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United States v. Gregg

United States District Court, E.D. Virginia, Richmond Division

July 7, 2015

UNITED STATES OF AMERICA,
v.
TONY ALLEN GREGG, Petitioner. Criminal Action No. 3:09-CR-180

MEMORANDUM OPINION

JAMES R. SPENCER, Senior District Judge.

THIS MATTER is before the Court on pro se Petitioner Tony Allen Gregg's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") (ECF No. 76). For the reasons set forth below, the § 2255 Motion is DENIED.

I. BACKGROUND

a. Factual Background [1]

In August 2008, Petitioner, Tony Allen Gregg ("Gregg" or "Petitioner"), agreed to cooperate with the Federal Bureau of Investigation ("FBI") after being caught for grand larceny, his 21st conviction. Defendant successfully cooperated for a period, but he then began selling drugs without the government's knowledge at least as early as January 2009.

On March 24, 2009, Detective Greg Russell of the Richmond Police Department detained Gregg outside the Deluxe Motel in relation to an investigation of an armed robbery. Suspecting drug activity, Detective Russell asked Gregg if he was carrying "anything... that shouldn't be there." Gregg admitted that he possessed drugs, and handed to Detective Russell a plastic bag containing about 3.57 grams of crack cocaine.

On May 12, 2009, the FBI and the Richmond Police Department were cooperating in an investigation of gang activity at the Deluxe Motel. During this investigation, an FBI informant approached Gregg, who was present at the motel, in order to make a "controlled drug buy." At the time, Gregg had $900 in cash on his person but was not carrying any drugs. Therefore, the intended transaction did not take place.

The next day, Gregg was arrested on federal drug charges. Defendant admitted to police in a Mirandized confession that he began selling crack cocaine in March 2009, and that he had planned to sell the drug at the Deluxe Motel on March 24, 2009. Gregg also stated that he sometimes sold several "eight balls" in a day. Based on this representation, FBI Special Agent Umphlett calculated that between March 24, 2009 and May 12, 2009, Gregg sold about 514.5 grams of crack cocaine. (Trial Tr. at 173:4-174:1.)

b. Procedural Background

On May 14, 2009, Gregg was arrested and charged via criminal complaint with possession with the intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1). (ECF Nos. 1, 2.) On June 2, 2009, the federal grand jury returned a one-count indictment charging Gregg with conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846. (ECF No. 8.)

A jury trial commenced on August 31, 2009. Gregg was represented by John Rockecharlie ("Rockecharlie").[2] The trial ended in a hung jury. ( See ECF No. 25.) On October 29, 2009, a second jury trial commenced. The jury found Gregg guilty as charged in the indictment. (ECF No. 40.) On January 27, 2010, this Court sentenced Gregg under 21 U.S.C. § 841(b)(1)(A)[3] to the mandatory term of life imprisonment required by the statute for a third conviction of a felony drug offense. (ECF No. 43.) On February 11, 2010, the Court held a hearing on resentencing pursuant to Fed. R. Crim. P. 35(a)[4], where the Court resentenced Gregg to 300 months' imprisonment, based on a mistake in the Government's information listing Gregg's prior convictions. ( See ECF Nos. 48, 59.)[5] Defendant and the Government appealed. (ECF Nos. 55, 62.)

On June 17, 2011, the Fourth Circuit affirmed Gregg's conviction, but vacated the 300 month sentence imposed by this Court, and remanded the case for the district court to reinstate the mandatory minimum life sentence. United States v. Gregg, 435 F.Appx. 209 (4th Cir. 2011).[6] On July 15, 2011, pursuant to the Fourth Circuit's mandate, this Court reinstated Gregg's life sentence. (ECF No. 74.) Thereafter, Gregg filed a writ of certiorari to the United States Supreme Court, which was denied on October 3, 2011. Gregg v. United States, 132 S.Ct. 327 (2011).

On October 3, 2012, Gregg filed the instant § 2255 Motion. In his § 2255 Motion, Gregg alleges two grounds for relief:

Ground One: Ineffective assistance of counsel for trial counsel's failure to clarify to the jury that Gregg could not be convicted of conspiracy if his only ...

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