USA v. Dollison

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Respondent,
v.
DARNELL DOLLISON,
Petitioner.
Case No. 3:09-cr-00106-SLG-MMS
ORDER RE FINAL REPORT AND RECOMMENDATION REGARDING
HABEAS CORPUS PETITION UNDER 28 U.S.C. § 2255 [DOCS. 75, 91]
Before the Court at Dockets 75 and 91 are, respectively, Petitioner Darnell
Dollison’s Petition and Amended Petition for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2255. The United States filed a response in opposition at Docket 103.
Mr. Dollison filed a reply at Docket 108, and a merits brief at Docket 121.
The motion was referred to the Honorable Magistrate Judge Matthew M.
Scoble. 	At Docket 126, Magistrate Judge Scoble issued his Initial Report and
Recommendation, in which he recommended that the petition be denied. 	The
United States objected to the Initial Report and Recommendation at Docket 127,
and Mr. Dollison did so at Docket 128. 	The United States filed responses to Mr.
Dollison’s objections at Docket 129, and amended responses at Docket 131.
At Docket 132, Magistrate Judge Scoble issued his Final Report and
Recommendation (“FRR”), in which he recommended that the petition be denied.
The government objected to the FRR at Docket 135, and Mr. Dollison did so at
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Case No. 3:09-cr-00106-SLG, United States v. Dollison
Order re Final Report and Recommendation regarding Habeas Corpus Petition under 28 U.S.C.
§ 2255 [Docs. 75, 91, 108, 121]
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Docket 136. 	The government filed responses to Mr. Dollison’s objections at
Docket 137. Mr. Dollison filed a response to the government’s objections at Docket
138.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.”1 A court is
to “make a de novo determination of those portions of the magistrate judge’s report
or specified proposed findings or recommendations to which objection is made.”2
But as to those topics on which no objections are filed, “[n]either the Constitution
nor [28 U.S.C. § 636(b)(1)] requires a district judge to review, de novo, findings
and 	recommendations 	that 	the 	parties 	themselves 	accept 	as 	correct.”3
Accordingly, the Court accepts those portions of the FRR to which no subsequent
objections were filed.
On de novo review, the Court addresses the parties’ objections as follows:
1. Factual findings on drug purity
1 28 U.S.C. § 636(b)(1).
2 Id.
3 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v.
Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require
district court review of a magistrate’s factual or legal conclusions, under a de novo or
any other standard, when neither party objects to those findings.”).
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Case No. 3:09-cr-00106-SLG, United States v. Dollison
Order re Final Report and Recommendation regarding Habeas Corpus Petition under 28 U.S.C.
§ 2255 [Docs. 75, 91, 108, 121]
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The government’s first objection relates to the FRR’s factual findings on the
level of drug purity. The Court concurs with the government’s assertion that the
State of Alaska Crime Lab did not test for the purity of the cocaine.4 The Magistrate
Judge’s finding to the contrary is rejected.5 The Court makes no finding regarding
the purity level of Mr. Dollison’s cocaine.
2. 	Hypothetical false positive result
The government’s second objection is to the FRR’s finding that “if the
evidence contained only a non-controlled substance before the sale, a reference
sample adulterated with that same substance would incorrectly yield a positive test
result.”6 	As 	explained 	in 	the 	Affidavit 	of 	Charles 	Foster 	appended 	to 	the
government’s objections, the Crime Lab’s testing protocol “would not lead to a false
positive 	for 	cocaine 	even 	if 	the 	reference 	material 	used 	for 	mass 	spectral
comparison was adulterated or completely substituted.”7 	The Court finds Mr.
Foster’s testimony persuasive, and concurs with the government’s objection on
this topic. The FRR’s contrary finding is rejected.
3. Applicability of United States v. Ruiz
4 Docket 135 at 3–4.
5 See FRR at 12–13.
6 FRR at 8.
7 Docket 135-1 at 3, ¶ 4(e).
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Case No. 3:09-cr-00106-SLG, United States v. Dollison
Order re Final Report and Recommendation regarding Habeas Corpus Petition under 28 U.S.C.
§ 2255 [Docs. 75, 91, 108, 121]
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The government next objects to the FRR’s holding that United States v.
Ruiz, 536 U.S. 622 (2002), does not apply to this case. 	The government maintains
that pursuant to Ruiz, it would not have been required to disclose Mr. Palmer’s
conduct prior to Mr. Dollison’s plea even if it had knowledge of that conduct.8 The
FRR disagrees, finding Ruiz inapplicable because it was concerned with the
government’s obligation “to disclose impeachment information relating to any
informants or . . . witnesses.”9 	The Magistrate Judge reasoned that a lab
personnel’s tampering with drug evidence and reference samples constitutes more
than impeachment evidence, but is instead “information [that might] establish[] the
factual innocence of [a] defendant.”10
The 	government 	observes 	that 	Mr. 	Dollison 	is 	not 	claiming 	actual
innocence.11 Moreover, as noted above, the Court is not adopting the Magistrate
Judge’s finding that there could hypothetically have been a false positive if Mr.
Dollison pretended to sell cocaine, but actually sold 100% inositol, and Mr. Palmer
had adulterated the reference sample with 100% inositol as well.12 Therefore, any
such adulteration by Mr. Palmer could not establish factual innocence, but would
8 Docket 135 at 5–6.
9 FRR at 14 (citing Ruiz, 536 U.S. at 625).
10 FRR at 15 (emphasis and alterations in the original) (citing Ruiz, 536 U.S. at 631).
11 Docket 135 at 5 (citing Docket 121).
12 See FRR at 13.
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Case No. 3:09-cr-00106-SLG, United States v. Dollison
Order re Final Report and Recommendation regarding Habeas Corpus Petition under 28 U.S.C.
§ 2255 [Docs. 75, 91, 108, 121]
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be impeachment information. 	The Court agrees with the government’s objection
on this point. 	This case is controlled by Ruiz, and the government was not
obligated to disclose Mr. Palmer’s misconduct to the defense prior to Mr. Dollison’s
guilty plea.13
4. Chain of custody
The 	government’s 	final 	objection 	is 	to 	the 	FRR’s 	finding 	that 	the
government’s evidence to the Magistrate Judge does “not establish a sufficient
‘chain of custody [to] demonstrate that [the reference sample used in the Dollison
testing] was the same as the sample [the DEA] tested.’”14
The Foster affidavit appended to the government’s objections aims to set
forth a chain of custody for the reference sample used in Mr. Dollison’s case, from
its testing in Alaska in 2009 to its testing by the DEA in 2014.15 	The Court has
reviewed that affidavit,16 but based on its review of the entire record, the Court
adopts the Magistrate Judge’s conclusion that “this Court cannot completely rule
out the possibility of Palmer’s tampering with the Dollison evidence, the associated
13 See 536 U.S. at 633 (holding that “the Constitution does not require the Government
to disclose material impeachment evidence prior to entering a plea agreement with a
criminal defendant”).
14 FRR at 8 (alterations in original) (quoting United States v. Mitchell, 816 F.3d 865, 872
(D.C. Cir. 2016)).
15 Docket 135-1 at 4–5, ¶ 5.
16 Docket 135-1 at 5, ¶ 5(j).
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Case No. 3:09-cr-00106-SLG, United States v. Dollison
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§ 2255 [Docs. 75, 91, 108, 121]
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reference sample, or both.”17
5. 	Effect of Kyles v. Whitley
Mr. Dollison objects to the FRR’s holding that Mr. Palmer’s concealment of
his tampering did not constitute suppression of evidence pursuant to Kyles v.
Whitley, 514 U.S. 419 (1995). 	Mr. Dollison argues that under Kyles, information
withheld by government actors, for whatever reason, must be imputed to the
prosecution.18 He maintains that the government bears the burden of uncovering
that information.19 The FRR disagrees, concluding that this argument would result
“in a sort of infinite regression” by requiring prosecutors to investigate every
government agent involved in a case.20 The Magistrate Judge reasoned that Mr.
Palmer’s conduct was not governed by Kyles because he “did not withhold his
conduct in an effort to thwart the defense’s case, but rather in an effort to avoid the
consequences of his drug abuse and theft.”21
The Court finds that Kyles is not controlling, but for reasons other than those
articulated 	by the 	Magistrate Judge. 	The Court 	agrees 	with 	Mr. 	Dollison’s
assertion that the “defense does not bear the burden of proving why exculpatory
17 FRR at 8.
18 Docket 136 at 1–3.
19 Docket 136 at 2–3.
20 FRR at 6.
21 Id. (comparing Kyles v. Whitley, 514 U.S. 419, 438–40 (1995)).
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§ 2255 [Docs. 75, 91, 108, 121]
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evidence is suppressed,” such that the prosecution’s ignorance of Mr. Palmer’s
tampering is immaterial under Brady v. Maryland.22 	To the extent that the FRR
reasoned to the contrary, the Court rejects that analysis. 	Nonetheless, as
discussed above, the prosecution had no obligation to disclose this impeachment
information to Mr. Dollison prior to his guilty plea.23
6. Post hoc evidentiary issues
Finally, 	Mr. 	Dollison 	asserts 	that 	two 	evidentiary 	issues 	arose 	after
Magistrate Judge Scoble issued his FRR. 	He requests this Court to vacate the
FRR and allow him to conduct additional discovery.24
a. The Dym and Foster affidavits
The Magistrate Judge authorized limited discovery in this case, permitting
Mr. Dollison to address interrogatories to Orin Dym, the manager of the state crime
lab.25 	In an affidavit, Mr. Dym stated that the reference sample had been tested
by the DEA in 2014 and found not to be adulterated.26 	The Foster affidavit,
attached to the government’s objections to the FRR, states that the reference was
22 Docket 136 at 2 (emphasis in original).
23 See United States v. Ruiz, 536 U.S. 622, 633 (2002) (“[T]he Constitution does not
require the Government to disclose material impeachment evidence prior to entering a
plea agreement with a criminal defendant.”).
24 Docket 136 at 6.
25 See Docket 113 at 18–19.
26 Docket 117-1 at 4, 6.
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tested twice in 2014—once by NMS Laboratories and once by the DEA—returning
different results.27 	Mr. Dollison argues that the Dym affidavit was substantially
misleading because it did not disclose the NMS Laboratories test.28
b. DEA analyst Sarah Pillard
Sarah C. Pillard, the DEA analyst who tested the reference sample in 2014,
was arrested in August 2017 for allegedly “embezzling” Oxycodone from the DEA
lab.29 	The Foster affidavit states that the crime lab learned of this on October 6,
2017.30 	The government disclosed this fact in its May 6, 2019 objections to the
FRR.31 	Mr. Dollison argues that the “belated disclosure of this information”
constitutes a bad faith effort to “avoid additional inquiry.”32 	He contends that the
failure to timely disclose the arrest of Ms. Pillard is itself a Brady violation.33
The Court finds that additional discovery is not warranted by either issue,
because any tampering by Mr. Palmer that might have occurred would constitute
impeachment evidence, disclosure of which was not required prior to the entry of
27 See Docket 135-1 at 4-5, ¶ 5(d), (e), (g).
28 Docket 136 at 4–5.
29 Docket 135-1 at 38.
30 Docket 135-1 at 5, ¶ 5(j).
31 See Docket 135 at 6.
32 Docket 136 at 5.
33 Docket 138 at 3–4 (response to government’s objections).
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Case No. 3:09-cr-00106-SLG, United States v. Dollison
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§ 2255 [Docs. 75, 91, 108, 121]
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a guilty plea.34
CONCLUSION
In 	light 	of 	the 	foregoing, 	the 	Magistrate 	Judge’s 	Final 	Report 	and
Recommendation is accepted in part and rejected in part, as set forth herein. 	IT
IS ORDERED that Mr. Dollison’s Habeas Corpus Petition and Amended Petition
for Writ of Habeas Corpus under 28 U.S.C. § 2255 at Dockets 75 and 91,
respectively, are DENIED. The Clerk of Court is directed to enter a final judgment
accordingly.
The 	Court 	further 	finds 	that 	Mr. 	Dollison 	has 	not 	made 	the 	requisite
substantial showing of the denial of a constitutional right, and therefore a certificate
of appealability will not be issued by this Court. 35 	Mr. Dollison may request a
certificate of appealability from the Ninth Circuit Court of Appeals.
DATED this 3rd day of October, 2019 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
34 See United States v. Ruiz, 536 U.S. 622, 633 (2002) (“[T]he Constitution does not
require the Government to disclose material impeachment evidence prior to entering a
plea agreement with a criminal defendant.”).
35 See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability may be
granted only if applicant made “substantial showing of the denial of a constitutional right,”
i.e., showing that “reasonable jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further” (internal quotations and citations omitted)).
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