Cole v. United States

          MEMORANDUM OPINION

          SHARON LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE

         This case is presently pending before the court on Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [hereinafter Motion to Vacate], filed by petitioner, Ronald Wayland Cole, Jr. (Doc. 1; crim. doc. 16.)^[1] For the reasons set forth below, the court finds that Cole's Motion to Vacate is due to be denied.

         I. STANDARD OF REVIEW

         Pursuant to § 2255 -

A prisoner in custody under sentence of a [district] court . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised [on] direct appeal and would, if condoned, result in a complete miscarriage of justice.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)(quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir.1988)(quoting United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sep.1981)))(internal quotations omitted). Cole has the burden of showing he is entitled to relief from his sentence. Barnes v. United States, 579 F.2d 364, 366 (5th Cir. 1978)(citing Coon v. United States, 441 F.2d 279 (5th Cir.), cert. denied, 404 U.S. 860 (1971)).^[2] He must prove “not merely that the errors [in the proceeding] created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting [the entire proceeding] with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982).

         II. BACKGROUND

         On February 2, 2006, the Government filed an Indictment against Cole, which charged Cole as follows:

COUNT ONE: [21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)]

         The Grand Jury charges that:

On or about the 4th day of July, 2005, in Jefferson County, within the Northern District of Alabama, the defendant,

RONALD WAYLAND COLE,

did knowingly, intentionally, and unlawfully possess with the intent to distribute 5 grams or more of a mixture and substance containing a detectable amount of cocaine base, more commonly known as “crack cocaine, ” a controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B).

COUNT TWO: [18 U.S.C. § 924(c)(1)(A)(i)]

The Grand Jury charges that:

On or about the 4th day of July, 2005, in Jefferson County, within the Northern District of Alabama, the defendant,

RONALD WAYLAND COLE,

knowingly used and carried a firearm, that is, a Charter Arms .44 caliber pistol, during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States, that is, the drug trafficking crime charged in Count One of this Indictment, in violation of Title 18, United States Code, Section 924(c)(1)(A)(i).

COUNT THREE: [18 U.S.C. § 922(g)(1)]

The Grand Jury charges that:

On or about the 4th day of July, 2005, in Jefferson County, within the Northern District of Alabama, the defendant,

RONALD WAYLAND COLE,

after having been convicted on June 29, 1998, in the Circuit Court of Jefferson County, Alabama, of the offenses of Attempted Rape, in case number CC98-0593, Abuse/Neglect, in case number CC98-0594, and Assault (Second Degree), in case number CC97-1141, each of the said offenses being a crime punishable by a term of imprisonment exceeding one year, did knowingly possess in and affecting commerce a firearm, that is, a Charter Arms .44 caliber pistol, in violation of Title 18, United States Code, Section 922(g)(1).

(Id.) Cole executed a Plea Agreement, (crim. doc. 8), and, on March 30, 2006, he entered a plea of guilty to all Counts of the Indictment. The Plea Agreement contained the following Factual Basis, which Cole admitted:

On July 4, 2005, Officer Koss of the Hueytown Police Department (HPD) was on patrol when he noticed a gray Nissan Maxima in the parking lot of a Shell gas station. The vehicle's headlights were on, and the car appeared to be running and unoccupied. Officer Koss continued his patrol. Approximately thirty minutes later, the officer again passed the Shell gas station and noticed that the vehicle had not moved. Officer Koss parked his patrol car and entered the gas station. Inside the gas station was the attendant, Ms. Marsha Gray, and an unknown black male, later identified as the defendant, Ronald Wayland Cole. Officer Koss asked Ms. Gray if she knew who the Maxima belonged to. She responded that two unknown individuals were in the car and that it had been there for about an hour. Officer Koss exited the station and approached the car. Through an open window, he saw a silver revolver in plain view on the front passenger seat. For public safety, the officer opened the car door and retrieved the gun, a Charter Arms Bulldog Model .44 caliber pistol. He then reentered the gas station and again asked Ms. Gray and the defendant if either of them had any information concerning the Nissan. The defendant admitted that the vehicle was his. Officer Koss asked the defendant if he had a permit for the gun, to which the defendant replied, "no." Officer Koss then asked the defendant if there were any other weapons in the car. The defendant answered, "no, you can look." At this point, Officer Riley of the HPD arrived at the scene. As the two officers and the defendant approached the car, Cole fled, running behind the Shell station into a wooded area. Unable to apprehend the defendant on foot, the officers radioed for state prison dogs. The dogs later found Cole, who was then taken into custody.

An inventory of the car revealed the following items: two (2) bags containing a green-leafy substance which appeared to be marijuana; thirty (30) individually wrapped packages of an off-white, rock-like substance; a small bag of a white powdery substance; and another bag containing an off-white, rock-like substance. The off-white, rock-like substance was tested confirming the presence of over five (5) grams of cocaine base, commonly known as "crack." The green-leafy substance and the white powdery substance were also tested revealing the presence of marijuana and cocaine hydrochloride, respectively.

Once detained, the defendant was brought to the Hueytown Police Department where he waived his rights and agreed to speak with police officers. In an oral statement, Cole admitted to possession of the drugs. He claimed that he was selling drugs because his criminal history prohibited him from obtaining legitimate employment.

At the time of his arrest, the defendant had previously been convicted on June 29, 1998, in the Circuit Court of Jefferson County, of the following felonies: Attempted Rape, case number CC98-0593, Abuse/Neglect, case number ...