U.S. v. Hollis

• Decision Date: 22 March 2002
• Docket Number: No. 01-3103-DES.,No. 98-40024-02-DES.,98-40024-02-DES.,01-3103-DES.
• Citation: 191 F.Supp.2d 1257
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Gary Jack HOLLIS, Jr., Defendant/Movant.
• Court: U.S. District Court — District of Kansas

191 F.Supp.2d 1257

UNITED STATES of America, Plaintiff/Respondent, v. Gary Jack HOLLIS, Jr., Defendant/Movant.

No. 98-40024-02-DES.

No. 01-3103-DES.

United States District Court, D. Kansas.

March 22, 2002.

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COPYRIGHT MATERIAL OMITTED

Gary Jack Hollis, Jr., Springfield, MO, Pro se.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendant's motion brought pursuant to 28 U.S.C. § 2255 (Doc. 250). Defendant asserts his sentence should be vacated, set aside or corrected in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Defendant also asserts that his sentence should be vacated, set aside or corrected due to ineffective assistance of counsel and error by the district court in calculating the quantity of drugs attributable to defendant. The government has filed a Response (Doc. 257), and defendant has filed a Reply (Doc. 260) to the government's response. For the reasons set forth below, defendant's motion is denied.

I. FACTUAL BACKGROUND

On March 26, 1997, Wayne Getman asked Justin Lapping to go to Oklahoma to pick up iodine crystals for use in the manufacture of methamphetamine. Before the trip to Oklahoma, Lapping, and his friend Sean Holmes, met at defendant's home where defendant and Getman were both present. Getman told Lapping and Holmes to return the crystals to defendant's home and if Getman was not there, to leave them with defendant. Lapping and Holmes were aware that Getman intended to use the crystals to manufacture methamphetamine. Getman gave Lapping the money to purchase the crystals and Lapping and Holmes began their trip to Oklahoma.

Upon arrival in Oklahoma, Lapping and Holmes bought the crystals and began the journey back to Kansas. While en route, the two men were stopped by the Oklahoma Highway Patrol. After receiving conflicting stories as to the purpose of the trip to Oklahoma, the officer asked to search the vehicle. The request was denied so the officer then utilized a drug dog to sniff the vehicle for contraband. The dog altered to two areas of the vehicle and the officer began the search, eventually locating the iodine crystals.

When asked about the iodine crystals, Holmes indicated he and Lapping had purchased the crystals at the direction of Getman and Getman intended to use the crystals to manufacture methamphetamine. The officer contacted the Kansas Bureau of Investigation ("KBI"). The officer was advised to release Lapping and Holmes with instructions to contact the KBI upon their arrival in Kansas.

Once Lapping and Holmes returned home, they immediately delivered the crystals to defendant's home, as instructed. The defendant was the only person present when Lapping and Holmes delivered the crystals. According to testimony at trial, after receiving the crystals, defendant left his home with the crystals. Defendant returned to his home about thirty minutes later and Lapping was still there. Lapping and defendant left to go to Getman's home. At Getman's home, Lapping observed the iodine crystals on the back porch. Additionally, Lapping observed all the items necessary to manufacture methamphetamine. Lapping spent the night at Getman's home. By morning, the methamphetamine had been "cooked" and Lapping and the defendant tested three coffee filters (each approximately three-quarters full of pure methamphetamine) by "shooting-up."

On September 8, 1997, the Cherokee County Sheriff's Department arranged for a confidential informant to conduct a controlled purchase of methamphetamine from the defendant at his residence in Colombus, Kansas. The informant was provided $100 of "prerecorded drug buy money," which was used to purchase one gram of methamphetamine from defendant. Following the purchase, the gram of methamphetamine was turned over to law enforcement officers and the informant advised officers he had observed approximately twenty grams of methamphetamine inside defendant's home.

After the controlled buy, officers applied for and received a search warrant for defendant's home. Upon execution of the search warrant, officers found a clandestine methamphetamine laboratory. The following items related to the manufacture and use of methamphetamine were seized: glassware, coffee filters containing red phosphorous, lantern fuel, rubber gloves and tubing, digital scales, syringes, sulphuric acid, paint thinner, ephedrine, acetone, and a plastic container with red filter material which was believed to be red phosphorous or iodine crystals. Officers also found a baggie of white powder, which was field tested and found to be methamphetamine, a bottle which was tested and found to contain hydrochloric acid, and another jar containing methamphetamine suspended in acetone. Finally, after searching defendant, officers discovered the marked "buy" money in defendant's wallet.

On March 18, 1998, a Sealed Indictment was filed in federal district court. On March 23, 1998, defendant was arrested on a federal warrant stemming from the indictment. In executing the arrest warrant federal marshals conducted a forced entry into defendant's home as defendant refused to answer the door. After entering defendant's home, the officers noticed a strong odor coming from a bedroom. Officers discovered another clandestine methamphetamine laboratory. Officers recovered many items including: a flask which was determined to contain methamphetamine, phosphorous and iodine, a jar containing methamphetamine and pseudoephedrine, a bag containing ephedrine or pseudoephedrine, a jar containing methamphetamine and acetone, and a jar containing sodium hydroxide.

On July 1, 1998, defendant was charged in three counts of an eight-count Superceding Indictment in the United States District Court for the District of Kansas. Count one of the Indictment charged that on or about March 26, 1997, Getman and defendant conspired with Holmes and Lapping to manufacture approximately three and one half pounds of methamphetamine in violation of 21 U.S.C. § 846, with reference to 21 U.S.C. §§ 812 and 841(a)(1) and 18 U.S.C. § 2. Count six of the Indictment charged that on or about September 8, 1998, defendant manufactured methamphetamine in violation of 21 U.S.C. § 841(a)(1) with reference to 21 U.S.C. § 812 and 18 U.S.C. § 2. Count eight charged that on or about March 23, 1997, defendant manufactured methamphetamine in violation of 21 U.S.C. § 841(a)(1) with reference to 21 U.S.C. § 812 and 18 U.S.C. § 2.

On November 30, 1998, a jury trial commenced. At trial, the government presented the testimony of Justin Lapping and Sean Holmes. Both Lapping and Holmes implicated defendant as Wayne Getman's "right hand man." Lapping and Holmes also testified that they believed defendant was involved in the conspiracy to manufacture methamphetamine. At the close of the government's case, defense counsel did not call any rebuttal witnesses and instead chose to rest, anticipating that the government did not prove the elements of its case. On December 8, 1998, the jury returned a verdict of guilty on all counts.

Defendant's sentence was calculated based on the United States Sentencing Commission Guidelines ("U.S.S.G.") found in U.S.S.G. § 2D1.1(c)(2).¹ The offense level used in determining the sentence length was calculated by assessing the amount of drugs attributable to defendant. The pre-sentence investigation report prepared by the United States Probation Office determined defendant was responsible for two kilograms of methamphetamine, requiring a base offense level of thirty-six. The two-kilogram figure was based on the ten pounds of iodine purchased by Lapping over the course of his dealings with Getman. According to the KBI, the iodine could have produced over four kilograms of methamphetamine, but the number was reduced by fifty percent. Defendant objected to the ten pound figure and argued instead that seven pounds of iodine would be the appropriate figure. Defendant also objected to the calculation used to extrapolate the amount of methamphetamine produced from the iodine. Defendant eventually withdrew his objections as to the drug quantity calculation.

The offense level of thirty-six combined with defendant's criminal history category of IV, produced a sentencing range of 262 months to 327 months pursuant to the U.S.S.G. The statutory provisions under which defendant was sentenced require a sentencing range of not "less than 10 years or more than life." 21 U.S.C. § 841(b)(1)(A). Defendant was sentenced to a term of imprisonment of 262 months on counts one, six, and eight with each sentence to be served concurrently, followed by a supervised release of five years per count, also to be served concurrently.

Defendant appealed his conviction to the Tenth Circuit alleging the trial court erred in granting the government's motion in limine regarding the testimony of Sergeant Robert Thomas and also that the there was insufficient evidence to convict defendant. In an unpublished opinion, the Tenth Circuit rejected both of defendant's claims, affirming his conviction. United States v. Hollis, 2000 WL 235250, 208 F.3d 227 (10th Cir.2000). Defendant petitioned the Supreme Court on a writ of certiorari and the writ was denied on October 2, 2000. Accordingly, defendant's conviction became final on October 2, 2000. See Griffith v. Kentucky, 479 U.S. 314, 322-23, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); United States v. Simmonds, 111 F.3d 737, 744 (10th Cir.1997).

II. DEFENDANT'S CLAIMS

Defendant makes the following claims in his § 2255 motion:

1. There was an Apprendi error in defendant's case.

2. Apprendi renders 21 U.S.C. § 841 unconstitutional.

3. The Constitution was violated if § 841(b) is an element of the offense.

4. Defendant received ineffective assistance of counsel because counsel failed to interview witnesses and failed to call witnesses, and counsel failed to give an opening statement or...