Nance v. United States
Decision Date | 23 September 2013 |
Docket Number | Crim. No. 04-10038-2-JDT,Civ. No. 08-1272-JDT-egb |
Parties | ELTON NANCE, Movant, v. UNITED STATES OF AMERICA, Respondent. |
Court | United States District Courts. 6th Circuit. Western District of Tennessee |
ORDER GRANTING MOVANT'S MOTION TO SUPPLEMENT
ORDER ADOPTING REPORT AND RECOMMENDATION
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255
ORDER CERTIFYING AN APPEAL WOULD BE TAKEN IN GOOD FAITH
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"):
(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...
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