United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTIONS, DENYING § 2255 PETITION,
DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
APPEAL IN FORMA PAUPERIS
DANIEL BREEN UNITED STATES DISTRICT JUDGE.
Tonya Stoltz, has filed a motion to vacate, set aside, or
correct her sentence (the “Petition”), pursuant
to 28 U.S.C. § 2255. (Docket Entry (“D.E.”)
1.) For the reasons that follow, the Petition is DENIED.
following background summary is taken from the record in this
case and in Stoltz's underlying criminal case, United
States v. Stoltz, No. 1:15-cr-10013-JDB-1 (W.D. Tenn.)
and Preliminary Proceedings
December 3, 2014, [local law enforcement] investigators . . .
assisted Tennessee Department of Corrections (TDOC) probation
officers with a home check at” Stoltz's home in
Medina, Tennessee. (Presentence Report (the
“PSR”) at ¶ 7.) “When [they] arrived
to conduct the home check, Stoltz was present with” a
male individual. (Id. at ¶ 10.) “Stoltz
answered the front door of the residence with two purses on
her person, ” which contained “a glass smoke
pipe, a digital scale, a plastic snort tube, a decorative
container containing approximately 2.8 grams of
methamphetamine/ice, a metal container that contained small
individual baggies, and a plastic smoke pipe.”
(Id. at ¶ 7.) “A search of the residence
revealed” several additional items of drug
paraphernalia, as well as “two photo copies of one
hundred dollar bills[, ] . . . a counterfeit ten dollar bill,
” one pound of synthetic marijuana, “two loose
pseudoephedrine pills[, ] . . . a pill bottle containing . .
. marijuana seeds[, ] and a burnt aluminum foil strip with
[methamphetamine] residue . . . .” (Id. at
¶ 8.) Also “recovered [was] a small Playmate red
and white cooler on a storage shelf above the dryer that
contained various components used in the manufacturing of
methamphetamine.” (Id. at ¶ 9.)
denied knowledge of the illegal narcotics, drug
paraphernalia, counterfeit money, and the cooler . . .
.” (Id. at ¶ 11.) Both Stoltz and the
male individual were “transported to the Criminal
Justice Complex and charged accordingly.”
December 18, 2014, investigators with the West Tennessee
Judicial Violent Crime and Drug Task Force utilized a
confidential informant (CI) to arrange a delivery of one gram
of methamphetamine (in ice form) from Stoltz to the CI in the
parking lot of Walgreen's in Milan, Tennessee.”
(Id. at ¶ 12.) Stoltz was found with “a
plastic baggy that contained . . . one gram of
methamphetamine.” (Id.) “A search of
[her] vehicle revealed another bag of crystal
methamphetamine[, ] a plastic bag” containing synthetic
marijuana, and drug paraphernalia, including “a set of
weighing scales.” (Id.)
February 20, 2015, state and federal law enforcement officers
interviewed Petitioner (the “February 2015
meeting”) at the offices of the 28th West Tennessee
Drug Task Force (the “28 DTF”). (Id. at
¶ 13.) Law enforcement officers who attended the meeting
included Chad Jackson and David Blurton from 28 DTF, and
agents Charles Stewart and Mike Woodham from the federal Drug
Enforcement Agency (the “DEA”). (No.
1:15-cr-10013-JDB-1, D.E. 2-1 at PageID 13; No.
1:15-cr-10013-JDB-1, D.E. 80 at PageID 277.)
purpose of the meeting was for Petitioner to assist law
enforcement by providing information about the criminal
activities of other individuals. (Id., D.E. 80 at
PageID 276, 282, 307-08.) During the meeting, Stoltz provided
such information and, according to Agent Stewart's
criminal complaint affidavit, also “stated that, in . .
. 2014, she purchased one pound of crystal methamphetamine
from” Individual 1, and that she had, “about ten
times, ” purchased “anywhere from one to two
ounces [of methamphetamine] at a time” from Individual
2 in 2014. (Id., D.E. 2-1 at PageID 13, 14.)
March 2, 2015, Stewart received information from state
Investigator Christi Foster that an informant had told her
that Stoltz, who was on probation at the time, recently
travelled to northern Mississippi to buy drugs.
(Id., D.E. 80 at PageID 309-10.) A criminal
complaint against Stoltz was filed in federal court.
(Id., D.E. 80 at PageID 311; id., D.E. 1.)
In the affidavit supporting the complaint, Stewart recited
the inculpatory information revealed by Stoltz at the
February 2015 meeting with law enforcement officers.
(Id., D.E. 2-1 at PageID 12-14.) An arrest warrant
was issued. (Id., D.E. 3.)
next day, March 3, 2015, a state probation officer went to
Stoltz's house for a home check. (PSR at ¶ 17.)
Petitioner “was on active probation” at the time,
and was “the sole occupant of the residence.”
(Id.) The probation officer was assisted by state
law enforcement officers, and by federal agents, including
Stewart. (Id.) The officers recovered “three
separate bags of methamphetamine: one bag containing
approximately 2.0 grams of methamphetamine/ice, one bag
containing 1.2 grams of methamphetamine powder, and one bag
containing approximately 3.7 grams of
methamphetamine/ice.” (Id.) “The total
amount was approximately 6.9 grams of methamphetamine.”
(Id.) Also discovered were “a glass smoke
pipe[, ] . . . two alprazolam pills, fifty four Meloxicam
pills, a marijuana blunt[, ] approximately 1.6 grams of
marijuana, digital scales with residue, and miscellaneous
clear plastic baggies.” (Id.) Petitioner was
arrested. (Id. at ¶ 18.)
March 4, 2015, Stoltz appeared before Magistrate Judge Edward
G. Bryant, and an attorney was appointed to represent
(No. 1:15-cr-10013-JDB-1, D.E. 4.) Through counsel, Defendant
“waived [her] right to a detention hearing, but
requested a probable cause hearing.” (Id.,
D.E. 10.) Magistrate Judge Bryant held a probable cause
hearing on March 10, 2015, at which Stewart and state
probation officer Eugene Wardfin testified. (Id.)
“No witness [was] presented by the [Defendant].”
(Id.) The magistrate judge found that probable cause
existed for the March 3, 2015, arrest. (Id.) He also
“bound the case over to further action of the grand
jury, ” and remanded the Defendant to the custody of
the United States Marshal. (Id.) On March 23, 2015,
the grand jury returned a one-count indictment alleging that,
“[b]eginning at . . . least as early as in or about
March 2014, until on or after March 3, 2015, ” Stoltz
distributed and possessed with intent to distribute “a
Schedule II controlled substance, . . . in violation of Title
21, U.S.C. § 841(a)(1).” (Id., D.E. 15 at
April 23, 2015, Stoltz's attorney was granted permission
to withdraw his representation (id., D.E. 21), and
new counsel was appointed (id., D.E. 22.) New
counsel's motion to withdraw his representation was
granted on May 7, 2015 (id., D.E. 25), and attorney
Robert Thomas was appointed (id., D.E. 27).
to counsel, he first met with Petitioner on or about May 19,
2015. (DE. 27-1 at PageID 375.) At the meeting, he
“learned that [she] was in the process of assisting law
enforcement by providing information with regard to criminal
activity that may [have been] ongoing in the West Tennessee
area.” (Id.) He was also told that she
“was . . . helping the Madison and Gibson County
Sheriffs' Departments with two cold case
homicides.” (Id.) Counsel and Stoltz then
“met with law enforcement on at least four (4)
occasions to discuss information that [she] had obtained in
furtherance of this assistance.” (Id.) She
“also had at least one meeting with the U.S. Marshals
without counsel present.” (Id.) Throughout
“the course of [counsel's] representation, ”
Petitioner “maintain[ed] . . . that she did not make
the statement attributed to her” from the February 2015
meeting and “contained in the DEA Report of
Investigation that was included in the discovery
the level of . . . Stoltz's cooperation with law
enforcement, ” counsel
discussed with [his client] on several occasions the decision
as to whether she should contest the admissibility of the
statement given [at the February 2015 meeting] or continue
assisting law enforcement. Said discussions lasted well into
the representation, which [was] evidenced by the filing of a
Motion for Additional Time to File Pretrial Motions on . . .
Stoltz's behalf on September 27, 2015. After finally
weighing her options, . . . Stoltz decided to rely on her
assistance rather than challenging the statement in hopes of
receiving a lesser sentence.
(Id. at PageID 375-76.)
October 14, 2015, Petitioner, with the assistance of counsel,
entered into a plea agreement with the Government. (No.
1:15-cr-10013-JDB-1, D.E. 54.) The agreement provided, in
pertinent part, as follows:
defendant agrees to plead guilty to Count 1 of the Indictment
in the above-styled cause.
The Government agrees not to object to a recommendation by
the probation office or a ruling of the court which awards
the defendant an appropriate-level decrease in the base
offense level for acceptance of responsibility. If the
offense level in the Presentence Report is 16 or greater and
the court accepts a recommendation in the Presentence Report
that defendant receive two points for acceptance of
responsibility, the United States agrees to move for an
additional one-point reduction for acceptance of
responsibility for a total of three points.
The Government agrees to advise the probation office and the
court of the extent and nature of the defendant's
cooperation. The defendant's agreement to cooperate with
the government is made pursuant to U.S.S.G. 1B1.8(a) &
(b). If the defendant provides full, complete, truthful, and
substantial cooperation to the government, the government
reserving the right to make the decision on the nature and
extent of the defendant's cooperation, then the
Government agrees to consider moving for a downward departure
under U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e), or
Rule 35 of the Federal Rules of Criminal Procedure. Both
parties acknowledge that the district court has the power to
deny a motion for downward departure. The defendant hereby
agrees that the government does not promise, by the terms of
this agreement, to file a Section 5K1.1, 18 U.SC. §
3553(e) or Rule 35 motion.
(Id., D.E. 54 at PageID 126-29).)
section titled “PLEA AGREEMENT CONSTITUTES ENTIRE
AGREEMENT” provided as follows:
There are no other agreements between and among the parties
to this agreement. The defendant is satisfied that all acts
and/or any omissions of counsel for the defense have been the
result of reasonable professional judgment and that defendant
has been provided adequate legal representation in this case.
The defendant enters this agreement freely, knowingly, and
voluntarily, and upon the advice of counsel.
(Id., D.E. 54 at PageID 129 (bolding omitted).).
Court held a change of plea hearing on October 14, 2015.
(Id., D.E. 79.) At the start of the hearing, the
Court advised the Defendant that she should let the Court or
her attorney know if there is anything that she did not
understand, and she stated that she would do so.
(Id., D.E. 79 at PageID 228.) She answered
“Yes, sir” when asked whether she had had
“sufficient opportunity to discuss th[e] matter with
[her] attorney.” (Id., D.E. 79 at PageID
229-30.) When asked if she was “satisfied with [her
attorney's] advice and representation, ” she
replied “He's a good lawyer, yes, sir.”
(Id., D.E. 79 at PageID 230.)
Court advised Stoltz of the trial and appellate rights she
was giving up and the potential penalties for the crime she
was pleading guilty to, and she stated that she understood.
(Id., D.E. 79 at PageID 231-34.) The Court
reiterated that she “w[ould] be giving up th[e] right
to appeal that conviction if [she] d[id] plead guilty,
” and asked her if she understood. (Id., D.E.
79 at PageID 234.) She answered “Yes, sir.”
(Id., D.E. 79 at PageID 234.)
Court inquired whether the Defendant had “had a chance
to read [the indictment] over and [to] discuss it with Mr.
Thomas, ” and the Defendant stated she had.
(Id., D.E. 79 at PageID 235.) The Court read the
sole count of the indictment in its entirety in open court,
and Stoltz affirmed that she understood the charge.
(Id., D.E. 79 at PageID 235.) The Court explained
the “maximum . . . potential penalty, ” and,
after conferring with counsel, the Defendant stated that she
understood. (Id., D.E. 79 at PageID 236.) Stoltz
denied that “anyone threatened [her] or tried to force
[her] to plead guilty to the charge.” (Id.,
D.E. 79 at PageID 237.) She affirmed that the signature on
the plea agreement was hers, and that she had “signed
that document following [her] review of it with [her]
attorney freely and voluntarily.” (Id., D.E.
79 at PageID 238.) The Government's attorney summarized
the plea agreement, including the appeal waiver provision.
(Id., D.E. 79 at PageID 238-40.) The Court asked the
Defendant if she understood and agreed to the terms of the
plea agreement, and she answered “Yes, sir.”
(Id., D.E. 79 at PageID 240-41.)
affirmed that she and her attorney had “discuss[ed] . .
. the application of what is called the United States
Sentencing Guidelines.” (Id., D.E. 79 at
PageID 241-42.) The Court informed her that the Guidelines
are “no longer mandatory, ” but that the Court
was “still directed to consider them, along with other
factors . . . in determining what an appropriate sentence
might be in [her] case.” (Id., D.E. 79 at
PageID 242.) When she was advised that her “sentence
could be reduced . . . if the government was to make a motion
under Section 5K1.1 of the sentencing [G]uidelines, sometimes
referred to as the substantial assistance motion, ” the
following exchange occurred:
THE COURT: Now it is solely up to the government to decide
whether or not to make that motion.
Do you understand that, ma'am?
THE DEFENDANT: Yes, sir.
THE COURT: Solely up to them. I don't have any—I
don't have any involvement in whether or not the
government makes that motion.
Now if the government did make that motion, then it will be
up to me to decide, first of all, whether to grant the
motion. And then secondly, to what extent, if any, to reduce
your sentence based upon that assistance.
Do you understand that, ma'am?
THE DEFENDANT: May I ask a question?
THE COURT: Sure.
THE DEFENDANT: When does that happen?
THE COURT: It generally will probably happen at the time of
THE DEFENDANT: Okay. So that's when they put the motion
THE COURT: If they are going to do it that's generally
when it happens. But that it— there is no guarantee
they're going to do that. Okay? They have to make that
decision. I don't make that decision about whether they
make that motion.
THE DEFENDANT: Okay.
THE COURT: If they don't make the motion then there is
nothing I can do about that.
THE DEFENDANT: It doesn't get considered then at all?
THE COURT: No, ma'am. If they don't make the motion
then I can't consider it.
THE DEFENDANT: Okay.
THE COURT: Do you follow me?
THE DEFENDANT: Yes, sir.
(Id., D.E. 79 at PageID 244-45.)
Court then reviewed the three circumstances in which her
appeal waiver would not apply: “if the Court was to
sentence [her] above the statutory maximum, ” if the
sentence imposed “went above [the Guidelines] range,
” and “if the government itself appealed [the]
sentence.” (Id., D.E. 79 at PageID 246.) The
Defendant stated that she understood, and that she was freely
waiving her appeal rights. (Id., D.E. 79 at PageID
246-47.) When asked, “[O]ther than conversations you
may have had with your attorney, Mr. Thomas, about how the
advisory [G]uidelines might apply to your case, has anyone
else made any type of promise or prediction to you about what
your sentence would be if you plead guilty to this
charge?” Stoltz stated that she did not understand the
question. (Id., D.E. 79 at PageID 248.) The Court
THE COURT: Okay. So what I don't want you doing is I
don't want you pleading guilty to this charge because
somebody, whether it be somebody in law enforcement or anyone
says I promise you you're not going to get this sentence
if you plead. Okay. Nobody had done that, have they?
THE DEFENDANT: No, sir.
(Id., D.E. 79 at PageID 248).
Government's attorney then summarized the proof that
would have been presented at trial. (Id., D.E. 79 at
PageID 248-50.) Stoltz confirmed that the government's
“statement [was] correct.” (Id., D.E. 79
at PageID 250.) Finding that “there [was] an
independent basis in fact for [the] plea, ” the Court
asked the Defendant if she was “pleading guilty to that
count because ...