United States District Court, D. Nebraska
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the Court on Defendant Alfred Tucker's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 motion") (Filing No. 139). The Defendant also filed a Memorandum of Law in support of his motion (Filing No. 140). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a § 2255 motion, and describes the initial review process:
The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.
The Defendant was found guilty at trial of a one-count Indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).
At the Initial Appearance and Arraignment held on November 2, 2010, the defendant requested appointment of counsel and Jeffrey L. Thomas with the Federal Public Defender's Office was appointed. On November 30, 2010, a hearing was held before Magistrate Judge Thalken on Defense Counsel's Motion to Withdraw (Filing No. 20). The motion was granted and on December 2, 2010, Micheal J. Lehan was appointed by the court to represent the Defendant.
A hearing on the Defendant's Motion to Suppress (Filing No. 18) was held on December 23, 2010. The Magistrate Judge's Findings and Recommendation on the Motion to Suppress (Filing No. 30) was filed on January 27, 2010, and defense counsel filed an objection (Filing No. 31) to the Magistrate Judge's Findings and Recommendation on February 7, 2011. On February 11, 2011, the Defendant filed a Motion for New Counsel (Filing No. 34). A hearing was held before the Magistrate Judge on February 17, 2011, and the motion was denied. An order was entered by the undersigned on February 25, 2011 (Filing No. 38), adopting the Magistrate Judge's Findings and Recommendation in their entirety. A jury trial in this matter was scheduled for March 22, 2011.
The trial began on March 22, 2011, and the Defendant's oral motion for new counsel made on the first day of trial was denied. The matter was submitted to the jury on March 24, 2011. A guilty verdict was received on March 24, 2011, and the sentencing hearing was scheduled for June 20, 2011.
A Revised Presentence Investigation Report ("PSR") was sent to the parties and the Court on May 18, 2011. It included a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2) because the Defendant committed the instant offense subsequent to sustaining two felony convictions of either a crime of violence or a controlled substance offense. Two points were added for Obstruction of Justice and with the Chapter Four Enhancements the Total Offense Level was calculated at 33. The PSR listed the Defendant's Criminal History Category as VI. Defense counsel filed objections to the Presentence Investigation Report and those objections were overruled at the sentencing hearing. The Defendant was sentenced on June 20, 2011, to 188 months imprisonment, which was below the guideline range, and to 5 years supervised release.
On July 1, 2011, Mr. Lehan filed a Notice of Appeal (Filing No. 75) on behalf of the Defendant and was granted leave to withdraw by the Eighth Circuit on July 12, 2011. Terrance Waite was appointed by the Eighth Circuit to represent the Defendant on the appeal. The District Court's judgment was affirmed on August 23, 2012. On January 14, 2013, the Appellant's petition for rehearing en banc was granted, limited to the issue of the application of the Armed Career Criminal Act ("ACCA"). On January 29, 2014, the Eighth Circuit reversed and remand the matter to the District Court for resentencing in accordance with its opinion regarding the application of ACCA.
On February 10, 2014, Michael J. Tasset was appointed to represent the Defendant at resentencing. The 2nd Revised Presentence Investigation Report ("2nd PSR") was sent to the parties and the Court on March 22, 2014. The Defendant's Base Offense Level remained at 24. With the two points for Obstruction of Justice, the Total Offense Level was 26. The Defendant's Criminal History of Category VI remained unchanged. The Defendant's sentencing range under the guidelines would have been 120-150 months, but for the statutory maximum term of 120 months. The Defendant did not object to the 2nd PSR. The Defendant was present at the resentencing hearing, held on June 9, 2014. The Court denied the Defendant's Motion for Variance (Filing No. 119) and sentenced the Defendant to 120 months imprisonment and 3 years supervised release.
The Defendant filed an appeal on June 17, 2014, and Mr. Tasset was appointed by the Eighth Circuit to represent the Defendant in the appeal. The Circuit Court affirmed this Court's Judgment on February 19, 2015. On April 14, 2015, the Defendant's timely § 2255 motion was filed. In his motion, the Defendant argued three grounds for relief: (Ground One) Defendant was denied his right to effective assistance of counsel; (Ground Two) Defendant was illegally detained, and the vehicle in which he was a passenger illegally searched; and (Ground Three) Defendant was denied his rights under Sixth Amendment of the U.S. Constitution, because there was insufficient evidence from which a jury could conclude beyond a reasonable doubt that he was guilty of the crime charged.
I. Ground One - Defendant was denied his right to effective assistance ...