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United States v. Whaley

United States District Court, D. South Carolina, Orangeburg Division

November 13, 2017

United States of America, Plaintiff,
v.
Gerald Decosta Whaley, Defendant.

          ORDER AND OPINION

         This matter is before the court on pro se Defendant Gerald Decosta Whaley's (“Defendant”) Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (ECF No. 252.) The United States of America (“Government”) filed a response in opposition to Defendant's Motion, and contemporaneously moved for summary judgment. (ECF Nos. 267, 268.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the summary judgment procedure and the consequences if he failed to respond. Defendant has filed his response, and the matter is now ripe for resolution.

         A prisoner in federal custody under sentence of a federal court may petition the court that imposed the sentence to vacate, set aside, or correct the sentence. See 28 U.S.C. § 2255. The prisoner may be entitled to relief upon a showing: (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 such sentence; (3) that the sentence was in excess of the maximum authorized by law; and (4) that the sentence is otherwise subject to collateral attack. Id. A petitioner collaterally attacking his sentence or conviction pursuant to § 2255 bears the burden of proving his grounds for collateral attack by a preponderance of the evidence. White v. United States, 352 F.Supp.2d 684, 686 (E.D. Va. 2004) (citing Miller v. United States, 261 F.2d 546 (4th Cir. 1958)). In ruling on a § 2255 motion, the court may dismiss the motion without a hearing where “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings, that the moving party is not entitled to relief.” 28 U.S.C. § 2255(b) (noting that a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief).

         The Government has also sought summary judgment on Defendant's claims in this case. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2010). At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         After reviewing the parties' respective memoranda and the record of the underlying proceedings, the court determines that an evidentiary hearing is unnecessary. For the reasons set forth herein, the court DENIES Defendant's Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (ECF No. 252), and GRANTS the Government's Motion for Summary Judgment (ECF No. 268).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Beginning as early as 2006, and continuing up to the date of his arrest on February 12, 2013, Defendant and his brother, Troy Kentrell Whaley, conspired with each other and others, to knowingly possess with intent to distribute cocaine, marijuana, and various pills sold as ecstasy. (ECF No. 1.) Beginning at least as early as 2006, the Drug Enforcement Administration (“DEA”) began receiving information from confidential informants and cooperating defendants that the Whaley brothers were involved in the armed trafficking of large quantities of marijuana, cocaine, and pills sold as ecstasy. (ECF No. 267 at 2.)

         On August 25, 2012, Sgt. Arney L. Lucas with the Orangeburg Department of Public Safety encountered Defendant at a convenient store. (Id.) Sgt. Lucas smelled a strong odor of marijuana inside the convenient store near the cash register where Defendant was standing in line to pay. (Id. at 3.) When Defendant approached the counter, Sgt. Lucas could smell the strong odor of marijuana coming from his person. (Id.) After Defendant paid the cashier, he turned and walked out of the store and Sgt. Lucas noticed that the smell of marijuana left with him. (Id.) At that point, Sgt. Lucas followed Defendant out of the store and attempted to speak to him. (Id.) After Sgt. Lucas told Defendant that he was law enforcement and he needed to speak with him, he refused to stop and continued walking away. (Id.) Sgt. Lucas asked Defendant to stop and at that point Defendant advised that he just wanted to put his water in his car. (Id.) Defendant attempted to walk past Sgt. Lucas to a car, at which point Sgt. Lucas told him not to go to the car. (Id.) When Defendant tried to push past Sgt. Lucas, Sgt. Lucas pulled his Taser and told him to stop where he was. (Id.) Defendant then ran across the street in an attempt to get away from Sgt. Lucas. (Id.)

         After a brief foot chase, Defendant stopped running and Sgt. Lucas ordered him to the ground. (Id.) Defendant would not comply with the commands to get on the ground and began to reach into his front right pants pocket, at which time Sgt. Lucas discharged his Taser striking Defendant in the chest. (Id.) Defendant went to the ground and was then handcuffed by Corporal Brightwell, who showed up to back up Sgt. Lucas. (Id.) Defendant was searched and officers found approximately 4.9 grams of marijuana in his right front pants pocket, two small baggies containing approximately 1.4 grams and .9 grams of marijuana in his right watch pocket, the keys to the vehicle he was attempting to enter in his left front pants pocket, and $480.00 in his left rear pants pocket. (Id.)

         The officers searched the car Defendant was attempting to enter and located a large clear plastic bag with approximately 40 grams of marijuana inside of the bag. (Id.) Officers also found two handguns in the vehicle, a Ruger .380 caliber pistol loaded with 7 rounds of ammunition, and a Glock, model 21 .45 caliber handgun loaded with 25 rounds of ammunition. (Id. at 4.) Officers also located an extended magazine for the Ruger pistol that contained 14 rounds of ammunition. (Id.) Based on this incident, Defendant was charged with resisting arrest, possession of marijuana with intent to distribute, and unlawful carrying of a pistol in violation of South Carolina state law. (Id.) On January 17, 2013, and in connection with the above referenced arrest on August 25, 2012, Defendant pled guilty to the charges in Orangeburg County General Sessions Court. (Id.)

         After the original indictment against Defendant and Troy Whaley was returned in October of 2012, DEA agents applied for and received authorization from United States Magistrate Judge Paige Jones Gossett to search the homes of both Whaley brothers. (Id.) Magistrate Judge Gossett signed the warrants authorizing the search of the Whaley brothers' homes on February 8, 2013, and the agents executed the search warrants on February 12, 2013. (ECF Nos. 48, 49.)

         When agents conducted the search of Defendant and Kenyetta Guinyard's (who lived with Defendant) home, they found more evidence of Defendant's armed drug trafficking. (ECF No. 267 at 4.) In addition to locating over 8 pounds of marijuana, various pills, a kilogram wrapper that lab tested positive for cocaine, drug paraphernalia, and over $100, 000.00 cash, agents located multiple firearms, including a High Standard Double Nine .22 caliber revolver, a Marlin model 60 .22 caliber rifle, a Winchester model #94 .30 30 caliber rifle, a Masterpiece Arms ACP .45 caliber pistol, an Omega model #100 .22 caliber revolver, a Taurus model PT25 .25 auto (caliber) semiautomatic pistol, a Browning Mark 5, 12 gauge shotgun, and a Savage Stevens model 940E, 16 gauge shotgun. (Id.) During Kenyetta Guinyard's debriefings, she provided information that the money, drugs, and firearms found at her residence all belonged to Defendant, and that she witnessed numerous individuals, many of whom she did not know, meet with Defendant at her house for short periods of time. (Id. at 5.)

         On January 14, 2014, after extensive plea negotiations, Defendant pled guilty to Count Six of the Superseding Indictment pursuant to a written plea agreement. (ECF No. 256.) Under the agreement, Defendant was not contractually obligated to cooperate like his co-defendants and the Government agreed to dismiss the remaining counts of the Superseding Indictment in exchange for his plea to Count Six. (ECF Nos. 209, 256 at 22-26.) During the plea colloquy, the Government specifically noted that paragraph 7 of Defendant's plea agreement contained a waiver of his rights to both direct appeal and to appeal pursuant to § 2255. (ECF No. 256 at 17-25.) The court specifically questioned Defendant to ensure he understood the agreement. (Id. at 26.)

         Also during the plea colloquy, Defendant specifically stated that he understood that the Government considered him a career offender and that he would not be facing the statutory mandatory minimum sentence of 5 years, but rather he would face enhanced penalties as a result of his prior record. (Id. at 15-16.) Defendant acknowledged that his counsel had advised him of the fact that the Government considered him a career offender and he agreed to plead guilty knowing that fact. (Id. at 16.)

         During his plea colloquy, Defendant admitted that on February 12, 2013, he possessed numerous firearms in connection with a drug trafficking offense, that offense being conspiracy to distribute cocaine and marijuana. (ECF No. 256 at 16.) As noted in the Presentence Investigation Report (“PSR”), on February 12, 2013 agents located eight firearms, various rounds of ammunition, approximately 5 pounds of marijuana, and over ...


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