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McCullough v. United States

United States District Court, W.D. Tennessee, Eastern Division

April 14, 2015

TRAVIS McCULLOUGH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL.

DANIEL BREEN, District Judge.

INTRODUCTION

Before the Court is the pro se 28 U.S.C. § 2255 motion of the Petitioner, Travis McCollough, to vacate, set aside or correct his sentence (the "Petition"). (D.E. 1.) McCullough, Bureau of Prisons register number XXXXX-XXX, is an inmate at the Federal Correctional Complex in Oakdale, Louisiana. For the reasons articulated herein, the Petition is DENIED.

BACKGROUND

On September 20, 2010, a federal grand jury, in Case No. 1:10-10077-JDB-1, returned an indictment against Petitioner and others, charging them with conspiracy to obtain ingredients and equipment necessary to manufacture methamphetamine and with manufacturing, possessing with intent to distribute, and possessing equipment and materials which may be used to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a), 843(a) and 846. McCullough and co-Defendant Caleb Rice were also charged with theft of anhydrous ammonia for use in the manufacture of the drug, in violation of 21 U.S.C. §§ 841(a) and 864.6>

According to the presentence report (the "PSR"), on March 5, 2010, the Obion County, Tennessee sheriff's department received a citizen report of a truck from which was emanating the odor of anhydrous ammonia. The caller provided the location and the license plate number of the truck. The tags indicated the vehicle belonged to McCullough. After the vehicle pulled into the driveway of a residence, Sgt. Darrell Davis was dispatched to the address and, upon his arrival, observed a truck matching the description given to the dispatcher parked behind a shed in back of the house. As he got out of his car, he could smell anhydrous ammonia and saw three men running from the area of the truck. In the back of the truck was a yellow plastic spray tank with a frost line which was consistent with a container housing anhydrous ammonia. He also saw a camouflage bag next to the vehicle that held mixing bowls, plastic bags, coffee filters, drain cleaners, salt, and a funnel, as well as a.40 caliber handgun on a boat a few feet away. It was noted in the PSR that officers later discovered the weapon belonged to Petitioner.

A pill soak was located in a one-gallon plastic container under a lawn trailer approximately five feet from McCullough's vehicle. A second rested on a table in the shed along with methamphetamine oil, a gas generator, mixing bowls and a funnel. A third was in a grill on the house's back porch, where officers also discovered a loaded Marlin 30/30 rifle. A fourth pill soak was found in a one-gallon plastic bag in the boat with the handgun. After more officers arrived on the scene, they detected an additional methamphetamine cook site approximately seventy-five yards from the residence.

Officers obtained a search warrant and entered the house. They found the Petitioner in a bedroom with bottles of pills and $809 in cash. The search of a second bedroom revealed a bag containing a green leafy substance, a.50 caliber muzzle loader, two.22 caliber rifles, syringes, sets of digital scales, drug paraphernalia, lithium batteries, a box of.40 caliber federal ammunition, 30/30 rounds, brass knuckles, a plastic bag of 124 ephedrine pills and cans of starter fluid. In a bathroom, officers discovered more syringes and a spoon with methamphetamine residue. In the living room were five plastic containers of marijuana plants and, in the kitchen, a set of digital scales, ammunition for various rifles, coffee filters, and a pipe and piece of aluminum foil containing drug residue. In searching other vehicles parked on the premises, officers found drugs, a receipt for the purchase of starter fluid, a bottle of drain opener, more lithium batteries and scales, a shut-off valve and two propane tanks that had been used to house anhydrous ammonia.

After his arrest, McCullough was determined to be indigent and Assistant Federal Defender M. Dianne Smothers was appointed as his counsel. On September 12, 2011, he appeared before this Court to plead guilty to count four of the indictment (possessing equipment and materials that may be used in the manufacture of methamphetamine). The Court accepted the plea on September 12, 2011 and, at a hearing on December 16, 2011, sentenced McCullough to eighty months incarceration followed by three years of supervised release. (Case No. 1:10-cr-10077-JDB-1, D.E. 175.) This sentence constituted a twenty-eight-month downward variance from the lowest end of the applicable guideline range. Judgment was entered on the day of the sentencing hearing. (Case No. 1:10-cr-10077-JDB-1, D.E. 177.) He did not appeal.

THE PETITION

The Petition, as supplemented on November 21, 2012, presented the following issues:

1. Whether trial counsel rendered ineffective assistance, in violation of the Sixth Amendment, by failing to object to the two-level firearm enhancement in the PSR. (D.E. 1 at 4.)5>
2. Whether the Petitioner should receive a sentence reduction based upon his post-sentence ...

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