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).
1
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.
-
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. (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
4
Case 5:14-cr-00083-FDW-DCK Document 79 Filed 10/23/18 Page 4 of 9
13
'7
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
7
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.