Olton v. United States, 3:08cv516-MOC
| Decision Date | 29 September 2011 |
| Docket Number | 3:08cv516-MOC,3:03cr127-1 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | RICHARD OLTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
THIS MATTER is before the Court upon Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. Nos. 1 & 2.) Also before the Court is Respondent's Motion for Summary Judgment. (Doc. No. 10.)
On July 26, 2004, Petitioner was charged by superseding indictment with conspiracy to possess with intent to distribute cocaine, cocaine base, and heroin, in violation of 21 U.S.C. § 846 and 841 (2000) (Count One), possession with intent to distribute cocaine and heroin, in violation of 21 U.S.C. § 841 (2000) (Count Two), possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000) (Count Three), andpossession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2000) (Count Four). (Case No. 3:03cr127-1, Doc. No. 81.) Counsel filed a pre-trial motion to suppress certain evidence and all statements made by Petitioner on the night of his arrest. (Id. at Doc. No. 46.) After holding a hearing on the Motion, Magistrate Judge Carl Horn issued a Memorandum and Recommendation that the Motion be dismissed (Id. at Doc. No. 60), which was accepted by the late District Court Judge Brent McKnight (id. at Doc. No. 69).
Trial began November 1, 2004, the Honorable William L. Osteen, Sr., presiding. Co-conspirator Kennedy Barkley, a convicted drug dealer and admitted heroin user (id. at Doc. No. 125: Trial Tr. at 73-77)1, testified that he met Petitioner during the summer of 2002 at Petitioner's night club, The Vault (id. at 78-79). A couple of weeks later, the two "started talking about drugs." (Case No. 3:03cr127-1, Doc. No. 125: Trial Tr. at 81.) Petitioner knew Barkley's reputation as a drug dealer and that he had drug connections all over Charlotte. (Id. at 81-82.) Barkley testified that he purchased a total of eight or nine kilograms of cocaine from Petitioner (Id. at 94), beginning with a purchase of approximately four and one-halfounces of cocaine in late August or early September of 2002 (id. at 86). The transactions took place at a rental home that Barkley owned on Maywood, The Vault, and parking lots at various businesses in Charlotte. (Id. at 86-88.) Barkley testified that he "cooked" powder cocaine into crack at The Vault "one or two times" in the presence of Petitioner. (Id. at 88.) Additionally, Barkley observed Petitioner carry a ".357 with a rubber handle" when they were "doing drug trafficking, or when he was down at the club." (Case No. 3:03cr127-1, Doc. No. 125: Trial Tr. at 96.)
On February 28, 2003, Barkley was stopped by Charlotte-Mecklenburg Police Department ("CMPD") Street Drug Interdiction Unit officers, who had been investigating his drug activities. (Id. at 98; Doc. No. 124: Trial Tr. at 65.) The stop yielded 200 grams of crack cocaine. (Id. at Doc. No. 124: Trial Tr. at 65.) After he was read his Miranda rights,2 Barkley agreed to cooperate with law enforcement by identifying his cocaine suppliers. (Id.) One was Petitioner, and Barkley agreed to arrange a purchase of a kilogram of cocaine from him. (Id. at 67.)
The transaction was to have taken place at Barkley's rental property on Maywood. (Id.) However, when Petitioner arrived at the Maywoodresidence, he did not have the cocaine with him. (Case No. 3:03cr127-1, Doc. No. 124: Trial Tr. at 69; Doc. No. 125: Trial Tr. at 14.) Instead, he and Barkley got into Petitioner's car and drove to another location, the Johnson Mills Apartments. (Id. at Doc. No. 124: Trial Tr. at 69-70.) The two went into the building together, but a few minutes later, Petitioner came out alone and was observed speaking briefly to an unidentified man in the driver's seat of a Chevrolet Monte Carlo. (Id. at 70.) In the meantime, Barkley called lead investigators CMPD Sergeant Ron Busker and Special Agent Rodney Blacknall of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, who had followed Petitioner and Barkley from Maywood. (Id. at 70-72.) Barkley reported that he was in Apartment 105 and had seen a kilo of cocaine and several ounces of heroin. (Id. at 72-73; Doc. No. 125: Trial Tr. at 116.) Upon receiving that information, Sgt. Busker sent CMPD Officer Jeffrey Lang to apply for a search warrant for the apartment. (Id. at Doc. No. 124: Trial Tr. at 72.)
After spending a few minutes speaking with the man in the Monte Carlo, Petitioner went back into the apartment building. (Case No. 3:03cr127-1, Doc. No. 124: Trial Tr. at 73.) Shortly thereafter, Petitioner and Barkley came out of the building, got into Petitioner's car, and wentback to the Maywood residence. (Id.) Petitioner dropped Barkley off and then drove to a car wash less than a minute away. (Id. at 74.) Sgt. Busker and Agent Blacknall maintained surveillance on Petitioner for the 30 to 40 minutes that he was at the car wash. (Id. at 75.) As Petitioner was pulling out of the car wash, Sgt. Busker received a call from Officer Lang that the search warrant for Apartment 105 had been obtained. (Id. at 75.) He then requested a traffic stop of Petitioner's car. (Id. at 76.)
CMPD Officer Robert Wise made the traffic stop. He testified that he observed Petitioner driving 52 miles per hour in a 35- mile per hour zone and initiated the stop, at which time Petitioner "immediately slammed on brakes and stopped in the fast lane." (Case No. 3:03cr127-1, Doc. No. 124: Trial Tr. at 36.) Petitioner got out of the car at Officer's Wise's request. (Id. at 38.) After being asked twice to produce a driver's license, Petitioner "bladed his body" and began reaching for his back pocket. (Id. at 39.) Officer Wise, fearing for his own safety, placed Petitioner in handcuffs, whereupon Petitioner disclosed that he was carrying a gun. (Id. at 40.) Officer Wise located a loaded .357 Smith & Wesson revolver in Petitioner's waistband. (Id.)
During a search incident to arrest, Officer Wise recovered $5,300 incash from Petitioner's pants pocket and $7,000 in cash in the front console of Petitioner's car. (Id. at 45.) No drugs or drug paraphernalia were found in the vehicle. (Case No. 3:03cr127-1, Doc. No. 124: Trial Tr. at 50.)
Sgt. Busker and Agent Blacknall arrived to assist Officer Wise within minutes of the stop. (Id. at 46, 76.) Sgt. Busker testified that he read Petitioner his Miranda rights (id. at 78), and Petitioner "advised he did not need an attorney" and "wanted to speak to [the officers]" (id. at 82). Petitioner also agreed to cooperate with the search of the Johnson Mills apartment, admitting to having "a little over a thousand grams" there, although he did not specify the type of drug or drugs. (Id. at 83.)
Consistent with Sgt. Busker's testimony, Agent Blacknall testified that Petitioner was read his Miranda rights and agreed to waive those rights and "cooperate with law enforcement." (Id. at Doc No. 125: Trial Tr. at 219.) At Petitioner's request, Sgt. Busker and Agent Blacknall walked with him down the street and away from people who were standing on a nearby porch. (Case No. 3:03cr127-1, Doc No. 125: Trial Tr. at 219-220.) Petitioner then acknowledged that he had drugs and about $20,000 in cash at Apartment 105. (Id. at 220.) He would not, however, identify his customers or suppliers out of fear for his family's safety. (Id. at 229.)Petitioner told Agent Blacknall that he had been renting the apartment for his girlfriend, who recently had been killed in a car accident. (Id. at 226.)
Officer Lang was waiting at the Johnson Mills apartment with a search warrant when the officers and Petitioner arrived. (Id. at 221.) The officers gained entry into the apartment with a key given them by Petitioner. (Id. at 10.) Officer Lange and other CMPD officers searched the apartment, locating approximately one and a half kilograms of cocaine, 138 grams of heroin, and $59,863 in cash. (Case No. 3:03cr127-1, Doc No. 125: Trial Tr. at 17, 22, 28, 42.) Petitioner was present during the search and pointed out the cocaine and heroin to officers. (Id. at 53, 223, 248.)
Following the Government's evidence, Petitioner testified and denied ever having been "in the drug business." (Id. at Doc. No. 126: Trial Tr. at 50.) He also denied discussing drugs with Barkley and that Barkley "cooked" cocaine at The Vault. (Id. at 31-32.)
Contradicting the officers' testimony, Petitioner testified that after he was read his Miranda rights, he told Sgt. Busker and Agent Blacknall that he did "not wish to answer any question without the presence of [his] attorney" and that his attorney was Norman Butler. (Id. at 27-28). He denied knowing that there was cocaine and heroin in Apartment 105 anddirecting officers to their location within the apartment. (Id. at 28, 33.)
Prior to the defense resting, the parties stipulated that an individual named Bovel Barnes3 would have testified, had he been able, that he paid Petitioner approximately $7,200, mostly in cash, for the purchase of kitchen equipment from The Vault. (Case No. 3:03cr127-1, Doc No. 126: Trial Tr. at 63.) The Court instructed the jury that it could consider the stipulation as evidence. (Id. at 64.)
On November 5, 2004, the jury found Petitioner guilty of all four counts. (Id. at Doc No. 97.) On June 7, 2005, the Court sentenced him to 300 months' imprisonment followed by a ten-year term of supervised release. (Id. at Doc. 107.)
Petitioner filed a notice of appeal, arguing that the district court erred in denying the motion to suppress and that there was insufficient evidence to convict him under 18 U.S.C. § 924(c) and 21 U.S.C. § 841(b)(1)(b). United States v. Olton, No. 05-4655, 2007 WL 2005141 (4th Cir. July 10, 2007) (unpublished) (per curium). The Fourth Circuit Court of Appeals affirmed on July 10, 2007. Id. Petitioner also filed...
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