Petition for Writ of Certiorari — Jeffrey Dean Tucker, Petitioner v. United States

Supreme Court briefMay 7, 2019

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18-7378

Jeffrey Dean Tucker

#0412832

MOUNTAIN VIEW CORRECTIONAL FACILITY

545 Amity Park Road

Spruce Pine, NC 28777

I,,

FILED: April 10, 2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-7378

(5:14-cr-00083-FDW-DCK-1)

(5:18-cv-00105-FDW)

UNITED STATES OF AMERICA

Plaintiff Appellee

-

V.

JEFFREY DEAN TUCKER

Defendant Appellant

-

JUDGMENT

In accordance with the decision of this court, a certificate of appealability is

denied and the appeal is dismissed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

Is! PATRICIA S. CONNOR, CLERK

14

~

00

FILED: April 10, 2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No.

18-7378,

US v. Jeffrey Tucker

5:14-cr-00083-FDW-DCK- 1, 5:18-cv-00 105-FDW

NOTICE OF JUDGMENT

Judgment was entered on this date in accordance with Fed. R. App. P. 36. Please be

advised of the following time periods:

PETITION FOR WRIT OF CERTIORARI: To be timely, a petition for

certiorari must be filed in the United States Supreme Court within 90 days of this

court's entry of judgment. The time does not run from issuance of the mandate. If a

petition for panel or en banc rehearing is timely filed, the time runs from denial of

that petition. Review on writ of certiorari is not a matter of right, but of judicial

discretion, and will be granted only for compelling reasons.

(www. supremecourt.gov)

VOUCHERS FOR PAYMENT OF APPOINTED OR ASSIGNED

COUNSEL: Vouchers must be submitted within 60 days of entry of judgment or

denial of rehearing, whichever is later. If counsel files a petition for certiorari, the

60-day period runs from filing the certiorari petition. (Loc. R. 46(d)). If payment is

being made from CJA funds, counsel should submit the CJA 20 or CJA 30 Voucher

through the CJA eVoucher system. In cases not covered by the Criminal Justice

Act, counsel should submit the Assigned Counsel Voucher to the clerk's office for

payment from the Attorney Admission Fund. An Assigned Counsel Voucher will

be sent to counsel shortly after entry of judgment. Forms and instructions are also

available on the court's web site, www.ca4.uscourts.gov, or from the clerk's office.

BILL OF COSTS: A party to whom costs are allowable, who desires taxation of

costs, shall file a Bill of Costs within 14 calendar days of entry of judgment. (FRAP

39, Loc. R. 39(b)).

0-) *

PETITION FOR REHEARING AND PETITION FOR REHEARING EN

BANC: A petition for rehearing must be filed within 14 calendar days after entry of

judgment, except that in civil cases in which the United States or its officer or

agency is a party, the petition must be filed within 45 days after entry of judgment.

A petition for rehearing en banc must be filed within the same time limits and in the

same document as the petition for rehearing and must be clearly identified in the

title. The only grounds for an extension of time to file a petition for rehearing are

the death or serious illness of counsel or a family member (or of a party or family

member in pro se cases) or an extraordinary circumstance wholly beyond the

control of counsel or a party proceeding without counsel.

Each case number to which the petition applies must be listed on the petition and

included in the docket entry to identify the cases to which the petition applies. A

timely filed petition for rehearing or petition for rehearing en banc stays the

mandate and tolls the running of time for filing a petition for writ of certiorari. In

consolidated criminal appeals, the filing of a petition for rehearing does not stay the

mandate as to co-defendants not joining in the petition for rehearing. In

consolidated civil appeals arising from the same civil action, the court's mandate

will issue at the same time in all appeals.

A petition for rehearing must contain an introduction stating that, in counsel's

judgment, one or more of the following situations exist: (1) a material factual or

legal matter was overlooked; (2) a change in the law occurred after submission of

the case and was overlooked; (3) the opinion conflicts with a decision of the U.S.

Supreme Court, this court, or another court of appeals, and the conflict was not

addressed; or (4) the case involves one or more questions of exceptional

importance. A petition for rehearing, with or without a petition for rehearing en

banc, may not exceed 3900 words if prepared by computer and may not exceed 15

pages if handwritten or prepared on a typewriter. Copies are not required unless

requested by the court. (FRAP 35 & 40, Loc. R. 40(c)).

MANDATE: In original proceedings before this court, there is no mandate. Unless

the court shortens or extends the time, in all other cases, the mandate issues 7 days

after the expiration of the time for filing a petition for rehearing. A timely petition

for rehearing, petition for rehearing en banc, or motion to stay the mandate will stay

issuance of the mandate. If the petition or motion is denied, the mandate will issue 7

days later. A motion to stay the mandate will ordinarily be denied, unless the

motion presents a substantial question Or otherwise sets forth good or probable

cause for a stay. (FRAP 41, Loc. R. 41).

14-4)

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-7378

UNITED STATES OF AMERICA,

Plaintiff Appellee,

-

V.

JEFFREY DEAN TUCKER,

Defendant Appellant.

-

Appeal from the United States District Court for the Western District of North Carolina,

at Statesville. Frank D. Whitney, Chief District Judge. (5:14-cr-00083-FDW-DCK-1;

5:18-cv-00 105-FDW)

Submitted: April 4, 2019

Decided: April 10, 2019

Before NIEMEYER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.

Dismissed by unpublished per c'uriam opinion.

Jeffrey Dean Tucker, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Jeffrey Dean Tucker seeks to appeal the district court's order denying relief on his

28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or

judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A

certificate of appealability will not issue absent "a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2) (2012). When the district court denies

relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable

jurists would find that the district court's assessment of the constitutional claims is

debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on

procedural grounds, the prisoner must demonstrate both that the dispositive procedural

ruling is debatable, and that the motion states a debatable claim of the denial of a

constitutional right. Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude that Tucker has not

made the requisite showing. Accordingly, we deny a certificate of appealability and

dismiss the appeal. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

DISMISSED

2

149

V

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

STATES VILLE DIVISION

5:18-cv-1 05-FDW

(5:14-cr-83-FDW-DCK-1)

JEFFREY DEAN TUCKER,

Petitioner,

[I) 1P)

VS.

UNITED STATES OF AMERICA,

Respondent.

THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct

Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and on the Government's Motion to Dismiss,

(Doc. No. 3).

I. BACKGROUND

Late in the afternoon of October 9, 2014, pro se Petitioner Jeffery Dean Tucker drove

Michelle Vaughn and Dawn Reese to a bar in downtown Hickory) (Crim. Case No. 5:14cr83,

Doc. No. 43 at ¶ 8: PSR). When the three left the bar, Petitioner began driving erratically. (Id.).

When Petitioner stopped the car, Vaughn and Reese tried to run away. (Ii). Petitioner followed

them, caught Vaughn, and lifted her into the air. (I.). Two men intervened, confronting

Petitioner and allowing Vaughn and Reese to escape. (). Petitioner then began looking for

Vaughn. ().

That night, PetitiOner went to the Twin Oaks Bar. (Içk at ¶ 9). A bouncer at the bar,

Thomas Arthur, asked Petitioner to go outside because Petitioner was having a confrontation

The Presentence Report describes Vaughn as Petitioner's "friend with benefits," and it

describes Reese as a friend. (Td, at ¶J 6, 8).

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Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 1 of 9

UZI

with another customer. (jç). Petitioner went outside, and Arthur told him to calm down. (Id.).

Petitioner pulled out a silver .22 caliber revolver and threatened Arthur, but he left when he was

told that police were being called. (Ii; Doc. No. 56 at 217-23).

Petitioner was still looking for Vaughn and spoke with her by phone. (Id., Doc. No. 43 at

¶ 10). According to Vaughn, Petitioner said that he would kill all of Vaughn's friends, or anyone

who came between the two of them. (; Doc. No. 56 at 186). Petitioner also said that

Vaughn's dogs could not save her and that he would kill them as welL (Ld., Doc. No. 43 at ¶ 10;

Doc. No. 56 at 186).

Later that same night, Vaughn was hiding at her next-door neighbor's house. (Id., Doc.

No. 43 at ¶ 11). The neighbor called 911 to report that Petitioner was coming to his house to

shoot it and the neighbor's (Vaughn's) house up. (Ii, Doc. No. 56 at 103). Deputies from the

Catawba County Sheriffs Office responded to a report that Petitioner was going to shoot up the

residence at Vaughn's address and shoot someone. (Iii. at ¶ 11: Doc. No. 57 at 20). A second

report stated that Petitioner had told some people that he was armed with two guns and was

going to take care of Vaughn and the police. (I, Doe. No. 56 at 112).

When deputies arrived at the residence, Petitioner was not there. As the deputies were

about to leave, Petitioner drove up and nearly hit one of the patrol cars. (Id. at 110). Upon

seeing the officers, he fled into the woods behind Vaughn's residence. (Ld., Doe. No. 43 at ¶ 11;

Doe. No. 57 at 65-66). Deputies found Petitioner lying face down in a briar patch. (Ii, Doe.

No. 43 at ¶ 12; Doe. No. 56 at 114-15). When he refused to comply with their commands, they

tasered him. (Id, Doe. No. 43 at ¶ 12). After searching Petitioner, checking him for injuries,

and securing him, officers searched the area where he had been lying down and found a loaded

.22 caliber firearm on the ground. (Id., Doe. No. 56 at 116-21, 122-24,150; Doe. No. 57 at 66).

2

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 2 of 9

Officer Brian Arndt retrieved the gun. (Id., Doc. No. 56 at 122). Vaugh identified the firearm

and showed officers the gun box into which it fit. (T4 at 128-29). Officer Arndt returned the

gun to Vaughn because she was its lawful owner.

Although Vaughn originally told investigators that Petitioner had taken the .22 caliber

gun from her when he was released from prison afew months earlier and had not complied with

her requests to return it, at trial she testified that she believed that the gun was.under her bed the

entire time. (,Doc. No. 43 at ¶ 7; Doc. No. 56 at 171-82). A grand jury indicted Petitioner,

charging him with possession of a firearm by a convicted felon in violation of 18 U.S.C. §

922(g)(1). (Id., Doc. No. 1). Petitioner proceeded to trial, and the jury convicted him. (Ld., Doc.

No. 37). Over Petitioner's objection, this Court determined that he was an armed career criminal

and sentenced him to 188 months of imprisonment.2 (, Doc. No. 42; Doc. No. 48 at 2:

Judgment).

Petitioner timely appealed. In light of the Fourth Circuit's decision in United States v.

Gardner, 823 F.3d 793 (4th Cir. 2016), the parties filed a joint motion for partial remand,

requesting the Fourth Circuit to vacate Petitioner's sentence and remand for the limited purpose

of resentencing Petitioner, while retaining jurisdiction over the appeal to consider any remaining

contested issues. (Motion for Partial Remand, United States v. Tucker, No. 16-4134 (4th Cir.

Aug. 26, 2016), Doc. No. 17). The Fourth Circuit granted the motion for partial remand, vacated

Petitioner's sentence, and remanded the case for the limited purpose of resentencing Petitioner in

light of Gardner. (Ii. Doc. No. 19-1).

2 Furthermore, the North Carolina Department of Public Safety website states that Petitioner,

who is incarcerated at Piedmont Correctional Institution in Salisbury, North Carolina, is.

currently serving a sentence of 77-105 months after being convicted as a habitual felon in both

Lincoln County, North Carolina, and Catawba County, North Carolina.

-

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Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 3 of 9

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-

-

On remand, the Government requested an upward departure in light of Petitioner's

extensive criminal history. (Ii, Doe. No. 76 at 8-9: Resent. Tr.). This Court determined that the

aggravating factors in the case supported an upward departure to criminal history category VI

and a guideline range of 37 to 46 months of imprisonment. (Ld. at 13). The Court also

determined that an upward variance to the same level would also be appropriate. (L). The

Court imposed a 46-month sentence, noting that Petitioner's "record of repeated recidivism,

particularly with gun crimes and serious dangers to the public as a result of defendant's behavior,

justify that kind of sentence." (içi. at 13-14).

Following resentencing, Petitioner moved to dismiss his appeal pursuant to Federal Rule

of Appellate Procedure 42(b). (Mot. to Dismiss, No. 16-4134 (4th Cir. June 22, 2017), Doe. No.

36). In the motion, counsel noted that after discussing possible issues to be raised on appeal,

Petitioner informed counsel that he wanted to withdraw his notice of appeal and have the Court

dismiss his appeal. (j). The Fourth Circuit granted the motion and dismissed Petitioner's

appeal. (,Doe. No. 38).

Almost a year later, Petitioner filed the present motion to vacate, claiming that his Fourth

Amendment and due process rights were violated when he was arrested and property was

searched incident to his arrest without a warrant, and he raises various challenges to the firearm

that officers found. (Doe. No. 1 at 4-9, Il; Doe. No. 1-2 at 4-6, 8). Specifically, he contends

that the chain of custody over the firearm was deficient; an officer's statement that he "believes"

the firearm was the same one found on October 9th is insufficient; the photographic evidence

showed only that the firearm was found in the officer's car; and there is no direct evidence tying

the firearm to Petitioner. Petitioner also contends in a supporting memorandum that he was

falsely imprisoned; that his arrest, search, and handcuffing constituted assault and battery; and

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Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 4 of 9

13

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that the North Carolina and United States statutes for his crimes are. deficient because they do not

have "enacting clauses." (Doc. No. 2-1 at 7, 9-11). The Government filed its pending motion to

dismiss on September 28, 2018, and Petitioner filed his response on October 17, 2018. (Doc.

Nos. 3, 7). Thus, this matter is ripe for disposition.

STANDARD OF REVIEW

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to

promptly examine motions to vacate, along with "any. attached exhibits and the record of prior

proceedings

.

.

."

in order to determine whether the petitioner is entitled to any relief on the

claims set forth therein. After examining the record in this matter, the Court finds that the

arguments presented by Petitioner can be resolved without an evidentiary hearing based on the

record and governing case law. See Raines v. United States, 423 .F.2d 526, 529 (4th Cir. 1970).

DISCUSSION

A § 2255 motion is not a substitute for a direct appeal and is not an opportunity to re-try a

criminal case. See United States v. Linder, 552 F.3d 391, 397 (4th Cir. 2009); Murawski v.

United States, 179 F.2d 782, 783 (4th Cir. 1950) (holding "[q]uestions as to the sufficiency of the

evidence

. . .

must be raised by timely appeal from the sentence"). Claims of errors that could

have been raised on direct appeal, but were not, are procedurally barred unless the petitidner

shows both cause for the default and actual prejudice or demonstrates that he is actually innocent

of the offense. See Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v.

Bowman, 267 F. App'x 296, 299 (4th Cir. 2008). "[C]ause for a procedural default must turn on

something external to the defense, such as the novelty of the claim or a denial of effective

assistance of counsel." United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999).

5

NXIM

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 5 of 9

e

h#

To show actual prejudice, a petitioner must demonstrate that errors in the proceedings

"worked to his actual and substantial disadvantage" and were of constitutional dimension. See

United States v. Frady, 456 U.S. 152, 170 (1982). To show actual innocence, a petitioner must

demonstrate that he "has been incarcerated for a crime he did not commit." United States v.

Jones, 758 F.3d 579, 584 (4th Cir. 2014). Actual innocence is based on factual innocence and "is

not satisfied by a showing that a petitioner is legally, but not factually, innocent." See

Mikalajunas, 186 F.3d at 494.

Petitioner's claims are procedurally barred because he did not raise them on direct appeal

and he voluntarily dismissed his appeal. Petitioner has not alleged cause or prejudice for his

failure to raise these issues on appeal, nor has he shown that he is factually innocent of the

underlying firearm offense, particularly given Arthur's testimony that Petitioner threatened him

with a firearm. Therefore, his claims are procedurally barred and will be dismissed. See

Bousley, 523 U.S. at 621-22.

Petitioner's Fourth Amendment, civil rights, and criminal claims also are not cognizable

on collateral review. Before trial, Petitioner could have raised a Fourth Amendment challenge to

his arrest and the search that yielded the firerm. Thus, he had a full and fair opportunity to

litigate these claims. "Once a litigant is provided a full and fair opportunity to litigate a Fourth

Amendment claim, he cannot re-litigate the claim ma motion pursuant to § 2255 unless there has

been an intervening change in law." United States v. Schulte, 230 F.3d 1356, at *1 (4th Cir.

2000) (unpublished table decision). Here, Petitioner does not allege that there has been an

intervening change in the law. Accordingly, his attempt to challenge his arrest and search is

unavailing.

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 6 of 9

/3

4,

Even if the Court were to reach the merits of Petitioner's claim, it would fail. Petitioner

had threatened to shoot Vaughn, her dogs, and anyone who came between Vaughn and

Petitioner. He also fled when he saw the police and then refused to respond to their commands

when they found him. This justified the officers' conduct in stopping, frisking, and detaining

him. See Michigan v. DeFillippo, 443 U.S. 31; 37 (1979) (to establish probable cause for an

arrest, the facts and circumstances must be "sufficient to warrant a prudent person" to believe

"that the suspect has committed, is committing, or is about to commit an offense").

Additionally, the search that officers conducted was on Vaughn's premises—an area in

which Petitioner had no reasonable expectation of privacy. See Rakas v. Ill., 439 U.S. 128, 134,

142 (1978) ("A person who is aggrieved by an illegal search and seizure only through the

introduction of damaging evidence secured by a search of a third person's premises or property

has not had any of his Fourth Amendment rights infringed" and does not have standing to

challenge the search). Accordingly, Petitioner has not shown that the searches violated his

Fourth Amendment rights.

Next, Petitioner's civil rights and criminal claims—including his claims of false arrest

and imprisonment, and assault and battery—are not cognizable in a § 2255 proceeding.

Section 2255 provides that:

claiming the right to be

A prisoner in custody under sentence of a court.

released upon the ground that the sentence was imposed in violation of the

Constitution or law of the United States, or that the court was without jurisdiction

to impose such sentence, or that the sentence was in excess of the maximum

authorized by law, 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). Petitioner's claims of false arrest and imprisonment are common law torts,

not a basis for setting aside a conviction or sentence. See Fiore v. Benfield, No. 1:15cv271, 2015

WL 5511156, at *2 (M.D.N.C. Sept. 16, 2015) (recognizing "claims of false arrest and

11

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Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 7 of 9

'

imprisonment constitute common law torts"); Holmes v. Bryant, No. 1:14cv418, 2014 WL

2779996, at *2 (M.D.N.C. June 19, 2014) (same). Petitioner's assertion of assault and battery

could be either a tort claim or a criminal charge, neither of which entitles him to relief in this

proceeding. See N.C. GEN. STAT. ANN. § 14-33 (defining misdemeanor assaults and batteries);

Dickens v. Puryear, 276 S.E.2d 325, 444-45 (N.C. 1981) (discussing tort of assault and battery).

In sum, none of these claims set forth a basis on which to set aside Petitioner's conviction or

sentence under § 2255. Accordingly, these claims are dismissed as non-cognizable.

Finally, Petitioner's statutory claim is also dismissed. Petitioner asserts that the North

Carolina statutes and the United States Code show no enacting clauses for the crime charged

against him. Petitioner's suggestion that the state and federal criminal laws are ineffective

because they lack enacting clauses is wholly without merit.

IV. CONCLUSION

For the foregoing reasons, the Court denies and dismisses Petitioner's Section 2255

petition. To this extent, the Government's motion to dismiss is granted.

IT IS, THEREFORE, ORDERED that:

Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §

2255, (Doc. No. 1), is DENIED and DISMISSED.

The Government's Motion to Dismiss, (Doc. No. 3), is GRANTED.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules

Governing Section 2254 and Section 2255 Cases, this Court declines to issue a

certificate of appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,

537 U.S. 322, 338 (2003) (in order to satisfy § 2253(c), a petitioner must

demonstrate that reasonable jurists would find the district court's assessment of

8

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 8 of 9

the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 473,

484 (2000) (when relief is denied on procedural grounds, a petitioner must

establish both that the dispositive procedural ruling is debatable and that the

petition states a debatable claim of the denial of a constitutional right).

Signed: October 22, 2018

r.

Frank D. Whitney

Chief United States District Judge

I t

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 9 of 9

United States District Court

Western District of North Carolina

Statesville Division

Jeffrey Dean Tucker,

Petitioner,

vs..

USA,

Respondent,

)

)

)

)

)

)

)

)

)

JUDGMENT IN CASE

5:18-cv-00 105-FDW

5:14-cr-00083-FDW-DCK

DECISION BY COURT. This action having come before the Court and a decision having been

rendered;

IT IS ORDERED AND ADJUDGED that Judgment is hereby entered in accordance with the

Court's October 23, 2018 Order.

October 23, 2018

Frank G. Johns, Clerk

United States District Court

Case 5:14-cr-00083-FDW-DCK Document 79-1 Piled 10/23/18 Page 1 of 1

4f3 c/k/3

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

STATES VILLE DIVISION

5:18-cv-105-FDW

(5: 14-cr-83-FDW-DCK-l)

JIEF1REY DEAN TUCKER,

Petitioner,

1)101P) a

VS.

UNITED STATES OF AMERICA,

Respondent.

THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct

Sentence under 28 U.S.C. § 2255, (Doe. No. 1), and on the Government's Motion to Dismiss,

(Doc. No. 3).

I. BACKGROUND

I

Late in the afternoon of October 9, 2014, pro se Petitioner Jeffery Dean Tucker drove

Michelle Vaughn and Dawn Reese to a bar in downtown Hickory.' (Crim. Case No. 5:14cr83,

Doe. No. 43 at ¶ 8: PSR). When the three left the bar, Petitioner began driving erratically.d.

U

When Petitioner stopped the car, Vaughn and Reese tried to runaway. (Ii). Petitioner followed

them, caught Vaughn, and lifted her into the air. (jç). Two men intervened, confronting

Petitioner and allowing Vaughn and Reese to escape. (j). Petitioner then began looking for

Vaughn., U).

That night, Petitioner went to the Twin Oaks Bar. (I4 at 1 9). A bouncer at the bar,.

Thomas Arthur, asked Petitioner to go outside because Petitioner was having a confrontation

1

The Presentence Report describes Vaughn as Petitioner's "friend with benefits," and it

describes Reese as a friend. (jçi at ¶J 6, 8).

-

-

1

ease 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 1 of 9

u

s

16

with another customer. (Ii). Petitioner went outside, and Arthur told him to calm down. (I).

Petitioner pulled out a silver .22 caliber revolver and threatened Arthur, but he left when he was

told that police were being called. (Ii; Doc. No. 56 at 217-23).

Petitioner was till looking for Vaughn and spoke with her by phone.

Doc. No. 43 at

¶ 10). According to Vaugl, Petitioner said that he would kill all of Vaughn's friends, or anyone

who came between the two of them. (I4; Doc. No. 56 at 186). Petitioner also said that

Vaughn's dbgc could not save, her and that he would kill them as well. (Ii, Doc. No. 43 at ¶ 10;

Doc. No. 56 at 186).

Later that same night, Vaughn was hiding at her next-door neighbor's house. (I4, Doc.

No. 43 at ¶ 11). The neighbor called 911 to report that Petitioner was coming to his house to

shoot it and the neighbor's (Vaughn's) house up.

,

Doc. No. 56 at 103). Deputies from the .

Catawba County Sheriffs Office responded to a report that. Petitioner was going to .shoot up the

resideflce at Vaughn's,addressi and shoot someone. ad. at ¶11: Doc. No. 57 at 20). A second

report stated that Petitioner..had told some people that he was armed with two gu1s and was

going to, take care of Vaughn and the police. (Ii, Doc. No. 56 at 112).

•

,

When deputies arrived at .the residence, Petitioner was not there. As the deputies were

about to leave, Petitioner drove up and nearly hit one .of the patrol cars. (.at 110). Upon•

seeing the officers, he fled into the woods behind Vaughn's residence. (Ii, Doc. No. 43 at ¶ 11;

Doc. No.. 57 at 65-66). Deputies.found Petitioner lying face down in a briar patch.. (I,Doc.

-

No. 4.3 at ¶ 12; Doc. Nø.56 at 114-15). When he refused to comply with their commands, they

tasereIhim.

Doe. No. 43 at 12). After searching.Petitioner, checking him for injuries,

and securing him, officers searched the area where he had been lying down and found aloaded.

2caliberfirearmon'theground

,

Doc. No. 56 at 1.16-21, 12224,.150; Doc. No. 57:at6).

2

I

Case 5:14-cr-00083-FDW-DCK uocument 79 Filed 10/23118 Page 2 of 9

AfprAIr 2

Officer Brian Arndt retrievd the gun.

Doe. No. 56 at 122). Vaugh identified the firearm

and showed officers the gun box into which it fit. (Iç at 128-29). Officer Arndt returned the

gun to Vaughn because she was its lawful owner. (Ii).

Although Vaughn originally told investigators that Petitioner had taken the .22 caliber

gun from her when he Was released from prison a few months earlier and had not complied with

-her rqsts to return it, a.tia1 she testified that she helieyed,that the gun was-under her bed the

entire tim. (J4, Doe. No. 43 at ¶ 7; Doc. No. 56 at 171-82). A grand jury indicted Petitioner,

charging him with possession of a firearm by a convicted felon in violation of 18 U.S.C. §

922(g)(1). (,Doe. No. 1). Petitioner proceeded to trial, and the jury convicted him. (j, Doe.

No. 37). Over Petitioner's objection, this Court determined that he was an armed career criminal

and sentenced him to 188 months of Imprisonment.2 (I,.Doc No. 42; DoQ. No. 48 at 2:

Judgment).

..•

,

Petitioner, timely- appealed. In light of the Fourth Circuit's decision in United States v.

Gardner,, 823 F.3d 793 (4th Cjr. 2016), the parties filed a joint motion for partial remand,

requesting the Fourth Circuit to vacate Petitioner's sentence and - remand for the limited purpose

of resentencing Petitioner, while retaining jurisdiction over the appeal to consider any remaining

contested issues. (Motion for Partial Remand, United States v. Tucker, No. 16-4134 (4th Cir.

ug.26, 2016), Doe. No.17). The Fourth Circuit granted the motion for partial remand, vacated

Petitioner's sentence, and remanded the case for the limited purpose of resentencing Petitioner, in

light of Gardner.

Doe. No. 19-1).

Furthermore, the North carolina Department of Public Safety website states that Petitioher,

Cwho is incarcerated at Piedmont Correctional Institution in Salisbury, North Carolina, is

currently serving a sentence of 77-105 months after being convicted as a habitual felon in both

Lincoln County North Carolina and Catawba County, North Carolina..

2

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23118 Page 3 of 9

,

On remand, the Government requested an upward departure in light of Petitioner's

extensive criminal history.

Doc. No. 76 at 8-9: Resent. Tr.). This Court determined that the

aggravating factors in the case supported an upward departure to criminal history category VI

and a guideline rangço137 to 46 months of imprisonment.

at 13). The Court also

determined that an upwardriance to the same level would also be appropriate. (Ii). The

Court imposed a 46-month sentence, noting that Petitioner's "record of repeated recidivism,

particularly *iti gun crimes and serious dangers to the public as a result of defendant's behavior,

justify that kind of sentence." (Iç at 13-14).

Following resentencing, Petitioner moved to dismiss his appeal pursuant to Federal Rule

of Appellate Procedure 42(b). (Mot. to Dismiss, No. 16-4134 (4th Cir. June 22, 2017), Doc. No.

36). In the motion, counsel noted that after discussing possible issues to be raised on appeal,

Petitioner informed counsel that he wanted to withdraw,his notice of appeal and have the Court

dismiss his appeal. (J4.), The Fourth Circuit granted the motion and dismissed Petitioner's,

appeal.

No. 38):

Almost a year later, Petitioner filed the present motion to vacate, claiming that his Fourth

Amendment and due process rights were violated when he was arrested and property was

searched incident to his arrest without a warrant, and he raises various challenges to the firearm

that pfficers found. (Doc. No. 1 at 4-9, Ii; Doc. No. 1-2 at 4-6, 8). Specifically, he contends

that the chairiof custody.- over the firearm was deficient; an officer's statement that he "believes'

the fir, earmwas the same one found on October 9th is insufficient; the photographic evidence.

showed Only that the firearm was found in the officer's car; and there. is no directevidence tying

the firearm to Petitioner. Petitioner also contends in a supporting memorandum that he was

fë1yimpr4soned; that1 his arrest, search,, and handcuffing constituted assault and battery; and

4

-

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 4 of 9

Af prAL)r

Officer Brian Arndt retrieved the gun. (I4, Doc. No. 56 at 122). Vaugh identified the firearm

and showed officers the gun box into which it fit. (Ld. at 128-29). Officer Arndt returned the

gun to Vaughn because she was its lawful owner. (Ii).

Although Vaughn originally told investigators that Petitioner had taken the .22 caliber

gun from her when he wafreleased from prison a few months earlier and had not complied with

her requests to re

it, at trial s tçtified that she believed t

the gun was under her bed the

Doc. No. 43 at 17; Doc. No. 56 at 171-82). A grand jury indicted Petitioner,

entire time.

charging him with possession of a firearm by a convicted felon in violation of 18 U.S.C. §

922(g)(1). (Ld., Doc. No. 1). ,Petitioner proceeded to trial, and the jury convicted him. (J, Doc.

No. 37). Over Petitioner's objection, this Court determined that he was an armed career criminal

and sentenced him to 188 months of imprisonment.2 (Ii, Doe. No; 42; Doc. No, 48 at 2:.

Judgment).

.

.

.

.

PtitiQner time1y.appealed.. In light of the Fourth Circuit's decision in United States v.

Gardner,. 823 F3d.793 (4thCir. 2016), the parties filed ajoint motion for partial remand,

requesting the. Fourth Circuit to vacate Petitioner's sentence and remand for the limited purpose

of resentencing Ptitioner, while retaining jurisdiction over the appeal to consider any remaining

contested issues. (Motion for Partial Remand, United States v. Tucker, No. 16-4134 (4th Cir.

Aug.26, 2016), Doc. No. 17). The Fourth Circuit granted the motion for partial remand, vacated

Petitioner's. sentence, and remanded the case for the limited purpose of resentencing Petitioner-in

light of Gardner: (I4, Doc..No.. 19-1).

..

.,

.

.

,,..

-.

2

lurthermore the North Carolina Department of Public Safety website states that Petitioner,

ho is incarcerated aVPiedmont Correctional Institution in Salisbury, North Carolina, is

currently serving a sentence of 77-105 months after being convicted as a habitual felon in both

Lincoln County, North Carolina, and Catawba County, North Carolina.

3

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 3 of 9

On remand, the Government requested an upward departure in light of Petitioner's

extensive criminal history. (., Doc. No. 76 at 8-9: Resent. Tr.). This Court determined that the

aggravating factors in the case supported an upward departure to criminal history category VI

and 4 guideline rane çf 37 to 46 months-of imprisonment. (Içk at 13). The Court also

determined that an upwarvariance to the same level would also be appropriate. (I). The

.Court.imposed a 46-month sentence,.noting that Petitioner?s 'record of repeated recidivism,

particularlywh gun crimes and serious dangers to the public as a result of defendant's behavior,

justify that kind of sentence." (Ia., at 13-14).

Following resentencing, Petitioner moved to dismiss his appeal pursuant to Federal Rule

of Appellate Procedure 42(b). (Mot. to Dismiss, No. 16-4134 (4th Cir. June 22, 2017), Doc. No.

36). In the motion, counsel rioted that after discussing possible issues to be raised on appeal,

?ctitioner informed counsel that he wanted to. withdraw, his notice of appeal and have the Courtdismiss his appeal. (Ii). The Fourth Circuit granted the motion and dismissed Petitioner's,,

appea1., Doc. No. 38)-.-,

.

.

.

,

.

Almost a year later, Petitioner filed the present motion to vacate, claiming that his Fourth

Amendment .and due process rights were violated when he was arrested and property was,

searched incident to his arrest without a warrant, and he raises various challenges,tp the firearm

that officera found. (Doc. No. 1 at 4-9, 11; Doc. No. 1-2 at 4-6, 8). Specifically, he contends

that the chain of custody, over the firearm was deficient; an officer's statement that he "believes"

the firearm was the same one found on October 9th is insufficient; the photographic evidence

showed only that the firearm was found in the officer's car;; and there is no direct evidence tying

the firearm to Petitioner. Petitioner also contends in a supporting memorandum that he was

41e!y .irnpisoned; that his arrest, search, and handcuffing constituted assault and battery; and

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 4 of 9

,

,,

Arloel wlly 13

that the North Carolina and United States statutes for his crimes are deficient because they do not

have "enacting clauses." (Doe. No. 2-1 at 7, 9-11). The Government filed its pending motion to

dismiss on September 28, 2018, and Petitioner filed his response on October 17, 2018. (Doc.

Nos.

,

7). Thus, this matter is ripe for disposition.

STANDA1Th bF REVIEW

II.

•

.,

•,

•.•

,,

Rulç. 4(h) of thel

Qoveig Section.

Proceedings provides that coups are .to

promptly exanttine motions to vacate, along with "any attached exhibits and the record of prior

proceedings.

.

."

in order to determine whether the petitioner is entitled to any relief on the

claims set forth therein. Afterexamining the record in this matter, the Court finds that the

arguments presented by Petitioner can be resolved without an evidentiary hearing based on the

record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

DISCUSSION

•.A § 2,55 motion, is. not a substitute for a direct appeal and is not an opportunity tore -try a

criminal case. See United States v. Linder, 552 F.3d 391, 397 (4th Cir. 2009); Murawski v.

United States, 179 .2d 782,. 783 (4th Cir. 1950) (holding "[q]uestions as to the sufficiency of the

evidence.

. .

must be raised by timely appeal from the sentence"). Claims of errors that could

have been raised on direct appeal, but were not, are procedurally barred unless the petitioner

shows both cause for the default and actual prejudice or, demonstrates that he is, actually innocent

of the offense. See Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v.

Bonan, 267 F. App'x 296,, 299 (4th Cir. 2008). "[C]ause for a procedural ,default must turn on

something external to the defense, such as the novelty of the claim or, a denial of effective

assistance of counsel." ••United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999).

-

I

•

, -

-

.

'

••

-

'

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 5 of 9

,

,

To show actual prejudice, a petitioner must demonstrate that errors in the proceedings

"worked to his actual and substantial disadvantage" and were of constitutional dimension. See

United States v. Frady, 456 U.S. 152, 170 (1982): To show actual innocence, a petitioner must

demQnstrate that he "has been incarcerated for a crime he did not commit." United States v.

Jones, 758 F.3d 579, 584th Cir. 2014). Actual innocence is based on factual innocence and "is

not satisfied by a showing that a petitioner is legally, but not factually, innocent." See

Mika1ajunas,86 F.3d at 494.

Petitioner's claims are procedurally barred because he did not raise them on direct appeal

and he voluntarily dismissed his appeal. Petitioner has not alleged cause or prejudice for his

failure to raise these issues on appeal, nor has he shown that he is factually innocent of the

underlying firearm. offense, particularly given Arthur's testimony :that.Petitioner threatened him

with a firearm. Therefore, his claims are procedurally barred and will be dismissed. See

Bousley, 523 U.S. at 621:-22.

..Petitioner's Fourth, Amendment, civil rights, and criminal claims also are not cognizable

on collateral review. Before trial, Petitioner could have raised a Fourth Amendment challenge to

his arrestand the search that yielded the firearm. Thus, he had a full and fair opportunity to

litigate these claims. "Once a litigant is provided a full and fair opportunity to litigate a Fourth

Amendment claim, he cannot re-litigate the claim in a motion pursuant to § 2255 unless there has

been an intervening change in law." United States v. Schulte, 230 F.3d 1356, at ''1 (4th Cir.

2000) (unpublished table decision). Here, Petitioner does not allege that there has been an

intervening change in the, law. Accordingly, his attempt to challengc his arrest and search. is

unavailing.

6

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 6 of 9

*

App& 13

Even if the Court were to reach the merits of Petitioner's claim, it would fail. Petitioner

had threatened to shoot Vaughn, her dogs, and anyone who came between Vaughn and

Petitioner. He also fled when he saw the police and then refused to respond to their commands

when t4iey found him. This jusified the officers' conduct in stopping, frisking, and detaining

him. See Michigan v. DeFiippo, 443 U.S. 31, 37 (1979) (to establish probable cause for an

arrest,. the facts, and circumstances must: be "sufficient to warrant a prudent person" to believe

"that the suspect has committed, is committing, or is about to commit an offense")

Additionally, the search that officers conducted was on Vaughn's premises—an area in

which Petitioner had no reasonable expectation of privacy. See Rakas v. Ill., 439 U.S. 128, 134,

142 (1978) ("A person who is aggrieved by an illegal search and seizure only through the

introduction of damaging eyidence, secured by a search of a third person's premises or property

has not had any of. his Fourth Amendment rights infringed' and does not have standing to

challenge the search). Accordingly, Petitioner has not showfl that the searches violated his.

Fourth Amendment rights.

:

:

'....

Next, petitioner's civil rights and criminal claims--.-including his claims of false arrest

and imprsofl1flent, and assault and battery—are not cognizabl in a § 2.255 proceeding.

Section. 2255, 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 law of the United States, or that the court was without jurisdiction

to impose such sentence, or that the sentence was in excess of the maximum

authorized by law, 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). Petitioner's claims of false arrest and imprisonment are common law torts,

not basis for setting aside a conviction or sentence. See Fiore v. Benfield, No. 1:15cv271, 2015

WL 5511156, at *2 (M.D.N.C. Sept. 16, 2015) (recognizing "claims of false arrest and

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 7 of 9

imprisonment constitute common law torts"); Holmes v. Bant, No. 1:14cv418, 2014 WL

2779996, at *2 (M.D.N.C. June 19, 2014) (same). Petitioner's assertion of assault and battery

could be either a tort claim or a criminal charge, neither of which entitles him to relief in this

procçeding. See

GEN. STAT. ANN. § 14-33 (defining misdemeanor assaults and batteries);

Dickens v. Puryar, 276 S.2d 325, 444-45 (N.C. 1981) (discussing tort of assault and battery).

In sum, none of these claims set forth a basis on which to set aside Petitioner's conviction or

sentence un1e i § 2255. Accordingly, these claims are dismissed as non-cognizable.

Finally, Petitioner's statutory claim is also dismissed. Petitioner asserts that the North

Carolina statutes and the United States Code show no enacting clauses for the crime charged

against him. Petitioner's suggestion that the state and federal criminal laws are ineffective

because they lack enacting clauses is wholly without merit.

IV., CONCLUSION

.•

.:

.

.

..

For the foregoing reasons, the Court denies and dismisses Petitioner's Section 2255

petition.: To this extent, the Government's motion to dismiss is granted.

IT IS, THEREFORE, ORDERED that:

1..

•

..

.

..

.

Petitioner's Motion to Vacate, Set Aside or. Correct Sentence under 28 U.S.C. §

.

2.

,.

:...

2255, (Doc. No. 1), is DENIED and DISMISSED.

. .

The Government's Motion to Dismiss, (Doc. No. 3), is GRANTED.

3..., IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules

-.

.

Governing Section 2254 and Section 2255 Cases, this Court declines to issue a

certificate of appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,

537 U.S. 322, 338 (2003) (in order to satisfy § 2253(c), a petitioner must

drnotrate that reasonablejurists would find the district court's assessment of

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 8of 9

the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 473,

484 (2000) (when relief is denied on procedural grounds, a petitioner must

establish both that the dispositive procedural ruling is debatable and that the

petition states a debatable claim of the denial of a constitutional right).

Signed: October 22, 2018

Frank D. Whitney

Chief United States District Judge

V

V

-

9

Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 9 of 9

United States District Court

Western District of North Carolina

Statesville Division

Jeffrey Dean Tu4er,

•

•

Petitionerr

VS.

\'

USA,

Respondent,

)

)

)

)

)

)

)

)

)

JUDGMENT IN CASE

I

,

5:18-cv-00105-FDW

5:14-cr-00083-FDW-DCK

DECISION BY COURT. This action having come before the Court and a decision having been

rendered;

IT IS ORDERED AND ADJUDGED that Judgment is hereby entered in accordance with the

Court's October 23, 2018 Order.

October 23, 2018

•

Frank G. Johns, Clerk

United States District Court

Case 5:14-cr-00083-FDW-DCK Document 79-1 Filed 10/23/18 Page 1 of 1

Additional material

a

from this fil40ing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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