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Holsey v. United States

United States District Court, S.D. Georgia, Savannah Division

October 16, 2017

MICHAEL EUGENE HOLSEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STALES MAGISTRATE JUDGE

         Petitioner, an inmate at the Federal Correctional Institution in Jesup, Georgia, has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The Court REPORTS and RECOMMENDS the § 2255 motion be DENIED, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I.BACKGROUND

         A.Indictment.

         On June 10, 2013, the grand jury in the Southern District of Georgia issued an indictment charging Petitioner and codefendant Demetrius Lorenzo Mumford with a host of crimes related to cocaine distribution and firearms. United States v. Mumford, et al., CR 413-119, doc. no. 3 (S.D. Ga. June 10, 2013) (hereinafter “CR 413-119”). Against Petitioner, the indictment asserted charges for conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846(a)(1) and 18 U.S.C. § 2 (“Count One”), conspiracy, in violation of 18 U.S.C. § 371 (“Count Two”), unlicensed dealing in firearms, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) (“Count Three”), two counts of felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1) (“Counts Five-Six”), three counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (“Counts Twelve-Fourteen”), and three counts of carrying a firearm in relation to crime, in violation of 18 U.S.C. § 924(c) (“Counts Eighteen-Twenty”). Id. The Court appointed attorney James C. Garner to represent Petitioner. Id., doc. no. 54.

         B. Agreement to Plead Guilty.

         On October 24, 2013, Petitioner pleaded guilty to Counts Five and Nineteen. Id., doc.nos. 38, 41-42, 52, 68. The plea agreement contained the following factual basis for the plea:

[O]n or about December 19, 2012, in Chatham County, within the Southern District of Georgia, the defendant, MICHAEL EUGENE HOLSEY, who before that time had been convicted of a felony, an offense punishable by imprisonment for more than one year, aided and abetted by others known and unknown, did knowingly possess, in and affecting interstate commerce, a firearm, that is, a Beretta, Model Px4 Storm, .40 caliber semiautomatic pistol, serial number PY41604 . . . .
[O]n or about December 19, 2012, in Chatham County, within the Southern District of Georgia, the defendant, MICHAEL EUGENE HOLSEY, knowingly and unlawfully, and during and in relation to the drug trafficking offense charged in Count 13, used and carried a firearm, that is, a Beretta, Model Px4 Storm, .40 caliber semiautomatic pistol, serial number PY41604 . . . .

Id., doc. no. 52, p. 4.

         Petitioner attested he had sufficient time to review his case with his attorney, fully understood his rights and those he was giving up by pleading guilty, and voluntarily agreed to the plea agreement. Id. at 7.

         C. Change of Plea Hearing.

         During the change of plea hearing, United States District Judge William T. Moore, Jr., established Petitioner's competence to enter a guilty plea if he desired. Id., doc. no. 68, pp. 22-23. Petitioner also testified under oath he had adequate time to discuss his case with his attorney and was entirely satisfied with the services rendered by Mr. Garner. Id. at 10-11. Judge Moore read the indictment and asked if Petitioner understood the charge therein. Id. at 11-13. Petitioner confirmed he understood. Id. Judge Moore also explained the rights Petitioner would be waiving by pleading guilty, and Petitioner affirmed he understood those rights. Id. at 7-9.

         Among the rights explained, Judge Moore reviewed the right to trial by jury, the presumption of innocence, the government's burden to prove guilt beyond a reasonable doubt, the right to present and cross-examine witnesses, and the right to remain silent. Id. Petitioner affirmed he had not been pressured or promised anything to plead guilty, id. at 20-22, nor had anyone predicted Petitioner's exact sentence. Id. at 22. Judge Moore specifically asked Petitioner whether “anyone [had] done anything that you consider to be wrong or unfair which has forced you to plead guilty, ” to which Petitioner responded, “No, sir.” Id. at 20. Judge Moore found Petitioner's plea to be made voluntarily and with an understanding of the charges and the plea's consequences. Id. at 22-23.

         Judge Moore heard the factual basis for Petitioner's guilty plea from Special Agent Louis Valoze with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Id. at 24. Agent Valoze summarized the facts underlying Petitioner's offense as follows:

[On December 19, 2012, ] the defendant met me at an undercover location. He provided me with approximately half-an-ounce of cocaine, and after that he provided me with a Beretta Model Px4 Storm .40 caliber pistol loaded with 11 rounds of ammunition . . . [i]n exchange for $1, 050 for both items.

Id. at 24-25. A Georgia Bureau of Investigations lab analysis found the purported cocaine to be approximately 12.9 grams of cocaine hydrochloride. Id. at 25. Investigation also revealed the firearm had been shipped in interstate commerce, and Petitioner had previously been convicted of possession with intent to distribute marijuana on November 19, 2012. Id. Petitioner admitted to the factual basis for his offense, stating, “I admit to doing the things he said that I did . . . . I went to the warehouse and sold him a gun and a half-a-ounce of cocaine.” Id. at 26.

         Judge Moore accepted the guilty plea, finding a sound factual basis for it. Id. at 27.

         D. Presentence Investigation Report (PSI).

         The United States Probation Office prepared a PSI, which set Petitioner's base offense level at twenty. PSI ¶ 13. Petitioner's adjusted offense level was twenty-eight after enhancements of: (1) four levels because the offense involved between three and seven firearms; (2) two levels because the offense involved a stolen firearm; and (3) four levels because Petitioner engaged in trafficking of firearms. PSI ¶¶ 14-16, 21. Although Petitioner was only convicted of possessing and carrying one firearm, Petitioner sold ATF agents three firearms in total, and therefore the probation officer attributed three firearms to Petitioner for offense calculation purposes. PSI ¶¶ 7-8. Petitioner's adjusted offense level was decreased three points for acceptance of responsibility, resulting in a total offense level of twenty-five. PSI ¶¶ 23-25. Based on a total offense level of twenty-five and a criminal history category of III, Petitioner's guideline imprisonment range was seventy to eighty-seven months, plus sixty months consecutive on Count Nineteen. PSI ¶ 51.

         E. Sentencing.

         Sentencing was held on March 19, 2014. CR 413-119, doc. nos. 51, 66. Petitioner filed no objections to the PSI. PSI Addendum. After hearing arguments from Mr. Garner and Assistant United States Attorney (“AUSA”) Cameron Ippolitto, Judge Moore provided Petitioner with an opportunity to make a personal statement. CR 413-119, doc. no. 66, p. 9.Petitioner told Judge Moore,

First I would like to take this opportunity to apologize to the community and the Court. No matter what justifications I may have used in the past, I now know that my actions, past and present, have had nothing but negative effect on myself, and more importantly, the community. For this I am truly sorry.
I have wasted a lot of my time getting into trouble and surrounding myself with the wrong people. I have ignored my mother's warnings and taken for granted the Court's leniency. These errors in judgment have led me here. I make no justifications or excuses. I cannot change the past, only look to the future.

Id. at 9-10.

         Judge Moore sentenced Petitioner to seventy months as to Count Five and sixty months as to County Nineteen to run consecutively, for a total term of one hundred thirty months of incarceration, five years of supervised release, and a $100.00 special assessment.Id., doc. no. 53; doc. no. 68, pp. 11-14. Final judgment was entered on March 21, 2014. Id., doc. no. 53. Petitioner did not file an appeal.

         F.Post-Conviction Proceedings.

         On June 29, 2015, United States Attorney Edward J. Tarver disclosed to the Court information regarding an “improper relationship” between AUSA Ippolito and Agent Valoze. In Re: Ippolito & Valoze, MC 215-002, doc. no. 1 (S.D Ga. Feb. 11, 2015). The Court ordered the United States Attorney to “submit a list of all cases . . . in which AUSA Ippolito and ...


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