Nance v. United States

Decision Date23 September 2013
Docket NumberCrim. No. 04-10038-2-JDT,Civ. No. 08-1272-JDT-egb
PartiesELTON NANCE, Movant, v. UNITED STATES OF AMERICA, Respondent.
CourtUnited States District Courts. 6th Circuit. Western District of Tennessee
ORDER DENYING MOTION FOR FREE TRANSCRIPTS AS MOOT

ORDER GRANTING MOVANT'S MOTION TO SUPPLEMENT

ORDER ADOPTING REPORT AND RECOMMENDATION

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255

ORDER GRANTING A LIMITED CERTIFICATE OF APPEALABILITY

ORDER CERTIFYING AN APPEAL WOULD BE TAKEN IN GOOD FAITH

AND
ORDER GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

On October 31, 2008, Movant Elton Nance, Bureau of Prisons inmate registration number 19652-076, an inmate at the Federal Correctional Institution in Memphis, Tennessee, filed a pro se motion pursuant to 28 U.S.C. § 2255, accompanied by a legal memorandum. (Docket Entry 1.) Movant filed an amended motion on March 5, 2009. (D.E. 4.) On April 14, 2009, United States District Judge J. Daniel Breen issued an order that, inter alia, granted leave to amend and directed the Government to respond. (D.E. 5.) On June 4, 2009, the Government filed an answer to the § 2255 motion. (D.E. 9.)1 Movant filed a reply on December 11, 2009. (D.E. 16.)

On June 23, 2010, Nance filed a motion pursuant to 28 U.S.C. § 753(f) in which he seeks free copies off the voir dire transcripts in his criminal case in order that he might investigate an additional issue involving a prospective juror. (D.E. 17.) A subsequent filing establishes that Movant obtained the requested transcript (D.E. 18-1); therefore, this motion is DENIED as moot.

On December 15, 2010, Movant filed a motion to supplement his § 2255 motion to raise an additional issue. (D.E. 18.) For cause shown, that motion is GRANTED.

In an order issued on March 26, 2012, the Court referred the case to the magistrate judge for appointment of counsel and an evidentiary hearing on one issue. (D.E. 20.) On May 14, 2012, the Court directed the Government to file a supplemental answer addressing the affidavits submitted in Movant's reply that stated that he lived at 228 Shelby Street in Jackson, Tennessee. (D.E. 27.) The Government filed its supplemental response on May 29, 2012. (D.E. 29.)

After it was determined that Movant was indigent and qualified for appointed counsel (D.E. 28), an attorney was duly appointed to represent him. (D.E. 30.) United States Magistrate Judge Edward G. Bryant, Jr. conducted an evidentiary hearing on October 3, 2012. (D.E. 46 & 49.) Magistrate Judge Bryant issued a Report and Recommendation (the "R&R") on December 26, 2012, recommending that relief be denied on the issue that was referred. (D.E. 52.) Movant filed timely objections to the R&R on January 8, 2013 (D.E. 54), and the Government filed a response to the R&R on January 15, 2013 (D.E. 55).

On April 19, 2004, a federal grand jury in this district returned a four-count indictment against Nance and a co-defendant, Martedis McPhearson. United States v. Nance, No. 04-10038-2-JDT (W.D. Tenn.) (Cr. D.E. 1). The grand jury returned a superseding indictment on September 23, 2004 to correct a typographic error. (Cr. D.E. 32.) On November 15, 2004, the grand jury returned a seven-count second superseding indictment. (Cr. D.E. 54.) Nance was named in Counts 4, 6, and 7. Count 4 charged that, on or about December 12, 2003, McPhearson and Nance, aided and abetted by each other, possessed approximately 4.9 grams of cocaine base (crack cocaine) with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count 6 charged Nance, a convicted felon, with possession of a firearm on or about December 12, 2003, in violation of 18 U.S.C. § 922(g). Count 7 charged McPhearson and Nance, aided and abetted by each other, with using and carrying a firearm during and in furtherance of the drug-trafficking crime charged in Count 4, in violation of 18 U.S.C. §§ 924(c)(1)-(2) and 2.

The factual basis for these charges is set forth in the presentence report ("PSR"):

3. At approximately 3:05 p.m. on December 12, 2003, Officer C. Mathis and Investigator Chris Wiser of the Jackson Police Department (JPD) went to the home of Martedis McPhearson, located at 228 Shelby Street, Jackson, TN, for the purpose of arresting Mr. McPhearson on an outstanding warrant for Assault. Mr. McPhearson answered the officer's knock on the door and then stepped onto the front porch of the residence. Mr. McPhearson correctly identified himself to the officers and was immediately taken into custody on the outstanding warrant. During a post-arrest "pat-down", Investigator Wisor discovered a plastic baggie containing what was later determined by TBI Crime Laboratory analysis to be 4.9 grams of crack cocaine in Mr. McPhearson's right front pants pocket. The substance field-tested positive for the presence of cocaine. Based on the results of the field test, officers obtained a search warrant for Mr. McPhearson's residence.
4. During the December 12, 2003, execution of the search warrant at 228 Shelby Street, JPD officers discovered that there were three (3) persons present in that residence. A male subject, later identified as the defendant, Elton Nance, Jr., was found in the bathroom of the residence. The officers brought the as-yet unidentified male subject out of the bathroom into the living room of the home. When asked about his identity, Mr. Nance falsely identified himself as Marcus Powell. He also provided the officers with a false social security number and date of birth. After officers had obtained a picture of the real Marcus Powell, the defendant admitted that his true name was Elton Nance. The defendant advised that he had used the name of Marcus Powell, whom he said was a victim of one of his prior offenses, because he thought that there was a warrant for him. A computer check confirmed revealed [sic] that Mr. Nance did have an outstanding Jackson City Court warrant for a misdemeanor vandalism charge. Officers then placed Mr. Nance under arrest on the outstanding warrant. Officers also found two (2) females, Ebony Donald (later identified as Mr. Nance's girlfriend) and Pauline Timms, in the home. Ms. Donald was arrested on an outstanding warrant for Criminal Trespass. Pauline Timms was released without charges.
5. During the warrant search, officers found a small, locked safe in a middle bedroom of the residence. When asked by one of the officers if he knew which of several keys which they had found might go to the safe, Mr. Nance responded by correctly identifying the key which ultimately unlocked the safe. Inside the safe, officers found a firearm, identified as a Husqvarna, .380 caliber semiautomatic pistol, serial #68986. The weapon was loaded with four (4) .380 caliber cartridges in the magazine. An additional six (6) .380 caliber cartridges were found in the living room of the residence. A small amount of marijuana (21.9 grams) was also found in the home.
6. Subsequent to his arrest, Mr. Nance, after being Mirandized, voluntarily gave a signed and witnessed statement to JPD Lt. Patrick Wills and former JPD Officer A. Willis. In his statement, Mr. Nance admitted that, on the Monday prior to his arrest, he was at Martedis McPhearson's residence when there was a knock at the door. According to the defendant's statement, a female who was also in the home asked Mr. Nance to "put up" a black automatic weapon (the same weapon found by officers during the warrant search) before she answered the door. Mr. Nance responded by picking up the firearm, at which time he discovered that the safety was not engaged. When he reportedly tried to engage the safety, the magazine fell out of the weapon, with two (2) bullets falling out of the magazine. After placing the bullets back into the magazine and the magazine back into the weapon, Mr. Nancereportedly placed the firearm into the "box" (safe). The defendant admitted that his fingerprints would be on that firearm. Mr. Nance specifically denied any knowledge of the marijuana which was found in the residence. He also denied any involvement in crack cocaine trafficking and any knowledge of such activity by Mr. McPhearson.
7. A check of Mr. Nance's criminal history revealed that he is a convicted felon, having been previously convicted of the following felony offenses:
Offense of
Conviction
Date of
Conviction
Court/
Dkt. No.
Aggravated Burglary
06/19/95
Humboldt Law Ct.
(# 6396)
Theft Over $1,000
05/20/96
Humboldt Law Ct.
(#6478)
Forgery
05/20/96
Humboldt Law Ct.
(#6478)
Theft Over $1,000
05/20/96
Gibson Co. Circuit Ct.
(#15255)
Facilitating
Aggravated Robbery
05/27/03
Madison Co. Circuit
Ct. (#02-688)
8. On December 18, 2003, ATF Special Agent Alan B. Oxley examined the Husqvarna .380 caliber pistol seized from Mr. McPhearson's residence on December 12, 2003. Special Agent Oxley determined that the firearm in question was manufactured outside of the State of Tennessee, and therefore, at some point had traveled in interstate and/or foreign commerce. Special Agent Oxley also test-fired the weapon and found it to be in operable condition.

(PSR ¶¶ 3-8.)

On November 15, 2004, McPhearson filed a motion to suppress evidence obtained during the search of his home. (Cr. D.E. 53.) The Government filed its response onDecember 21, 2004. (Cr. D.E. 65.) At a hearing on the suppression motion on February 11, 2005, the Court granted the Government's motion to sever the cases of the two defendants for trial. At the conclusion of the hearing, the Court granted McPhearson's motion to suppress the fruits of the search. (Cr. D.E. 79.) An order to that effect was issued on February 11, 2005. (Cr. D.E. 81.) The Government appealed the granting of the suppression motion, and the Sixth Circuit Court of Appeals affirmed. United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006).

The case against Nance went to trial on February 14, 2005. (Cr. D.E. 83.) On February 15, 2005, the jury returned a guilty verdict on Count 6 of the second superseding...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT