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Boales v. Rivera

United States District Court, Western District of Tennessee, Eastern Division

April 8, 2015

MARCUS BOALES, Petitioner,
v.
C.V. RIVERA, Respondent.

ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2241, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE

On April 21, 2014, Petitioner, Marcus Boales, Bureau of Prisons register number 22883-076, who is currently an inmate at the Federal Correctional Institution in Forrest City, Arkansas (“FCI Forrest City”), filed a pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2241, along with a motion seeking leave to proceed in forma pauperis. (Docket Entry (“D.E.”) 1; D.E. 2.) On April 23, 2014, the Court entered an order denying the motion to proceed in forma pauperis and directing Petitioner to pay the filing fee, which he did on May 8, 2014. (D.E. 4; D.E. 5.) The Clerk shall record the respondent as Warden C. V. Rivera.

I. BACKGROUND

A. Federal Criminal Case Number 09-10041 On April 20, 2009, a federal grand jury returned a two-count indictment against Boales and a co-defendant, Antwain L. Spears. (Indictment, United States v. Boales, No. 09-10041-02-JDB (W.D. Tenn.), Criminal (“Cr.”) D.E. 3.) On April 19, 2010, the grand jury returned a two-count superseding indictment that named a third co-defendant, Tracey Moore. (Superseding Indictment, id., Cr. D.E. 64.) The first count charged the defendants with conspiring with each other and with other persons to possess over 5 grams of cocaine base (crack cocaine) with the intent to distribute and to distribute over 5 grams of cocaine base (crack cocaine), in violation of 21 U.S.C. § 841(a)(1). The second count charged all defendants with aiding and abetting with each other, in possessing over 5 grams of cocaine base (crack cocaine) with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

The factual basis for these charges is stated in the presentence report (“PSR”):

5. According to information provided by the Assistant United States Attorney States Attorney responsible for the prosecution of this matter, during 2007-2008 officers with the Carroll County Sheriff’s Department and the Drug Enforcement Administration Task Force were investigating an ongoing conspiracy to distribute crack cocaine in Carroll, Benton, and Henderson Counties in Tennessee. Over the course of the investigation, multiple individuals were identified as being involved in the conspiracy. Antwain Spears and Marcus Boales were among those identified as potential participants in the conspiracy.
6. On June 24, 2008 at approximately 6:30 p.m., Investigators Tim Meggs and David Bunn with the Carroll County Sheriff’s [Department] accompanied two probation officers, Chris Duke and Burt Wells, to the residence of Antwain Spears, located at 2550 Purdy Road in Huntingdon, Tennessee. At that time, Mr. Spears had an active arrest warrant for failing a drug screen, which violated the terms of his parole. Upon arriving at the residence, the probation officers and investigators exited their vehicle and asked several individuals that were located outside near an outbuilding for Mr. Spears. Those individuals reported that Mr. Spears was not present in the outbuilding and could be inside the residence. However, Investigator Meggs, who was familiar with Mr. Spears, had observed Mr. Spears go into the outbuilding shortly after arriving at the residence.
7. Investigator Meggs walked to the outbuilding located at the residence and observed Antwain Spears, Marcus Boales, and several other individuals present there. Investigator Meggs informed Mr. Spears that the probation officers wished to speak with him and obtained consent from Mr. Spears to clear the outbuilding for officer safety reasons. Once the investigators entered the outbuilding, they noticed a piece of a plastic baggy with white residue, a bag containing eight small bags of a hard rock-like substance, and two small bags of marijuana in plain view. The bag containing the hard rock-like substance field tested positive for crack cocaine.
8. After finding the items of contraband in the outbuilding, Investigator Meggs spoke to Mr. Spears’ girlfriend and asked her if there was anyone else inside the residence, to which she replied that there was not. A short while later, Investigator Meggs noticed another individual exit the residence. Subsequently, officers entered the home and cleared the area for officer safety. Investigator Meggs informed Mr. Spears’ girlfriend that he was going to obtain a search warrant and advised all of the individuals present at the scene to remain outside. At that time, Marcus Boales was granted permission to leave the residence by Investigator Meggs and left the area.
9. While Investigator Meggs was away from the scene obtaining a search warrant, Marcus Boales returned and informed Sergeant Lee Bates that the marijuana and crack cocaine that was found inside the outbuilding of the residence belonged to him. Mr. Boales was subsequently placed in the back of a squad car for further investigation. When Investigator Meggs returned to the residence with a search warrant, Mr. Boales spoke with him and reiterated his admission that the drugs located in the outbuilding were his.
10. After Investigator Meggs returned with a search warrant, officers searched the inside of the residence for contraband. Officers located a bag of crack cocaine and a bag of marijuana inside of a flashlight in a vase in the living room of the home. Officers also located a set of digital scales in the living room. After the items were seized as evidence, Mr. Spears spoke with Investigator Meggs and admitted that the items found inside of the residence belonged to him. When Investigator Meggs asked Mr. Spears how he could be sure that the contraband found in the home belonged to him and not to his girlfriend, Mr. Spears repeated that the items were his and correctly told Investigator Meggs exactly where the narcotics had been discovered.
11. On August 4, 2008, the Tennessee Bureau of Investigation Memphis Crime Laboratory issued an official forensic chemistry report regarding the substances retrieved from the defendants in this case on June 24, 2008. The results were as follows:
Exhibits
Controlled Substance
Schedule
Amount
01-a
Cocaine base
II
20.3 grams
01-b
Marihuana
VI
6.8 grams
02-a
Cocaine base
II
20.1 grams
02-b
Marihuana
V
I 12.7 grams
Exhibits 01-a and 01-b consisted of the narcotics that were retrieved from the outbuilding adjacent to the residence. Exhibits 02-a and 02-b consisted of the narcotics that were retrieved from inside the residence.

(PSR ¶¶ 5–11.)

On August 17, 2010, pursuant to a written Plea Agreement, Boales plead guilty to Count 1 of the Superseding Indictment. (Min. Entry, United States v. Boales, No. 09-10041-02-JDB (W. D. Tenn.), Cr. D.E. 94; Plea Agreement, id., Cr. D.E. 95.) On March 23, 2012, the Court sentenced him as a career offender to a term of imprisonment of one hundred forty-five months, to be followed by a four-year period of supervised release.[1] (Min. Entry, id., Cr. D.E. 193.) Judgment was ...


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