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Whiters v. United States

United States District Court, N.D. Georgia, Rome Division

June 18, 2014

TEDRICK DIRELL WHITERS, Movant Pro se,
v.
UNITED STATES OF AMERICA, Respondent. No. 4:14-CV-0042-RLV-WEJ.

FINAL REPORT AND RECOMMENDATION

WALTER E. JOHNSON, Magistrate Judge.

This matter has been submitted to the undersigned Magistrate Judge for consideration of movant pro se Tedrick Direll Whiters's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 [220] ("Motion to Vacate"), and the government's Response [223]. For the reasons stated below, the undersigned RECOMMENDS that the Motion to Vacate be DENIED, and that the Court DECLINE to issue a certificate of appealability.

I. PROCEDURAL HISTORY

A federal grand jury returned an indictment against Mr. Whiters and six other co-defendants, charging Mr. Whiters in Count One with conspiracy to commit armed robbery, in violation of 18 U.S.C. § 1951(a); in Count Two with using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); in Count Three with conspiracy to possess with the intent to distribute at least five kilograms of cocaine and at least fifty kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(C), and 846; and in Count Four with possession of a firearm in furtherance of a drug trafficking offense, in violation of § 924(c)(1)(A)(ii). (Indict. [1].) Mr. Whiters entered a binding guilty plea to Counts One and Three, pursuant to a negotiated plea agreement in which the government agreed to dismiss any and all remaining counts. (Guilty Plea and Plea Agreement [193]; Plea Tr. [238].)

At the plea hearing, the prosecutor summarized the evidence it would present if the case went to trial as follows:

... [O]n October 10, 2011, there were three men who approached a man who was in Marietta... to see if that person could provide them kilogram quantities of cocaine.
The three persons that approached were Mr. Whiters, co-defendants Sergio Vasquez, and Ospicio Aguillar. This man agreed to do it but he was actually a confidential informant, who... then informed the... Cartersville Drug Task Force about what happened. And from there the informant acted at the sole discretion of law enforcement.
Mr. Whiters said he wanted [to] do the deal at his home in Atlanta, but the informant - the story he came up with at the direction of law enforcement was that the supplier was in Dalton and would only agree to come as far south as Cartersville and refused to go to Atlanta.
The informant met with co-defendants Vasquez and Aguilar the following day, October 11. Mr. Whiters was present. He didn't go to the meeting. He stayed in his car. The meeting occurred at a Waffle House off of I-75. And the story that the informant was given was that Mr. Whiters would take the cocaine, cook it into crack, and resale it in Chicago.
At a later day the informant traveled to Atlanta again to meet Mr. Whiters and co-defendant[s] Vasquez and Aguilar. At that point they showed the informant a paper bag that they claimed was full of cash and... co-defendant Fredrico Jones was actually in the area and he was there in case the informant had actually showed up with the drugs and willing to make the drug transaction. At that point then Mr. Jones would have taken the opportunity to rob the informant.
The negotiations continued on for a few more weeks and eventually Mr. Whiters, Aguilar, and Vasquez came up with an agreement where the informant would supply 5 kilograms of cocaine for $30, 000 a kilo, and 150 pounds of marijuana for $450 per pound. So the total amount of $67, 500 for the marijuana. The total amount of the drug deal was in excess of... $200, 000, less than a quarter million.
All of the final arrangements were made regarding the drug deal were going to take place on November 2nd, 2011. They agreed it would occur at around 11 a.m. at the Cracker Barrel Restaurant which is off exit 290, right off I-75 in Cartersville.
So, on the November 2nd, law enforcement set up surveillance around the Cracker Barrel and part of the area where they set up was in the BP station across the street. It's on higher grounds so it gives a look over that. And the - next to the Cracker Barrel there was a Shell gas station as well as a Waffle House. When law enforcement set up the surveillance, they realized there were other cars gathered nearby them. These were the other defendants who were engaged in doing counter surveillance.
There was Maurice Beavers who showed up in a Bonneville. Corwin Finsley showed up in a blue Acura. Those two got out of their cars and spoke to each other. Then Willie Townsend later showed up in a Cadillac, and he also got out of ...

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