Murr v. U.S.
| Decision Date | 22 September 1999 |
| Docket Number | No. 98-6202,98-6202 |
| Citation | 200 F.3d 895,2000 WL 6152 |
| Parties | (6th Cir. 2000) Robert Dale Murr, Petitioner-Appellant, v. United States of America, Respondent-Appellee. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. Nos. 97-00158; 90-00026--Henry R. Wilhoit, Jr., Chief District Judge.
James E. Arehart, OFFICE OF THE U.S. ATTORNEY, Lexington, Kentucky, for Appellee..
ON BRIEF: Herbert S. Moncier, Knoxville, Tennessee, for Appellant. Frances E. Catron, OFFICE OF THE U.S. ATTORNEY, Lexington, Kentucky, for Appellee.
Before: MERRITT and CLAY, Circuit Judges; ALDRICH, District Judge.*
Petitioner, Robert Dale Murr, appeals an order entered by the district court denying Petitioner's motion to vacate his narcotics trafficking conviction and sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, we AFFIRM the judgment of the district court. BACKGROUND Procedural History 1.Eastern District of Tennessee Prosecution
On August 22, 1989, a grand jury in the Eastern District of Tennessee issued a six-count indictment charging Petitioner with various narcotics trafficking offenses. Petitioner was charged with two counts of distribution of cocaine; the first count charged that Petitioner distributed ten ounces on July 4, 1989, and the second charged that he distributed 500 grams or more on August 17, 1989, in violation of 21 U.S.C. § 841(a)(1). Also, Petitioner was charged with four counts of using a telephone or telephone paging device to facilitate these cocaine distributions, in violation of 21 U.S.C. § 843(b).
On the eve of the Tennessee trial, the government proposed a plea agreement to Petitioner's attorney. Following negotiations, the parties presented a conditional plea agreement to Eastern District of Tennessee Judge Jarvis on January 16, 1990. Judge Jarvis deferred acceptance of the plea agreement, pending a presentence investigation. The presentence investigation was completed on April 10, 1990. On June 12, 1990, Judge Jarvis accepted the plea agreement and sentenced Petitioner to 63 months of imprisonment and a $70,000 fine. As part of this agreement, the government agreed not to further charge Petitioner in the Eastern District of Tennessee or in the Northern District of Georgia for certain offenses of which it had knowledge.
In February of 1990, during the presentence investigation mentioned above, the government uncovered facts indicating that Petitioner had been a leader in a cocaine trafficking conspiracy in the Eastern District of Kentucky. Subsequently, in March of 1991, while Petitioner was serving the sentence imposed in the Tennessee prosecution, a grand jury in the Eastern District of Kentucky issued an indictment charging Petitioner and twelve other defendants with narcotics trafficking and related offenses. Specifically, Petitioner was charged with 1) conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (Count 1); 2) eleven substantive counts of cocaine possession with the intent to distribute, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 2 through 12); and 3) conducting a continuous criminal enterprise ("CCE") in violation of 21 U.S.C. § 848 (Count 13).
On October 9, 1991, a jury trial resulted in Petitioner's conviction on Counts 1 through 11 and Count 13 of the indictment.
The district court later vacated Petitioner's conviction on Count 10 as duplicitous of Count 9; Petitioner's conspiracy conviction under Count 1 was vacated because it merged with his CCE conviction under Count 13. Petitioner was ultimately sentenced to 240 months imprisonment, to be served concurrently with his prior drug sentence from the Eastern District of Tennessee. Petitioner's conviction and sentence were subsequently affirmed on direct appeal. See United States v. Phibbs, 999 F.2d 1053 (6th Cir. 1993), cert. denied, 510 U.S. 1119 (1994).
On April 23, 1997, Petitioner filed the § 2255 motion currently on appeal to vacate his conviction and sentence imposed in the Eastern District of Kentucky. Petitioner principally argued that, in light of the preceding Tennessee conviction, his Kentucky conviction for substantive cocaine violations and for operation of a CCE involving cocaine distribution violated his rights under the Double Jeopardy and Due Process Clauses of the Fifth Amendment, and under principles of res judicata.
On March 31, 1998, the magistrate judge assigned to the case recommended that Petitioner's motion be denied. Petitioner subsequently filed objections to the magistrate's Report and Recommendation. On July 6, 1998, the district court issued an opinion and order adopting the magistrate's Report and Recommendation, and dismissing Petitioner's § 2255 motion. Petitioner then moved to vacate the order dismissing his § 2255 motion on grounds not raised in the original petition; this last motion was denied on August 10, 1998.
In denying Petitioner's § 2255 motion, the district court granted a certificate of appealability on only two issues: (i) whether Petitioner was subject to double jeopardy; and (ii) whether Petitioner was entitled to severance from one of his co-defendants for purposes of trial. Petitioner then filed a timely notice of appeal.
The following factual background is taken directly from this Court's opinion affirming Petitioner's conviction and sentence on direct appeal. See Phibbs, 999 F.2d at 1060-62.
On February 23, 1990, Jerry Parks was detained by FBI agents in Nashville, Tennessee, in connection with an ongoing drug investigation. After discussions with the government, he agreed to cooperate in the probe.
Parks revealed that his friend, Robert Murr, had visited him a number of times during the summer of 1988 when Parks was residing in a federal 'halfway house' in Bowling Green, Kentucky. On some of these occasions, Murr would deliver cocaine to him to sell. Murr wanted Parks to come to Knoxville, Tennessee, to work for him in his drug distribution venture. He directed Robert Phibbs, who was on the payroll of one of Murr's legitimate businesses, Automotive Enterprises, to write a letter to Parks' federal probation officer requesting that he be allowed to transfer to the Knoxville area. Murr told Phibbs to promise the probation authorities that Parks would be provided with a job at Automotive Enterprises. His efforts were rewarded, and Parks was permitted to move to Knoxville.
Parks' position at Automotive Enterprises was a subterfuge; he actually spent his time helping Murr distribute cocaine. In August of 1988, Murr arranged to sell four kilograms of cocaine to Billie Dye and David Hurt. Parks and Dye gathered approximately $100,000 in cash and, pursuant to Murr's instructions, started out in Lexington, Kentucky, where they were to meet with Murr. . . . [T]he transaction was consummated the next day.
Beginning in September of 1988, Parks traveled with Murr and another drug dealer named Tommy McKeehan to the Lexington area every few weeks to obtain multi-kilogram quantities of cocaine. During the first such trip, Parks became acquainted with Murr's drug source, Kenneth Lawson. Whenever Murr needed cocaine, he went with McKeehan to a pay telephone and called Lawson. After a deal had been struck, Murr, Parks and McKeehan would meet at Judy Murr's [Petitioner's ex-wife] residence early in the morning before leaving for Kentucky. Murr and McKeehan would then organize the money to be used in the sale into $1,000 bundles, putting these stacks in brown paper bags.
Aside from taking part in these trips, Parks served as the 'front man' for the drug distribution ring. Murr introduced Parks to his regular cocaine customers, including Raymond Huckelby and Edward Rogers. At such meetings, Murr would instruct Parks with regard to the amount of cocaine to be supplied, the price of the drug, and how often it was to be furnished. He would then tell Parks and the purchaser to exchange telephone numbers, beeper numbers, and beeper codes in order to stay in contact. For several months, Parks delivered drugs to Murr's customers in this fashion. When Murr was unavailable, Parks would turn over the money he received in return to either Phibbs or to Judy Murr.
In October of 1988, Parks first encountered Victor Rojas while on one of the excursions to Kentucky he made with Murr and McKeehan to buy cocaine. Rojas, who was Lawson's supplier, brought the drugs to the location where the sale would take place. . . .
Parks, Murr, and McKeehan would either give their money to Lawson or he would leave it in Rojas' vehicle, taking the cocaine for which they had paid. McKeehan would then be given his share. After the drugs were driven back to Knoxville, Parks and Murr stashed them at the house Murr rented for his girlfriend, Diane Whited. She stored the cocaine in the attic in a green duffel bag with a padlock on it. In order for Parks to get the cocaine from Whited's house to distribute, he would have to contact Murr, who, in turn, would call Whited to set up a time for the two of them to come over. Parks went to Whited's residence 15 to 20 times in the fall of 1988 to pick up drugs. On at least one occasion, Whited assisted Murr and Parks in breaking down the cocaine into salable quantities.
Keeping the cocaine at Whited's house proved to be unworkable because
Parks needed ready access to the stash, and Murr would not let Parks enter the house without him. At the end of November 1988, Murr told Parks to bury the cocaine in a pipe on the side of a hill behind Automotive Enterprises. The only person besides Parks who knew exactly where the drugs were hidden was Phibbs.
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