JUDGE CAMPBELL
MEMORANDUM
Pending before the Court are the Petitioner's Motion To Set Aside, Correct, Or Vacate Sentence Pursuant To 28 U.S.C. § 2255 (Docket No. 1); and the Government's Motion To Dismiss Petitioner's Motion To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Docket No. 38).
For the reasons set forth herein, the Government's Motion To Dismiss (Docket No. 38) is DENIED; and the Petitioner's Motion To Set Aside (Docket No. 1) is GRANTED in part, and DENIED in part. The Petitioner's conviction on Count 13 should be vacated, and his sentence should be reduced by 10 years to a total sentence of 315 years of imprisonment. (Judgment, at p. 2 (Docket No. 338 in Case No. 2:06-00019)). All other claims made by the Petitioner are denied.
Also pending before the Court are:
Petitioner's Renewed Motion For Discovery And Issuance Of Subpoenas Reconsideration (Docket No. 131), and the Government's Response (Docket No. 136) in opposition. The Renewed Motion (Docket No. 131) is DENIED, for the reasons set forth in the Court's prior orders (Docket Nos. 68, 110, 114).
Petitioner's Notice Of Contempt Of Court (Docket No. 133), which requests that theCourt hold attorney Hershell Koger in contempt for failure to produce records in response to Petitioner's subpoena, and the Government's Response (Docket No. 135), attaching Mr. Koger's records (Docket Nos. 135-1, 135-2). Petitioner's request to hold Mr. Koger in contempt is DENIED, as moot.
Petitioner's Amended Motion To Order The Government To Produce Undercover Audio Recordings (Docket No. 144), and the Government's Response (Docket Nos 149, 150), in which the Government produces the audio recordings identified therein. Petitioner's Motion (Docket No. 144) is DENIED, as moot, in light of the Government's filings.
II. Procedural and Factual Background The Petitioner and Misty Langford were initially charged with murder for hire, drug distribution and other offenses in an Indictment issued in the underlying criminal case. (Docket No. 22 in Case No. 2:06-00019). Additional charges were added in subsequent superseding indictments. (Docket Nos. 80, 125, 135, 158, 166 in Case No. 2:06-00019). Prior to trial, Co-Defendant Langford pled guilty, pursuant to a Plea Agreement, to conspiracy to commit solicitation of murder for hire, and murder for hire. (Docket Nos. 76-78 in Case No. 2:06-00019).
Following a two-week jury trial, the Petitioner was convicted of all 21 charges contained in the Fifth Superseding Indictment: conspiracy to commit solicitation of murder for hire; conspiracy to commit murder for hire; two counts of murder for hire; two counts of solicitation to commit murder for hire; conspiracy to distribute marijuana, codeine, cocaine, dihydrocodeine, alprazolam, and diazepam; distribution of marijuana; three counts of distribution of cocaine; two counts of possession with intent to distribute various controlled substances; possession and distribution of pseudoephedrine; possession of a machine gun; possession of an unregisteredfirearm; possession of a machine gun in furtherance of a drug trafficking crime; possession of a firearm in furtherance of a drug trafficking crime; solicitation to murder a federal employee; and two counts of obstruction of justice. (Docket Nos. 166, 252, 338 in Case No. 2:06-00019).
The Court subsequently sentenced the Petitioner to a total term of 325 years of imprisonment. (Docket Nos. 338, 339 in Case No. 2:06-00019). The Petitioner appealed, and the Sixth Circuit affirmed. (Docket No. 374 in Case No. 2:06-00019); United States v. Dunn, 09-5837, 2011 WL 11533293 (6th Cir. Dec. 15, 2011). The Petitioner then filed a petition for writ of certiorari with the Supreme Court, which was subsequently denied. (Docket Nos. 376, 377 in Case No. 2:06-00019).
The Presentence Investigation Report describes the evidence adduced at trial as follows:
24. In October 2005, William Dunn and Misty Langford participated in several sales of controlled substances to a law enforcement agent, including a Putnam County Sheriff's Office (PCSO) deputy who operated in an undercover capacity. Specifically, on October 6, 2005, one PCSO deputy and a confidential informant (CI-1) arranged a meeting to purchase marijuana from Langford and Dunn. Thereafter, in the parking lot of the Beehive Restaurant in Baxter, Tennessee, the PCSO deputy, acting in an undercover capacity (PCSO UC), and CI-1 paid Langford and Dunn $180 in exchange for 25.9 grams of marijuana, which was confirmed by the Tennessee Bureau of Investigation (TBI) lab.
25. On October 10, 2005, the PCSO UC purchased 102.5 grams of marijuana from Langford and Dunn at the aforementioned Beehive Restaurant. Ms. Langford placed the substance in four clear Ziplock bags and weighed it in exchange for $575. The weight of the substance was confirmed by the TBI lab.
26. On October 14, 2005, PCSO deputies and CI-1 arranged a meeting to purchase cocaine from Langford and Dunn. The PCSO UC and CI-1 met at Dunn's residence (next to the Beehive); however, Langford and Dunn were not present. The PCSO UC called Dunn and was told that he and Langford would arrive shortly. When Langford and Dunn arrived at the residence, the PCSO UC and CI-1 were told to come inside. The PCSP UC and CI-1 followed Dunn, Langford, and a child into the residence. Dunn and Langford agreed to the price of $500 for a half ounce of cocaine. The PCSO UC and CI-1 went to a bedroom with Langford where she exchanged 13.2 grams of cocaine and a separately wrapped bag of .6grams of cocaine for $500. The substance and weight was confirmed by the TBI.
27. On October 26, 2005, officers arranged a meeting with the defendant to purchase cocaine. The PCSO UC and CI-1 proceeded to Dunn's residence (next to the Beehive). In a bedroom, the defendant measured 14 grams of cocaine in exchange for $500. The parties discussed future transactions, and the defendant advised he would provide a better price if the PCSO UC ordered larger quantities. The TBI confirmed the substance was 13.9 grams of cocaine.
28. On October 28, 2005, a cocaine exchange was arranged with Mr. Dunn. The PCSO UC and CI-1 met the defendant at his residence and proceeded to a bedroom. Mr. Dunn indicated that he did not have enough to make the PCSO UC 'happy.' The defendant weighed out 3.1 grams of cocaine. The PCSO UC indicated the substance was not enough. Mr. Dunn promised more later that evening and told the PCSO UC to call him, handing him a business card. The PCSO UC did not purchase any cocaine at the meeting. Later that evening, another meeting was arranged at the defendant's residence. When the PCSO UC and CI-1 arrived, Mr. Dunn's home reeked of marijuana and approximately four unidentified white males were gathered in the living room.
29. During the meeting, Ms. Langford was in the bedroom speaking to two other males. The defendant and PCSO UC went next door to the Beehive Restaurant and exchanged 13.5 grams of cocaine in exchange for $500. The substance and weight was confirmed by the TBI.
30. On April 10, 2006, a Putnam County grand jury returned a three-count indictment against Dunn for the sale of cocaine and marijuana. On April 24, 2006, PCSO deputies served a Tennessee State arrest warrant for Dunn at his residence. Officers retrieved a bag of marijuana and pills from Dunn's person. The defendant was interviewed and admitted that he went to Mexico a couple times a year and bought the drug tablets found in his home in large quantities.
31. Later that day, officers approached Ms. Langford at her mother's residence. After being Mirandized and signing a waiver and admonition, Ms. Langford advised that the defendant used firearms in drug transactions; that Mr. Dunn had a .25 caliber revolver in his bedroom; that the defendant kept a firearm in his pocket to avoid bad drug deals; that Mr. Dunn had traded cocaine for a 9mm and a .38 firearm, which Dunn knew were stolen; that the defendant had a .25 that 'was put together' from a bunch of different firearms in order to escape identification; that he had a 'big type' machine gun that her father traded Dunn for drugs and to repay a debt; and that Dunn had a storage building in the area.
32. Also on April 24, 2006, officers returned to interview the defendant after their interview of Ms. Langford. After signing a waiver, he admitted he had a .25 caliberfirearm under a mattress at his home which he purchased in Michigan, he received all of his other firearms from his grandfather, and he smoked marijuana on the weekends. The defendant agreed to a search of his residence, on Boat Dock Road, which he shared with his grandmother. He insisted on being present during the search.
33. A search of the residence revealed the following TBI confirmed quantities: 125 grams of marijuana, 3.3 grams of cocaine, 493 tablets of codeine, 2,369 tablets of dihydrocodeine, and 320 tablets of alprazolam (Xanax). Found in the defendant's bedroom was 17 .25 caliber rounds, 30 .38 caliber rounds, and Norinco 7.62 caliber ammunition.
34. A search of Dunn's storage unit revealed a 20-gauge shotgun, a .22 caliber rifle, a 12-gauge shotgun, a 7.62 caliber machine gun, a .38 caliber revolver, a .22 caliber revolver, a 9mm semiautomatic pistol, a .32 caliber revolver, and a .25 caliber revolver. It is noted that the machine gun falls within the definition in 26 U.S.C. § 5845(b). In addition, the firing mechanism had been altered with a combination of parts designed and intended to be used as a machine gun.
35. On April 25, 2006, a subsequent search was conducted at Dunn's residence. Consent was obtained from the defendant and Mr. Dunn's grandmother. A loaded .25 caliber semiautomatic firearm and drug paraphernalia (syringes and spoons with white reside) were found.
36. Subsequent to the defendant's arrest, the
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