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Miller v. United States

United States District Court, N.D. Mississippi, Aberdeen Division

November 13, 2017

DEREK A. MILLER PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE

         This 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.

         Facts and Procedural Posture

         Petitioner 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.

         On 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.

         On May 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.

         Following 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.

         Miller 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.

         On 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.

         Scope of §2255 Review

         There 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.

         A 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).

         Miller's §2255 Claims

         In the instant §2255 motion, Miller makes the following claims for relief, which ...


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