United States District Court, W.D. Tennessee, Western Division
ORDER ADDRESSING PENDING MOTION, 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
S. THOMAS ANDERSON, District Judge.
Before the Court is the amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Amended § 2255 Motion") filed by Movant, Derek Lucas, Bureau of Prisons register number XXXXX-XXX, an inmate at the United States Penitentiary McCreary in Pine Knot, Kentucky (Am. § 2255 Mot., Lucas v. United States, No. 2:14-cv-02324-STA-cgc (W.D. Tenn.), ECF No. 3) and Movant's motion seeking entry of default (Decl. for Entry of Default, id., ECF No. 5). For the reasons stated below, the Court DENIES the motion for entry of default and DENIES Movant's Amended § 2255 Motion.
A. Case Number 11-20032
On February 8, 2011, a federal grand jury returned a two-count indictment against Lucas and four co-defendants, Derrick Dowdy, Charol Neal, Darnell Wallace and Aric Scott. (Indictment, United States v. Lucas, No. 2:11-cr-20032-02-STA (W.D. Tenn.), ECF No. 26.) On April 24, 2012, the grand jury returned an eight-count superseding indictment. (Superseding Indictment, id., ECF No. 149.) Lucas was named in Counts 1 and 2. Count 1 charged that, from in or about December 2010 and continuing until on or about February 1, 2011, all defendants conspired with each other and with other persons to possess five kilograms or more of a mixture and substance containing a detectable amount of cocaine with the intent to distribute, in violation of 21 U.S.C. § 846. Count 2 charged that, on or about February 1, 2011, all defendants, aided and abetted by each other, possessed a Bryco Arms.380 caliber semi-automatic pistol, a Glock.45 caliber semi-automatic pistol, a Smith & Wesson 9mm caliber semi-automatic pistol, and a Romarm/Cugir, Model SAR-1, 7.62 × 39mm caliber rifle, in furtherance of the drug-trafficking crime charged in Count 1, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. On June 20, 2012, the Government filed a notice pursuant to 18 U.S.C. § 3559(c) regarding Lucas's previous convictions. (Information Regarding Previous Convictions, id., ECF No. 171.)
The factual basis for these charges is stated in the presentence report ("PSR"):
6. According to the investigative file, on December 7, 2010, agents with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and the Drug Enforcement Administration (DEA) interviewed a confidential informant (CI) about possible home invasion targets in Memphis, Tennessee. The CI identified Derrick Dowdy as someone who would be interested in participating in a robbery. The CI advised that Dowdy was a member of the Crips street gang.
7. The CI advised agents that he/she had met with Dowdy on December 5, 2010, and told him that his/her cousin from Jackson, Tennessee, had information about a potential robbery of narcotics in either Jackson or Memphis. The CI reported to officers that Dowdy stated he was "hungry for this kind of robbery." The CI told Dowdy that he/she would set up a meeting with his/her cousin. Dowdy asked the CI when the meeting would take place several times. The CI identified Anthony Dowdy, Derrick Dowdy's brother, as another possible participant in the robbery. Anthony Dowdy was also a known member of the Crips street gang.
8. On December 9, 2010, the CI introduced Dowdy to an undercover agent (UC) in a meeting at Tops Barbeque restaurant in Memphis, Tennessee. During the meeting, the UC outlined a plan for a robbery in which several kilograms of cocaine would be stolen from Mexican drug couriers. The UC advised Dowdy that he met with Mexican drug couriers once per month and obtained approximately ten kilograms of cocaine at each meeting. The UC offered to provide Dowdy with the time and location of the next meeting with the couriers, giving Dowdy an opportunity to interrupt the transaction and steal the narcotics. The UC told Dowdy that at least three or four armed individuals were present during each meeting.
9. Dowdy readily agreed to participate in the robbery and indicated that he and his associates had committed similar acts in the past. Dowdy agreed to supply the firearms and the additional personnel (approximately four or five individuals) needed for the robbery. Dowdy indicated that he and his associates would be willing to commit acts of violence in order to facilitate the robbery. Dowdy also stated that he owned black shoes, a black mask, and a black coat that he would utilize during the robbery. The CI and Dowdy agreed that the participants of the robbery would split the contraband between them. Before the meeting ended, Dowdy reported that he was going to purchase a Cricket cellular phone from an unknown subject named George (LNU). Dowdy indicated that he needed the Cricket cellular phone to further plan the robbery.
10. Dowdy requested that the CI secure two rental cars to use during the robbery. According to Dowdy, the rental cars could be abandoned following the robbery and later reported as stolen. Dowdy also advised that he planned to relocate to Houston, Texas, subsequent to the robberies in order to "lay low." It was Dowdy's plan to only return to Memphis to collect the proceeds from the sale of the stolen narcotics.
11. On January 4, 2011, the UC contacted Dowdy, who advised that he and four of his associates were ready to commit the robbery that had been previously discussed in December 2010. Dowdy told the UC that his associates planned to kill everyone present at the "stash" house and steal any narcotics stored there. Dowdy reported that it was his desire to simply "draw down" on everyone in the stash house. The UC questioned Dowdy about the types of firearms that he and his associates had in their possession. According to Dowdy, he was in possession of an AK-47 and his associates had two additional firearms.
12. On January 6, 2011, the UC met with Dowdy, Louis Holmes a/k/a "Bookie" and "Lil B, " Darnell Wallace a/k/a "Nook, " and Derek Lucas a/k/a "D" and "Dorrick Lucas" regarding the robbery of narcotics. During the meeting, Wallace asked the UC how he wanted the robbery to occur. The UC stated that he would leave the robbery details up to the "robbery crew." Wallace advised that he planned to enter the stash house simultaneously with the UC and shoot a Mexican upon entry. The UC asked the robbery crew if they had access to firearms, and they affirmed. Wallace reiterated that he would not hesitate to shoot upon entering the stash house. The UC advised that the narcotics shipment was scheduled to arrive in Memphis at the end of January.
13. On January 10, 2011, in the phone conversation with the UC, Dowdy advised that Louis Holmes a/k/a "Bookie" decided not to participate in the robbery. However, Dowdy told the UC that he still planned on using Holmes' AK-47 and ballistic vests. To replace Holmes as a member of the robbery team, Dowdy recruited Charol Neal a/k/a Charles Neal, who was also a known Crips street gang member.
14. On January 13, 2011, the UC met with Dowdy at Exlines' Pizza in Memphis, to discuss the robbery. Dowdy advised the UC that the robbery crew members would be dressed in all black with black ski masks on the day of the robbery. Dowdy also stated that all of the robbery crew members would have "choppers" (AK-47 rifles). According to Dowdy, once they entered the stash house, all the occupants would be made to remove all of their clothing and lie face down on the floor. During the meeting with the UC, Dowdy spoke of an occasion when he allegedly stole $8, 000 from an individual. According to Dowdy, he contemplated robbing the same individual on a subsequent occasion.
15. On January 31, 2011, the UC contacted Dowdy and advised that the cocaine shipment would be in Memphis on February 1, 2011, and [sic] 8:00 p.m. The UC told Dowdy to have his robbery crew members ready. Dowdy told the UC that all of the members of his robbery crew would have firearms.
16. On February 1, 2011, at approximately 6:00 p.m., Neal and Wallace arrived in the parking lot of the International House of Pancakes (IHOP) on Sycamore View, in Memphis. The UC made contact with Neal and Wallace, specifically asking if Dowdy had informed them of the planned robbery of ten kilograms of cocaine. Neal stated that he and Wallace had been informed. The UC advised Neal and Wallace that the getaway vehicles were in close proximately to IHOP. Approximately fifteen minutes later, Dowdy and Lucas arrived in the parking lot of IHOP in a white Pontiac Sunfire driven by Aric Scott.
17. The UC departed the IHOP parking lot and traveled to the Extra Space Storage facility located at 5675 Summer Avenue, in Memphis. The storage facility was the designated area for the planned narcotics robbery. Upon arrival at the storage facility, all of the crew members exited their vehicles, except for Scott, who remained in the vehicle he was driving. The takedown signal was given and Dowdy, Lucas, Neal, and Wallace, were taken into custody, after brief foot chases within the storage facility.
18. The defendants were all transported to various locations to be interviewed. At approximately 10:15 p.m., agents interviewed Wallace. According to Wallace, he met with Dowdy in December of 2010, subsequent to Dowdy's request for his assistance in a robbery. Wallace reported that he and Dowdy met several times to discuss the robbery of cocaine and money. Wallace advised that he was more interested in the money. Wallace advised that he was not armed for the robbery because Louis Holmes was supposed to provide the firearms for the robbery. Wallace was arrested in close proximity to where a Bryco.380 caliber pistol was found. Wallace denied any knowledge of the firearm.
19. At approximately 11:05 p.m., Scott was interviewed at the Regional Medical Center (the Med) where he was receiving medical treatment for a minor cut to the chin. Scott advised that Dowdy was dating his sister, Tasha Scott. Tasha Scott asked Scott to drive Dowdy home at approximately 2:30 p.m. on February 1, 2011. On the way to Dowdy's residence, Dowdy told Scott that they were going to take care of someone and rob someone later that evening. Dowdy then told Scott that he needed him to drive to the site of the planned robbery. Dowdy promised to give Scott some money for his participation. Scott advised that he and Dowdy spent the remainder of the afternoon drinking beer, smoking marijuana, and using powder cocaine. Scott reported that he observed Dowdy place a long object wrapped in a black plastic bag in the trunk of Scott's white Pontiac Sunfire. Scott advised that he did not know what was in the bag. According to Scott, Dowdy told him that they were going to rob "five Mexicans and a black insider."
20. On February 1, 2011, agents attempted to interview Dowdy at the Shelby County Correctional Facility (SCCC) in Memphis. Dowdy insisted that he did not know what was going on and refused to sign the Waiver of Rights to be interviewed. Dowdy advised that he needed to speak to a lawyer and would not make a statement.
21. Also on February 1, 2011, agents attempted to interview Lucas at the SCCC. Lucas refused to sign the Waiver of Rights to be interviewed. Lucas advised that he did not want to talk or make any statement because he did not see how that was going to help in the future.
22. Agents also attempted to interview Neal at the SCCC on February 1, 2011. Neal insisted that he did not know what was going on, but he signed the Waiver of Rights to be interviewed. Neal advised that he did not know anything about a robbery and that he thought he was going somewhere to get something to eat. Neal stated that he did not see how giving a statement would help him and did not make a statement.
23. On February 2, 2011, an ATF agent examined the firearms that were recovered from Dowdy, Lucas, Neal, Wallace, and Scott. The firearms were as follows: a loaded Bryco Arms, Model 38, .380 caliber pistol (serial number 1540165); a loaded Glock, Model 21, .45 caliber pistol (serial number MRU263); an unloaded Smith and Wesson, Model 469, 9mm caliber pistol (serial number TAB7669); and a loaded Romarm/Cugir, Model SAR-1, 7.62×39mm caliber rifle (serial number S1703852003). Subsequent investigation revealed that the firearms were not manufactured in the state of Tennessee and therefore, at some point, traveled in interstate and/or foreign commerce. Additionally, a search of the white Pontiac Sunfire also revealed a drum magazine with 57 rounds of ammunition, five work-style gloves, a black trash bag, and a 26-inch steel pry bar. Two tan rubber gloves were found on Lucas's person. Scott was in possession of a business card with powder cocaine residue on it. Neal was in possession of two small plastic bags of marijuana (1.97 grams).
(PSR ¶¶ 6-23.)
A jury trial on the charges against Lucas commenced on July 10, 2012. (Min. Entry, United States v. Lucas, No. 2:11-cr-020032-02-STA (W.D. Tenn.), ECF No. 198; Min. Entry, id., ECF No. 199; Min. Entry, id., ECF No. 202.) On July 13, 2012, the jury returned a guilty verdict on Counts 1 and 2 of the Superseding Indictment. (Min. Entry, id., ECF NO. 203; Jury Verdict, id., ECF No. 206.) At a hearing on October 31, 2012, the Court sentenced Lucas to life imprisonment. (Min. Entry, id., ECF No. 251; Sentencing Hr'g Tr., id., ECF No. 272.) Judgment was entered on November 5, 2012. (J. in a Criminal Case, United States v. Lucas, No. 2:11-cr-20032-02-STA (W.D. Tenn.), ECF No. 252.) The Sixth Circuit Court of Appeals affirmed. United States v. Lucas, 542 F.Appx. 510 (6th Cir. 2013) (per curiam).
B. Case Number 14-2324
On May 5, 2014, Lucas filed a pro se § 2255 Motion. (§ 2255 Mot., Lucas v. United States, No. 2:14-cv-02324-STA-cgc (W.D. Tenn.), ECF No. 1.) On February 18, 2015, Lucas filed his Amended § 2255 Motion that appears to be intended to supersede the original § 2255 Motion. (Am. § 2255 Mot., id., ECF No. 3.) The amended § 2255 Motion presents the following issues:
1. "This court lacks In personam and In rem jurisdiction" ( id. at 2; see also id. at 2-4);
2. "Amendment I deprivation of privacy/Freedom of speech/religion" ( id. at 4; see also id. at 4-6);
3. "Amendment II, deprivation to bear arms" ( id. at 6; see also id. at 6-7);
4. "Amendment IV deprivation, search and seizure/warrants/probable cause" ( id. at 7; see also id. at 7-9);
5. "Amendment V deprivation, Federal Due Process/self incrimination/double jeopardy" ( id. at 9; see also id. at 9-10);
6. "Amendment VI deprivation, Confrontation/presence/jury trial/speedy trial/counsel" ( id. at 11; see also id. at 11-12);
7. "Amendment VII deprivation, common law" ( id. at 13; see also id. at 13-14);
8. "Amendment VIII deprivation, Excessive bail and fines/Cruel and unusual punishment" ( id. at ...