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Media Alerts - United States v. Dyess - Fourth Circuit
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November 11, 2013
  United States v. Dyess - Fourth Circuit
Headline: Life Sentence Upheld Despite Acknowledged Tainted Statements

Area of Law: Criminal Procedure

Issue Presented: Whether the appellant Calvin Dyess, should be resentenced because of acknowledged misconduct in the lower court and a failure to include drug amounts in the original indictment.

Brief Summary: In 2007, Calvin Dyess was indicted in federal court on thirteen-counts relating to a large-scale drug conspiracy in Charleston, West Virginia. Dyess accepted a plea deal whereby the government, based on the strength of its evidence, offered to dismiss ten counts including a continuing criminal enterprise charge (carrying a twenty year minimum sentence), if Dyess pled guilty to conspiracy to commit money laundering, conspiracy to distribute cocaine, cocaine base and marijuana. After a sentencing hearing, Dyess was sentenced to life imprisonment. The length of the sentence was based primarily on the amount of drugs Dyess was held responsible for in the conspiracy.

While Dyess' first appeal was pending, his wife, Rachel Radar, revealed that her statements in the sentencing hearing had been influenced by her sexual relationship with the lead investigator. Based on this information, the Fourth Circuit remanded the case so the lower court could address the misconduct. That court found that Radar's tainted testimony did not affect Dyess' sentence. Dyess appealed, and the Fourth Circuit affirmed. In 2008, Dyess filed a habeas petition under 28 U.S.C. § 2255 to vacate his sentence.

The Fourth Circuit affirmed the district court's denial of Dyess' habeas petition. The Fourth Circuit first found the lower court did not err when it only considered claims made by Dyess in his amended habeas petition. The claims in the previous petitions either contained no factual support or were repeated in the amended petition. The court also denied Dyess' four ineffective assistance claims against his trial and remand counsel, finding the attorneys' performances were reasonable according to current law and their duties. Based on the state's case, Dyess was given astute advice to plead guilty to only three of the original thirteen indicted charges. The Fourth Circuit finally denied Dyess' claim that the prosecution failed to allege drug amounts in the original indictment, as required by Apprendi v. New Jersey, 530 U.S. 466 (2000). Any Apprendi relief was barred because in the original appeal the court by not addressing the claim, decided it by silence. Even if allowed, the Fourth Circuit found the Apprendi claim would fail under plain-error review because the evidence of drug quantity was "overwhelming and essentially uncontroverted."

Judge Gregory dissented from the Apprendi holding, finding Dyess should have been resentenced because the issue was not fully considered during the first appeal, and furthermore that the misconduct should have forced the court to reevaluate Dyess' sentence.

To read the full decision, please visit:

Panel: Judges Niemeyer, Gregory and Shedd.

Date of Issued Opinion: 9/16/2013

Docket Number: No. 11-7335

Decided: Affirmed.

Case Alert Author: Kelly Lynch

Counsel: ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant. Kimberly Riley Pedersen, OFFICE OF UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Author of Opinion: Shedd, J.; Gregory, J. (dissenting in part)

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/11/2013 08:22 PM     4th Circuit  

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