McCullough v. USA
Filing
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ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL 1 . Signed by Chief Judge J. Daniel Breen on 4/14/15. (Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TRAVIS MCCULLOUGH,
Petitioner,
v.
No. 12-1214
UNITED STATES OF AMERICA,
Respondent.
____________________________________________________________________________
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255,
DENYING CERTIFICATE OF APPEALABILITY
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
_____________________________________________________________________________
INTRODUCTION
Before the Court is the pro se 28 U.S.C. § 2255 motion of the Petitioner, Travis
McCollough, to vacate, set aside or correct his sentence (the "Petition"). (D.E. 1.) McCullough,
Bureau of Prisons register number 24314-076, is an inmate at the Federal Correctional Complex
in Oakdale, Louisiana. For the reasons articulated herein, the Petition is DENIED.
BACKGROUND
On September 20, 2010, a federal grand jury, in Case No. 1:10-10077-JDB-1, returned an
indictment against Petitioner and others, charging them with conspiracy to obtain ingredients and
equipment necessary to manufacture methamphetamine and with manufacturing, possessing with
intent to distribute, and possessing equipment and materials which may be used to manufacture
methamphetamine, in violation of 21 U.S.C. §§ 841(a), 843(a) and 846. McCullough and coDefendant Caleb Rice were also charged with theft of anhydrous ammonia for use in the
manufacture of the drug, in violation of 21 U.S.C. §§ 841(a) and 864.
According to the presentence report (the "PSR"), on March 5, 2010, the Obion County,
Tennessee sheriff's department received a citizen report of a truck from which was emanating the
odor of anhydrous ammonia. The caller provided the location and the license plate number of
the truck. The tags indicated the vehicle belonged to McCullough. After the vehicle pulled into
the driveway of a residence, Sgt. Darrell Davis was dispatched to the address and, upon his
arrival, observed a truck matching the description given to the dispatcher parked behind a shed in
back of the house. As he got out of his car, he could smell anhydrous ammonia and saw three
men running from the area of the truck. In the back of the truck was a yellow plastic spray tank
with a frost line which was consistent with a container housing anhydrous ammonia. He also
saw a camouflage bag next to the vehicle that held mixing bowls, plastic bags, coffee filters,
drain cleaners, salt, and a funnel, as well as a .40 caliber handgun on a boat a few feet away. It
was noted in the PSR that officers later discovered the weapon belonged to Petitioner.
A pill soak was located in a one-gallon plastic container under a lawn trailer
approximately five feet from McCullough's vehicle. A second rested on a table in the shed along
with methamphetamine oil, a gas generator, mixing bowls and a funnel. A third was in a grill on
the house's back porch, where officers also discovered a loaded Marlin 30/30 rifle. A fourth pill
soak was found in a one-gallon plastic bag in the boat with the handgun. After more officers
arrived on the scene, they detected an additional methamphetamine cook site approximately
seventy-five yards from the residence.
Officers obtained a search warrant and entered the house. They found the Petitioner in a
bedroom with bottles of pills and $809 in cash. The search of a second bedroom revealed a bag
containing a green leafy substance, a .50 caliber muzzle loader, two .22 caliber rifles, syringes,
sets of digital scales, drug paraphernalia, lithium batteries, a box of .40 caliber federal
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ammunition, 30/30 rounds, brass knuckles, a plastic bag of 124 ephedrine pills and cans of starter
fluid. In a bathroom, officers discovered more syringes and a spoon with methamphetamine
residue. In the living room were five plastic containers of marijuana plants and, in the kitchen, a
set of digital scales, ammunition for various rifles, coffee filters, and a pipe and piece of
aluminum foil containing drug residue. In searching other vehicles parked on the premises,
officers found drugs, a receipt for the purchase of starter fluid, a bottle of drain opener, more
lithium batteries and scales, a shut-off valve and two propane tanks that had been used to house
anhydrous ammonia.
After his arrest, McCullough was determined to be indigent and Assistant Federal
Defender M. Dianne Smothers was appointed as his counsel. On September 12, 2011, he
appeared before this Court to plead guilty to count four of the indictment (possessing equipment
and materials that may be used in the manufacture of methamphetamine). The Court accepted
the plea on September 12, 2011 and, at a hearing on December 16, 2011, sentenced McCullough
to eighty months incarceration followed by three years of supervised release. (Case No. 1:10-cr10077-JDB-1, D.E. 175.) This sentence constituted a twenty-eight-month downward variance
from the lowest end of the applicable guideline range. Judgment was entered on the day of the
sentencing hearing. (Case No. 1:10-cr-10077-JDB-1, D.E. 177.) He did not appeal.
THE PETITION
The Petition, as supplemented on November 21, 2012, presented the following issues:
1.
Whether trial counsel rendered ineffective assistance, in violation of the
Sixth Amendment, by failing to object to the two-level firearm enhancement in
the PSR. (D.E. 1 at 4.)
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2.
Whether the Petitioner should receive a sentence reduction based upon his
post-sentence rehabilitation. (Id. at 5.)
LEGAL STANDARD
Section 2255(a) provides that
[a] prisoner in custody under sentence of a court . . . claiming the right to be
released upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, . . . or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a). In order to succeed on a motion under the statute, a petitioner must show
"(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or
(3) an error of fact or law that was so fundamental as to render the entire proceeding invalid."
Shaw v. United States, ___ F. App'x ___, 2015 WL 1296092, at *2 (6th Cir. Mar. 23, 2015)
(quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)).
ANALYSIS OF PETITIONER'S CLAIMS
Ineffective Assistance of Counsel.
Generally, challenges to sentencing cannot be made for the first time in a § 2255 motion.
Weinberger, 268 F.3d at 351 (citing Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996)).
They are waived unless made on direct appeal. Id. However, "challenges that cannot otherwise
be reviewed for the first time on a § 2255 motion can be reviewed as part of a successful claim
that counsel provided ineffective assistance[.]" Id.
The Sixth Amendment guarantees the effective assistance of counsel to criminal
defendants. Strickland v. Washington, 466 U.S. 668, 684-85 (1984). "A defendant facing the
possibility of incarceration has a Sixth Amendment right to counsel at all 'critical stages' of the
criminal process, and a sentencing hearing is one type of 'critical stage' at which the right to
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counsel attaches." McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012) (quoting
Benitez v. United States, 521 F.3d 625, 630 (6th Cir. 2008)). In order to prevail on a claim of
ineffective assistance of counsel, a petitioner must demonstrate that "defense counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by
the Sixth Amendment and that defense counsel's deficient performance caused prejudice."
Winborn v. United States, ___ F. App'x ___, 2015 WL 1036160, at *2 (6th Cir. Mar. 11, 2015)
(citing Strickland, 466 U.S. at 687) (some internal quotation marks omitted). "Unless the
petitioner demonstrates both deficient performance and prejudice, it cannot be said that the
conviction or sentence resulted from a breakdown in the adversary process that renders the result
unreliable." Goward v. United States, 569 F. App'x 408, 412 (6th Cir. 2014) (internal alterations
& quotation marks omitted).
An attorney's "failure to object to an error at sentencing or failure to raise a viable
argument that would reduce [her] client's sentence may constitute deficient performance."
McPhearson, 675 F.3d at 559. However, "[t]here is a strong presumption that an attorney
renders adequate assistance and makes all significant decisions in the exercise of reasonable
professional judgment." Maiyo v. United States, 576 F. App'x 567, 570 (6th Cir. 2014) (citing
Strickland, 466 U.S. at 689-90) (internal quotation marks omitted). The petitioner must establish
that his counsel's "performance fell below an objective standard of reasonableness." Id. "The
issue is whether counsel's performance was so manifestly ineffective that defeat was snatched
from the hands of probable victory." Smith v. United States, Nos. 1:07-cr-146-CLC-SKL-4,
1:11-cv-215-CLC-SKL, 2015 WL 164155, at *2 (E.D. Tenn. Jan. 13, 2015) (quoting United
States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992)) (internal quotation marks omitted). In
order to demonstrate prejudice, he must show "there is a reasonable probability that, but for
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counsel's unprofessional errors, the result of the proceeding would have been different." Delaine
v. United States, ___ F. App'x ___, 2015 WL 1136454, at *3 (6th Cir. Mar. 16, 2015) (quoting
Strickland, 466 U.S. at 694).
A petitioner claiming ineffective assistance of counsel faces a
heavy burden. Pough v. United States, 442 F.3d 959, 966 (6th Cir. 2006). The Court is not
required to perform an analysis under both prongs. Miller v. United States, 561 F. App'x 485,
490 (6th Cir. 2014).
As noted above, Petitioner asserts that his attorney's failure to object to the two-level
firearm enhancement amounted to ineffective assistance of counsel. In her position paper,
Smothers did in fact object to that portion of the PSR indicating that the handgun in the boat
belonged to McCullough and, consequently, to application of the enhancement. (Case No. 1:10cr-10077-JDB-1, D.E. 172 at 1-2.) In an addendum to the PSR, the probation officer noted the
objection and made the following response:
The defendant asserts that he was not outside near the methamphetamine
manufacturing material and firearm minutes before officers arrived at the
residence. Travis McCullough's truck was found behind the residence of Caleb
Rice with anhydrous ammonia in the back of the truck along with another
container that housed anhydrous ammonia. The defendant has not asserted that
anyone else was driving his truck that morning. The defendant's vehicle was
reportedly ten feet from the firearm on the boat. There was also a loaded firearm
on the back porch. Investigative reports support the inference that at some point
that morning, Travis McCullough was outside in close proximity to pill soaks and
other materials used to manufacture methamphetamine, as well as the firearms.
Sgt. Davis' written narratives state that the citizen who called about the truck
called at approximately 6:00 a.m. and that he was dispatched to the location at
6:05 a.m. Sgt. Davis called Sgt. Matt Woods for backup while at the residence at
approximately 6:32 a.m. These facts indicate that Sgt. Davis arrived at the home
no later than 6:32 a.m. The search warrant was not served, and Travis
McCullough found in the residence, until approximately 10:15 a.m. This was
ample time for the defendant to fall asleep in the house while investigators were
waiting on the search warrant and does not preclude him from being outside
before Sgt. Davis arrived. The above information also serves to corroborate the
statement that Justin Easley gave to officers when he advised that Travis
McCullough was outside with the other co-conspirators before officer Davis
arrived. Travis McCullough went inside the residence before Sgt. Davis arrived
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while Mr. Easley and Mr. Rice remained outside. Mr. Easley and Mr. Rice
subsequently ran into the woods upon Sgt. Davis' arrival.
The defendant claims the firearm found on the boat was not his. The same
testimony referenced in the defendant's position paper also included that the
firearm belonged to Travis McCullough. However, ownership of the firearm is
not a requirement to trigger the above enhancement. The defendant was placed at
the scene of the methamphetamine cook by a co-defendant and his truck was
found ten feet from the firearm. Further, due to the number of firearms found at
Caleb Rice's residence, it would be reasonably foreseeable to the defendant that a
firearm would be present at or near the methamphetamine manufacturing
materials. Therefore, whether the firearm was the defendant's or a coconspirator[']s, the firearm enhancement would be applicable to the defendant.
(Addendum to PSR at 23-24.) At the sentencing hearing, counsel advised the Court that, after
discussing the matter with the Government, the decision was made to withdraw the objection.
(Case No. 1:10-cr-10077-JDB-1, D.E. 223 at 4.)
Because it is dispositive, the Court will focus only on the deficient performance prong.
Section 2D1.1 of the United States Sentencing Guidelines ("USSG") provides for a two-level
sentencing enhancement "[i]f a dangerous weapon (including a firearm) was possessed" in
connection with a drug offense.
2D1.1(b)(1).
United States Sentencing Comm'n, Guidelines Manual §
The comment to the guideline notes that "[t]he enhancement for weapon
possession in subsection (b)(1) reflects the increased danger of violence when drug traffickers
possess weapons." Id. § 2D1.1 cmt. 11A (2014). "The enhancement should be applied if the
weapon was present, unless it is clearly improbable that the weapon was connected with the
offense." Id. (emphasis added).
In order for the enhancement to be applied, the Government must establish "by a
preponderance of the evidence that (1) the defendant actually or constructively possessed the
weapon, and (2) such possession was during the commission of the offense." United States v.
Climer, 591 F. App'x 403, 412-13 (6th Cir. 2014) (quoting United States v. Greeno, 679 F.3d
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510, 514 (6th Cir. 2012)). A defendant has constructive possession of a firearm when he has
"ownership, or dominion or control over the item itself, or dominion over the premises where the
item is located." United States v. Howard, 570 F. App'x 478, 481 (6th Cir. 2014). If the
Government satisfies its burden, the defendant must then demonstrate that it was clearly
improbable that the weapon was "connected to the offense." Climer, 591 F. App'x at 413.
"The enhancement may also apply if a member of the conspiracy possessed the firearm
and the member's possession was reasonably foreseeable by the other members in the
conspiracy."
United States v. Cobbs, 233 F. App'x 524, 542 (6th Cir. 2007).
In this
circumstance, the Government need not show that the defendant actually possessed the weapon.
United States v. Galvan, 453 F.3d 738, 742 (6th Cir. 2006). Nor must the defendant have
necessarily known about the weapon. United States v. Catalan, 499 F.3d 604, 607 (6th Cir.
2007).
Reasonable foreseeability is determined based on an objective test -- "whether a
reasonable person would have foreseen that a gun would be present during the commission of the
offense." Id. Objective evidence "that the defendant at least knew it was reasonably probable
that his co-conspirator would be armed" is required. United States v. Napier, 422 F. App'x 420,
424 (6th Cir. 2011) (internal alterations omitted). The Sixth Circuit has declined to find error in
a trial court's conclusion that possession of a firearm by a co-conspirator was reasonably
foreseeable when there are large amounts of drugs in a single location. Id.
There is no evidence in the record that McCullough owned the gun or had dominion over
it. Nor is there evidence to suggest that he had dominion over Rice's property. Rather, the
record reflects only that he may have been sleeping there at some point during the time officers
sought a search warrant.
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However, the evidence supports a finding that Rice possessed firearms and kept them at
his property, which itself was utilized as a situs for drug manufacturing activities. McCullough
was clearly involved in those activities. Considering that the residence, where the Petitioner was
arrested, and the area around his truck were essentially awash with drug manufacturing
materials, guns and ammunition, he knew or could have reasonably foreseen that weapons were
possessed and used in furtherance of the methamphetamine cooking activities conducted there.
See United States v. Benson, 591 F.3d 491, 504-05 (6th Cir. 2010) (where record supported
conclusion that co-conspirator kept firearms at his residence, which was the hub of his drug
trafficking activities, defendant knew or could have reasonably foreseen that co-conspirator
possessed firearms and that they would be used in furtherance of the drug conspiracy;
accordingly, defendant's firearms enhancement not clearly erroneous). McCullough has not so
much as argued that it was clearly improbable that the handgun in the boat was connected to the
offense.
Under the circumstances presented in this case, counsel's obvious conclusion that lodging
a challenge to the firearm enhancement would not have borne fruit was an objectively reasonable
one. Thus, her performance was not constitutionally deficient. Petitioner is not entitled to relief
for ineffective assistance of counsel.
Post-Sentence Rehabilitation.
McCullough maintains that since his sentencing he has obtained his GED and remained
discipline free. This post-sentencing rehabilitation, he contends, should result in a reduction of
his sentence. In support of his position, Petitioner cites the United States Supreme Court's recent
decision in Pepper v. United States, 562 U.S. 476, 131 S. Ct. 1229 (2011).
However,
McCullough misunderstands the Court's ruling. The issue raised in Pepper was whether a
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district court may consider evidence of the defendant's post-sentencing rehabilitation at
resentencing. Pepper, 131 S. Ct. at 1233. Petitioner is not before the Court for resentencing.
While his attempts to better himself during his incarceration are commendable, Petitioner cannot
receive a reduction of sentence on that basis under § 2255. See Eaves v. United States, Nos.
4:07-CR-12, 4:10-CV-36, 2010 WL 3283018, at *4-5 (E.D. Tenn. Aug. 17, 2010).
CONCLUSION
Because the issues presented by McCullough are meritless, they are DISMISSED. The
Clerk of Court is DIRECTED to enter judgment for the United States.
APPEAL ISSUES
Twenty-eight U.S.C. § 2253 requires the district court to evaluate the appealability of its
decision denying a § 2255 motion and to issue a certificate of appealability (“COA”) “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255 movant may appeal without this
certificate. The COA must also indicate "which specific issue or issues satisfy" the required
showing.
28 U.S.C. § 2253(c)(3).
A “substantial showing” is made when the movant
demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotation marks omitted). A COA does not require a showing that the appeal
will be successful. Id. at 337. Courts, however, should not issue a COA as a matter of course.
Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005) (per curiam).
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In this case, for the reasons previously stated, the issues raised by the Petitioner lack
substantive merit and, therefore, he cannot present a question of some substance about which
reasonable jurists could differ. The Court therefore DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C. §
1915(a)-(b), does not apply to appeals of orders denying § 2255 motions. Kincade v. Sparkman,
117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255 case, and
thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must
obtain pauper status pursuant to Rule 24(a) of the Federal Rules of Appellate Procedure. Id. at
952. The Rule provides that a party seeking pauper status on appeal must first file a motion in
the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, the Rule
also provides that, if the district court certifies that an appeal would not be taken in good faith, or
otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to proceed
in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5).
In this case, for the same reasons it denies a COA, the Court determines that any appeal
would not be taken in good faith. It is therefore CERTIFIED, pursuant to Federal Rule of
Appellate Procedure 24(a), that any appeal in this matter would not be taken in good faith.
Leave to appeal in forma pauperis is DENIED.1
IT IS SO ORDERED this 14th day of April 2015.
s/J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE
1
If Petitioner files a notice of appeal, he must also pay the full appellate filing fee or file a
motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of
Appeals within thirty days.
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