341 F.3d 430 (6th Cir. 2003), 01-4118, Joshua v. DeWitt

Docket Nº:01-4118
Citation:341 F.3d 430
Party Name:Joshua v. DeWitt
Case Date:August 07, 2003
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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341 F.3d 430 (6th Cir. 2003)

Aaron JOSHUA, Petitioner-Appellant,

v.

Don DEWITT, Respondent-Appellee.

No. 01-4118.

United States Court of Appeals, Sixth Circuit

August 7, 2003

Argued: Jan. 28, 2003.

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David H. Bodiker (briefed), Siobhan R. Clovis (argued and briefed), Public Defender's Office, Columbus, OH, for Petitioner-Appellant.

M. Scott Criss (argued and briefed), Office of the Attorney General, Corrections Litigation Section, Columbus, OH, for Respondent-Appellee.

Before NELSON and CLAY, Circuit Judges; HAYNES, District Judge. [*]

HAYNES, D. J., delivered the opinion of the court. CLAY, J. (pp. 451-454), delivered a separate concurring opinion. DAVID A. NELSON, J. (pp. 455-461), delivered a separate dissenting opinion.

OPINION

HAYNES, District Judge.

Petitioner Aaron Joshua appeals the district court's order denying his petition for a writ of habeas corpus to set aside his conviction of possession of drugs by an Ohio court. Petitioner contends that he was denied effective assistance of trial and appellate counsel in that his trial and appellate counsel failed to challenge the arresting officer's reliance upon a police flyer containing information that Petitioner was a drug courier. Petitioner asserts that despite a clearly applicable Supreme Court precedent, United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), the state failed to offer any proof that the police officer who provided the information in the police flyer had reasonable suspicion to believe that Petitioner was involved in criminal activity. We REVERSE the district court's denial of the writ and grant the writ subject to the state's retrial of Petitioner.

BACKGROUND

A. Procedural History

On March 13, 1998, the Ross County, Ohio grand jury indicted Petitioner for one count of possession of crack cocaine in excess of 100 grams in violation of Ohio Revised Code (R.C.) § 2925.11. Count one included a separate specification under R.C. § 2941.1410 that charged Petitioner as a major drug offender. Petitioner's trial counsel filed a motion to suppress the fruits of the search conducted by state highway troopers, which yielded 100 grams of cocaine and the passenger's statement that implicated Petitioner's guilt. Petitioner's counsel asserted, in essence, that the length of the traffic stop alone violated Petitioner's Fourth Amendment rights under the United States Constitution. The state trial court denied the motion to suppress and Petitioner entered a plea of nolo

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contendere. The state trial court sentenced Petitioner to ten years in prison.

Petitioner filed a timely direct appeal with the Ohio Court of Appeals, asserting four claims of error, including that the state trial court erred in denying Petitioner's suppression motion because Petitioner's stop was unconstitutional by virtue of its duration, i.e., forty-two minutes. The Ohio Court of Appeals affirmed the state trial court's denial of Petitioner's motion to suppress and Petitioner's conviction.

Petitioner then filed an application with the Ohio Court of Appeals to reopen his direct appeal, arguing, in sum: (1) that the trial court erred because the state failed to establish the factual predicate for the dispatch that led to Petitioner's further detention and (2) that his counsel was ineffective for failing to pursue this deficiency in the state's case in the post-hearing briefs and on appeal. On January 11, 2000, the Ohio Court of Appeals denied Petitioner's application to reopen, but with a statement of its reasons. In a word, the Ohio Court of Appeals concluded that Petitioner's counsel "implicitly raised the issue of whether the dispatch justified the detention," J.A. at 104, but did not discuss Hensley. The Ohio Court of Appeals also ruled that independent grounds existed to justify Petitioner's detention that resulted in the discovery of the drugs. Petitioner then filed a timely appeal to the Ohio Supreme Court, contending that the Ohio Court of Appeals misconstrued or ignored Petitioner's claim that Petitioner's appellate counsel was ineffective. On May 3, 2000, the Ohio Supreme Court dismissed the appeal for want of a substantial constitutional question.

On July 5, 2000, Petitioner filed his petition for writ of habeas corpus in district court, asserting that both his trial and appellate counsel were ineffective for failing to challenge the factual basis of the police flyer that the arresting officer relied upon to conduct the investigative detention of Petitioner after his traffic stop. The district court denied the petition for habeas relief, but issued a certificate of appealability. In sum, the district court held that the Ohio Court of Appeals' application of clearly established federal law was not objectively unreasonable in finding that Petitioner was not denied effective assistance of trial counsel, because there were "alternate grounds justifying [P]etitioner's detention." (J.A. at 172). The district court further held that the Ohio Court of Appeals' finding that Petitioner was not denied effective assistance of appellate counsel was not objectively unreasonable, because "the issue of [P]etitioner's detention was squarely presented for both the trial and appellate courts to review." (J.A. at 173). The district court did not discuss Hensley.

B. Facts

The state suppression hearing transcript reflects that on March 2, 1998, at 11:07 a.m. 1, Petitioner was traveling southbound on State Route 104 in a rental car when Trooper James Hannon, with the Ohio Highway Patrol, executed a traffic stop for speeding. According to Trooper Hannon, his radar revealed that Petitioner was traveling sixty-seven miles per hour in a fifty-five mile per hour speed zone. Petitioner was traveling from Columbus to Portsmouth, Ohio, and was accompanied by Gabriella Chapman and her infant child. As Trooper Hannon approached the vehicle, he noticed that Petitioner and Chapman

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were acting nervous and suspicious. Trooper Hannon asked Petitioner for "his license, registration and proof of insurance." (J.A. at 150). Petitioner gave Trooper Hannon his driver's license and rental car papers. Prior to returning to his patrol car to conduct a status check of Petitioner's driver's license, Trooper Hannon questioned Petitioner about his travel plans. Trooper Hannon's suspicion increased when Petitioner described his route between Columbus and Portsmouth, because, according to Trooper Hannon, the route described by Petitioner "didn't make any sense what so ever." (J.A. at 151).

At 11:10 a.m., Trooper Hannon returned to his patrol car to run a status check on Petitioner's driver's license and to determine if there were any outstanding warrants against Petitioner. A dispatcher informed Trooper Hannon that Petitioner did not have any outstanding warrants. Another Trooper, Terrell Barnes, overheard the exchange between the dispatcher and Trooper Hannon, and directed the dispatcher's attention to an entry in the station's "Read and Sign" book. (J.A. at 145).

This "Read & Sign" book contains police intelligence information. As to Petitioner, the "Read and Sign" book reflected an entry from a Columbus Police Department report that Petitioner was a known drug courier who transported illegal narcotics between Columbus and Portsmouth. The dispatcher then relayed this information to Trooper Hannon and, as a result, Trooper Hannon advised the dispatcher to send a canine unit to the scene. The dispatcher attempted immediately to contact a canine unit in the area. In the interim, Trooper Hannon decided that Petitioner was not free to leave based upon the information from the "Read & Sign" book. When asked at the suppression hearing whether he could verify the information in the "Read & Sign" book, Trooper Barnes answered, "No. No." (J.A. at 148).

At 11:15 a.m., the dispatcher called the Columbus Police Department to determine if Petitioner had any outstanding warrants, and was informed that Petitioner did not. At 11:17 a.m., Trooper Barnes arrived at the scene and, at this time, Trooper Hannon observed Petitioner and Chapman being nervous and restless. After he was informed that Petitioner was a known drug courier, Trooper Hannon examined the rental car papers and discovered that the rental car papers did not match the vehicle that Petitioner occupied. At 11:20 a.m., Trooper Hannon asked the dispatcher to contact Enterprise rental car company to determine if Petitioner were in lawful possession of the rental vehicle. By 11:22 a.m., Trooper Hannon learned that Enterprise reported Petitioner to be in lawful possession of the vehicle, but Trooper Hannon decided to detain Petitioner until the canine unit arrived at the scene. At 11:25 a.m., the dispatcher reached the first available canine unit in the area.

At 11:45 a.m., Sergeant Turner arrived at the scene and assisted Trooper Hannon in placing stop sticks under Petitioner's vehicle to prevent Petitioner from driving away. At 11:49 a.m., forty-two minutes after the initial stop, Trooper Terry Mikesh, the canine unit handler, arrived at the scene. Trooper Mikesh testified that it took her twenty-four minutes to arrive at the scene due to traffic. While at the scene, the patrol canine alerted on the right seam of the vehicle's passenger door. Thereafter, the officers conducted a pat-down of Chapman, the passenger, for weapons and illegal narcotics and discovered a large quantity of crack cocaine concealed under her clothing. After the search, Chapman stated that she was carrying the drugs for Petitioner, and as a result, the officers placed Petitioner under

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arrest for possessing more than 100 grams of crack cocaine in...

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