Biggs v. United States, Case No. 1:15CV00101 SNLJ

• Decision Date: 18 December 2015
• Docket Number: Case No. 1:15CV00101 SNLJ
• Court: U.S. District Court — Eastern District of Missouri
• Parties: BILLY G. BIGGS, Movant, v. UNITED STATES OF AMERICA, Respondent.

BILLY G. BIGGS, Movant, v. UNITED STATES OF AMERICA, Respondent.

Case No. 1:15CV00101 SNLJ

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION

December 18, 2015

MEMORANDUM AND ORDER

This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Billy G. Biggs, a person in federal custody. On July 17, 2014, Biggs plead guilty before this Court to the offense of aiding and abetting the burglary of a pharmacy and aiding and abetting the possession with intent to distribute controlled substances and, on December 1, 2014, this Court sentenced Biggs to the Bureau of Prisons for a term of 151 months. Biggs' § 2255 motion, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.

FACTS

A. The Indictment.

On March 20, 2014, a Grand Jury in the Eastern District of Missouri, Southeastern Division, returned a two-count Indictment against Billy G. Biggs and two other co-defendants. Count I of the Indictment charged that on or about January 12, 2014, Biggs, aided and abetted by his co-defendants, committed the crime of Aiding and Abetting the Burglary of a Pharmacy in violation of Title 18, United States Code, Section 2118(b) and (c)(1) and Title 18, United States Code, Section 2. Count II of the Indictment charged that Biggs, aided and abetted by his co-defendants, committed the crime of Aiding and Abetting the Possession of Controlled Substances With the Intent to Distribute in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. On March 25, 2014, Biggs made his initial appearance on the federal charges. After the initial appearance, Federal Defender Michael A. Skrien was appointed to represent Biggs. Biggs was arraigned on March 28, 2014. At that arraignment, Biggs pled not guilty to the charges.

B. Pretrial Motions.

On April 21, 2014, Biggs' attorney filed a Waiver of Filing of Pretrial Motions. In that Waiver, Biggs' attorney represented that his client did not want to file any pretrial motions. On April 29, 2014, Biggs appeared before United States Magistrate Judge Abbie Crites-Leoni and formally waived his right to file pretrial motions. His case was set for trial or plea on July 17, 2014.

C. Plea Agreement.

The parties signed a written plea agreement that set out the terms and conditions of Biggs' guilty plea to the charges. The Government agreed that, in exchange for Biggs' guilty plea to the charges, the Government would not charge Biggs with any further charges related to the burglary of Davis Pharmacy on January 12, 2014. The parties also agreed:

The parties further agree that either party may request a sentence above or belowthe U.S. Sentencing Guidelines range (combination of Total Offense Level and Criminal History Category) ultimately determined by the Court pursuant to any chapter of the Guidelines and Title 18, United States Code, Section 3553(a). The parties further agree that notice of any such request will be given no later than ten days prior to sentencing and that said notice shall specify the legal and factual bases for the request.

Plea Agmt., p. 2.

The Plea Agreement contained an agreed-upon Statement of Facts as to Biggs' offense conduct:

On January 12, 2014, at around 2:46 a.m., Craig Nelson and his wife, Cynthia Nelson, were asleep in their home on Mott Street in New Madrid, Missouri. They were startled from their sleep by the sound of a car door slamming and their dog barking. The Nelsons looked out of one of their windows and saw a silver Buick vehicle backed up to the front door of Davis Pharmacy. Two men were out of the car. One of the men broke the glass out of the front door. Both of those men entered the pharmacy. A third person was seated in the Buick. Mrs. Nelson called the New Madrid police department to report the burglary.

After a few minutes, the two men came out of the pharmacy, carrying large duffel bags. They got in the Buick, which drove off the parking lot. The Nelsons saw a New Madrid police vehicle arrive at the parking lot just behind the Buick. Officer John Dubois was driving the New Madrid police vehicle. He began chasing after the Buick. Other officers were called to the chase, which continued to Highway 55 and onto side roads. During the chase, the occupants of the Buick began throwing items out of the Buick. The officers later recovered some of those items, which included medications stolen from Davis Pharmacy, clothing and a wood maul.

The officers were able to get two of their patrol cars in front of the Buick. The driver of the Buick attempted to ram the Buick into the officers' cars, putting the lives of the officers at risk. The officers managed to evade the Buick. The chase continued for several miles until the officers began shooting at the Buick with their firearms. The Buick then turned into the Pilot Truck Stop parking lot and stopped. Officers arrived and arrested the occupants of the Buick. Those occupants were Troy D. Stephenson, Billy G. Biggs and Martinez M. Warren. The Buick was a rental vehicle that had been driven by Stephenson, Biggs and Warren from their homes in Memphis, Tennessee, that same day as the burglary.

Davis Pharmacy employees examined the store and determined that $27,243.66 in prescription medications had been stolen. Those stolen medications included oxycodone, hydrocodone and morphine. The total amount of drugs stolen amounted to $27,243.66. Repairs to the Davis Pharmacy building totaled $815.62.

Davis Pharmacy is a pharmacy that was registered with the Drug Enforcement Administration under Section 302 of the Controlled Substances Act. The employees determined that only selected medications were taken. The medications taken by Stephenson, Biggs and Warren are commonly sold illegally. Officers reviewed the types of medications taken by Stephenson, Biggs and Warren and came to the opinion that the three men took the medications in order to distribute them to others for cash or other consideration and that the medications were not to be used for their personal use.

The location of the burglary of Davis Pharmacy by the defendant was in New Madrid County, Missouri, within the Eastern District of Missouri.

Plea Agmt., pp. 3 - 5.

The parties did not reach any agreement as to Guideline Offense Levels, except that Biggs was to receive a reduction of three levels for timely acceptance of responsibility. The parties did not come to any agreement as to Biggs's Criminal History Category. (Plea Agmt., p. 6)

Biggs and the Government agreed to waive their rights to appeal any within-Guidelines' range sentence. Biggs reserved the right to appeal any sentence imposed above the Guidelines range. The Government reserved the right to appeal any sentence imposed below the Guideline range. (Plea Agmt., p. 7) Biggs agreed to waive his right to file a petition pursuant to Title 26, United States Code, Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel. (Plea Agmt., p. 7)

D. The Plea Hearing.

On July 17, 2014, this Court conducted a plea hearing in this case. Biggs appeared with his attorney. Biggs was sworn and answered questions put to him by this Court. Biggs stated that he had no complaints concerning his attorney and was satisfied with the way his attorney had handled his case. (Plea Tr., p. 5, 6) Biggs stated that he hadreviewed the written Plea Agreement and that his attorney had gone over it in detail with him. (Plea Tr., p.8) Biggs agreed that he understood that his sentence would be influenced by the advisory Sentencing Guidelines, but that the eventual sentence would be up to the District Court. (Plea Tr., pp. 10) Biggs understood that the range of punishment for Count I was a term of imprisonment up to twenty five years and for Count II, the range of imprisonment was up to twenty years. Biggs understood that this Court would consider the full range of punishment. (Plea Tr., pp. 10 - 11)

The Government recited the facts of the case that were set out in the written Plea Agreement. (Plea Tr., pp. 13 - 15) This Court asked whether all the facts stated by the Government were true and correct. Biggs replied that the part of the statement of facts that the officer got his car in front of the Buick and that the driver tried to ram the car into the officer was not true. (Plea Tr., p 16) There was a short discussion about whether that fact would be an element of the crime. The Government pointed out that the fifth element for one of Bigg' counts depended on proof that, in committing the offense, the defendant assaulted or put in jeopardy the life of any person. (Plea Tr., p. 16) Biggs spoke to his attorney privately, then agreed that all the statements made by the prosecutor were accurate:

Court: All right. Well, my question was whether you admit all of the - all the statements the prosecutor made are true and correct?

Biggs: Yes, sir.

Court: Okay. Why did you say differently a minute ago then? I don't understand.

Skrien: Can I have just a moment?

Court: Yeah.

(Discussion between Biggs and his attorney)

Biggs: Yes, sir.

Court: Fine. So you do admit that everything he said - - the prosecutor said is true and correct?

Biggs: Yes, sir.

Court: And you admit that you did all those acts he described?

Biggs: Yes, sir.

Court: No question about it then?

Biggs: Yes, sir.

Court: So there is no question?

Biggs: No question.

(Plea Tr. pp. 17, 18)

This Court then went over the elements of both offenses, as follows:

Court: Okay. I'm going to go over these elements with you specifically on Count I. Do you admit that you aided and abetted by others knowingly and intentionally entered the business premises of Davis Pharmacy with the intent to steal material or compound containing quantities of controlled substances?

Biggs: Yes, sir.

Court: Do you also admit that Davis Pharmacy was registered with the DEAunder Section 302 of the Controlled Substances Act?

Biggs: Yes, sir.

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