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Whisnant v. United States

United States District Court, E.D. Tennessee, Knoxville

November 20, 2014



THOMAS A. VARLAN, Chief District Judge.

This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by petitioner Douglas V. Whisnant ("petitioner"). The government has filed its response to the motion and petitioner has filed his reply. Petitioner has also filed three motions to amend the § 2255 motion to state additional claims [Docs. 97, 98, and 99], as well as a motion to correct his reply to the government's response [Doc. 96]. There are also pending petitioner's motions to set a hearing date [Doc. 101], to expedite [Doc. 103], and to require the prosecutor to answer the motions to amend [Doc. 107]. The motion to correct will be GRANTED. For the reasons stated below, the motions to amend will be DENIED as time-barred, the § 2255 motion will be DENIED, the remaining motions will be DENIED as MOOT, and this action will be DISMISSED.

I. Standard of Review

This Court must vacate and set aside petitioner's conviction upon a finding that "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255. To prevail under § 2255, petitioner "must show a fundamental defect which inherently results in a complete miscarriage of justice, ' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 424, 428 (1968)).

Under Rule 8 of the Rules Governing Section 2255 Proceedings In The United States District Courts, the Court is to determine after a review of the answer and the records of the case whether an evidentiary hearing is required. If the motion to vacate, the answer and the records of the case show conclusively that petitioner is not entitled to relief under § 2255, there is no need for an evidentiary hearing. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).

II. Factual Background

Petitioner was convicted by a jury of felon in possession of a firearm and possession of unregistered firearms. By judgment entered March 25, 2009, he was sentenced as an armed career criminal to concurrent terms of imprisonment of 300 months and 120 months, respectively, for a total effective term of imprisonment of 300 months. [Doc. 81[1], Judgment]. Petitioner's convictions and sentence were affirmed on direct appeal. United States v. Whisnant, 391 F.Appx. 426 (6th Cir. Aug. 11, 2010), cert. denied, 131 S.Ct. 586 (Nov. 8, 2010).

The Sixth Circuit summarized the facts underlying petitioner's convictions and sentence as follows:

In February 2007, Jean Johnson, Whisnant's former spouse, disappeared, and the investigation of her disappearance immediately focused on Whisnant because of their tumultuous relationship. As part of the investigation, law enforcement applied for and received a warrant to search his property. The warrant, issued by a Tennessee state court judge on March 9, 2007, authorized a search of "the entire premises, woods, fields, curtilage, the residence and all out buildings and all vehicles and equipment" for "the body of... Jean Johnson... or portions thereof; human blood; the purse and personal effects of Jean Johnson; Ford van keys; a pink suitcase; a small security camera and video cassette tape; a.38 caliber Smith and Wesson pistol... bombs, gun powder, explosives, and gun components." (District Court Record ("R.") 16, Resp. to Mot. to Suppress, Ex. E: Search Warrant.)
Officers from several different agencies executed the search warrant, dividing into teams to search the property. Captain Tommy Ray Jeffers of the Scott County Sheriff's Department was assigned to search the residence. On the porch, he noticed construction materials and plasterboard used for drywalling. Once inside, he entered a room with a picture hanging over a fireplace and noticed that the fireplace utensils were covered in a white powder that resembled drywall dust. He also noticed that the paint surrounding the picture appeared to have been recently touched-up. Realizing that the picture may have been hung in an effort to conceal evidence, Jeffers, joined by other officers, removed it. The officers then could see that the wall recently had been patched. Next, the officers cut a small hole in the patch through which Jeffers could see what appeared to be rolls of cloth. The officers then enlarged the opening and discovered that the cloth actually was numerous gun bags.
Because of Whisnant's history of bomb-making, the officers were concerned that the area inside the wall might be rigged with explosives. They therefore asked members of the bomb-squad unit to remove the items. As members of the unit removed the items from the wall, they discovered firearms, ammunition, and bomb-making materials. In addition to several rifles, shotguns, and pistols, a Sten machine gun and two pen guns were found. Also, a search of a workshop on Whisnant's property uncovered components of a Sten machine gun.
Less than two weeks later, on March 21, 2007, a grand jury indicted Whisnant on one count of being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1). Whisnant filed a motion to suppress the firearms and ammunition found behind the wall of his home. During the suppression hearing, the magistrate judge heard testimony from several officers, including Detective Donnie Anderson, who was present during the search. After the district court denied the motion to suppress, it came to light that Anderson had engaged in professional misconduct unrelated to this case. Consequently, the magistrate judge conducted a second hearing without testimony from Anderson. During the second hearing, Jeffers testified and explained the manner in which the search was executed and described the circumstances leading to the decision to cut a hole in the wall. The magistrate judge concluded that the "officers reasonably made access into the wall" to search for the items listed in the "broadly worded search warrant, " and recommended denying the motion to suppress. (R. 41, Report and Recommendation, 7.) The district court agreed and denied the motion.
On July 16, 2008, a grand jury returned a superseding indictment charging Whisnant with knowingly possessing an unregistered machine gun, in violation of 26 U.S.C. §§ 5841, 5861(d), in addition to the previous felon-in-possession charge.
The case against Whisnant proceeded to trial. A number of law enforcement officers testified as to the items uncovered during the search of Whisnant's residence. Agent Forest Webb of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") testified that he was part of the team that executed the search and had discovered components of a Sten machine gun. Agent Sean Knapp, a firearms specialist with the ATF, then explained to the jury that both a Sten gun and components of a Sten gun qualify as a machine gun and must be registered under federal law. Knapp further explained that, for purposes of federal law, Whisnant possessed three machine guns: "the functional machine gun, the cut out receiver, and combination of parts from which a machine gun could be assembled." (R. 86, Trial Tr., 45-46.) The Government also introduced evidence under Federal Rule of Evidence 404(b) that Whisnant previously had been convicted in state court for illegally possessing a Sten machine gun. Finally, a fingerprint examiner testified that a fingerprint belonging to Whisnant was found on the seized fully-assembled Sten gun.
Before resting, the Government read a number of stipulations into the record: (1) the commercially manufactured firearms found on Whisnant's property were manufactured outside the State of Tennessee; (2) Whisnant was a convicted felon; and (3) none of the firearms found on Whisnant's property were registered. Whisnant offered no witnesses and was convicted on both counts.
The United States Probation Office then prepared a Presentence Investigation Report ("PSR"). The PSR determined that Whisnant was an Armed Career Criminal under 18 U.S.C. § 924(e)(2), and calculated an offense level of 34. The PSR placed Whisnant in criminal history category IV, and, based on that category and the offense level of 34, set Whisnant's advisory guidelines range at 262 to 327 months of imprisonment. Whisnant did not object to the PSR.
On March 11, 2009, the district court held a sentencing hearing. After considering the factors listed in 18 U.S.C. § 3553(a) and the Guidelines range, the district court sentenced Whisnant to a within-Guidelines sentence of 300 months. The district court did so in part because Whisnant has an extensive criminal history, was on probation at the time of the offense, and since has pled guilty to his former spouse's murder.

Id. at 427-429.

In his 32-page § 2255 motion, petitioner purports to allege thirty-two grounds for relief. His claims, however, center around seven central issues: (1) exculpatory evidence withheld from the defense in violation of Brady; (2) prosecutorial misconduct in presenting false testimony; (3) an illegal search; (4) admission of evidence of a prior conviction which violated the Double Jeopardy Clause; (5) error on the part of the trial court in asking potential jurors if they believed all people had a right to bear arms; (6) error on the part of the trial court in not letting the parties answer a question from the jury during deliberation; and (7) ineffective assistance of counsel. After the government filed its response to the § 2255 motion, petitioner filed three subsequent motions to amend the § 2255 motion.

III. Statute of Limitation

A federal prisoner has one year in which to file a § 2255 motion. The limitation period generally runs from the date on which the judgment of conviction becomes final. Petitioner's judgment of conviction became final when the Supreme Court denied his petition for writ of certiorari on November 8, 2010. Accordingly, petitioner had until November 8, 2011, within which to file his § 2255 motion.

Petitioner timely filed his original § 2255 motion on October 5, 2011. [Doc. 91]. Petitioner's motions to amend the § 2255 were filed on January 4, 2012, February 3, 2012, and August 2, 2012. [Docs. 97, 98, and 99, respectively]. The question, then, is whether the motions to ...

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