Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA §

 §

§

v. § Criminal Action No. 3:05-CR-081-L

§

GREGORY LEAVELL WEATHERALL(3) §

a.k.a. “Stump” §

MEMORANDUM OPINION AND ORDER

Before the court are: Motion to Dismiss Count Two of Superseding Indictment by Defendant

Gregory L. Weatherall and Brief, filed February 7, 2006; Defendant’s Pro Se Claim of Ineffective

Assistance of Counsel and Request for Evidentiary Hearing, filed March 1, 2006; and Motion to

Withdraw as Attorney of Record, filed March 3, 2006. The Government has filed responses to the

pending motions. Having considered the motions, responses, the record and applicable law, the

court: denies Motion to Dismiss Count Two of Superseding Indictment by Defendant Gregory L.

Weatherall; denies Defendant’s Pro Se Claim of Ineffective Assistance of Counsel and Request for

Evidentiary Hearing; and grants Motion to Withdraw as Attorney of Record. 

I. Procedural Background

On or about April 5, 2005, Defendant Gregory L. Weatherall (“Defendant” or “Weatherall”)

was charged, along with co-defendants Luke Nelson and Carlos Heath, in a one-count indictment

with conspiracy to possess with intent to distribute in excess of 50 grams of a mixture or substance

containing a detectable amount of cocaine base (a Schedule II controlled substance), in violation of

21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(c). On or about October 4, 2005, the grand jury returned a

superseding indictment against Weatherall charging him in Count I with the original conspiracy

 

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charge in addition to a second count charging him with possession of a firearm during and in relation

to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). 

Since being charged, Defendant has been represented by three attorneys, namely, J. Craig

Jett, the Federal Public Defender and his current attorney, Sam Pestinger. On November 22, 2005,

the court granted Mr. Jett’s motion to withdraw which was based in part on Defendant’s

unwillingness to continue to work with Mr. Jett. Subsequently, the court appointed the Federal

Public Defender to represent Defendant. The court granted the Federal Public Defender’s motion

to withdraw based on an asserted conflict of interest. On December 22, 2005, the court appointed

Mr. Pestinger to represent Defendant. On February 7, 2006, Mr. Pestinger, on behalf of Defendant,

filed Motion to Dismiss Count Two of Superseding Indictment by Defendant Gregory L. Weatherall.

On March 1, 2006, Defendant Weatherall filed Defendant’s Pro Se Claim of Ineffective Assistance

of Counsel and Request for Evidentiary Hearing, and on March 3, 2006, Mr. Pestinger filed Motion

to Withdraw as Attorney of Record. The court will address these motions in turn.

II. Discussion

A. Motion to Dismiss Count Two of Superseding Indictment by Defendant

Gregory L. Weatherall

In support of his motion to dismiss Count Two of the superseding indictment, Defendant

contends that under the applicable statute, 18 U.S.C. § 924(c)(1), a defendant cannot be convicted

of using a firearm in relation to a drug trafficking crime absent evidence that he actively employed

the firearm during the offense, of which there is no evidence in this case. See Def. Mot. at 2 (citing

United States v. Tolliver, 116 F.3d 120 (5th Cir. 1997)). Further, Defendant contends that the

prosecutor added Count II of the superseding indictment for the purpose of harassing him. See id.

In opposition, the Government contends that Defendant’s arguments are based on a previous version

 

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of the statute which has since been amended, and that the prosecutor’s decision to seek a superseding

indictment was motivated by legitimate law enforcement purposes and not to harass Defendant. See

Gov’t Resp. at 2-3 (and cases cited therein). The court agrees.

To reiterate, the superseding indictment against Weatherall charges him in the second count

with possession of a firearm during and in relation to a drug trafficking crime in violation of 18

U.S.C. § 924(c)(1)(A). As the Government correctly points out, this statute was amended in 1998

to prohibit “possession” of a firearem “in furtherance of” a drug offense or crime of violence. See

Pub. L. 105-386, 112 Stat. 3469. The previous version of the statute, upon which Defendant relies,

required “active employment” of the firearm. Tolliver, the only case cited by Defendant in support

of his motion, was decided under the previous version of the statute. As Defendant’s argument is

premised entirely on the previous version of the statute, and holds no water under the amended

statute, the court rejects his argument that Count II of the superseding indictment should be

dismissed. Moreover, other than Defendant’s mere ipse dixit, Defendant has offered nothing to

support his argument that the prosecutor added Count II of the superseding indictment for the

purpose of harassing him. Accordingly, the court denies Motion to Dismiss Count Two of

Superseding Indictment by Defendant Gregory L. Weatherall.

B. Defendant’s Pro Se Claim of Ineffective Assistance of Counsel and Request for

Evidentiary Hearing and Mr. Pestinger’s Motion to Withdraw as Attorney of

Record

On March 1, 2006, Defendant moved the court to appoint new counsel on the grounds that

his current attorney, Mr. Pestinger, has rendered ineffective assistance of counsel. In a nutshell,

Defendant contends that Mr. Pestinger, inter alia, failed to hear his concerns, informed him that he

would only perform the minimal obligations to Defendant Weatherall in favor of paying clients,

 

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negligently failed to rectify and correct a factual resume which references drugs that did not pertain

to this case, failed to investigate and preserve evidence, and failed to present his alibi defense.

Defendant also requests an evidentiary hearing to substantiate his claim of ineffective assistance of

counsel. 

Two days after Weatherall filed his motion, Mr. Pestinger filed his motion to withdraw as

counsel of record, contending that Weatherall’s unfounded claim of ineffective assistance of counsel

has “caused irreconcilable differences between the attorney and client and has fractured the attorneyclient relationship.” See Mot. to Withdraw at 2. The Government does not oppose Mr. Pestinger’s

motion to withdraw. The Government also states its position, for which it provides copious support,

that Mr. Pestinger was effective at all required times. See Gov’t Resp. at 3-7. Further, the

Government requests that the court make a finding that Mr. Pestinger has not been ineffective and

that the court also caution Weatherall that he cannot continue to dismiss his appointed attorneys

“willy-nilly.” Id. at 7. 

Having considered the entire record in this case, including Defendant’s track record with

prior counsel (see supra), his most recent claims of ineffective assistance of counsel regarding his

current counsel, along with Mr. Pestinger’s motion to withdraw, and the Government’s lack of

opposition, the court determines that Mr. Pestinger should be permitted to withdraw. The court has

no reason to question Mr. Pestinger’s assertion that, in light of Weatherall’s claims of ineffective

assistance of counsel, irreconcilable differences between him and his client have arisen, and that he

should be permitted to withdraw. Accordingly, the court determines that Mr. Pestinger’s Motion

to Withdraw as Attorney of Record should be granted. In light of the court’s decision that Mr.

Pestinger should be permitted to withdraw, the court sees no need to expend scarce judicial

 

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resources on an evidentiary hearing and therefore denies Defendant’s request for an evidentiary

hearing. The court also declines to find that Mr. Pestinger’s representation of Weatherall constitutes

ineffective assistance of counsel, as Weatherall has fallen woefully short of making a substantial

showing of the denial of his Sixth Amendment right to effective assistance of counsel. See Stickland

v. Washington, 466 U.S. 668, 686 (1984); see also United States v. Molina-Uribe, 429 F.3d 514, 518

(5th Cir. 2005), petition for cert. filed (Oct. 28, 2005) (No. 05-7320). Accordingly, the court denies

Defendant’s Pro Se Claim of Ineffective Assistance of Counsel and Request for Evidentiary Hearing.

By the same token, the court declines the Government’s request to make a finding that Mr. Pestinger

has been effective. In light of the court’s decision to grant Mr. Pestinger’s motion to withdraw as

counsel, and the court’s determination that Defendant has not satisfied Strickland (see supra), a

further finding that Mr. Pestinger was, in fact, effective, would constitute an advisory opinion, which

the court will not do. 

Finally, the court is mindful that Mr. Pestinger was Defendant’s third appointed counsel.

Although allowing Mr. Pestinger to withdraw as counsel, the court admonishes Defendant that it will

not waste further precious time to appease him. Defendant has found fault, to some degree, with

every counsel appointed to represent him. The court has grown weary of such tactics, as their

purpose has become all too apparent. This trial is set for Monday, May 15, 2006 at 9:00 a.m. No

further delay will be tolerated. 

III. Conclusion

For the reasons set forth herein, the court denies Motion to Dismiss Count Two of

Superseding Indictment by Defendant Gregory L. Weatherall; denies Defendant’s Pro Se Claim of

Ineffective Assistance of Counsel and Request for Evidentiary Hearing; and grants Motion to

 

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Withdraw as Attorney of Record. Mr. Pestinger is relieved of any obligation or responsibility to

represent Defendant Weatherall in this case. Further, pursuant to 28 U.S.C. § 636(b), the court

refers this matter to United States Magistrate Judge Paul D. Stickney to appoint counsel to represent

Defendant in accordance with the applicable provisions of the Criminal Justice Act. In light of the

court’s ruling, the current trial setting of Monday, May 15, 2006 at 9:00 a.m. is hereby vacated and

this case will be reset for trial once counsel is appointed to represent Defendant Weatherall. 

It is so ordered this 13th day of March, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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