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Abernathy v. United States

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

October 17, 2019

COREY ABERNATHY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          SUSAN K. LEE MAGISTRATE JUDGE

          MEMORANDUM OPINION

          TRAVIS R. McDONOUGH UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner Corey Abernathy's pro se motion to vacate, set aside, or correct his sentence pursuant to Title 28, United States Code, Section 2255 (Doc. 1 in No. 1:19-cv-2; Doc. 71 in No. 1:16-cr-81.) For the following reasons, the Court will DENY Petitioner's motion. Petitioner has also filed two motions to appoint counsel (Docs. 8, 16 in No. 1:19-cv-2), two motions to amend (Docs. 11, 13 in No. 1:19-cv-2), a motion to stay (Doc. 10 in No. 1:19-cv-2), and a motion for certificate of appealability (Doc. 12 in No. 1:19-cv-2). As explained herein, Petitioner's motions to appoint counsel (Docs. 8, 16) will be DENIED, his first motion to amend (Doc. 11) will be DENIED, his second motion to amend (Doc. 13) will be GRANTED, his motion to stay (Doc. 10) will be DENIED AS MOOT, and his motion for certificate of appealability (Doc. 12) will be DENIED.

         I. BACKGROUND

         On June 28, 2016, a federal grand jury returned a one-count indictment charging Petitioner with unlawful possession of a firearm by a convicted felon in violation of Title 18, United States Code, Section 922(g)(1). (Doc. 1 in No. 1:16-cr-81.) On October 18, 2016, Petitioner signed a plea agreement. (Doc. 24 in No. 1:16-cr-81.) According to the factual basis in the plea agreement, Chattanooga Police Department Field Training Officer Matthew Robertson observed Petitioner walking in downtown Chattanooga with a “clearly visible” bolt-action rifle. (Doc. 24 in No. 1:16-cr-81.) Robertson then detained Petitioner and secured the rifle, which was unloaded. (Doc. 24 in No. 1:16-cr-81.)

         After signing the plea agreement, however, Petitioner filed a motion to withdraw his plea agreement and requested that the Court extend the deadline to file a motion to suppress. (Docs. 24, 25 in No. 1:16-cr-81.) The Court granted Petitioner's motion to withdraw his plea agreement but denied his request to extend the deadline to file a suppression motion. (Doc. 26 in No. 1:16-cr-81.)

         On December 5, 2016, Petitioner filed a notice of intent to enter a plea of guilty and attached a factual basis. (Docs. 28, 28-1 in No. 1:16-cr-81.) On the same day, the Government filed an almost identical factual basis. (Doc. 29 in No. 1:16-cr-81.) According to the factual bases:

a) On May 16, 2016 the defendant was observed walking down the street in downtown Chattanooga with a bolt action rifle. The rifle was not secured in any case and was clearly visible by Chattanooga Police Department Field Training Officer (FTO) Matthew Robertson[.] Upon observing the defendant, FTO Robertson detained the defendant and secured the rifle, which was unloaded.
b) Prior to May 16, 2016, the defendant was a convicted felon. The defendant has prior convictions for at least the following: (1) Burglary; (2) Burglary of an Auto.
c) An ATF expert analyzed the firearm in this case and determined that it was manufactured outside of the state of Tennessee, and, therefore, did travel in and affect interstate commerce.

(Docs. 28-1, 29 in No. 1:16-cr-81.)

         Prior to entering his guilty plea, however, Petitioner filed a motion to substitute counsel. (Doc. 31 in No. 1:16-cr-81.) On December 29, 2016, United States Magistrate Judge Susan K. Lee held a hearing on Petitioner's motion to substitute counsel. (See Doc. 33 in No. 1:16-cr-81.) At the hearing, Petitioner expressed displeasure with his counsel primarily because he did not file a motion to suppress.[1] (Doc. 75, at 6 in No. 1:16-cr-81.) During the hearing Petitioner stated that his counsel provided him with a draft suppression motion only shortly before the deadline to file a plea agreement and the deadline to file pretrial motions. (Id. at 7.) Petitioner's counsel explained to Magistrate Judge Lee that, although he discussed the possibility of a motion to suppress with Petitioner and presented Petitioner with a draft motion to suppress, Petitioner instructed him not to file the motion to suppress and, instead, to proceed with entering a plea agreement before the plea deadline passed. (Id. at 12‒13.) Petitioner then explained that he ultimately sought to withdraw his plea agreement because he thought it would afford him an opportunity to file a motion to suppress. (Id. at 18‒19.) Magistrate Judge Lee gave Petitioner the choice of proceeding pro se or continuing to proceed with his current counsel. (Id. at 23‒ 24.) Petitioner elected to proceed with his current counsel, and Magistrate Judge Lee denied Petitioner's motion to substitute counsel. (Id.; Doc. 35 in No. 1:16-cr-81.)

         On January 25, 2017, United States District Court Judge Curtis L. Collier conducted Petitioner's change-of-plea hearing. (See Doc. 76 in No. 1:16-cr-81.) At the hearing, Judge Collier revisited Petitioner's motion to substitute counsel. (Id. at 2‒17.) Petitioner explained to Judge Collier that he should receive new counsel because his current counsel failed to timely investigate, discuss, and file a motion to suppress. (Id.) Petitioner also explained that he sought to withdraw his plea agreement because he thought it would afford him an opportunity to file his motion to suppress based on alleged violations of his Fourth Amendment rights. (Id. at 12.) After Judge Collier denied Petitioner's request to substitute counsel, Petitioner represented that he wished to proceed in changing his plea to guilty. (Id. at 29.) During the change of plea colloquy, Petitioner affirmed that the factual bases filed in the record were true and correct. (Doc. 76, at 39 in No. 1:16-cr-81; see also Docs. 28-1, 29 in No. 1:16-cr-81.) Judge Collier then accepted his guilty plea and adjudged him guilty. (Doc. 76, at 40 in No. 1:16-cr-81.) Judge Collier later sentenced Petitioner to thirty-four months' incarceration and two years of supervised release. (Doc. 54 in No. 1:16-cr-81.)

         Petitioner appealed his sentence to the United States Court of Appeals for the Sixth Circuit, arguing that the district court improperly applied the wrong legal standard and calculated his guidelines incorrectly because the facts underlying his possession of a firearm were consistent with possession for sporting purposes. (See Docs. 52, 63 in No. 1:16-cr-81.) Petitioner did not raise any issues regarding his arrest, plea, or conviction in his appeal to the Sixth Circuit. (See id.) The Sixth Circuit affirmed the Court's sentence, holding that ...


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