United States District Court, D. Minnesota
Jeffrey S. Paulsen, Assistant United States Attorney, United
States Attorney's Office, Minneapolis, MN, on behalf of
Lamar Cook, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Cartez Lamar Cook's
(“Cook”) Motion to Vacate under 28 U.S.C. §
2255 [Criminal Docket No. 111] (“2255
Motion”). Also before the Court are Cook's First
Amended Motion to Vacate Under 28 U.S.C. § 2255 [Docket
No. 114] (“Amended 2255 Motion”) and Motion for
Leave to File an Amended Complaint [Docket No.
122]. For the reasons below, Cook's Motions
early morning hours of November 25, 2013, police officers on
routine patrol observed an idling car in a high crime area of
south Minneapolis. United States v. Cook, 842 F.3d
597, 599 (8th Cir. 2016). The officers were unable to
determine if the vehicle was occupied. Id. Concerned
that an unoccupied idling vehicle could be targeted by
thieves, the officers circled around the block to observe the
vehicle. Id. As the officers approached the vehicle
a second time, they could see two people were inside.
officers decided to make contact with the occupants.
Id. They parked behind the vehicle and then
activated the emergency lights' “wig wag”
setting in their squad car. Id. As the officers
approached the vehicle on foot, an individual later
identified as Cook rolled down the window next to the driver
seat. Id. The officers detected the aroma of
marijuana and took Cook into custody. Id. Cook was
removed from the vehicle and handcuffed. Id. While
the officers were attending to the other individual in the
vehicle, Cook fled. Id. He was apprehended several
blocks away and arrested. Id.
later observed marijuana and crack cocaine in the back seat
of the vehicle. Id. The vehicle was towed and
impounded. Id. After a warrant was obtained,
officers searched the vehicle and uncovered a firearm hidden
in the vehicle's center console. Id. DNA
analysis revealed that the firearm was consistent with
Cook's DNA, but not that of 99.6% of the general
population, including the other passenger. Id.
Ballistics testing connected the firearm to the homicide of
Derek Holt (“Holt”), who was killed three days
before Cook's arrest. Id. At the time Cook was
arrested, he had already been identified by law enforcement
as a person of interest in Holt's death. Id.
9, 2014, Cook was charged by Indictment [Docket No. 1] with
being a Felon in Possession of a Firearm, in violation of 18
U.S.C. § 922(g)(1). The Indictment charged Cook with
being an Armed Career Criminal for having been previously
convicted of at least three violent felonies. 18 U.S.C.
§ 924(e)(1). Cook entered a not guilty plea and
proceeded to trial.
trial, the Government's evidence included: 1) a witness
who identified the firearm Cook was charged with possessing
as belonging to Holt; 2) cell phone records connecting Cook
with Holt, including evidence that Cook called Holt shortly
before his death; 3) testimony that Holt's pants pocket
had been turned out and that $80 Holt had been carrying the
night before was missing; and 4) DNA consistent with
Cook's was found in Holt's pants pocket.
Cook, 842 F.3d at 601. In totality, the
Government's circumstantial evidence strongly suggested
that Cook met with Holt, shot him with his own gun, and stole
the $80 from his pocket. Id. Cook's counsel
unsuccessfully argued that this evidence should be excluded.
The Court ruled that the evidence was admissible as an
integral part of the immediate context of the crime charged,
and was therefore not governed by Rule 404(b). Trial Tr.
[Docket Nos. 102-05] 20:15-21:1. During trial, the Government
reminded the jury that Cook was not on trial for the murder
of Holt. The Court instructed the jury similarly, focusing
the jury's attention on the question of whether Cook
possessed the firearm charged in the Indictment. See
Jury Ins. [Docket No. 68] 14.
three day trial, the jury found Cook guilty of the firearm
charge. The Presentence Investigation Report [Docket No. 81]
(“PSR”) calculated Cook's total offense level
to be 38, which yielded a guideline sentence range of 360
months to life imprisonment. PSR ¶ 28. The PSR noted
that although the Indictment charged Cook as an Armed Career
Criminal pursuant to 18 U.S.C. § 924(e)(1), it did not
appear that Cook had the necessary three prior convictions to
trigger the enhanced 15-year mandatory minimum sentence under
18 U.S.C. § 924(e)(1). PSR ¶ 2. As such, the
statutory maximum sentence was 120 months imprisonment. 18
U.S.C. § 924(a)(2). Id. On November 2, 2015,
Cook was sentenced to 120 months imprisonment. Cook's
conviction was confirmed on direct appeal. Cook, 842
F.3d at 599.
2255 Motion, Cook argues that his conviction should be
vacated for four reasons: 1) the prosecution failed to
disclose exculpatory evidence; 2) his counsel was ineffective
for failing to advise him to plead guilty; 3) his counsel was
ineffective for failing to challenge testimony that was false
and misleading; and 4) his sentence was incorrectly enhanced
based on the connection with the Holt murder.
the Government filed its Response [Docket No. 113], on
January 16, 2018, Cook filed his Amended 2255 Motion and
raised new grounds for relief. In the Amended 2255 Motion,
Cook identifies eight additional instances where he argues
that his counsel failed to provide effective assistance. Cook
also argues that the Eighth Circuit's decision in
United States v. Black, 871 F.3d 590 (8th Cir.
2017), constitutes newly discovered evidence. Cook next argues
that the Government violated its obligations under Brady
v. Maryland, 373 U.S. 83 (1963), and Giglio v.
United States, 405 U.S. 150 (1972). Cook also argues
that photographic evidence introduced at trial elicited
reactions from spectators in the gallery that impaired his
right to a fair trial. Finally, Cook argues that the
Government withheld evidence or knowledge that Cook was not
an Armed Career Criminal.
February 13, 2018, Cook filed his Motion for Leave to File
and Amended Complaint, requesting permission to supplement
his original petition to cure alleged factual deficiencies
identified by the Government. Finally, on May 4, 2018, Cook
filed a Reply [Docket No. 126] to the Government's
Opposition. In his Reply, Cook raises two new issues. The
first describes an “unidentified female officer”
who was allegedly the only officer capable of detecting the
aroma of marijuana coming from the idling vehicle. The second
issue relates to cell phone evidence introduced at trial.
Cook contends that the evidence at trial failed to connect
the cell phone to Cook. The Government filed a Second
Supplemental Opposition [Docket No. 127] to Cook's May 4,
Section 2255 Standard
U.S.C. § 2255 provides a person in federal custody with
a limited opportunity to collaterally attack the
constitutionality, jurisdictional basis, or legality of their
sentence. See United States v. Addonizio, 442 U.S.
178, 185 (1979). Relief is reserved for violations of
constitutional rights and for a narrow range of injuries
which, if untreated, would result in a miscarriage of
justice. See Poor Thunder v. United States, 810 F.2d
817, 821-22 (8th Cir. 1987).
Disclosure of Exculpatory Evidence
argues that “[t]he prosecutor's office withheld
favorable exculpatory evidence from the defendant and the
jury. They also allowed FALSE statements to be entered on
record by Police Officer's (sic) who where (sic) not the
first responding officer's (sic) to the scene of the
Terry Stop.” 2255 Motion at 4. Relatedly, Cook claims
that the Government violated its disclosure requirements
under Brady and Giglio. Cook additionally
argues that the Government withheld evidence that Cook was
not an Armed Career Criminal. None of Cook's arguments
appears to contend that the officer who first approached Cook
while he was sitting in the idling vehicle was not the
individual who testified to this fact at trial. This is
incorrect. Officer Christopher Kelley (“Officer
Kelley”) testified that he was the officer who had the
initial encounter with Cook. Tr. at 162:6-8. Cook next
appears to suggest that Officer Kelley's partner, who was
also involved in the events that took place at the initial
scene, was not disclosed to the defense. This is also
incorrect. That officer, Officer Landmesser, was identified
by name at the pretrial motions hearing and at trial.
See Pretrial Tr. [Docket No. 36] at 4:22 (“I
was with my partner, Officer Landmesser.”); Tr. at
158:22 (same). Moreover, reports created by Officers Kelley
and Landmesser were disclosed to the defense. Second
Supplemental Opp'n Ex. 1. Cook's arguments supporting
his claim are factually flawed and therefore do not provide a
basis to vacate his conviction.
next argues that the Government allegedly withheld knowledge
or evidence that Cook was not an Armed Career Criminal. At
the time Cook was charged, he had been previously convicted
of three prior violent felonies, subjecting him to the
enhanced penalties of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1). By the time
Cook appeared for sentencing, the Supreme Court had decided
Johnson v. United States, 135 S.Ct. 2551 (2015),
which invalidated the residual clause of the ACCA. Based on
Johnson, two of Cook's prior convictions no
longer qualified as violent predicate felonies under the
ACCA. Thus, Cook was no longer an Armed Career Criminal.