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United States v. Lail

United States District Court, W.D. Arkansas, Fort Smith Division

January 26, 2018

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
ERNEST GAYLE LAIL DEFENDANT/PETITIONER

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. Background

         On May 9, 2007, Defendant/Petitioner, Ernest Gayle[1] 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).

         On 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 (“PSR”).

         Lail 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”).

         An initial PSR was prepared on January 31, 2008. (ECF No. 40, p. 2)[2]. 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).

         The 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, ¶¶ 40-42).

         Concerning 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.).

         Approximately 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).

         Due to 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).

         Lail 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.

         Approximately 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). Lail 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 ...

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