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 pro se 28 U.S.C. § 2255 motion of the Petitioner, Tony Stewart, to vacate, set aside or correct his sentence (the "Petition"). (Docket Entry ("D.E.") 1.) Stewart, Bureau of Prisons ("BOP") register number XXXXX-XXX, is an inmate at the Federal Correctional Institution in Oakdale, Louisiana. The United States has filed an answer. (D.E. 11.) For the reasons discussed below, the Petition is DENIED.
I. Case Number 08-10049
On April 21, 2008, a federal grand jury returned a sixteen-count indictment against Stewart and others. (Indictment, United States v. Stewart, No. 1:08-cr-10049-JDB-1 (W.D. Tenn.), D.E. 1.) Relevant to the Petition, Count 1 charged that Stewart and his co-defendants conspired to unlawfully, knowingly and intentionally possess with the intent to distribute, and did distribute, over 50 grams of a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Id. )
According to the presentence report ("PSR"), on August 14, 2006, Tennessee Bureau of Investigation ("TBI") Special Agent Paul Moore conducted a traffic stop on a vehicle driven by Stewart on Highway 105, near McLemoresville, Tennessee. (PSR ¶ 4.) During the stop, Agent Moore seized approximately one-half ounce of crystal methamphetamine. (Id. ) Stewart admitted to being involved in methamphetamine trafficking, and agreed to work as a confidential informant ("CI"). (Id. ) He briefly did so, but failed to fulfill his obligations and was deemed unreliable. (Id. )
On November 13, 2007, agents from the West Tennessee Drug Task Force ("DTF"), working with Agent Moore, used a CI to purchase approximately one-eighth ounce of crystal methamphetamine from Stewart. (Id. ¶ 5.) Again on November 14, 15 and 16, the CI purchased an additional three-eighths ounces of methamphetamine and two bags of white powder from Movant. (Id. ¶¶ 7-9.) On November 28, 2007, the CI bought approximately three grams of methamphetamine and a firearm from Stewart. (Id. ¶ 12.) At this November 28, 2007 purchase, the inmate told the CI that he was a convicted felon, and that he knew the CI was a convicted felon. (Id. ) On December 3, 2007, the CI obtained one-half ounce of methamphetamine and the next day, secured 27.3 grams of methamphetamine from Stewart. (Id. ¶¶ 14-15.) Finally, on December 14, 2007, the CI purchased one gram of crystal methamphetamine and another firearm from Movant. (Id. ¶ 16.)
On April 24, 2008, DTF agents executed an arrest warrant at a co-defendant's home where Stewart was also residing. (Id. ¶ 19.) The agents obtained consent to search the property including a hog barn located behind the residence. (Id. ) Inside the barn, they discovered components of a methamphetamine lab, including an active pill soak, inside an old shop vacuum. (Id. ) From the search of the residence, agents seized a baggie containing methamphetamine, marijuana and rolling papers from the master bedroom, coffee filters with powder residue from the kitchen, an envelope with names written on it from under the master bedroom mattress, a used meth slider from the night stand in the master bedroom, various paraphernalia for smoking methamphetamine throughout the house, a jar of unknown liquid from under a bathroom sink, a title to a four-wheeler under the bathroom tub, digital scales, a jar with powder residue, and two plates with residue and razor blades from a kitchen cabinet. (Id. ) Stewart was arrested on April 24, 2008 and agents explained his Miranda rights. (Id. ¶ 23.) He provided a signed, hand-written statement describing his involvement in drug-related activities since approximately 1993-94. (Id. ) Based on the information contained in the statement, the probation office calculated that during an eight month period in 2007, the inmate and his co-conspirators sold approximately 240 ounces, or 6, 804 grams, of methamphetamine. (Id. ¶ 29.)
Pursuant to a written Plea Agreement, Stewart appeared before this Court on December 22, 2008 and pled guilty to Count 1 of the indictment. (Min. Entry, United States v. Stewart, No. 1:08-10049-JDB-1 (W.D. Tenn.), D.E. 138; Plea Agreement, id., D.E. 141.) According to the investigation and analysis contained in the PSR, he received six criminal history points, placing him in criminal history category III. (PSR ¶¶ 44-46.) With a total offense level of 38 and a criminal history category of III, his suggested sentencing guideline range was 292-365 months. (Id. ¶ 65).
At a hearing on April 15, 2009, the Court sentenced Stewart to a term of imprisonment of two hundred and ninety-two months, four years supervised release, and a $100.00 special assessment. (Min. Entry, United States v. Stewart, No. 1:08-10049-JDB-1 (W.D. Tenn.), D.E. 188.) Judgment was entered on April 17, 2009. (D.E. 192.) On April 27, 2009, Stewart filed a pro se notice of appeal and motion to withdraw his guilty plea, alleging that he did not understand the nature of the plea due to mental illness and the medication he was taking. (D.E. 200.) At the July 10, 2009 hearing, Stewart informed the Court that he wished to withdraw his notice of appeal and motion. (D.E. 212.) The Court granted the request from the bench. (D.E. 213.) The United States Court of Appeals for the Sixth Circuit issued an order dismissing his appeal on July 15, 2009. (D.E. 214.) He did not file a petition for certiorari.
II. Case Number 12-1089
On August 12, 2013, Stewart filed a pro se Petition, presenting one issue: whether he qualified for a downward departure pursuant to § 5H1.4 of the United States Sentencing Guidelines ("U.S.S.G.") due to his poor health. ( Stewart v. United States, No. 12-1089, (W.D. Tenn.) D.E. 1 at 3.)
Section 2255(a) ...