United States District Court, W.D. Tennessee, Western Division
MICHAEL B. BAILEY, Movant,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255,
DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN
APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
L. PARKER UNITED STATES DISTRICT JUDGE
Michael B. Bailey moves in this Court to vacate his sentence
under 28 U.S.C. § 2255 (§ 2255 Motion”). (ECF
No. 1.) The § 2255 Motion is now ripe. For the reasons
below, Movant's § 2255 Motion is DENIED.
Criminal Case Numbers 2:09-cr-20051 BBD and
federal grand jury in the Western District of Tennessee
indicted Movant on one count of carjacking (“Count
1”) and one count of using and carrying a firearm in
relation to a crime of violence (“Count 2”) in
case number 2:09-cr-20051-BBD (“Case 1”).
(Indictment, No. 2:09-cr-20051-BBD, Criminal
(“Cr.”) ECF No. 1.) Another federal grand jury
later indicted Movant on one count of mailing a threatening
communication to a federal judge and one count of
intentionally conveying false and misleading information
about the letter containing anthrax in case number
2:09-cr-20465-BBD (“Case 2”). (Indictment, No.
2:09-cr-20465-BBD, Cr. ECF No. 1.)
then pleaded guilty to both counts in Case 1 and guilty to
the count involving mailing threatening communications to a
federal judge in Case 2. (No. 2:09-cr-20051-BBD, Cr. ECF Nos.
33 & 35, No. 2:09-cr-20465-BBD, Cr. ECF Nos. 24 &
written plea agreement in Case 1 provided that the United
States would recommend that Movant serve the sentence on
Count One concurrently with the sentence imposed in Case 2
and would recommend that Movant receive a reduction in his
sentencing guideline offense level for acceptance of
responsibility. (Cr. No. 2:09-20051-BBD, Cr. ECF No. 34.)
written plea agreement in Case 2 contained Movant's
affirmation that his plea of guilty to Count One was knowing
and voluntary and provided that the United States would move
for dismissal of Count Two in exchange for Movant's
guilty pleas in the two criminal cases at sentencing and
would recommend that he receive the maximum reduction for
acceptance of responsibility reduction on Count One in Case
2. (Id., Cr. ECF No. 25.)
Court held one sentencing hearing for both cases. (No.
2:09-cr-20051-BBD, Cr. ECF No. 39, No. 2:09-cr-20465-BBD, Cr.
ECF No. 31.) At that sentencing hearing, the judge determined
that Movant was entitled to the full three-point reduction
for acceptance of responsibility leading to an advisory
guideline range of 262 to 327 months in prison. (Sentencing
Transcript (“Tr.”), No. 2:09-cr-20051, Cr. ECF
No. 43 at PageID 74-75.) The court then sentenced Movant to
an effective term of imprisonment of 264 months. For Case 1,
the judge imposed a sentence of 180 months in prison on Count
One and eighty-four months consecutively on Count Two. The
judge imposed a sentence of 120 months in prison in Case 2;
to run concurrently with the sentence imposed in Case 1. (No.
2:09-cr-20051-BBD, Cr. ECF No. 40, No. 2:09-cr-20465-BBD, Cr.
ECF No. 32.) Movant did not appeal.
The § 2255 Motion
years after the court sentenced Movant, he filed his §
2255 Motion alleging:
(1) that he should have gone to trial and not pleaded guilty
in Case 1;
(2) that the weapon used during the carjacking was an air
gun, not a firearm; and
(3) that the Court did not inform him of his right to appeal