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Dempsey v. United States

United States District Court, D. Delaware

September 24, 2018

ELVIN DEMPSEY, Movant/Defendant,
UNITED STATES OF AMERICA, Respondent/Plaintiff.

          Elvin Dempsey. Pro se movant.

          Shawn Weede. Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for respondent.




         Movant 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.


         As summarized by the Court of Appeals for the Third Circuit, the facts leading to Movant's arrest and conviction are as follows:

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 house.
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. (D.I. 80)

         On July 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)

         Movant 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 ...

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