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UNITED STATES v. MYLES

July 2, 1998

UNITED STATES OF AMERICA
v.
KEVIN MYLES, Defendant.



The opinion of the court was delivered by: SPORKIN

MEMORANDUM OPINION

 This matter comes before the Court on Defendant Kevin A. Myles' motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (1998). The basis of Defendant's motion is that his counsel, Professor James W. Robertson, provided ineffective assistance of counsel. The Defendant claims that Mr. Robertson was ineffective on two grounds. First, the Defendant asserts that Mr. Robertson was not properly admitted to the U.S. District Court at the time of the Defendant's trial. Second, the Defendant argues that Mr. Robertson should have objected to the mentioning of Defendant's prior felony conviction at trial. The Court finds that the Defendant has failed to establish that Robertson was ineffective and will deny Defendant's motion.

 I. FACTUAL BACKGROUND

 On October 28, 1993, Defendant Kevin Myles was convicted of distribution of cocaine base. His counsel during the trial was the late Professor Robertson. Professor Robertson earned his law degree from Stanford University Law School in 1970. He worked as an associate of the New York offices of Donovan, Leisure, Newton & Irvine and Skadden, Arps, Slate, Meager & Flom. He then became a professor of law at Howard Law School. He was admitted to the California State Bar in 1971, to the New York State Bar in 1972, and to the D.C. Bar in 1979. Although Robertson was a member of the D.C. Bar, he often appeared pro hac vice before the U.S. District Court. He was an experienced trial attorney, trying several cases before this Court. In fact, this Court once stated to Mr. Robertson that he "put on one of the most impressive cases I have seen in my six years on the bench." Transcript in United States v. Coley, Crim. No. 92-83 (May 14, 1992), at 2.

 Despite his stellar qualifications and solid trial skills, Professor Robertson had some serious disciplinary troubles. On July 30, 1985, D.C. Bar Counsel issued an informal admonition against Robertson for failing to take action in two appeals and for not responding to inquiries of the D.C. Court of Appeals concerning these cases. On October 20, 1987, D.C. Bar Counsel issued another informal admonition against Robertson for neglecting to pursue a civil claim on behalf of a client. On February 1, 1989, the U.S. Court of Appeals for the Fourth Circuit suspended Robertson for one year for failing to take action in three appeals and for not responding to a Show Cause Order from the Court.

 On June 27, 1991, a panel of the U.S. District Court for the District of Columbia found that Robertson had violated ethical rules by intentionally misrepresenting a journalist as an attorney to gain her admittance into the Marshal's cellblock. See In the Matter of a Complaint Against James W. Robertson, No. 90-14 (June 27, 1991). This judge, who was on that panel, concurred in that opinion, noting that: "I simply cannot accept [Robertson's] explanation that he did not know that his conduct was improper. Counsel is an experienced practitioner who was representing one of the highest profile drug defendants who has been before this Court within the past decade. He had to know full well that it was inappropriate and contrary to the administration of justice to smuggle any unauthorized person, let alone a reporter, into the cellblock." See In the Matter of a Complaint Against James W. Robertson: Opinion Concurring in the Panel Decision, at 2 (Sporkin, J. concurring).

 On September 24, 1991, the panel issued a sanction against Robertson for the cellblock incident. The panel concluded that Robertson would be suspended for six months from pro hac vice practice in the U.S. District Court. See In the Matter of a Complaint Against James W. Robertson, No. 90-14, (Sept. 24, 1991). The sanction against Robertson did not affect his status as a member of the D.C. Bar; it only suspended him from practicing pro hac vice in the U.S. District Court. That suspension ended around the end of March 1992.

 On December 4, 1991, D.C. Bar Counsel requested that the Board of Professional Responsibility ("the Board") consider reciprocal discipline against Robertson as a member of the D.C. Bar based on the cell-block incident. On April 22, 1992, after receiving a certified copy of the District Court's order, the D.C. Court of Appeals suspended Robertson temporarily from practicing law in the District of Columbia pending the Board's final determination on whether to take reciprocal discipline against Robertson. See In re James W. Robertson, 618 A.2d 720 (D.C. 1993). Robertson's temporary suspension was initiated pursuant to D.C. Bar Rule XI, § 11(d), which provides that

 
Upon receipt of a certified copy of an order demonstrating that an attorney subject to the disciplinary jurisdiction of this court has been suspended . . . by another court in the District of Columbia, the court shall forthwith enter an order suspending the attorney from the practice of law in the District of Columbia pending final disposition of any reciprocal disciplinary proceeding, and directing the attorney to show cause within thirty days from the date of the order why the identical discipline should not be imposed.

 Robertson subsequently applied for admission to the United States District Court for the District of Columbia. The application, which was dated April 15, 1992, was not received by the court until May 22, 1992, one month after the beginning of Robertson's temporary suspension from the D.C. Bar. On the application, in response to the question regarding whether he had ever been disciplined by any court, Robertson attached documentation concerning his prior misconduct and suspensions, including the District Court's September 24, 1991 Order suspending him for the cell-block incident. Robertson did not submit any documentation about his temporary suspension from the D.C. Bar. On the bottom corner of page two of the District Court's Suspension Order is the following handwritten note: "5-22-92. Pending Order to show cause as to why reciprocal discipline should not be imposed by D.C. Bar based on the suspension in U.S. District Court." It is unclear who wrote this note.

 On January 4, 1993, Robertson was admitted to the District Court Bar. On January 15, 1993, the D.C. Court of Appeals rendered its final decision concerning a reciprocal sanction against Robertson based upon his suspension from U.S. District Court for the cellblock incident. The D.C. Court of Appeals suspended Robertson for six months, stating:

 
Ordinarily we would make Mr. Robertson's suspension run nunc pro tunc from April 22, 1982, the date of his initial temporary suspension under Rule XI, § 11(d). In this case, however, Mr. Robertson has not filed with the court and the Board the affidavit required by Rule XI, § 14(f). . . . Although Mr. Robertson was temporarily suspended last April, he has not yet filed such an affidavit. To ensure that the rule is complied with, therefore, we shall direct that his six month suspension run from the date of its filing. In re James W. Robertson, 618 A.2d 720 (D.C. 1993).

 On January 26, 1993, Robertson filed the affidavit, and the six month suspension from the D.C. Bar began. It concluded around the end of July 1993.

 On June 21, 1993, Robertson began representing Kevin Myles, who had been indicted in an eight-count Indictment by a federal grand jury along with Co-defendant Ronald Myles. Count 1 charged Ronald Myles with distributing crack cocaine. The remaining counts involved both Kevin and Ronald Myles. Both were charged in Count 2 with distribution of cocaine base; in Count 3 with maintaining a crack house; in Count 4 with possession with intent to distribute a controlled substance; in Count 5 with possession with intent to distribute a controlled substance within 1,000 feet of a school; in Count 6 with the use of a firearm during and in relation to a drug trafficking offense; in Count 7 with the possession of a firearm with an obliterated serial number; and in Count 8 with the possession of a firearm by a convicted felon.

 From October 18 to October 28, 1993, Kevin Myles was tried by jury in a joint trial with Ronald Myles in U.S. District Court before this judge. Robertson served as Kevin Myles' counsel during the trial. On October 28, 1993, the jury returned its verdicts, finding Kevin Myles guilty only on the count of distribution of cocaine base. On Counts 5 and 6, the jury found Kevin Myles not guilty. On Counts 3, 4 and 7, the jury failed to reach a verdict. Defendant Ronald Myles was found guilty of Counts 1 and 2.

 On April 28, 1994, Kevin Myles was sentenced to 103 months imprisonment to be followed by three years supervised release. Because Kevin Myles had three prior felony convictions for the possession of drugs, the Sentencing Guidelines yielded a sentencing range of between 92 to 115 months. See Statement of Reasons for Imposing Sentence, Crim. No. 93-140 (May 4, 1994), at 2. The Court also found that Myles was a career offender under U.S.S.G. 4B1.1, bolstering the Guidelines range to 210 to 240 months. See id. at 3. Nevertheless, the Court decided to depart: "Despite his presence in a crack house with weapons, and his previous involvement with the criminal justice system, the guideline career offender sentence is so severe as to make it entirely out of proportion to the crime committed [the sale of $ 20 worth of crack cocaine]. For this reason, the Court departs downward from the career criminal guideline sentence." Id. at 3. The Court sentenced Myles to 103 months.

 On June 1, 1994, twenty-eight days after the Judgment and Commitment Order was entered, Robertson filed an notice of appeal. Because Fed. R. App. P. 4(b) requires a criminal defendant to file a notice of appeal within ten days after the entry of the judgment, the appeal was untimely. During this time, Robertson was terminally ill. He subsequently passed away. Defendant Kevin Myles' new counsel moved the Court to vacate his sentence so that Myles could file a timely appeal. On November 2, 1995, this Court vacated Myles' sentence and immediately reimposed it for the sole purpose of allowing Myles to file an appeal. *fn1" The Court wrote: "Due to the neglect of Defendant's original counsel in this ...


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