United States District Court, N.D. Alabama, Southern Division
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 ...