United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE
the Court is the Petitioner's Motion Under 28 U.S.C.
§ 2255 (ECF No. 37) filed March 21, 2017, as amended and
supplemented (ECF No. 43) on April 26, 2017. The United
States filed its Response on January 11, 2018. (ECF No. 47).
Petitioner has not filed a reply. The matter is ready for
Report and Recommendation.
9, 2007, Defendant/Petitioner, Ernest Gayle Lail
(“Lail”), was named in an Indictment charging him
with a bank robbery by force, violence and intimidation, in
violation of 18 U.S.C. § 2113(a), that occurred in Fort
Smith, Western District of Arkansas, on January 24, 2007.
(ECF No. 1). Lail appeared for arraignment with his appointed
counsel on May 14, 2007, and he entered a not guilty plea to
the charge set forth in the Indictment. (ECF No. 3).
September 6, 2007, Lail appeared with counsel before the Hon.
Robert T. Dawson, for a change of plea hearing. A written
Plea Agreement (ECF No. 30) was presented to the Court, and
Lail pleaded guilty to the Indictment charging him with bank
robbery (ECF No. 29). The Court accepted the Plea Agreement
and ordered a Presentence Investigation Report
had also been indicted in the Eastern District of Arkansas
for a bank robbery that occurred on January 8, 2007 in North
Little Rock, Arkansas. (No. 2:07-cr-20061; ECF No. 1-6). Lail
consented to the transfer of that case to the Western
District of Arkansas, and the transfer was made on September
20, 2007. (No. 2:07-cr-20061; ECF No. 1). On October 15,
2007, Lail appeared with counsel before the Hon. Robert T.
Dawson, for a change of plea hearing in that case. A written
Plea Agreement (No. 2:07-cr-20061; ECF No. 4) was presented
to the Court, and Lail pleaded guilty to the Indictment
charging him with bank robbery (No. 2:07-cr-20061; ECF No.
3). The Court accepted the Plea Agreement and ordered a
Presentence Investigation Report (“PSR”).
initial PSR was prepared on January 31, 2008. (ECF No. 40, p.
On February 13, 2008, the Government advised that it had no
objections to the PSR. (ECF No. 40, p. 18). On February 18,
2008, counsel for Lail advised that Lail had two objections
to the PSR: first, he either wanted paragraphs 44 and 46 of
the PSR deleted, or alternatively, he wanted other paragraphs
of the Plea Agreement, specifically paragraphs 8, 10, 13, 14
and 18, included so as not to highlight paragraphs 44 and 46
on the potential sentence; and, second, he wanted paragraph
83, regarding criminal conduct not resulting in a criminal
conviction, deleted. (ECF No. 40, p. 18). Regarding
Lail's first objection, the Probation Officer included
the additional paragraphs of the Plea Agreement in a revised
PSR. (Id.). No. changes were made to the PSR in
response to Lail's second objection (ECF No. 40, p. 19),
and a revised PSR was presented to the Court on February 27,
2008 (ECF No. 40, p. 2).
final PSR reported a combined adjusted offense level of 28, a
three-level reduction for acceptance of responsibility,
resulting in a total offense level of 25. (ECF No. 40,
criminal history, the final PSR noted that in 1968 Lail was
convicted in the Western District of North Carolina for six
bank robberies committed in Seattle, Washington, Springfield,
Illinois, Las Vegas, Nevada, Fairfax, Virginia, and North
Carolina. Lail was sentenced to 30 years imprisonment for
those offenses, and he was paroled in 1978 after
approximately 10 years of incarceration. (ECF No. 40, ¶
54). Within two months of being paroled, Lail robbed four
savings and loan associations in Greensboro, North Carolina,
and he was convicted of those offenses on March 16, 1979. He
was sentenced to 20 years imprisonment on one count, and 10
years imprisonment on the other counts, all to run
concurrently. (ECF No. 40, ¶ 55). He escaped from a
half-way house in Miami Springs, Florida in 1985.
(Id.). While on escape status, Lail robbed another
savings and loan in Delray Beach, Florida on December 23,
1985. On April 10, 1986, Lail was convicted in the Middle
District of Florida on two counts of bank robbery, and he was
sentenced to 20 years imprisonment on each count, to run
concurrently. (ECF No. 40, ¶ 56). Lail was re-sentenced
for those convictions on January 20, 1987, and he was
sentenced to 25 years imprisonment on count one, plus 40
years on count two, to run consecutively. He was released on
supervised release on September 15, 2006. (Id.). As
reported in the PSR, Lail's supervised release was due to
expire on January 14, 2039. (Id.).
four months after his release on supervised release, Lail
committed the two bank robberies involved in the present
case. He also committed another bank robbery in Van Buren,
Arkansas on March 21, 2007, and he pleaded guilty to that
offense. (ECF No. 40, ¶ 57).
the age of some of Lail's prior convictions, he was
assessed with only seven criminal history points, placing him
in criminal history category IV. (ECF No. 40, ¶¶
58-61). The statutory maximum term of imprisonment for the
offenses of conviction is 20 years. (ECF No. 40, ¶ 76).
With a total offense level of 25, and criminal history
category IV, the advisory Guidelines range was reported to be
84 to 105 months. (ECF No. 40, ¶ 77).
appeared for sentencing in both cases on March 24, 2008. (ECF
No. 32). The Court sentenced Lail to 105 months imprisonment
on each offense, to run concurrently, three years supervised
release, no fine, payment of $21, 378.01 in restitution, and
$200.00 in special assessments. (ECF No. 32). Judgment was
entered by the Court in each case on March 25, 2008. (ECF No.
33). Lail did not pursue a direct appeal.
four years later, on January 11, 2012, Lail filed a
hand-written pro se motion alleging that the Bureau
of Prisons (“BOP”) and the Federal Correctional
Institution (“FCI”) at Estill, South Carolina
“is trying to cheat me out of eight (8) months and
three (3) days.” (ECF No. 34).
also requested other relief in the motion, including: an
order to see an FBI agent in Los Angeles, California; to take
a lie detector test; to file a “notarized Death Bed
disposition”; for appointment of counsel to assist him;
“[t]o file indictments against FCI Estill, SC Lts and
other staff” for “attempted 1st degree
premeditated murder, white slavery and hate crime, postal
theft, [and] grand larceny”; and, to be transferred to
a prison closer to his family. (Id.). Judge Dawson
entered an Order denying Lail's motion on January 30,
2012. (ECF No. 36). Judge Dawson stated:
“The determination of whether a defendant should be
given credit for time served under 18 U.S.C. § 3585(b)
is properly left to the Bureau of Prisons. (Citation
omitted.) Defendant must utilize the administrative
procedures within the Bureau of Prisons to review the (sic)
whether the Bureau of Prisons failed to properly credit him
with time served. Id. Defendant must also use these
administrative procedures to request any transfer. Once those
procedures are exhausted, he may seek judicial review by
filing a habeas petition under 28 ...