United States District Court, E.D. Tennessee, Greeneville
J. RONNIE GREER, District Judge.
On September 13, 2011, the federal grand jury returned a two count indictment, [Doc. 1], charging the petitioner, Gregory William Ward ("Ward" or "petitioner") with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count One), and with possession of equipment, chemicals, products, and materials which may be used to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6) (Count Two). Federal Defender Services of East Tennessee, Inc. was appointed to represent petitioner, [Doc. 4], and on November 7, 2011, retained counsel was substituted, [Doc. 14]. On November 14, 2011, the petitioner, through retained counsel, gave notice of his intent to plead guilty to the indictment, [Doc. 15], and Ward pled guilty on the following day, November 15, [Doc. 16]. Sentencing was scheduled for April 2, 2012, and, on that date, petitioner was sentenced to 72 months of imprisonment as to each count, to run concurrently, [ see Doc. 23]. Judgment was entered on April 18, 2012, [Doc. 24]. No direct appeal was taken and on August 20, 2012, the petitioner timely filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, [Doc. 25].
Petitioner's § 2255 motion is currently pending before the Court. The United States has responded in opposition, [Doc. 31], and petitioner has replied, [Doc. 32]. The Court has determined that the files and records in the case conclusively establish that no evidentiary hearing is necessary in the case. For the reasons which follow, petitioner's motion to vacate, set aside, or correct is DENIED.
At the change of plea hearing on November 15, 2011, the following stipulated facts were entered into the record:
On March 31, 2011, officers met with a confidential informant to conduct an undercover operation where the confidential informant would attempt to purchase a pistol from the defendant, as well as attempt to purchase illegal narcotics and find evidence of the defendant's attempts to manufacture methamphetamine. The confidential informant and his vehicle were searched, and no contraband was found. The confidential informant was then fitted with audio and video recording equipment and given $600 of pre-recorded Carter County Sheriff's Office currency.
Upon arriving at the defendant's residence, the confidential informant and the defendant discussed the price of the pistol. The defendant then called in his juvenile daughter, who also negotiated the price of the pistol with help from the defendant. The daughter and the defendant agreed to accept $460 from the confidential informant and a hand to hand exchange of the pistol for the cash was recorded. The defendant also provided the confidential informant ammunition for the pistol.
On April 1, 2011, at about 5:00 PM, Carter County Sheriff's Office officers executed a state search warrant at the defendant's residence. During the search, several items used to manufacture methamphetamine were seized. A large metal drum in the backyard appeared to be a "shake and bake" lab. An outbuilding behind the house contained several methamphetamine lab components and a wood burning stove. Officers recovered $160 in U.S. currency that hd serial numbers matching the bills used to purchase the pistol the day prior. A shotgun and a bolt action rifle were also found at the residence.
The defendant agreed to speak to investigators. During the interview, the defendant stated that he was a convicted felon. The defendant also told the investigators that he had attempted to "cook" methamphetamine in the past. The defendant stated he began attempting to cook methamphetamine in October of 2010 and his last attempt had been about two weeks before the execution of the search warrant. The defendant said he was unsuccessful at making methamphetamine so he started buying pseudoephedrine to trade for methamphetamine.
Security camera footage of the evening of April 5, 2011 at the Elizabethton, Tennessee Wal-Mart was recovered by investigators. Four clips of footage show the defendant and two other persons coming into the store. The clips further reflect the purchase of Coleman lantern fuel and cold press packs, items used in the manufacture of methamphetamine. Records from the Tennessee Meth Task Force pseudoephedrine database reflect the purchase of 35.76 grams of pseudoephedrine between June 16, 2010 and February 12, 2011 by the defendant.
The firearm sold to the confidential informant by the defendant was a High Standard, model Sport King, .22 caliber semi-automatic pistol, serial number 2453655. The firearms found at the residence on April 1, 2011 were a Polyarms for Armi Effebi, 12 gauge single-shotgun, serial number 17416 and a Keystone Sporting Arms, model Cricket, .22 caliber bold action rifle, serial number 6939. A firearms interstate nexus expert examined all of the firearms recovered from the defendant and determined that the firearms were manufactured outside the State of Tennessee, and therefore necessarily affected interstate commerce. The expert further determined that all of the aforementioned firearms are modern firearms.
On March 2, 2007. On the Western District of North Carolina, the defendant was convicted of possession of a firearm in and affecting interstate commerce by a convicted felon in violation of 18 U.S.C. § 922(g)(1), case number 5:05CR26.
[Agreed Factual Basis, Doc. 18].
Petitioner raises two grounds for relief in his motion. First, he claims that counsel was ineffective by failing to file an immediate notice of appeal despite petitioner's instructions to do so. Second, petitioner claims relief pursuant to the Supreme Court's decision in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) and the Fourth Circuit's decision in the United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) ( en banc ). In support of his first claim, petitioner submits his own declaration, [Doc. 25-2], in which he declares, under penalty of perjury, that he informed his counsel, before they left the courtroom on the day of sentencing, that he wanted to appeal his case. The United States responds to this claim with the affidavit of retained counsel, [Doc. 31-1], in which counsel swears that he very clearly remembers that Ward never mentioned an appeal at any point and that he would have filed a notice of appeal had he been instructed to do so. He further asserts that he has spoken to petitioner on several occasions subsequent to sentencing and Ward never mentioned an appeal. As to the second claim, the United States responds that neither Carachuri-Rosendo nor Simmons have any application to petitioner's case.
Petitioner's second claim is easily disposed of. Neither Carachuri-Rosendo nor Simmons have any application whatsoever to petitioner's case, and, in his reply, petitioner "concedes his Carachuri-Rosendo and the Simmons grounds are jailhouse lawyer nonsense and ...