United States District Court, W.D. Tennessee, Western Division
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255 DENYING MOTION TO ACCEPT MOTION OUT OF TIME DENYING MOTION TO AMEND DENYING CERTIFICATE OF APPEALABILITY CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
S. THOMAS ANDERSON, District Judge.
Before the Court is a Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (the "§ 2255 Motion") filed by Petitioner Anthony McCaster ("McCaster"), Bureau of Prisons register number XXXXX-XXX, an inmate at FCI-Forrest City, Forrest City, Arkansas (§ 2255 Motion, ECF No. 1.) For the reasons stated below, McCasters's § 2255 Motion is DENIED.
I. Criminal Case Number 09-20110
On March 24, 2009, a federal grand jury sitting in the Western District of Tennessee returned an indictment against McCaster, charging him with one count of possessing with the intent to distribute a quantity of marijuana in violation of 21 U.S.C. § 841(a)(1), one count of possessing a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c), and one count of being a felon in possession of a firearm in violation 21 U.S.C. § 922(g). ( See Indictment, United States v. Anthony McCaster, 2:09-cr-20110-STA (W.D. Tenn.), ECF No. 1.) McCaster entered a plea of not guilty as to all charges, and the Court appointed the Federal Public Defender to represent McCaster. Pursuant to an agreement with the United States, McCaster changed his plea to guilty as to the drug trafficking offense and the possession of a firearm in furtherance of the drug trafficking offense at a change of plea hearing on July 23, 2009. The United States agreed to dismiss the felon-in-possession of a firearm offense at sentencing.
The presentence report ("PSR") described the following factual basis for the charges against McCaster.
The Offense Conduct
7. On June 5, 2008 at approximately 6:56 p.m. Memphis Police Officers observed two individuals later identified as Anthony McCaster and Ade Adeimani sitting in a 1994 Cadillac with the ignition running in front of 3530 Boxdale. Officers observed that the vehicle tags were expired. Officers made contact with the occupants of the 1994 Cadillac who could not produce any identification. As McCaster and Adeimani stepped from the vehicle, officers detected a heavy odor of marijuana coming inside the vehicle. Officers searched the 1994 Cadillac for safety purposes and discovered a large freezer bag of marijuana inside the glove compartment in front of the passenger seat where Adeimani was seated. Officers found another plastic bag which contained seven smaller baggies or marijuana in the area between the driver's seat where McCaster was seated and the console. Underneath the bag of marijuana between the driver's seat and console was a pistol which was recovered by officers. The pistol was found to be a Jimenez Arms JA9, 9mm pistol (serial #003123). The pistol was loaded with eight rounds in the magazine and one round in the chamber. A NCIC computer database check revealed that the pistol was reported stolen in Illinois. The marijuana was tested and weighed and found to have a total gross weight of 129.4 grams.
8. Anthony McCaster was interviewed and advised officers that the marijuana (112 grams) belonged to him and he had paid $250 for the marijuana. McCaster advised officers that he sold marijuana and powder cocaine. McCaster advised officers that the gun was his and he had paid $100 for the gun which he purchased off the street. McCaster advised that he had the pistol for protection from "folks" in the neighborhood that would try and rob him. McCaster advised that he had a prior felony conviction on drug charges for which he served two years at the Shelby County Penal Farm. McCaster advised officers that he purchased four ounces of marijuana at a time to sell and he purchased an ounce or two of powder cocaine at a time to sell. McCaster advised that an ounce of cocaine on the street was selling for between $1, 000 and $1, 200. McCaster stated he sold cocaine in quarter ounces for $250.
9. The Jimenez Arms, 9mm pistol recovered from McCaster on June 5, 2008 was examined by a federal agent who determined that the firearm had not been manufactured in the State of Tennessee. Case agents confirmed that Anthony McCaster was a convicted felon prior to June 5, 2008.
(PSR ¶¶ 7-9.)
The undersigned sentenced McCaster to a term of imprisonment of thirty-four (34) months as to count 1 with a mandatory minimum sentence of 60 months as to count 2 to be served concurrently to sentence on count 1, three years supervised release, and a special assessment of $200. ( See Judgment, ECF No. 31.) McCaster appealed the Court's judgment to the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit affirmed the Court's judgment, holding that the sentence was procedurally and substantively reasonable. United States v. McCaster, 410 F.Appx. 955 (6th Cir. 2011).
B. Civil Case 12-2867
On October 1, 2012, McCaster filed his pro se § 2255 Motion. Dockery's § 2255 Motion presents two issues:
1. Ineffective assistance of counsel where counsel misadvised McCaster in regards to the "use prong" of § 924(c)(1); and
2. Ineffective assistance of counsel where counsel misadvised McCaster in regards to the "carry prong" of § 924(c)(1).
( See § 2255 Motion, ECF No. 1.) McCaster alleges in his Motion that his trial counsel gave him erroneous advice about the "use prong" of 18 U.S.C. § 924(c)(1). Counsel failed to explain that the government had the burden to prove "active employment" of the firearm by showing that McCaster "brandish[ed], display[ed], bartered and striking [sic] also most obviously fired." McCaster cites for support the Supreme Court's decision in United States v. Bailey, 516 U.S. 137 (1995), holding that "use" for purposes of § 924(c)(1) is limited to "active employment" of the firearm. McCaster claims that he would not have pleaded guilty to the offense had counsel correctly explained the law to him.
In a similar fashion, McCaster argues that counsel failed to advise him correctly about the "carry prong" of § 924(c)(1) and the government's burden to prove more than mere possession of a firearm. More specifically, McCaster argues that the United States had to show that the firearm "had some significant purpose or some effect in relation to the drug trafficking crime" or to "facilitate or have the potential of facilitating the drug trafficking crime." McCaster claims that the evidence in his criminal case shows that he did not carry a firearm in furtherance of a drug trafficking crime; whereas, trial counsel advised McCaster that his presence near a firearm was enough to establish his guilt. McCaster again cites the Supreme Court's decision in Bailey and argues that had he received correct advice, he would have insisted on going to trial.
Although the Clerk received and docketed McCaster's Motion on October 1, 2012, McCaster signed and dated the Motion May 3, 2012. McCaster submitted his Motion on the official form and by signing the official form declared "under penalty of perjury that the foregoing is true and correct and that this Motion under 28 U.S.C. § 2255 was placed in the prison mailing system, first class postage prepaid on May 3, 2012." ( Id. at 9.) McCaster attached to his Motion a certificate of service, certifying that he served a copy of his Motion on the United States Attorney at the U.S. Attorney's Office in Memphis, Tennessee, by placing the document "into the hands of prison officials for legal mailing" on May 3, 2012. The memorandum of law attached to McCaster's Motion included an identical certificate of service.
On February 19, 2013, McCaster filed a separate Motion to Accept His 28 U.S.C. § 2255 Out of Time (ECF No. 2) accompanied by McCaster's affidavit (ECF No. 2-1). McCaster asserts that on May 3, 2012, while housed at USP-Terre Haute, McCaster "placed in the institutional mailing system one original, and two copies of my 28 U.S.C. § 2255." McCaster was subsequently transferred to FCI-Forrest City and arrived at that institution on July 19, 2012. Thereafter, McCaster contacted the Clerk of Court to ascertain the status of his § 2255 Motion only to discover that the Clerk had never received it. McCaster then submitted the § 2255 Motion again, by mailing it on September 19, 2012. McCaster argues that under the prison mailbox filing rule, his § 2255 Motion was timely filed when he placed it in the institutional mail at USP-Terre Haute on May 3, 2012. McCaster has completed an affidavit averring these facts under penalty of perjury pursuant to 28 U.S.C. § 1746. Therefore, McCaster requests that the Court accept the Motion under § 2255 as filed within the one-year statute of limitations.
On May 29, 2013, the Court entered an order (ECF No. 4) directing the United States to respond to McCaster's Motion. The government filed its Answer (Answer, ECF No. 8) on June 20, 2013. The certificate of service reflects that a copy of the Answer was mailed to McCaster at his address of record. ( Id. ) In its brief the United States contends that the Court should deny McCaster's request to accept his § 2255 Motion out of time. The government then proceeds to argue the merits of McCaster's claims in his § 2255. Concerning the timeliness of McCaster's § 2255, the United States posits that the one-year statute of limitations for McCaster's § 2255 commenced on May 15, 2011, the date on which the judgment in McCaster's criminal case became final. According to the United States, McCaster had 90 days after the Sixth Circuit rendered its decision on direct appeal to file a petition for certiorari with the United States Supreme ...