Myers v. United States
| Decision Date | 17 December 2013 |
| Docket Number | CIVIL NO. 5:11CV65-RLV,5:06CR33-RLV-DCK-1 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | JEFFREY LYNN MYERS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, (Doc. No. 1), and on the Government's Motion for Summary Judgment, (Doc. No. 9).
On June 28, 2006, Petitioner Jeffrey Lynn Myers was initially indicted by the Grand Jury for the Western District of North Carolina for conspiring to possess with intent to distribute at least 50 grams of crack cocaine, in violation of 21 U.S.C. § 846 (Count One); possession with intent to distribute at least five grams of crack cocaine, in violation of 21 U.S.C. § 841 (Count Two); and two counts of possession with intent to distribute a detectable amount of crack cocaine, in violation of 21 U.S.C. § 841 (Counts Three and Four). (Criminal Case No. 5:06cr33-RLV-DCK-1, Doc. No. 3: Sealed Indictment).
On that same day, the Government filed a Notice pursuant to 21 U.S.C. § 851, indicating that it intended to rely upon three prior felony drug trafficking convictions of Petitioner's forpurposes of sentencing. (Id., Doc. No. 4: Information Filed Pursuant to 21 U.S.C. § 851). Specifically, Petitioner was convicted on May 6, 1986, and on June 6, 1986, of possession of cocaine with intent to sell and deliver in the Superior Court of Iredell County, North Carolina, and on December 10, 1990, of conspiracy to possess a Schedule II controlled substance with intent to distribute in the United States District Court for the Western District of North Carolina. (Id.).
The Grand Jury ultimately returned a Third Superseding Indictment, charging Petitioner with conspiracy to possess at least 50 grams of crack cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count One); three counts of possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Counts Two, Three, and Four); and one count of possession of cocaine with intent to distribute, also in violation of 21 U.S.C. § 841(a)(1) (Count Five). (Id. Doc. No. 27: Third Superseding Indictment).
Beginning on January 24, 2007, Petitioner's case was tried before a jury in this Court. During Petitioner's trial, the Government presented evidence of four separate incidents during which Petitioner was found in possession of cocaine or cocaine base. The first incident occurred on April 23, 2006, when Petitioner was stopped during a traffic checkpoint without a valid driver's license. (Id., Doc. No. 72 at 19; 21; Trial Tr.). Lieutenant Walter Meyer with the Iredell County Sheriff's Department testified that he smelled alcohol and asked Petitioner to get out of the car. Lieutenant Meyer then requested permission to pat Petitioner down for weapons, at which time Lieutenant Meyer found a plastic bag containing several rocks of crack cocaine, a razor blade, and a crack pipe with a filter on Petitioner's person. (Id. at 24-25). It was later determined that the quantity of crack cocaine seized on April 23 was 3.9 grams. (Id. at 158).
Petitioner's co-defendant, Rachel Couch, who was also charged in the conspiracy count, testified that she began using crack cocaine when she was eighteen years old and in cosmetology school and that Petitioner supplied her with crack cocaine. (Id. at 69). Ms. Couch testified that she saw Petitioner regularly and went to hotels with him on weekends, using either crack or powder cocaine and having sex all night. (Id. at 70; 72-74). Ms. Couch testified that Petitioner told her his cocaine supplier was a Columbian, and she also testified that she had seen Petitioner with at least three ounces of powder cocaine and with two ounces of crack cocaine. (Id. at 74-75). When asked to compare the quantity to that contained in Exhibit 4D, which exhibit contained approximately 28 grams of powder cocaine, Ms. Couch testified that the quantity of crack cocaine she had seen was twice as much. (Id. at 75; 162). Ms. Couch testified further that she accompanied Petitioner on five or six occasions to the home of a person she knew as "Tim," to whom Petitioner would bring either cocaine or crack cocaine. (Id. at 77). This testimony was corroborated by the testimony of Timothy Eckliff, who testified at trial that Petitioner provided him with crack cocaine. (Id. at 173).
On or about April 26, 2006, Ms. Couch was arrested for possession of marijuana and offered to assist law enforcement in the hopes that cooperating might help her with her state charge. (Id. at 61; 78-79). According to Ms. Couch, she met with Detectives Thomas Thompson and David Ramsey and agreed to set up an undercover drug deal with Petitioner. (Id. at 80). Ms. Couch and a female officer met with Petitioner on April 27, 2006, at which time Petitioner provided Ms. Couch with an eight-ball, or three-and-a-half grams of crack cocaine, as well as "nine extra" crack rocks, putting them in an Altoids box. (Id. at 89; 140; 145-46; 150-51). John Redmon also testified at trial that he worked with law enforcement to set up an undercover purchase of crack cocaine from Petitioner. According to Mr. Redmon, he had previously beeninvolved in the distribution of crack cocaine and had served time for at least one drug offense but ended that activity in 1991. (Id. at 187-88). Mr. Redmon testified that in the spring of 2006, an arrest warrant was issued for Mi*. Redmon for sale and delivery of cocaine, though "they never actually proved it." (Id. at 189). Mr. Redmon then offered to cooperate with Detective Ramsey and telephoned Petitioner, requesting an ounce of crack cocaine. (Id. at 190-91). Detective Ramsey searched Mr. Redmon before the May 16, 2006, transaction and provided $900 to Mr. Redmon and a tape recorder on which to record the transaction. (Id. at 193; 196-97; Doc. No. 73 at 36).
The tape recorder stopped recording prior to the exchange, however; thus, there was no recording of the actual exchange, though Mr. Redmon testified that he did not realize the recording had stopped and, instead, believed that the entire transaction was recorded. (Id., Doc. No. 72 at 196; Doc. No. 73 at 21-22; 28). According to Mr. Redmon, Petitioner provided an ounce of powder cocaine, and Mr. Redmon gave Petitioner the money, turning the cocaine over to Detective Ramsey at the conclusion of the deal. (Id., Doc. No. 72 at 162; 197; Doc. No. 73 at 38).
On June 8, 2006, Petitioner was stopped again while driving with a revoked license by Lieutenant Meyer, who recalled having stopped Petitioner on April 23 during the checkpoint. (Id., Doc. No. 73 at 65). During the stop, Petitioner presented Lieutenant Meyer with a driver's license that Petitioner said that he had obtained, and the license appeared to be valid. (Id. at 66-67) . Lieutenant Meyer asked Petitioner to get out of his car and explained that he would be placed in Lieutenant Meyer's patrol car while he checked on the validity of the license; Lieutenant Meyer explained that if the license was valid, he "would cut him loose." (Id. at 66-68) .
After Petitioner got out of his own car, and before Petitioner got into Lieutenant Meyer's patrol car, Lieutenant Meyer was going to pat him down "to make sure [he didn't] have any guns or knives on [him]." (Id. at 68). Lieutenant Meyer testified that he patted Petitioner down, consistent with the training and procedures of the sheriff's department, patting his front pockets and moving up his pants legs until he reached Petitioner's "watch pocket," the pocket of the pants on the right side, just above the main pocket. (Id.). In Petitioner's watch pocket, Lieutenant Meyer "felt several small bulges just a little bit smaller than marbles," and, suspecting that they were crack cocaine, asked Petitioner if that is what they were. (Id.). Petitioner twice refused to answer Lieutenant Meyer's question, after which Lieutenant Meyer reached into the pocket and retrieved three rocks of crack cocaine, weighing 2.9 grams. (Id., Doc. No. 72 at 164; Doc. No. 73 at 68-69). Lieutenant Meyer also discovered a set of postal scales inside Petitioner's car. (Id., Doc. No. 73 at 70).
At the conclusion of the trial, the jury found Petitioner guilty as to all counts, but with respect to Count Two, one of the substantive possession-with-intent to distribute charges, the jury found Petitioner guilty only of simple possession, not possession with intent to distribute. (Id., Doc. No. 50: Verdict). As to the drug conspiracy count, the jury found that five or more grams of cocaine base was attributable to Petitioner. (Id. at 1-2).
On July 3, 2007, the Probation Office submitted a Presentence Report ("PSR") in preparation for Petitioner's sentencing hearing, which report was revised on August 31, 2007, and again on November 20, 2007.1 In the final PSR, the probation officer calculated a totaloffense level of 30 based on Petitioner's responsibility for 65.41 grams of crack cocaine. (Id., PSR at 7). In calculating Petitioner's criminal history points, the probation officer noted that Petitioner had prior felony convictions for two counts of robbery and one count of assault with a deadly weapon with intent to inflict serious injury in 1979, possession of a controlled substance with intent to sell and deliver and sale of cocaine in 1985, and possession of cocaine with intent to sell and deliver and sale or delivery of cocaine in 1986, none of which could be counted for purposes of Petitioner's criminal history points because of the age of these convictions. (Id. at 8-9). The probation officer also noted that Petitioner was convicted in 1990 in this Court of conspiracy to possess with intent to distribute cocaine, receiving a sentence of 210...
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