The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Before the court is defendant Troy E. King's "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence," filed August 24, 2009. The government has filed an opposition, to which movant has replied. Having read and considered the parties' respective written submissions, and having reviewed the record of the proceedings, the court will recommend that King's motion be denied.
Having reviewed the record, the court adopt's the government's summary of the facts: On November 1, 2002, an FBI undercover confidential informant ("CI") made a three ounce (85 gms.) purchase of crack-cocaine from defendant King outside the W. Sixth Street house where he resided. Prior to the buy, the CI made a recorded undercover call to King to arrange the transaction and King agreed to meet the CI outside King's residence. Prior to going to the meeting location, the CI was first searched, equipped with a wireless transmitter, and given the purchase money by the agents. The CI drove in his vehicle (a minivan) to meet King. As the surveillance agents watched, the CI parked across the street from King's house. Soon thereafter, King exited the front door of his residence, walked over to, and got into, the CI's minivan. Once outside the minivan, King gave the CI the three ounces of crack cocaine and the CI gave King $1,425.
After the exchange but while still in the CI's minivan, King proceeded to "school" the CI about the crack business, cautioning him not to spend his money on crazy things and to save his money so that if he gets arrested he has money to pay a lawyer. [The agents could hear the CI and King during the transaction, via the transmitting device worn by the CI. The audio recording of the conversation was inaudible in large part but some portions were understandable.] Shortly thereafter, a car full of state probation officers (in uniform) involved in a totally unrelated matter, happened to drive by, causing King to rush [out] of the CI's minivan and hurry back across the street to his residence.
Between November 1, 2002 and May of 2003, the CI was involved in making other undercover purchases of cocaine base in other investigations. Once those investigations were completed, a search warrant was obtained for the defendant's W. Sixth Street residence. On May 20, 2003, the search warrants were executed. At the Sixth Street residence the agents found, in the defendant's bedroom, a digital scale, two baggies containing cocaine base (23.1 gm and 8.6 gm) and a baggie containing powder cocaine (125.7 gm). In a rear bedroom the agents found two packages which they recognized to be cocaine "kilo" packaging containing cocaine residue.
Defendant King was not located when the search warrants were executed and remained a fugitive until he was found and arrested on August 4, 2003.
King was first indicted on April 9, 2003. A superseding indictment was returned on September 30, 2004, charging King with three offenses:
1. distributing cocaine base on November 1, 2002;
2. possessing cocaine base with intent to distribute on May 20, 2003; and
3. possessing cocaine with intent to distribute on May 20, 2003.
King's jury trial began on August 2, 2005 and ended on August 4, 2005 with a verdict finding him guilty on all three counts. The jury returned a special verdict finding that King had distributed more than 50 grams of cocaine base on November 1, 2002, and had possessed between 5 and 50 grams of cocaine base on May 20, 2003.
At King's sentencing hearing on December 12, 2005, the district court found that King was a career criminal under the Sentencing Guidelines and gave him 292 month concurrent sentences on each of the three counts, a $300 special assessment, and a 120-month term of supervised release.
Petitioner appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed the judgment on January 10, 2007. (Dkt. No. 97.) Petitioner filed a petition for a writ of certiorari, which was denied by the Supreme Court ...