United States District Court, D. Delaware
Dempsey. Pro se movant.
Weede. Assistant United States Attorney, United States
Department of Justice, Wilmington, Delaware. Attorney for
MEMORANDUM OPINION 
NOREIKA, UNITED STATES DISTRICT JUDGE.
Elvin Dempsey ("Movant") filed a. pro se
Motion to Vacate, Set Aside, or Correct Sentence Pursuant to
28 U.S.C. § 2255. (D.I. 119) The Government filed an
answer in opposition. (D.I. 130) For the reasons discussed,
the Court will deny Movant's § 2255 Motion without
holding an evidentiary hearing.
summarized by the Court of Appeals for the Third Circuit, the
facts leading to Movant's arrest and conviction are as
Wilmington Police Department ("WPD") Sergeant Liam
Sullivan told WPD Detectives Randolph Pfaff and Danny Silva
that he had received a tip from a confidential informant
("CI") that a man known as "Ocbar"
planned to drive a gold Nissan Altima with Pennsylvania
license plates to Philadelphia, Pennsylvania to pick up
heroin and store it in a house located at 941 Kirkwood Street
in Wilmington, Delaware ("the house"). Pfaff and
Silva knew Ocbar to be Dempsey.
Acting on the CI's tip, the WPD surveilled the house and
saw a gold Nissan Altima with Pennsylvania license plates
arrive. The driver, Eric Pittman, entered the house and
exited with [Movant] a few minutes later. The lone passenger,
Tracey Watson, stayed in the car. [Movant] returned to the
house, and Pittman and Watson drove away in the Altima.
The WPD stopped the Altima and searched Pittman and Watson,
recovering a small empty plastic bag stamped
"Hollywood" that they believed had contained
heroin. The WPD transported Pittman to the police station,
where he was interviewed by Sullivan, Pfaff, and Silva.1
Pittman told Sullivan that he had traveled to the house that
morning to buy heroin from Ocbar and that he saw "a
lot" of heroin at the house. Pfaff recalled Pittman also
saying that there were two men with handguns inside the
In part using information they had learned during
Pittman's interview, Pfaff and Silva obtained and
executed a search warrant for the house. Inside the house,
the WPD found 1, 268 small heat- sealed bags of heroin each
stamped "Hollywood," 1, 170 of which were found in
the bathroom ceiling packaged in a knit cap and tied with a
green rubber band; a .22 caliber Taurus handgun in the
closet, also wrapped in a knit cap and tied with a green
rubber band; a .32 caliber Colt revolver wrapped in a sock
behind the kitchen drywall; five rounds of .22 caliber
ammunition in a flower vase in the front room; and three men,
including [Movant]. [Movant] admitted to knowing that there
were heroin and firearms inside the house.
A federal grand jury returned a three-count Indictment
against [Movant] for: possession with intent to distribute
heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
(Count One); possession of a firearm during and in relation
to a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A) (Count Two); and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(Count Three). [Movant] moved to suppress the evidence seized
and the statements he made during and after the search,
contending that the search warrant affidavit omitted material
facts concerning the WPD's investigation into Ocbar, and
contained material misstatements of fact concerning what
Pittman said during his interview. The District Court denied
[Movant's] motion to suppress after a two-day evidentiary
hearing during which it heard testimony from Sullivan, Pfaff,
Silva, and Pittman. Pittman denied telling the WPD officers
that he had obtained heroin from Movant or that there was
heroin in the house, and disputed that the WPD officers had
recovered an empty plastic bag from his car and thereby
contradicting the statements the WPD officers attributed to
him. The District Court credited the WPD officers'
description of the events of May 8, 2007, including their
account of Pittman's interview and the recovery of a
plastic heroin bag from the Altima.
After a three-day jury trial, [Movant] was convicted of
Counts One and Three and acquitted of Count Two. The District
Court denied [Movant's] motion for a judgment of
acquittal on Count Three.
United States v. Dempsey, 629 Fed.Appx. 223, 225-26
(3d Cir. 2015). Movant was sentenced to 120 months of
imprisonment on both counts, to be followed by six years of
supervised release, with the sentences to run concurrently.
1, 2010, Movant filed a motion to vacate pursuant to 28
U.S.C. § 2255, asking the Court to provide him with an
opportunity to file a direct appeal of his sentence. (D.I.
88) In his sole ground for relief, Movant contended that his
trial counsel was ineffective for failing to file an appeal
after he instructed her to do so. The Honorable Gregory M.
Sleet appointed counsel to represent him and held an
evidentiary hearing. During the hearing, Judge Sleet found
that Movant had established a claim of ineffective assistance
of counsel. Thereafter, Judge Sleet granted Movant's
§ 2255 motion, vacated its June 2, 2009 judgment, and
reinstated the same judgment in order to permit Movant to
file a timely notice of appeal. (D.I. 110)
filed a timely notice of appeal, asserting three claims: (1)
the Court's credibility findings regarding the motion to
suppress were clearly erroneous; (2) the Court erred in
permitting police officers to testify during his criminal
proceeding and offer their opinion that Movant was not
truthful in his post-arrest interview; and (3) there was
insufficient evidence underlying Movant's §
922(g)(1) conviction on count three for possession of the
Taurus .22 caliber handgun. See United States v.
Dempsey,629 Fed.Appx. 223, 226-29 (3d Cir. 2015). On
November 2, 2015, the Third Circuit Court of Appeals ...