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Dailey v. United States

United States District Court, E.D. Tennessee, Greeneville

May 15, 2017

BYRON F. DAILEY, Petitioner,



         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 44]. The United States responded in opposition on July 20, 2016 [Doc. 52]; Petitioner replied in turn on October 3, 2016 [Doc. 56]. For the reasons discussed below, Petitioner's § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         A. Offense Conduct

         On June 17, 2014, a confidential informant made a recorded call to Petitioner and arranged to purchase five Suboxone pills and an ounce of methamphetamine [Presentence Investigation Report (PSR) ¶ 8; Doc. 23 ¶ 4]. In a recorded and surveilled meeting, the informant then met with Petitioner and purchased the pills for $100 [PSR ¶ 9; Doc. 23 ¶ 4]. Later that day, after the informant had given the pills to the agents, the informant went to Petitioner's residence on Cedar Creek Road, in Russellville, Tennessee, and again met with Petitioner [Id.]. They traveled to a nearby boat ramp where Petitioner sold the informant an ounce of what Petitioner proffered to be methamphetamine, although the substance later proved to be rock salt [Id.]. The transactions were monitored and surveilled by Morristown Police Detectives Jack Everhart, Michael Hurt, Chris Blair, and Todd King, as well as Tennessee Bureau of Investigation (TBI) Agent Josh Orlowski. Detectives Hurt, Blair and Everhart searched the informant and his vehicle before and after each encounter with Petitioner, while Agent Orlowski took control of the drugs [Doc. 52-1 (case file notes and drug buy surveillance log)].

         Two days later, on June 19, 2014, Petitioner gave the informant four Suboxone pills as partial repayment for having sold him fake methamphetamine [PSR ¶ 10; Doc. 23 ¶ 4]. That same day, officers obtained and executed a search warrant at Petitioner's residence on Cedar Creek Road [PSR ¶ 11; Doc. 23 ¶ 4]. Detective Hurt, the affiant on the search warrant, provided the following information to establish probable cause for issuance of the warrant:

A confidential informant working with the Morristown Police Department who has proven to be reliable has within the past five days, purchased narcotics from Byron Dailey. The transaction took place at [redacted] Cedar Creek Rd Russellville, TN. The purchase was monitored and controlled by narcotics agents. The confidential informant was searched before and immediately after the transaction took place. The informant was wired with a transmitter which allowed the agents to monitor the entire transaction. Prior to the transaction, the informant was given currency in which to purchase the narcotics. When the transaction was completed, the agents continued to maintain audio and visual contact with the informant. Following the transaction, the agents immediately met up with the informant, retrieved the purchased narcotics and searched the informant and the informant's vehicle.

[Doc. 52-2 (search warrant)]. Pursuant to the warrant, state and local officers seized 115 Suboxone pills, a baggie of methamphetamine, a .22-caliber Jennings J-22 semi-automatic pistol and ammunition, $618 cash, and drug paraphernalia [PSR ¶¶ 11, 15]. They also found a container of sea salt, three digital scales, baggies, and various other pills [Id.]. A search inventory form described each item seized, its location, and the officer who located it [Doc. 52-3 (evidence control form and list of items seized)]. A hand-written evidence log also identified the officers present at the search and the location of the items those officers seized [Id.]. When interviewed on June 20, 2014, Petitioner admitted that he regularly purchased methamphetamine for himself “and his friends, ” and that he purchased a “50-sack” of methamphetamine one day earlier [PSR ¶ 16].

         In August of 2014, Petitioner was charged with distributing Suboxone on June 17, 2017 and June 19, 2014 (Counts One and Two) and possessing with intent to distribute Suboxone on June 19, 2014 (Count Three), all in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(E) [Doc. 3]. He was also charged with possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 841(B)(1)(C) (Count Four); possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Five); and possession of a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count Six) [Id.]. Pursuant to 21 U.S.C. § 851, the United States filed notice of its intent to enhance Petitioner's sentence in light of a prior felony drug conviction [Doc. 21 ¶ 2].

         B. Guilty Plea

         Petitioner agreed to plead guilty, pursuant to a Rule 11(c)(1)(C) plea agreement, to Counts Three and Four-possession with intent to distribute Suboxone and methamphetamine- in exchange for dismissal of the remaining counts and an agreed-upon sentence of 150 months' imprisonment [Doc. 23 ¶¶ 1-2, 6; PSR ¶¶ 3-4]. He waived his right to appeal and his right to file “any motions or pleadings pursuant to . . . § 2255[, ]” except for claims of prosecutorial misconduct or ineffective assistance of counsel [Id. ¶ 10].

         As part of his plea agreement, Petitioner stipulated that, because of his prior felony drug conviction, he was subject to enhanced statutory maximums of 20 years' imprisonment for Count Three and 30 years' imprisonment for Count Four [Doc. 23 ¶ 1(a), (b)]. During the plea colloquy, this Court verified that Petitioner understood he was under oath, that he was not suffering from mental illness or drug addiction, and that he understood the purpose of the hearing [Doc. 50 at 3-4]. This Court then confirmed that Petitioner told his lawyer everything he knew about the case and that counsel was fully aware of all the facts upon which the charges were based [Id. at 4]. Petitioner affirmed that he had ample time to discuss the case with counsel, with whose representation he was satisfied [Id. at 5-7]. Petitioner also affirmed that counsel advised him of the nature and meaning of the charges and every element of those offenses, and advised him as to any defense that he might have to those charges [Id. at 4-5]. This Court reviewed the charges and the elements of the offense, after which Petitioner swore that he read, fully understood, and signed the plea agreement [Id. at 5-7]. He also swore that his attorney explained all its terms and conditions [Id. at 7]. When asked a second time if he was satisfied with his attorney's representation, Petitioner responded, “Yes, Sir, Your Honor” [Id. at 7].

         This Court advised Petitioner of the legal rights he was giving up by pleading guilty and he denied that anyone threatened him or forced him in any way to plead guilty [Id. at 8-10]. Petitioner acknowledged that he read and agreed with the summary of his offense conduct in the plea agreement [Id. at 11-12]. This Court reminded Petitioner of the statutorily authorized penalties for his offenses and that he agreed, pursuant to Rule 11(c)(1)(C), that concurrent terms of 150 months' imprisonment would be an appropriate sentence [Id. at 13-14]. In response, he stated that he understood that this Court would have no discretion to impose a sentence other than the agreed-upon 150 months unless it rejected the plea agreement [Id. at 14-15]. Knowing the penalties, Petitioner swore that he still wished to plead guilty [Id. at 15].

         C. Imposition of Sentence

         Based on Petitioner's stipulations when pleading guilty, the United States Probation Office (USPO) deemed him responsible for 124 units of Suboxone and one gram of actual methamphetamine, for a marijuana equivalent of at least 20 kilograms and a base offense level of sixteen [Doc. 23 ¶ 4; PSR ¶ 23]. Based on three prior Tennessee convictions-two for aggravated robbery and one for felony evading arrest, the USPO deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines [PSR ¶¶ 29, 42-43, 47]. He received an enhanced offense level of thirty-four and criminal history category of VI [Id. ¶¶ 50-51]. A three-level reduction for acceptance of responsibility resulted in a total offense level of thirty-one and Guidelines range of 188 to 235 months' imprisonment [Id. ¶¶ 30-32, 74].

         The USPO noted that the plea agreement significantly impacted the sentence because Petitioner would have faced a consecutive five-year statutory mandatory minimum for the § 924(c) offense and Guidelines range of 262 to 327 months' imprisonment if convicted at trial [Id. ¶¶ 4, 75-77]. The USPO went on to note that Petitioner would probably have been classified as an armed career criminal under 18 U.S.C. § 924(e) and ...

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