652 F.3d 197 (2nd Cir. 2011), 07-3719-cr(L), United States v. Bailey

Docket Nº:07-3719-cr(L), 10-398-cr(CON).
Citation:652 F.3d 197
Opinion Judge:JOS
Party Name:UNITED STATES of America, Appellee, v. Chunon L. BAILEY, also known as Polo, Defendant-Appellant.
Attorney:Susan V. Tipograph (Thomas Eddy, on the brief), New York, NY, for Defendant-Appellant Chunon L. Bailey. Charles P. Kelly, Assistant United States Attorney (Peter A. Norling, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of N...
Judge Panel:Before: CABRANES, POOLER and RAGGI, Circuit Judges.
Case Date:July 06, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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652 F.3d 197 (2nd Cir. 2011)

UNITED STATES of America, Appellee,

v.

Chunon L. BAILEY, also known as Polo, Defendant-Appellant.

Nos. 07-3719-cr(L), 10-398-cr(CON).

United States Court of Appeals, Second Circuit.

July 6, 2011

Argued: Feb. 14, 2011.

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Susan V. Tipograph (Thomas Eddy, on the brief), New York, NY, for Defendant-Appellant Chunon L. Bailey.

Charles P. Kelly, Assistant United States Attorney (Peter A. Norling, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee United States of America.

Before: CABRANES, POOLER and RAGGI, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Chunon L. Bailey appeals from an August 23, 2007 judgment of conviction entered by the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge ), sentencing him principally to concurrent terms of 300 and 120 months of imprisonment, a consecutive term of 60 months of imprisonment, and five years of supervised release. Bailey was convicted, following a jury trial, of possession with intent to distribute at least five grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Bailey also appeals from a January 19, 2010 order by the District Court denying a motion to vacate his conviction pursuant to 28 U.S.C. § 2255 (" § 2255" ). United States v. Bailey, No. 06-cr-232, 2010 WL 277069 (E.D.N.Y. Jan. 19, 2010).1

We are asked to decide two questions: (1) whether the District Court erred in denying Bailey's motion to suppress evidence obtained during his detention because the search and seizure of Bailey's person and property were conducted in violation of his rights under the Fourth Amendment to the United States Constitution; and (2) whether the District Court erred in denying Bailey's § 2255 motion because he received constitutionally ineffective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution. We hold that Bailey's detention during the search of his residence was justified pursuant to

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Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). The District Court therefore did not err in denying his motion to suppress evidence obtained during that detention. We also hold that Bailey failed to demonstrate, as he must in order to prevail, that his counsel's alleged ineffective assistance was prejudicial. Strickland v. Washington, 466 U.S. 668, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The District Court therefore did not err in denying Bailey's § 2255 motion. The District Court's August 23, 2007 judgment of conviction and its January 19, 2010 order denying the § 2255 motion are affirmed.

BACKGROUND

The following facts reflect the findings entered by the District Court in the proceedings below, see United States v. Bailey, 468 F.Supp.2d 373, 376-78 (E.D.N.Y.2006) (motion to suppress); Bailey, 2010 WL 277069, at * 2-3 (§ 2255 motion), and, unless otherwise indicated, are not in dispute.

A.

At 8:45 p.m. on July 28, 2005, Detective Richard Sneider (" Sneider" ) of the Suffolk County Police Department (" SCPD" ) obtained a search warrant from the First District Court in the Town of Islip, New York for the " basement apartment of 103 Lake Drive" in Wyandanch, New York, on the basis of information from a confidential informant. The search warrant provided that the apartment was " believed to be occupied by an individual known as ‘ Polo’ , a heavy set black male with short hair," and identified a " chrome .380 handgun" as the principal target of the search. The search warrant also stated that the basement apartment at 103 Lake Drive is " located at the rear of the premises[.]" The search warrant did not specify that access to the basement door at the rear of the house at 103 Lake Drive is possible from both the basement apartment and from the house upstairs.

At approximately 9:56 p.m. that evening, Sneider and Detective Richard Gorbecki (" Gorbecki" ), an eighteen-year veteran of the SCPD assigned to the special operations team for narcotics enforcement, observed two men— later identified as Chunon L. Bailey (the defendant) and Bryant Middleton (" Middleton" )— exiting the gate at the top of the stairs that led down to the basement of 103 Lake Drive. Both Bailey and Middleton matched the description of " Polo" provided to Sneider by the confidential informant. They exited the yard of the house and entered a black Lexus parked in the driveway. Rather than confront Bailey and Middleton within view or earshot of the apartment, Sneider and Gorbecki watched as Bailey's car pulled out of the driveway and proceeded down the block.2 After the car traveled about a mile from the house, the officers pulled the car over in the parking lot of a fire station.3 Approximately five minutes elapsed between Bailey's exit from the basement apartment at 103 Lake Drive and the stop.

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After pulling over the vehicle, the detectives conducted a " pat-down" of the driver, Bailey, and passenger, Middleton, to check for hard objects that could be used as weapons. At Sneider's request, Bailey identified himself and produced a driver's licenses bearing a Bay Shore, New York address. Nevertheless, he told Sneider that he was coming from his house at " 103 Lake Drive" in Wyandanch, New York.

Middleton also identified himself and told Gorbecki that Bailey was driving him home in order to comply with a 10:00 p.m. curfew imposed as a condition of Middleton's parole. Middleton stated that Bailey's residence was 103 Lake Drive. At that point, the officers placed Bailey and Middleton in handcuffs and— in response to Bailey's inquiry as to why they were being " arrested" — informed both men that they were being detained, but not arrested, incident to the execution of a search warrant in the basement apartment of 103 Lake Drive. To that, Bailey responded, " I don't live there. Anything you find there ain't mine, and I'm not cooperating with your investigation."

Gorbecki drove Bailey's Lexus back to 103 Lake Drive, while Bailey and Middleton were transported back in a patrol car. Upon arrival, Bailey and Middleton were informed that, during the search, the SCPD " entry team" had discovered a gun and drugs in plain view in the apartment. Bailey and Middleton were placed under arrest and Bailey's house and car keys were seized incident to arrest. Later that evening, an SCPD officer discovered that one of the keys on Bailey's key ring opened the door of the basement apartment. In total, less than ten minutes elapsed between Bailey's stop and his formal arrest.

B.

The evidence obtained during the search of Bailey's home and his statements to detectives Sneider and Gorbecki provided the basis for the government's indictment. Bailey moved, through counsel, to suppress the physical evidence (including his house and car keys) and his statements to detectives Sneider and Gorbecki, on the theory that he was unlawfully detained and searched in violation of the Fourth Amendment.

After holding an evidentiary hearing, the District Court found Bailey's detention lawful under Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). See Bailey, 468 F.Supp.2d at 378-82. The District Court reasoned that the detectives' authority under Summers to detain Bailey incident to a search of the apartment was not strictly confined to the physical premises of the apartment so long as the detention occurred as soon as practicable after Bailey departed 103 Lake Drive. Id. at 382. Moreover, the District Court concluded, in the alternative, that Bailey's detention was lawful as an investigative detention supported by reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Id. at 383-85.

A nine-day trial with respect to Count One (possession with intent to distribute more than five grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)) and 841(b)(1)(B)(iii) and Count Three (possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i)) commenced on October 30, 2006. On November 8, 2006, the jury returned a guilty verdict with respect to both Counts.4

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On December 5, 2008, Bailey filed a motion pursuant to § 2255 seeking to vacate his conviction and order a new trial. Bailey's sole argument was that his trial counsel provided constitutionally ineffective assistance by failing to introduce evidence that access to the basement door at the rear of 103 Lake Drive could be gained from either the basement apartment or the house upstairs. Bailey asserted that when detectives Sneider and Gorbecki observed Bailey exit the gate at the back of the property on July 28, 2005, they could not have known whether he was leaving the basement apartment (for which they had a search warrant) or the house upstairs (for which they did not). Bailey argued that this distinction was determinative in the District Court's adjudication of the suppression motion because the government could not sustain his detention under...

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