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Kinslow v. United States

January 15, 2008

BATTRICK D. KINSLOW, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: R. Allan Edgar United States District Judge

Edgar

MEMORANDUM

Petitioner Battrick Kinslow has filed a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. [Court Doc. No. 1]. The Government opposes Kinslow's motion. [Court Doc. No. 4]. As stated infra, this court has concluded that Kinslow's Section 2255 motion is without merit and will be DENIED.

I. Procedural and Factual History

On November 25, 2003, a United States grand jury sitting for the Eastern District of Tennessee, Chattanooga Division, returned a seven count indictment against Kinslow charging him with: four counts involving the conspiracy to sell and the sale and distribution of cocaine base ("crack") in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846; one count involving possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(I); two counts of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The indictment involved the sale of crack from March 2003 to November 20, 2003.

The following facts are taken from the Pre-sentence Report ("PSR") prepared by the United States Probation Office:

14. On March 21, 2003, officers with the Decherd Police Department conducted three controlled purchases of crack cocaine from Battrick D. Kinslow using a confidential informant (CI-1). All three transactions were electronically monitored and recorded. The first purchase was for .4 gram of cocaine base, the second was for .2 gram of cocaine base, and the third was for .3 gram of cocaine base, for a total of .9 gram of cocaine base sold by the defendant to CI-1.

15. In October of 2003, Kinslow discussed with another confidential informant (CI-2) his desire to kill CI-1, who had provided police with incriminating information about Kinslow. On November 20, 2003, under the direction of police, CI-2 contacted Kinslow and informed Kinslow that he was ready to kill CI-1, pursuant to Kinslow's wishes. Through negotiations over the telephone, Kinslow arranged to meet CI-2 with a handgun to be used to kill CI-1. As compensation, Kinslow would forgive a $6,200 debt that CI-2 owed Kinslow for an automobile accident that damaged the defendant's vehicle. Later on November 20, 2003, Kinslow brought a firearm, a loaded .38 caliber Smith & Wesson revolver, to CI-2's residence. Officers with the Franklin County Sheriff's Department were inside and around the residence to monitor the transaction. Kinslow gave the .38 caliber revolver to CI-2 and the two discussed the killing. Kinslow left the residence and officers obtained a state arrest warrant for Kinslow. Later, Kinslow was arrested at his residence and gave officers written consent to search his residence. Officers found a 9mm Lorcin handgun in Kinslow's bedroom on top of a laundry basket. Kinslow was informed of his rights, waived those rights verbally, and admitted that he owned the handgun. He also told investigators that during the fall of 2003, he had transported quantities of crack cocaine from Chattanooga to Franklin County, Tennessee (no specific amounts known).

PSR, ¶¶ 14-15.

On February 25, 2004 Kinslow signed a plea agreement agreeing to plead guilty to Counts 1, 5 and 6 of the indictment. Count 1 pertained to Kinslow's conspiracy to distribute and possession with the intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Count 5 pertained to possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(I). Count 6 pertained to felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The government agreed to dismiss Counts 2, 3, 4, and 7 of the indictment. [Court Doc. No. 17, Plea Agreement, ¶¶ 1-4].

The plea agreement also states that:

The defendant expressly waives the right to appeal his conviction on any ground, other than ineffective assistance of counsel or prosecutorial misconduct. The defendant further agrees not to file any motions or pleadings pursuant to 28 U.S.C. § 2255 on any ground, other than ineffective assistance of counsel, prosecutorial misconduct, or subsequent change in the interpretation of the law which may affect his case. Thus, the defendant knowingly, intentionally, and voluntarily waives his right to collaterally attack the plea being offered in the instant case.

Plea Agreement, ¶ 13.

Kinslow pled guilty before this court in a rearraignment proceeding on February 25, 2004. During the hearing Kinslow informed this court that he wanted a new lawyer because he did not understand his options or all the terms of the plea agreement. Rearraignment Proceedings, Vol. I, pp. 1-6. The court informed him that he had to decide if he wanted to plead guilty to the three counts and said, "[i]t's up to you, and nobody is putting any pressure on you to do that." Id. at 5. This court then provided Kinslow with a twenty minute recess during the rearraignment so that he could discuss the agreement with his attorney. Id. at 6. The court directed Kinslow's lawyer to "explain things to him, make sure he understands all of the pros and cons of things and just tell me what you want to do." Id. Following the recess, the parties passed the signed plea agreement to the court. Id. at 7.

Kinslow informed the court that he had seen a psychiatrist while in jail and that he was taking Ativan for depression. Rearraignment Proceedings, Vol. I, p. 8. Then he assured the court that the prescription medication did not "mess up" his mind at all. Id. at 9. The court then asked whether Kinslow understood that by pleading guilty, he was giving up the right to a jury trial, the right to a presumption of innocence, the right to confront witnesses, the right to counsel at trial, the right to remain silent, and the right to subpoena witnesses. Rearraignment Proceedings, pp., 10-14. The court further inquired whether Kinslow "was pleading voluntarily?" Id. at 14. Kinslow responded "Yeah, I plead voluntarily" to this question. Id.

The Assistant U.S. Attorney then summarized the terms of the plea agreement for the court. During his summary, he stated, [Kinslow] does waive his right to appeal specifically under 28 U.S.C. 2255 other than the grounds laid out in the agreement. As Your Honor said, of course, he could still appeal his sentence, but that's not mentioned in the agreement. Rearraignment Transcript, p. 15. This court reemphasized this portion of the plea agreement by stating, [i]n this plea agreement, and it's specifically Paragraph 13, if you want to look at it, it's also provided here that you're giving up your right to -- one of the ways that you can appeal your conviction in this case is to file what we call a 2255, sometimes we call it a habeas corpus petition. In this plea agreement, you're giving up your right to do that except for certain things, such as ineffective assistance of counsel, prosecutorial misconduct, or a subsequent change in the law. Other than for those reasons you're giving up your right to file a habeas corpus petition here. Do you understand that?

Id., pp. 17-18. Kinslow responded, "Yes, Your Honor, I understand that." Id. This court also asked whether Kinslow had read the plea agreement and had discussed it with his lawyer. He responded that he had. Id. at 17.

After some initial confusion by Kinslow between his plea hearing and his rights at sentencing and whether he wished to plead guilty to count one, the following colloquy occurred:

The Court: I mean, you know, nobody is making you plead guilty.

The Defendant: I plead guilty, Your Honor. I plead guilty. I plead guilty. I plead guilty.

The Court: Is there any doubt about that now?

The Defendant: No, Your Honor. I plead guilty.

Id. at 20-21.

Following the summary of the plea agreement, the Assistant U.S. Attorney summarized the facts of the case, including evidence regarding the charges pertaining to the solicitation of murder. Rearraignment Transcript, pp. 28-30. Then ...


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