United States District Court, W.D. Tennessee, Western Division
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255; ORDER DENYING CERTIFICATE OF APPEALABILITY; AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
JON P. McCALLA, District Judge.
On May 18, 2012, Defendant Brandon Cole, Bureau of Prisons registration number XXXXX-XXX, an inmate at FCI - Talladega in Talladega, Alabama, filed a Motion pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). (ECF No. 1.) On October 2, 2012, Cole filed a supplement to his § 2255 Motion ("§ 2255 Supplement"). (ECF No. 2.) On December 19, 2012, the Court directed the United States to file a response. (ECF No. 3.) The United States filed a response on January 11, 2013. (ECF No. 4.) On motion from Movant, the Court gave leave to the Movant to file a reply by May 13, 2015. (ECF No. 12.) Movant has not filed a reply.
For the reasons stated below, the § 2255 Motion is DENIED, and a certificate of appealability is DENIED. The Court also finds that an appeal would not be taken in good faith. Leave to appeal in forma pauperis is DENIED.
The Sixth Circuit provided a concise statement of the facts supporting Cole's conviction in its opinion on direct appeal:
On November 19, 2008 officers of the Memphis Police Department ("MPD") arrested Cole for burglary after he ran away from them in an area surrounding a burglarized home. The officers found items stolen in the burglary on Cole's person. Though Cole was handcuffed and placed in the rear of a marked police car, he managed to wriggle out of the restraints and drive off with the car. Cole eventually parked the car at a friend's house and then took the items stolen from the house, along with guns and ammunition belonging to the MPD, from the squad car and hid them behind the house before stealing a red Camry from a nearby carport. Officers spotted Cole in the Camry as he was driving and began pursuing him. Later, Cole reached a dead end, stopped the Camry and put it in reverse, almost hitting one of the detectives and striking a police vehicle in which another detective was sitting.
A hundred-mile per-hour chase ensued. The officers followed Cole through residential neighborhoods and were forced to ignore many traffic signals in pursuit. Ultimately, Cole came to a stop and attempted to flee on foot. The officers caught up with him as he was climbing a fence. A detective launched himself at Cole, causing Cole and the detective to fall off the fence together. Cole landed on the detective and began punching him, continuing to struggle until another detective was able to handcuff Cole's wrists and ankles. During the struggle the detectives asked Cole where the weapons taken from the patrol vehicle were located and he responded with the location.
United States v. Cole, 422 F.Appx. 471, 472 (6th Cir. 2011).
On December 17, 2008, a federal grand jury indicted Cole in a one-count Indictment charging him with possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g) (Count One). (United States v. Cole, No. 2:08-cr-20425-JPM-1 (W.D. Tenn.), ECF Nos. 1-3.) On July 22, 2009, Cole pled guilty to the Indictment pursuant to a written plea agreement. ( Id., ECF Nos. 26, 28, 29.) The plea agreement provided:
The full and complete plea is as follows:
BRANDON COLE agrees that he will enter a voluntary plea of guilty to count one (1) of the indictment.
The United States agrees to recommend that BRANDON COLE be sentenced at the low end of the applicable sentencing guideline range. The defendant understands that any recommendations made by the United States are not binding on the court and should the court not accept the recommendation or request the defendant nevertheless [sic] has no right to withdraw the plea.
Given the facts in the possession of the United States at the time of the writing of this agreement, the United States does not oppose the defendant receiving the full threee [sic] (3) points for acceptance of responsibility credit pursuant to U.S.S.G. Section 3E1.1. The defendant understands that if the United States receives information between the signing of this agreement and the time of the sentencing that the defendant has previously engaged in, or if he engages in the future, in conduct inconsistent with the acceptance of responsibility, including, but not limited to, participation of any additional criminal activities between now and the time of sentencing, this position could change. Further, the defendant understands that whether or not acceptance of responsibility credit pursuant to Section 3E1.1 is granted is a matter to be determined by the district court. Failure of the district court to grant acceptance of responsibility credit is not a basis for BRANDON COLE to withdraw his guilty plea.
BRANDON COLE agrees that for the calculation of his advisory guideline range a total of six (6) points are applicable in his case pursuant to U.S.S.G. § 2K2.1(b)(4)(A) and 2K2.1(b)(6) [sic]
BRANDON COLE agrees that this plea agreement constitutes the entire agreement between himself and the United States and that no threats have been made to induce him to plead guilty. By signing this document, BRANDON COLE acknowledges that he has read this agreement, has discussed it with his attorney, is satisfied with his attorney's counsel and representation, and understands the agreement.
( Id., ECF No. 29 at PageID 33-35.)
A presentence report ("PSR") was prepared recommending a total offense level of thirty-three pursuant to United States Sentencing Guideline ("U.S.S.G.") § 2K2.1(a)(2) (because the firearm was possessed subsequent to at least two prior felony crimes of violence), § 2K2.1(b)(4)(a) (increasing two levels because the firearm was stolen), pursuant to § 2K2.1(b)(6) (increasing four levels because the firearm was possessed in connection with another felony offense), § 3A1.2(c)(1) (increasing six levels because of the risk of serious bodily injury to law enforcement officers during flight), and § 3E1.1 (decreasing three points for acceptance of responsibility). (PSR at 6.)
On October 23, 2009, Defense counsel filed his Position with Respect to Sentencing Factors. (United States v. Cole, No. 2:08-cr-20425-JPM-1 (W.D. Tenn.), ECF No. 31.) Defense counsel agreed that "the Probation Officer accurately ...