United States District Court, N.D. Mississippi, Aberdeen Division
DEREK A. MILLER PETITIONER
UNITED STATES OF AMERICA RESPONDENT
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
matter comes before the court on the motion of Derek A.
Miller to vacate, set aside, or correct his sentence under 28
U.S.C. §2255. The government has responded to the
motion, and the matter is ripe for resolution.
and Procedural Posture
Miller was investigated by law enforcement for operating a
large drug trafficking organization in North Mississippi.
Sometime around 2010, Miller's acquaintance, Yulande
Scott, introduced Miller to an individual known as
“Ocho” in Houston, Texas. ECF Doc. 204, pg. 15.
Miller began purchasing cocaine from “Ocho” and
another individual known as “Rico.” Id.
On June 28, 2011, and July 28, 2011, a confidential informant
purchased approximately 54.7 and 76.2 grams of crack cocaine
from Demetrius Babbit, who was supplied with the cocaine by
Miller. Id. Thereafter, on February 3, 2012, and
February 16, 2012, a confidential source purchased
approximately 86.2 and 112.7 grams of crack cocaine from
Jarvis Moore, who was also supplied with the cocaine by
Miller. Id. at 15-16.
April 25, 2012, a valid wiretap was authorized for
Miller's cell phone. Id. at 16. Based on
information obtained through the wiretap, law enforcement was
able to intercept a FedEx package that Scott had shipped to
Miller and obtain a search warrant for that package.
Id. The package held a backpack containing
approximately 4.475 kilograms of a substance that was
chemically determined to be powder cocaine. Id. The
investigation of Miller ultimately revealed that the overall
scope of the conspiracy involved over 500 grams of powder
cocaine and 28 grams of crack cocaine. Id. at 17.
8, 2012, law enforcement intercepted another package sent by
co-conspirator Brakeia Pannell to Miller at his apartment in
Houston. Id. That package contained $66, 100.00 in
cash that was to be used to purchase more cocaine.
Id. On May 9, 2012, a search warrant was executed on
115 Wayside Drive in Tupelo, Mississippi, which was
Miller's mother's house. Id. Approximately
$20, 000.00 in cash and two (2) firearms were recovered.
Id. A Hi-Point 9 mm pistol was found in the same
dresser drawer as the $20, 000.00 and a .38 caliber firearm
was found in another drawer of the dresser. ECF doc. 250, pg.
9. The 9 mm handgun was reported stolen from Alcorn County.
Id. at 12. In addition, a safety deposit key was
recovered. Id. at 24. Miller admitted that the $20,
000.00 seized from his mother's house was, in fact, the
proceeds of his drug sales. ECF doc. 251, pg. 77. Miller also
admitted that the 9 mm was his gun and he placed it in the
dresser drawer. Id.
the search, intercepted phone conversations revealed that
Miller had large amounts of cash in various safe deposit
boxes. ECF doc. 204, pg. 17. A search warrant was executed
and $169, 000.00 was recovered from safe deposit box 97 at
the Belden, Mississippi branch of Renasant Bank, which was in
Miller's sister's name. Id. at 17-18. On May
10, 2012, a search of safe deposit box 90 at the Barnes
Crossing location of Regions Bank in Tupelo, Mississippi,
which was registered in Miller's name, revealed an
additional $100, 000.00 in cash. Id. at 18.
Recordings of intercepted phone calls were admitted at the
sentencing hearing. ECF doc. 250 pg. 27.
was indicted, along with co-defendants, for: (1) one (1)
count of conspiracy to possess with intent to distribute more
than 500 grams of a mixture containing a detectable amount of
cocaine hydrochloride (powder cocaine) and more than 28 grams
of a substance containing a detectable amount of cocaine base
(crack cocaine) (Count I), and (2) three (3) counts of money
laundering (Counts II, III, and IV). ECF doc. 1. Miller was
arrested on January 29, 2013, and Mirandized. ECF
doc. 204, pg. 19. Miller waived his Miranda rights
and provided law enforcement with a FedEx package containing
approximately 600 grams of powder cocaine and 11 grams of
crack cocaine. Id. Miller admitted that he committed
the crimes with which he was charged and pleaded guilty to
Counts I and II. Id. at 19-20. In addition, Miller
agreed to forfeit his interest in the money that was seized.
Id. at 20.
January 24, 2014, Miller pleaded guilty to Counts I and II of
the indictment. ECF doc. 175. On June 19, 2014, Miller was
sentenced to serve a term of 160 months on Count I and II to
be served concurrently, and three (3) years of supervised
release on Counts I and II to also run concurrently. ECF doc.
237. Further Counts III and IV of the indictment were
dismissed. Id. Miller appealed his plea and sentence
to the Fifth Circuit Court of Appeals, which affirmed this
court's judgment. U.S. v. Miller, 598 Fed.Appx.
284 (5th Cir. 2015). Thereafter, Miller filed a
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. ECF doc. 275.
of §2255 Review
are four grounds upon which a federal prisoner may seek to
vacate, set aside, or correct his sentence: (1) that the
sentence was imposed in violation of the Constitution or laws
of the United States; (2) that the court was without
jurisdiction to impose the sentence; (3) that the sentence
exceeds the statutory maximum sentence; or (4) that the
sentence is “otherwise subject to collateral
attack.” 28 U.S.C. § 2255; see United States
v. Cates, 952 F.2d 149, 151 (5th Cir.1992).
The scope of relief under ' 2255 is the same as that of a
petition for a writ of habeas corpus.
Cates, 952 F.2d at 151.
defendant seeking relief under 28 U.S.C. §2255 may not
do so to raise issues that could have been raised on appeal.
United States v. Walling, 982 F.2d 447, 448-449
(10th Cir. 1992). A petitioner may not raise
constitutional issues for the first time on post-conviction
collateral review unless he shows cause for failing to raise
the issue on direct appeal and actual prejudice resulting
from the error. United States v. Pierce, 959 F.2d
1297, 1301 (5th Cir. 1992), cert. denied,
506 U.S. 1007 (1992); United States v. Shaid, 937
F.2d 228, 232 (5th Cir. 1991). The burden of
showing “cause, ” an “objective factor
external to the defense, ” rests with the petitioner.
McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991). No
other types of errors may be raised on collateral review
unless the petitioner demonstrates that the error could not
have been raised on direct appeal, and if not corrected,
would result in a complete miscarriage of justice.
Pierce, 959 F.2d at 1301; Shaid, 937 F.2d
at 232. Further, if a claim is raised and considered on
direct appeal, a defendant is may not raise the issue in a
later collateral attack. Moore v. United States, 598
F.2d 439, 441 (5th Cir. 1979).
instant §2255 motion, Miller makes the following claims
for relief, which ...