Stewart v. US, Case No. 1.05-cv-58 (1:01-cr-97)

• Decision Date: 05 October 2009
• Docket Number: Case No. 1.05-cv-58 (1:01-cr-97)
• Citation: 130 S. Ct. 133
• Parties: CORNELIUS STEWART, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Tennessee

130 S. Ct. 133

CORNELIUS STEWART, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

Case No. 1.05-cv-58 (1:01-cr-97)

United States District Court, E.D. Tennessee, Chattanooga.

October 5, 2009.

MEMORANDUM

R. ALLAN EDGAR, District Judge.

Petitioner, Cornelius Stewart ("Stewart"), has filed a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 ("Section 2255 "). [Civ. Ct. Doc. No. 1 ("Section 2255 Motion")]. The Government opposes Stewart's motion. [Civ. Ct. Doc. No. 5]. As stated infra, this court has concluded that a hearing is not necessary and that Stewart's Section 2255 motion is without merit and will be DENIED.

I. Procedural History and Background Facts

On June 26, 2001, a United States grand jury sitting for the Eastern District of Tennessee, Chattanooga Division, returned a two-count indictment against Stewart charging him with one count of possessing with intent to distribute five grams or more of a mixture and substance containing cocaine base ("crack"), and one count of possession of a firearm in furtherance of a drug trafficking crime. [Crim. Ct. Doc. No. 64]

On August 15, 2001, a United States grand jury sitting for the Eastern District of Tennessee, Chattanooga Division, returned a superseding indictment against Stewart charging him with one count of conspiring to distribute and possess with intent to distribute 50 grams or more of a mixture and substance containing cocaine base ("crack"), one count of possessing with intent to distribute 5 grams or more of a mixture and substance containing cocaine base ("crack"), one count of managing a drug establishment, and one count of possession of a firearm in furtherance of a drug trafficking crime. The indictment alleged that one other defendant conspired with Stewart on the conspiracy to distribute charge. On October 31, 2001, the jury returned a verdict of guilty on all charges. [Crim. Ct. Doc. No. 17]

The Presentence Report (PSR) describes the following offense conduct:

On June 20, 2001, agents with the Bureau of Alcohol, Tobacco and Firearms (ATF) assisted members of the Chattanooga Police Department (CPD) in the execution of two state search warrants. The warrants were based on controlled buys and physical surveillance of a Chattanooga, Tennessee apartment at 2000 Ocoee Street, Apartment A, and a house located at 7764 Basswood Drive. Through investigation, ATF and CPD believed that Andre Kaufman was using the Ocoee Street apartment as a drug distribution location. The 7764 Basswood Drive house was Kaufman's residence. Surveillance indicated that Kaufman traveled routinely between the Basswood Drive address and the Ocoee Street address.

The day before the searches were executed, ATF and CPD surveilled Kaufman traveling to a Knoxville, Tennessee apartment complex where he spent the night and left the following evening. Agents believe that Kaufman picked up drugs on this trip, because Kaufman drove at a high rate of speed going to Knoxville but traveled under the speed limit on his return. Upon returning to Chattanooga, Kaufman went directly to the Ocoee Street address where he was observed meeting with Cornelius Stewart. Kaufman stayed at the Ocoee Street address for approximately 30 minutes during which time at least two vehicles arrived at the location and people went inside for a short period of time before departing. After Kaufman left Ocoee Street, the warrant was executed.

Two individuals were found inside the premises, Cornelius Stewart and a juvenile. Stewart was arrested in the living room area of the apartment. On the floor next to Stewart was a loaded Hi-Point, Model C, 9mm, pistol, serial number P023015. On a shelf in a living room closet without doors officers recovered 21 grams of crack cocaine (lab report). Officers also recovered two cellular telephones, digital scales, ammunition and an empty magazine for a .22 caliber semi-automatic pistol. There was also a small amount of marijuana found by the officers. The location did not look lived in. There was only one mattress and box springs, no sheets or blankets, no pots and pans, no food and nothing in the closets except for a few winter items. The residence did have a small television and an old pool table. Security bars had been installed on the front and rear doors. Stewart had $115 on his person.

Further investigation of the Ocoee Street address revealed that the lease and power were in different names, neither of them being Kaufman. The landlord stated that he rented the location for the past six months to a black male who always paid the rent on time and in cash. The person whose name was on the lease told agents that he had been paid $500 cash to rent the house initially. Stewart refused to sign a rights waiver form, but did deny that he sold crack but also stated he knew that it was sold from the residence. He denied knowing about the crack in the closet and appeared nervous and upset. He admitted that the gun was his own. The juvenile (in the presence of his parents) agreed to talk to the police. He told agents that Cornelius Stewart was his second cousin. According to the juvenile, Stewart had invited him to the Ocoee Street apartment the day before the search to hang out with him. Stewart had a key to the location. The juvenile knew that drugs were being sold out of the residence and, based upon the actions of his cousin coming in and out of the location, he assumed his cousin was selling drugs. He observed his cousin carrying a gun on both days and confirmed that the gun found at the residence belonged to his cousin. He also observed marijuana and cigars on the table which he assumed were used to smoke marijuana. The juvenile did not know Kaufman and did not know about the crack cocaine found in the closet.

That same day, ATF and CPD executed a search warrant for Kaufman's residence, 7764 Basswood Drive. In the living room, officers recovered a loaded Rossi .38 caliber pistol, serial number W217882. In the kitchen, officers found two sets of digital scales and Pyrex measuring cups, one with cocaine residue. Officers searched the stove after the drug dog alerted to the appliance. Hidden inside the stove top officers found 353.2 grams of crack cocaine (packaged in what appeared to be ounce quantities) and 1,239.8 grams of cocaine hydrochloride (lab report). Plastic bags, boxes of baking soda and a memo book which appeared

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