United States District Court, D. Alaska
ORDER RE FINAL REPORT AND RECOMMENDATION REGARDING
HABEAS CORPUS PETITION UNDER 28 U.S.C. § 2255 [DOCS. 75,
L. GLEASON, UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.” 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.”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.”Accordingly, the
Court accepts those portions of the FRR to which no
subsequent objections were filed.
novo review, the Court addresses the parties' objections
Factual findings on drug purity
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. The Magistrate Judge's finding to the
contrary is rejected. The Court makes no finding regarding the
purity level of Mr. Dollison's cocaine.
Hypothetical false positive result
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.” 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.” 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.
Applicability of United States v. Ruiz
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. 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.” 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]
government observes that Mr. Dollison is not claiming actual
innocence. 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. Therefore, any such
adulteration by Mr. Palmer could not establish factual
innocence, but would 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
Chain of custody
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]
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. The Court has
reviewed that affidavit,  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 reference sample, or
Effect of Kyles v. Whitley
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. He maintains that the government bears
the burden of uncovering that information. 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. 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
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 evidence is suppressed, ” such
that the prosecution's ignorance of Mr. Palmer's
tampering is immaterial under Brady v.
Maryland. To the extent that the FRR reasoned to
the contrary, the Court rejects that analysis. Nonetheless,