IV. CONCLUSION

As a result of the before mentioned reasons, Malcolm’s trial counsel performed

reasonably and offered effective assistance at every stage of the proceedings. Therefore,

the court DENIES Malcolm’s §2255 petition, and the court GRANTS the government’s

motion for summary judgment.



IT IS FURTHER ORDERED that a certificate of appealability is DENIED

because petitioner has failed to make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2).



AND IT IS SO ORDERED.

DAVID C. NORTON










July 30, 2013
Charleston, South Carolina





UNITED STATES DISTRICT JUDGE













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