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Tarpkin v. United States

December 21, 2006

JERMAINE TARPKIN
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: Chief United States District Judge Collier

MEMORANDUM

Defendant Jermaine Tarpkin ("Tarpkin") has filed a pro se motion for post-conviction relief pursuant to 28 U.S.C. § 2255 (Court File No. 1). Tarpkin was convicted by a jury of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g); one count of possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2); one count of possession with intent to distribute marijuana in violation of the 21 U.S.C. § 841(a)(1) and (b)(1)(D); and one count of possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(a)(I).

Tarpkin contends the Court lacked jurisdiction to prosecute him under 21 U.S.C. § 841(a) and 18 U.S.C. § 922(g); the evidence was insufficient to support the convictions; he is actually innocent of the possession of a controlled substance with intent to distribute offense because he possessed the substance for his personal use; and he is actually innocent of the gun charges because he never possessed the firearm. In addition, Tarpkin contends the drug statutes are unconstitutional in light of Apprendi.*fn1 The United States opposes the motion.

After reviewing the record, the Court concludes that Tarpkin's § 2255 motion will be DENIED. The record conclusively shows that Tarpkin is not entitled to any relief under 28 U.S.C. § 2255. There is no need for an evidentiary hearing.

I. STANDARD OF REVIEW

A federal prisoner may file a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the ground that the sentence was imposed in violation of the United States Constitution. To obtain relief under § 2255 based on an alleged constitutional error, Tarpkin bears the burden of establishing an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Hill v. United States, 368 U.S. 424, 428 (1962); Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003); Watson v. United States, 165 F.3d 486, 488 (6th Cir.1999). To warrant relief under § 2255, Tarpkin is required to show a fundamental defect in the criminal proceedings which inherently results in a complete miscarriage of justice or an egregious error that rises to the level of a violation of constitutional due process. Davis v. United States, 417 U.S. 333, 346 (1974); Griffin, 330 F.3d at 736; Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994).

II. PROCEDURAL HISTORY

On April 11, 2001, a federal grand jury returned a five-count indictment charging Tarpkin with drug and gun offenses. Tarpkin was charged with: (1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g); (2) being a felon in possession of ammunition in violation of 18 U.S.C. § 922 (g); (3) possession of a stolen firearm in violation of 18 U.S.C. § 922(g); (4) possession with intent to distribute marijuana in violation of 21 U.S.C. § 841 (a) and (b)(1)(C); and (5) possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c).

The jury convicted Tarpkin on all counts, as indicted, except for Count Two, the charge of being a felon in possession of ammunition. On October 19, 2001, the District Court sentenced Tarpkin to 195 months of imprisonment. Tarpkin filed a timely notice of appeal and his judgment of conviction on all counts was affirmed on June 19, 2003. United States v. Tarpkin, 68 Fed.Appx. 594 (6th Cir. June 19, 2003) (unpublished decision), available in 2003 WL 21456256. Tarpkin subsequently filed a petition for rehearing en banc which was denied on August 25, 2003, and the United States Court of Appeals for the Sixth Circuit (the "Sixth Circuit") issued its mandate on September 2, 2003. Tarpkin's judgment became final on November 24, 2003, upon expiration of the ninety-day-period within which Tarpkin could have filed a petition for writ of certiorari. See Clay v. United States, 537 U.S. 522 (2003) (one-year clock begins to run with expiration of ninety-day period within which petitioner could have filed for certiorari review). Tarpkin timely filed this instant § 2255 motion, which was treated as filed on November 23, 2004, the date Tarpkin placed the motion into the prison mail system. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).

III. FACTS

The following recitation of the facts is from the opinion of the Sixth Circuit: On April 3, 2001, Tarpkin, the defendant, had arranged to visit his minor child, who resided with the child's mother, Pamela McIntosh. Tarpkin was at his own mother's house when McIntosh accompanied by her 80-year-old aunt, came to pick him up. On the way to McIntosh's residence, Tarpkin initially rode in the back seat, but moved to the front after the aunt was dropped off.

The afternoon visit at McIntosh's house did not go well. Tarpkin and McIntosh argued; Tarpkin also cursed at her "constantly," and, at one point, McIntosh hid in her bedroom to avoid him. McIntosh considered calling the police, but decided not to because her disabled, five-year-old son was afraid of the police. Eventually, McIntosh asked Tarpkin to leave, telling him that she would pay for a cab. Tarpkin insisted that she drive him home. McIntosh asked her neighbor, Connie Miles, to ride with them. When Miles arrived, McIntosh asked her if she had a gun or a knife because she was so upset she wanted to shoot him.

On the trip back to Tarpkin's mother's house, Tarpkin sat in the front with his book bag, while Miles sat in the back. As they were driving, Tarpkin argued with McIntosh and poked her in the face. McIntosh finally pulled over into a convenience store parking lot, telling Tarpkin that she was going to call the police. Tarpkin then showed her that he had a bag of marijuana in his pocket, apparently hoping to deter her. McIntosh nonetheless went inside the store and called the police, telling them that she wanted Tarpkin out of her car. As the police arrived, McIntosh looked out to her car and saw Tarpkin, still sitting in the front passenger seat, "bend down" a couple of times. Miles, still sitting in the back seat, saw Tarpkin reach under the front seat twice with his right hand. Tarpkin then got out of the car and tried to "sweet talk" McIntosh into coming to talk to him.

When it appeared that the police were going to leave without doing anything. [sic] McIntosh told them that Tarpkin had had marijuana in his jacket and that it was probably now in her car. She then gave the police permission to search the car. On the floor of the front passenger side of the car, under Tarpkin's book bag, the police found a plastic bag containing 62.8 grams of marijuana. On Tarpkin's person, they found a box of cigars, with one of the four cigars missing. In the car's astray, they found a partially smoked "blunt," a marijuana cigar, which Tarpkin admitted was his, along with a few marijuana cigarettes. And under the front passenger seat, they found a loaded Ruger .45- caliber ...


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