UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________ ) UNITED STATES OF AMERICA ) ) v. ) ) Crim. Nos. 12-59-17(EGS) JONATHAN MCCOY LOGAN ) 13-248 (EGS) ) Defendant. ) _________________________________)

MEMORANDUM OPINION

Jonathan McCoy Logan pled guilty to drug and gun related

offenses in two criminal cases pursuant to a plea agreement, and

was sentenced to an agreed-upon 147 months of incarceration.

Several months after his sentencing, the government informed Mr.

Logan that an FBI agent who was indirectly involved with his

case had tampered with evidence in other cases. Mr. Logan later

moved to vacate his sentences pursuant to

and

the Court denied the motions. Mr. Logan now moves for a

certificate of appealability so that he can appeal this Court’s

decision. Because Mr. Logan has failed to make a “substantial

showing of the denial of a constitutional right,”

(c)(2), Mr. Logan’s motion for a certificate of

appealability is DENIED. I. Background

The Court’s previous Memorandum Opinion set forth the facts

in this case in detail. See United States v. Logan, No. CR 12-

59-17(EGS),

, at *1–4 (D.D.C. Oct. 25, 2018).

What follows is a summary of the facts necessary to provide

context for Mr. Logan’s current motions.

A. Investigation and Arrest

Mr. Logan was charged in two separate criminal cases based

on evidence accumulated during an investigation of drug

trafficking activity in Maryland and the District of Columbia,

and evidence seized during Mr. Logan’s October 21, 2011 arrest.

. The investigation revealed that Mr. Logan sold

cocaine to another indicted individual, Kelvin Heyward.

Wire-tapped calls between the two captured the details of

specific drug transactions, as well as how the transactions were

generally conducted.

The evidence obtained during Mr.

Logan’s October 21, 2011 arrest were a .32 semi-automatic

handgun, over $14,000 on his person, and $4,000 and several

plastic bags containing cocaine in his car.

Based on the evidence obtained, an indictment was filed on

March 8, 2012, charging Mr. Logan with several drug offenses.

The October 2011 arrest, and subsequent car search, resulted

in an August 2013 indictment in Maryland, later transferred to

2 this district, charging Mr. Logan with several drug and gun

offenses.

Mr. Logan was arrested at his job, the All-In-One Stop in

Clinton, Maryland, following the filing of the March 8, 2012

superseding indictment.

. That same day, a team of FBI

agents executed a search warrant at the All-In-One Stop.

According to the United States Attorney’s Office for the

District of Columbia (“USAO-DC”), the investigation that

resulted in Mr. Logan’s indictment was conducted by the FBI’s

Safe Streets Task Force.

The presence of one agent, Special Agent (“SA”) Matthew

Lowry, is particularly relevant to Mr. Logan’s pending motion.

SA Lowry was assigned to a different task force--the Cross-

Border Task Force (“CBTF”)--but he “provided some assistance to

the overall investigation at the time of the ‘take-down’ in

March 2012.”

Specifically, SA Lowry participated in the

execution of the search warrant at the All-In-One Stop which led

to the seizure of several items.

SA Lowry was not listed on

the chain-of-custody for any of the items seized from the All-

In-One Stop.

On October 1, 2014 the FBI informed USAO-DC that “Special

Agent Lowry may have engaged in misconduct by tampering with

evidence . . . includ[ing] tampering with narcotics and firearm

evidence seized during investigations.” Notice, ECF No. 563 at

3 1–2. The FBI’s investigation into SA Lowry’s misconduct was

prompted by the discovery of SA Lowry under the influence of

drugs in an FBI vehicle on September 29, 2014. See Criminal

Action No. 13-248, Mem. Of Investigation, ECF No. 40-1 at 20. 1

The investigation revealed that SA Lowry had begun to remove FBI

drug evidence in “late 2013.”

SA Lowry admitted to using

drugs from “late 2013 when he began, through September 29, 2014,

when he was found [under the influence] in his FBI-issued

vehicle.”

SA Lowry was charged with, among other things,

possession of heroin. See Criminal Action No. 15-34, Judgment in

a Criminal Case (“Judgment”), ECF No. 30. He pled guilty to the

charges and was sentenced to 36 months of incarceration.

In November 2014, the government disclosed to Mr. Logan the

information about SA Lowry’s alleged wrongdoing. Notice, ECF No.

563 at 1. 2 The Court then directed the government to file status

reports updating the Court on the status of the government’s

investigation into SA Lowry’s alleged misconduct. Minute Order

of November 13, 2014. The government explained SA Lowry’s role

in Mr. Logan’s case as follows:

[G]overnment counsel understands that Agent Lowry’s involvement in the investigation . . . involved assisting in a large-scale

1 When citing electronic filings throughout this Memorandum Opinion the Court cites to the ECF header page number, not the page number of the filed document. 2 Unless otherwise indicated, docket citations in this Memorandum

Opinion are to Criminal Action No. 12-59. 4 "takedown" on March 12, 2012, specifically the execution of one search warrant on March 12, 2012, in Clinton, Maryland. Agent Lowry participated along with a team of other FBI agents in executing a search warrant at defendant Jonathan Logan's business location. . . . Agent Lowry was not listed on the chain- of-custody for any of the items seized from this location.

Criminal Action No. 13-248, Gov’t. Response to Def. Ltr. to

Court, ECF No. 18 at 1–2. The government also made clear that

the only event in which SA Lowry participated in Mr. Logan’s

case--the execution of the search warrant on March 12, 2012--

occurred five months after October 21, 2011, which was the

ending date of the drug conspiracy with which Mr. Logan was

charged.

Similarly, the proffer of facts explained that the

gun seizure occurred during the October 21, 2011 arrest, several

months before SA Lowry’s involvement in the case. See Proffer,

ECF No. 461 at 6.

B. Guilty Plea and Sentence

On August 29, 2013, over a year before SA Lowry’s

misconduct came to light, Mr. Logan pled guilty before this

Court to two drug conspiracy offenses and to one gun-related

offense. One of the drug conspiracy offenses was in connection

with the narcotics he sold to Mr. Heyward and for which he was

indicted in Criminal Action No. 12-59, and the other was in

connection with the drugs recovered from his car during his

October 2011 arrest, which resulted in the indictment in

5 Criminal Action No. 13-248. See Proffer, ECF No. 461. The third

offense was for using and carrying a firearm during a drug

trafficking offense, also in connection with his October 2011

arrest. See Criminal Action No. 13-248, Proffer, ECF No. 3 at 6.

The parties agreed to a 147-month term of incarceration pursuant

to an 11(c)(1)(C) plea. See Addendum to Plea Agreement, ECF No.

527 at 1. On April 17, 2014, this Court sentenced Mr. Logan to a

concurrent sentence of 87 months on the two conspiracy drug

offenses, and a consecutive sentence of 60 months for the

firearm offense for a total of 147 months consistent with the

agreed-upon sentence. See Sentencing Hr’g Tr., ECF No. 627 at

35.

C.

Motion

On September 18, 2015, Mr. Logan, pro se, filed motions to

vacate his convictions and sentences pursuant to

arguing that SA Lowry’s misconduct entitled him to relief

under the statute. See Pet’r’s Mot., ECF No. 613. Mr. Logan made

two principal arguments: (1) that if he was aware of SA Lowry’s

misconduct, he would not have pled guilty; and (2) the

government violated its obligations under Brady v. Maryland,

(1963), when it failed to disclose SA Lowry’s conduct

prior to his plea.

On February 6, 2018, over two years after he filed his

motions, Mr. Logan filed a supplemental pleading, this time with

6 the assistance of counsel, making an additional argument that

there was a technical error in the calculation of Mr. Logan’s

sentence, see Criminal Action No. 13-248, Pet’r’s Suppl. Mot.,

ECF No. 40 at 3. He argued that “the pre-sentence report

incorrectly stated Logan . . . was on probation at the time he

committed the instant offense . . . giving him an additional 2

points to his criminal history” under the Sentencing Guidelines.

at 3–4. Mr. Logan argued that his Guidelines range for the

drug offenses should have been 78-97 months and did not take

issue with the 60-month consecutive sentence he received for the

gun-related offense.

Thus, Mr. Logan argued that his actual

sentencing range should have been 138-157 months and therefore

the 147-month sentence that he received was erroneous.

The Court denied Mr. Logan’s section 2255 motions and his

supplemental amendment to that pleading on October 25, 2018. See

Logan,

at *4-8. The Court found that Mr. Logan’s

claims related to his guilty plea were devoid of factual

support, that his Brady claim had no merit, and that his claims

related to his sentencing were procedurally barred. 3

Mr.

Logan now asks this Court to grant a certificate of

3 The Court noted that even if his claim was timely it would have failed because, even under his own calculation, Mr. Logan agreed to a sentence that was within the Guideline range and therefore there was no error in accepting the plea agreement which governed the length of his sentence. See Logan,

at *7-8. 7 appealability based on the denial of his section 2255 motions.

See Def.’s Mot., ECF No.695.

II. Legal Standard for Issuance of a Certificate of Appealability

A certificate of appealability must be issued for an

appellate court to hear an appeal from a “final order in a

proceeding under section 2255.”

(c)(1)(B). The

federal district court judge who rendered the judgment for which

appellate review is sought must either issue the certificate of

appealability or explain why it should not be issued. Fed. R.

App. P. 22(b)(1). A certificate of appealability may issue “only

if the petitioner has made a substantial showing of the denial

of a constitutional right.”

(c)(2). To make this

showing, the petitioner “need not show that he should prevail on

the merits.... Rather, he must demonstrate that the issues are

debatable among jurists of reason; that a court could resolve

the issues [in a different manner]; or that the questions are

adequate to deserve encouragement to proceed further.” United

States v. Mitchell,

(D.C. Cir. 2000)

(quoting Barefoot v. Estelle,

(1983)).

If the court issues the certificate of appealability, it

must specify which issues satisfy the substantial showing

requirement. Id. at 1130. If a district court judge denies a

request for a certificate of appealability, a petitioner may

8 request one from the circuit court judge. Fed. R. App. P.

22(b)(1).

III. Analysis

The issues in Mr. Logan’s section 2255 motion can be

analyzed in two categories: (1) issues concerning his plea

agreement; and (2) issues concerning his sentence. The Court

first discusses whether it should issue a certificate for

appealability for Mr. Logan’s plea agreement claims, and then

for his claim of error at sentencing.

A. Mr. Logan Has Not Shown that the Court’s Decision on Constitutional Issues related to his Guilty Plea was Debatable

Mr. Logan’s section 2225 motion was based on a series of

claims in connection with the role of SA Lowry in his case. His

original petition, filed September 18, 2015, raised four issues

which he argues affected his decision to plead guilty: (1) SA

Lowry’s alleged admission that he tampered with evidence during

the search of Mr. Logan’s business address; (2) the lack of

procedural safeguards to protect the evidence recovered by the

CBTF during his October 2011 arrest; (3) the DEA test results in

connection with the search of his place of business which

allegedly show SA Lowry tampered with evidence during the

search; and (4) the government’s failure to disclose SA Lowry’s

illegal actions in violation of its Brady obligations. See

Pet’r’s Mot., ECF No. 613.

9 Mr. Logan’s first three claims relate to alleged evidence

tampering in his case. In his motion for a certificate of

appealability, Mr. Logan highlights a portion of an exhibit that

he submitted with his supplement. Def.’s Mot., ECF No. 1–2. This

portion is taken from a document regarding the investigation of

SA Lowry and states:

Although Lowry’s defense counsel initially reported that Lowry took drug evidence from cases that were already in the prosecution phase and had already had plea deals with the defendants, Lowry stated that he was not concerned with the status of the cases from which he was using the drug evidence. Lowry said that he took drug evidence from any case that he was associated with and would have a plausible reason for checking out the drug evidence, he said he was just trying to get through the day.

Id. Mr. Logan argues that the above statement, which was

attached to his original motion, shows that SA Lowry had access

to all evidence seized at the time Mr. Logan was arrested and at

the earlier stop when he was searched and therefore SA Lowry

tampered with the evidence. Id. at 2.

As the Court stated in its Memorandum Opinion, the

government’s several disclosures in this case indicated that SA

Lowry was not involved in the chain of custody for any evidence

seized from Mr. Logan’s place of business. Logan,

at *5 (citing Criminal Action No. 13-248, Gov't.

Response to Def. Ltr. to Court, ECF No. 18 at 1–2). The record

10 is clear that the only event in which SA Lowry participated in

Mr. Logan’s case--the execution of the search warrant on March

12, 2012--occurred five months after October 21, 2011, the end

date of the drug conspiracy with which Mr. Logan was charged.

That search is not relevant to any of the charges to which

he pled guilty since it was conducted several months after the

time frame of the drug conspiracy.

(citing Proffer, ECF No.

461.) Similarly, the proffer of facts shows that the gun seizure

occurred during the October 21, 2011 arrest, several months

before SA Lowry’s involvement in the case.

.

Once a defendant who pleads guilty has been sentenced,

permission to withdraw the plea will be granted only “in those

‘extraordinary cases’ when the court determines that a manifest

injustice would result from allowing the plea to stand.” United

States v. Roberts,

(D.C. Cir. 1977).

Moreover, “[t]o have a plea set aside on a section 2255

petition, the petitioner must show that the plea proceeding was

tainted by a fundamental defect which inherently results in a

complete miscarriage of justice or an omission inconsistent with

the rudimentary demands of fair procedure.” United States v.

Weaver,

(D.C. Cir. 2001) (citations and

internal quotation marks omitted). The Court’s finding that Mr.

Logan’s claim that evidence was tampered with in his case was

not factually supported and therefore his plea proceeding not

11 the result of a complete miscarriage of justice or an omission

inconsistent with the rudimentary demands of fair procedure, is

not debatable. See Logan,

at *4-8.

Similarly, the Court’s ruling on Mr. Logan’s Brady claim is

not debatable. 4 The Court held that Mr. Logan’s Brady claim fails

because he cannot show that the government either willfully or

inadvertently suppressed evidence against him.

at *6–7. The

government, including law enforcement, was not aware of SA

Lowry’s conduct during Mr. Logan’s plea or sentencing.

The

government learned of SA Lowry’s conduct on September 29, 2014,

five months after Mr. Logan was sentenced.

at *6 (citing

Criminal Action No. 13-248, Mem. Of Investigation, ECF No. 40-1

at 20.). USAO-DC, which was recused from the investigation, was

informed two days later, on October 1, 2014, and alerted Mr.

Logan of the investigation into SA Lowry’s conduct on November

13, 2014 in response to this Court’s Order. Notice, ECF No. 563

at 1. The record shows that, under these circumstances, the

government provided the information to Mr. Logan within a

reasonable time after receiving notice of the investigation from

the FBI (i.e., 44 days), and provided the Court and parties with

4 Mr. Logan does not appear to challenge the Court’s ruling on his Brady claim, but, in the abundance of caution, the Court will analyze that claim nonetheless. 12 regular updates about the investigation. See

Accordingly,

there was no Brady violation in this case.

Because Mr. Logan has not made “a substantial showing of

the denial of a constitutional right,” the Court DENIES his

motion for a certificate of appealability on his claims related

to his guilty plea. See

(c)(2).

B. Mr. Logan Has Not Shown that the Court’s Decision on Constitutional Issues related to his Sentence was Debatable

Mr. Logan supplemented his section 2255 motion to include a

claim related to an alleged sentencing calculation error. See

Criminal Action No. 13-248, Pet’r’s Suppl. Mot., ECF No. 40 at

3–5. Under section 2255, a defendant generally must file a

motion for relief under the statute within a year of “the date

on which the facts supporting the claim or claims presented

could have been discovered through the exercise of due

diligence.”

(f)(4). Mr. Logan filed his original

petition on September 18, 2015, within one-year of November

2014, the date on which the government disclosed the

investigation into SA Lowry, and therefore his original petition

was timely filed. Logan,

at *7. However, Mr.

Logan supplemented the petition more than two years later, on

February 6, 2018, to add an additional issue based on an alleged

sentence calculation error. See Criminal Action No. 13-248,

Pet’r’s Suppl. Mot., ECF No. 40 at 3–5. That supplement states

13 that “the pre-sentence report incorrectly stated Logan . . . was

on probation at the time he committed the instant offense . . .

giving him an additional 2 points to his criminal history” under

the Sentencing Guidelines.

at 3–4. Therefore, Mr. Logan

argues, he is entitled to new concurrent sentences consistent

with a Guidelines range of 78–97 months for the conspiracy drug

offenses followed by a 60-month consecutive sentence on the gun

offense.

. The Court ruled that Mr. Logan’s sentencing

claim was procedurally barred because it was filed well after

the one-year time requirement and did not meet any exceptions to

that rule. Logan,

at *7.

The Court considered two exceptions that would allow Mr.

Logan’s sentencing claim to proceed.

First, an amendment to

a section 2255 motion is “permitted to relate back [to the

original filing] only when ‘the claim or defense asserted in the

amended pleading arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the

original pleading.’” See United States v. Hicks,

(D.C. Cir. 2002) (quoting Fed. R. Civ. P. 15(c)(2)). In this

Circuit, a proposed amendment does not relate back when it

“makes claims or is based on occurrences ‘totally separate and

distinct, in both time and type from those raised in [the]

original motion.”

(citations omitted). In his original 2255

motion, Mr. Logan argued that he is entitled to relief based on

14 the actions of SA Lowry and the CBTF. See Pet’r’s Mot., ECF No.

613. His claim of a sentencing calculation error is therefore

based on occurrences “totally separate and distinct, in both

time and type” from those raised in his original motion. See

Hicks,

. Therefore, Mr. Logan’s supplemental

motion did not relate back to his original filing.

Second, the Court considered Mr. Logan’s argument that the

one-year deadline should be equitably tolled. Logan,

at *7 The Court found that equitable tolling did not

apply to this case because Mr. Logan failed to point to any

“extraordinary circumstance[s]” which would allow the Court to

do so.

(citing United States v. McDade,

(D.C. Cir. 2012) (holding deadline was equitably tolled when

defendant timely advised counsel he wanted to raise claim four

months in advance of deadline and counsel failed to file in

time)). This is partially because, notwithstanding the alleged

mistake, Mr. Logan was sentenced within the sentencing range

that he asks the Court to apply today. Because Mr. Logan agreed

to, and received, a sentence that was within the Guideline

Range, the Court held there was no error in accepting the plea

agreement.

Accordingly, the Court does not find that jurists

would find it debatable whether Mr. Logan’s petition states a

valid claim of a denial of a constitutional right, nor find it

debatable whether the Court was correct in its procedural

15 ruling. See United States v. Saro,

(D.C. Cir.

2001).

Because Mr. Logan has not made “a substantial showing of

the denial of a constitutional right,” the Court DENIES his

motion for a certificate of appealability on his sentencing

claim. See

(c)(2).

IV. Conclusion

For the foregoing reasons, Mr. Logan’s motion for a

certificate of appealability is DENIED. An appropriate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge December 17, 2019

16