United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
J. DANIEL BREEN, Chief District Judge.
Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody ("§ 2255 Motion") filed by Movant, James Michael Cunningham, Bureau of Prisons register number XXXXX-XXX, an inmate at the Federal Correctional Institution in Manchester, Kentucky. (§ 2255 Mot., Cunningham v. United States, No. 1:13-cv-01229-JDB-egb (W.D. Tenn.), Docket Entry ("D.E.") 1.) For the reasons stated below, the Court DENIES Cunningham's § 2255 Motion.
A. Case Number 11-10013
On February 22, 2011, a federal grand jury returned a five-count indictment against Cunningham and his co-defendants, Denise Michelle Pratt and Lori Lynne Larkins. (Indictment, United States v. Cunningham, No. 1:11-cr-10013-JDB-1 (W.D. Tenn.), D.E. 1.) On December 12, 2011, the grand jury returned a six-count superseding indictment against Cunningham and his co-defendants. (Superseding Indictment, United States v. Cunningham, No. 1:11-cr-10013-JDB-1 (W.D. Tenn.), D.E. 101.) Count 1 charged that Cunningham and his co-defendants conspired to manufacture over 500 grams of methamphetamine on or about January 24, 2011, in violation of 21 U.S.C. § 846. ( Id. ) Count 2 charged them with possession with the intent to distribute over 500 grams of methamphetamine on or about January 30, 2009, in violation of 21 U.S.C. § 841(a)(1). ( Id. ) Count 3 alleged that Cunningham and his co-defendants possessed Ephedrine/Pseudoephedrine with the intent to manufacture methamphetamine on or about January 24, 2011, in violation of 21 U.S.C. § 841(c) and 18 U.S.C. § 2. ( Id. ) Count 4 claimed Cunningham used and maintained a building for the purpose of manufacturing and using methamphetamine on or about January 30, 2009, in violation of 21 U.S.C. § 856. ( Id. ) Count 5 charged that Cunningham possessed equipment, chemicals, products, and materials that were used to manufacture methamphetamine on or about January 30, 2009, in violation of 21 U.S.C. §§ 841(a)(1) and 843(a)(6). ( Id. ) The factual basis for these charges is stated in the presentence report ("PSR"):
4. At approximately 2:11 p.m. on January 30, 2009, deputies of the Benton County (TN) Sheriff's Office (BSCO) served a state arrest warrant for a charge of Promotion of Methamphetamine on James Michael Cunningham.... While attempting to locate Cunningham, BSCO deputies observed several items associated with the manufacture of methamphetamine (meth) outside his home and near a shop/outbuilding located on the property.... After arresting Cunningham on the state warrant, Investigator Bryant Allen applied for a state search warrant....
5. Upon entering a shop/outbuilding located on Cunningham's property, Investigator Allen and other BSCO officers immediately detected the smell of anhydrous ammonia. An empty refrigerator in the shop/outbuilding also contained a strong odor of anhydrous ammonia. Several empty lithium battery packs were found inside the freezer compartment of the refrigerator. Approximately 530 grams (gross weight) of a white, powdery substance were discovered inside a 55-gallon drum. Also found in the 55-gallon drum was approximately 605.4 gross grams of a grayish, powdery substance, and approximately 77.6 gross grams of a white red crushed substance in a zip-loc bag.
6. An extremely large number of additional items, most of which are known to be associated with the manufacture, production, or use of meth, were also found in the shop/outbuilding and were seized as evidence. A partial list of the many items seized would include the following: a large number of boxes of plastic bags/baggies (multiple sizes and types); miscellaneous tools; various types of paraphernalia used to smoke or ingest meth, some with residue; plastic buckets; kitty litter; duffle bags; pill grinders; miscellaneous plastic containers; a large amount of plastic tubing; glass jars with residue; (2) vent fans; latex and rubber gloves; shop towels; approximately 650 coffee filters; Shop-Vac filters; dust masks; electrical tape; plastic funnels; stir spoons; strainers; aluminum foil; metal valves; plastic hose couplings; two-liter plastic bottles; (7) lithium batteries; (3) propane cylinders; and (9) anhydrous ammonia tanks.
7. Among numerous known meth precursor items found in the shop/outbuilding were the following: two (2) bottles of alcohol; one (1) plastic pitcher containing Coleman fuel; two (2) cans of Coleman fuel; one (1) bottle of vinegar; one (1) two-liter bottle of acetone; one (1) two-gallon bag of bi-layered unknown substance; six (6) cans of salt; two (2) boxes of rock salt; two (2) plastic containers of salt; three (3) hydrogen chloride (HCI) gas generators; one (1) one-gallon gas can, converted to an HCI generator; one (1) bottle of lye (sodium hydroxide); and two (2) bottles of Liquid Fire.
9. During a search of the master bedroom of Cunningham's residence, deputies discovered a large zip-loc bag of a white, powdery substance inside a small purse located behind a football photo. Inside another large zip-loc bag were ten (10) corner baggies, each containing a small amount of a white, powdery substance. Deputy Tim Moss discovered a clear baggie containing twenty-seven (27) unknown white tablets; a sealed blister pack containing six (6) pseudoephedrine tablets, 25 mg per tablet; and four (4) sealed blister packs containing thirty-nine (39) pseudoephedrine tablets, 30 mg per tablet.
10. During a search of an ammunition box, located inside a large gun safe in the master bedroom, Deputy Moss discovered a zip-loc bag containing one-hundred and forty-three (143) unknown white tablets, another zip-loc bag containing twenty-nine (29) unknown white tablets, and a third bag containing ten (10) unknown white tablets.... [T]welve (12) firearms (shotguns and rifles), some which were loaded, were found in and seized from the gun safe in the master bedroom
11. A hazardous materials (Haz-Mat) company was contracted to clean-up the meth lab site and to remove and dispose of the meth-related hazardous materials found on Cunningham's property. The total amount paid by the DEA for contracted hazardous waste removal services was $10, 910.00.
13. The combined total net weight (sans packaging) of the exhibits... all of which contained a detectable amount of methamphetamine, is 1, 660.6 grams (1.66 kilograms).
15. [A] total of 698 pseudoephedrine pills/tabs, still in the original packaging and readily-identifiable, were seized from Cunningham's residence/property on January 20, 2009. The total amount (net weight) of the pseudoephedrine contained in 698 pills/tabs is 53, 040 milligrams (53.0 grams).
16. The zip-loc bag containing approximately 77.6 grams (includes packaging) of a white and red crushed substance, found in Cunningham's shop/outbuilding, was submitted for DEA Crime Laboratory analysis. All of the substance submitted was found to contain pseudoephedrine. The total amount (net weight) of pseudoephedrine in the substance was determined to be 6.9 grams.
17. In addition to the 698 pseudoephedrine pills/tabs... a total of at least 247 additional pills, all removed from the original packaging, were submitted to the DEA Crime Laboratory for analysis. Crime laboratory test results confirmed ...