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Sims v. United States

United States District Court, W.D. Kentucky, Louisville

September 17, 2018




         This matter is before the court for consideration of the Findings of Fact, Conclusions of Law, and Recommendation of the United States Magistrate Judge (the “Report”)(DN 486) and objections filed thereto (DN 490). For the reasons set forth herein, the objections of the petitioner, Toree Sims, will be rejected and the Report will be accepted and adopted in its entirety.

         I. Background For the sake of continuity, the court will refer to the United States Magistrate Judge's recitation of the factual and procedural history of the case contained in his Report and will recite verbatim from it here: [1]

         I. Background

         The court of appeals described the background in this matter as follows:

Detroit Drug Enforcement Agency (“DEA”) agents began investigating a group known as the Black Mafia Family in November 2003. In May 2004, a judge authorized the DEA to intercept phone calls to and from Terry Flenory, who was believed to be the head of the Black Mafia Family. Agents intercepted multiple calls concerning the sale and distribution of cocaine between Flenory and a man suspected to be Sims. On June 17, 2004, a driver for the organization was stopped by police on his way to Louisville. During a search of the vehicle, the police recovered ten kilograms of cocaine and a cell phone with a record of a recent call to “Qiana Toree.” The phone number listed for [“Qiana Toree”] was the same number used by the man believed to be Sims whose calls with Flenory had been intercepted by the DEA. The Detroit DEA notified the Louisville DEA about both the calls and the stop, and, as a result, Louisville DEA agents applied for court authority for a wiretap of the cell phone Sims used in the calls with Flenory. The June 28, 2004, affidavit for the wiretap detailed the Detroit investigation and how that investigation had intercepted Sims's conversations with Flenory. It also discussed how a confidential source, SOI-9, told DEA agents he had bought cocaine from Sims in late 2003. A judge in the Western District of Kentucky issued an order authorizing the tap, and on July 30, this same judge ordered the tap to be extended an additional thirty days. Numerous calls concerning the sale and distribution of cocaine were intercepted, leading to a search of the home of Karen Johnson, Sims's girlfriend, where scales and drug ledgers were found, along with Black Mafia insignia. A grand jury indicted Sims on violations of 21 U.S.C. §§ 846 and 841(a)(1). Sims moved to suppress the evidence gathered with the wiretap and to compel the government to provide him with an unredacted copy of a wiretap affidavit from a different case. Both motions were denied, and following a jury trial, Sims was convicted. Sims timely appealed the denial of these motions.

         United States v. Sims, 508 Fed.Appx. 452, 455 (6th Cir. 2012) (brackets added). Before trial, the United States filed a notice of its intent to seek an enhanced sentence for Sims under 21 U.S.C. § 841(b)(1) & 851 for his prior felony drug conviction. DN 307.

         At sentencing, the Court found that Sims's criminal history was a category III and his offense level was 40. Sent'g Tr. 43. The Court sentenced Sims to 360 months, at the lowest end of the then-applicable guideline range. Id.

         On appeal, Sims alleged:

four errors in the district court's denial of his motion to suppress the wiretap: (1) the June 28 affidavit in support of the wiretap made an insufficient showing of necessity; (2) inconsistencies in this affidavit merited an evidentiary hearing; (3) this affidavit failed to establish probable cause; and (4) the July 30 affidavit in support of the extension of the wiretap failed to establish probable cause.

         508 Fed.Appx. at 456.

         The Court of Appeals found no clear error in the district court's finding of necessity; denial of Sims's request for an evidentiary hearing; in finding that probable cause existed for the initial wiretap; and in finding that probable cause existed for extending the wiretap. Id. at 457 - 60. The Court of Appeals also found no abuse of discretion in the district court's refusal to enter an order compelling the government to provide an unredacted affidavit submitted in a different criminal matter. Id. at 460 - 61.

         II. Post-conviction procedural history

         On April 14, 2014, Sims filed this motion to vacate. DN 428. He has made numerous other filings since then. Notably, he successfully moved for a sentence reduction. See DN 466. On February 11, 2015, the Court reduced Sims's sentence from 360 months to 292 months. Id.

         In a May 13, 2015 memorandum opinion, the undersigned detailed the lengthy post-conviction procedural history in this case. DN 470 at 2767 - 68. The undersigned will not repeat that lengthy procedural history here. The following motions are ripe for review:

o DN 428: Sims's motion to vacate his conviction under 28 ...

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