Hamdan v. United States

• Court: U.S. District Court — Northern District of Illinois
• Writing for the Court: Judge Manish S. Shah
• Decision Date: 11 August 2020
• Docket Number: No. 19 CV 7105,19 CV 7105
• Citation: Hamdan v. United States, No. 19 CV 7105 (N.D. Ill. Aug 11, 2020)
• Parties: KHALID HAMDAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

KHALID HAMDAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 19 CV 7105

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

August 11, 2020

Judge Manish S. Shah

MEMORANDUM OPINION AND ORDER

In 2014, petitioner Khalid Hamdan ran a drug-manufacturing business out of storage units, where he mixed the synthetic cannabinoid XLR11, a schedule I controlled substance, with other substances to create the street drug "spice." When police searched the storage units, they found 20,000 packages of spice, a white powder containing XLR11, the tools to make spice (a tarp, a digital scale, and bottles of acetone, for example), and handwritten ledgers detailing inventory and sales. They also found more than $67,000 in cash in Hamdan's car. A jury convicted Hamdan of two counts of possession of a controlled substance with intent to distribute, and one count of conspiracy to manufacture a controlled substance under the Controlled Substances Act, 21 U.S.C. §§ 841(a), 846, and found that $67,900 in cash was forfeitable. I sentenced him to 120 months in prison to be followed by three years of supervised release. Hamdan appealed, and the court of appeals affirmed. United States v. Hamdan, 910 F.3d 351, 353 (7th Cir. 2018). Hamdan now moves to vacate his conviction and sentence under 28 U.S.C. § 2255, on the grounds that he received ineffective assistance of counsel at trial and on appeal. For the reasons discussed below, his petition is denied.

I. Legal Standards

To establish that he was deprived of constitutionally effective counsel, a petitioner must show that his attorney's performance was deficient and that, but for that deficient performance, there is a reasonable probability that he would have obtained a more favorable outcome. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). Representation need not be perfect or even good; an attorney's performance is constitutionally inadequate only if it is incompetent under prevailing professional norms. Delatorre v. United States, 847 F.3d 837, 845 (7th Cir. 2017). There is a "strong presumption" that counsel's representation was within the "wide range of reasonable professional assistance." Id. (quoting Harrington v. Richter, 562 U.S. 86, 104 (2011)).

When a petitioner raises ineffective assistance of appellate counsel, a court must examine the record to see whether the appellate attorney omitted an argument that was "significant and obvious." Stallings v. United States, 536 F.3d 624, 627 (7th Cir. 2008) (quoting Suggs v. United States, 513 F.3d 675, 678 (7th Cir. 2008)). If so, that claim must be compared to the claims counsel actually raised; if the ignored issue was "clearly stronger" than the ones raised, counsel's performance was deficient. Id. (quoting Lee v. Davis, 328 F.3d 896, 900-01 (7th Cir. 2003)). To demonstrate prejudice, a petitioner must show a reasonable probability that the omitted claim would have altered the outcome of the appeal. Id.

II. Analysis

Hamdan brings three claims of ineffective assistance of trial counsel, and two claims implicating appellate counsel. [1].¹ Hamdan says his trial counsel should have moved to suppress evidence recovered from one of the storage units, gave him bad advice that caused him to reject a lenient plea offer, and failed to argue (both at trial and on appeal) that the Controlled Substances Act is unconstitutionally vague. He also argues that his appellate counsel failed to challenge the sufficiency of the evidence.² The government filed a response, [16], and Hamdan did not file a reply.³

A. Failure to File a Suppression Motion

During a traffic stop in 2014, Hamdan consented to a police search of his car. Officers discovered a shoebox on the backseat containing more than $67,000 in cash and a business card for a storage company with unit and access code information on it. The police obtained a warrant to search the storage unit, and opened it using Hamdan's keys. Meanwhile, Fadel Yahia, a passenger in Hamdan's car when thepolice pulled it over, cooperated with the police. Yahia told them that there was a second storage unit, and consented to them searching it. Although Hamdan, not Yahia, kept the keys to that unit, Yahia had opened it in his name, and his address and phone number were on the rental agreement. In the second unit, officers found a clear plastic bag with a white powdery substance containing XLR11, a blue tarp, a digital scale, bottles of acetone, bottles of flavoring, boxes of packaging with different labels on the packages, and boxes that contained a green leafy substance. Trial Tr. 200, 422-23. Hamdan says his trial attorney was ineffective for failing to move to suppress the contents of the second storage unit based on Yahia's improperly obtained consent.⁴

When a petitioner alleges that counsel was ineffective for not moving to suppress evidence, he must "prove the motion was meritorious." Long v. United States, 847 F.3d 916, 920 (7th Cir. 2017) (quoting United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005)). Similarly, to demonstrate prejudice, he must show a reasonable likelihood that if counsel had moved to suppress the evidence, the motion "would have been granted." Edmond v. United States, 899 F.3d 446, 452 (7th Cir. 2018).

A warrantless search is permissible if a third party with actual or apparent authority over the searched area consents to the search. United States v. Sawyer, 929F.3d 497, 500 (7th Cir. 2019); United States v. Terry, 915 F.3d 1141, 1144-45 (7th Cir. 2019). When a person allows a third party to "exercise authority" over his property, he "assumes the risk" that the third party might permit access to others. Terry, 915 F.3d at 1145 (quoting United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000)). The search is valid if the third party has actual or apparent "common authority" over the property to be searched, meaning "mutual use" by people who have "joint access or control for most purposes." United States v. Wright, 838 F.3d 880, 884-85 (7th Cir. 2016) (quoting United States v. Matlock, 415 U.S. 164, 170-71 n.7 (1974)). Apparent authority exists when the facts available to the officers at the time allow a reasonable person to believe that the consenter had authority over the premises, even if he didn't have actual authority. Terry, 915 F.3d at 1145. Either actual or apparent authority is enough to support a search. Wright, 838 F.3d at 885.

Hamdan's counsel reasonably declined to move to suppress the evidence recovered at the second storage unit. Yahia had both actual and apparent authority to consent to that search. Yahia had opened the unit in his name—his name, address, phone number, and signature were on the rental agreement. Trial Tr. 354-55. Although Hamdan kept the keys to the unit, Yahia could technically access it at any time because, as the lessee, he could ask the storage company to open it for him. Yahia also used the unit in the course of working for Hamdan. He had been there with Hamdan "a lot," acted as a lookout while Hamdan worked, and had been inside the unit to drop off supplies and to help Hamdan mix the drugs. Trial Tr. 356, 358-61. By asking Yahia to open the storage unit in his name, Hamdan assumed the risk thatYahia could access it. Yahia had both joint access to and control over the unit, so he had actual authority to consent to the search. See United States v. Kim, 105 F.3d 1579, 1582-83 (9th Cir. 1997) (upholding search of storage unit based on third-party consent because, by having third party lease the unit in third party's name, defendant "assumed the risk" that the third party "could exercise his rights as lessee to have the storage company open the unit"); see also United States v. Trotter, 483 F.3d 694, 699 (10th Cir. 2007), vacated on other grounds, 552 U.S. 1090 (2008) (third party who opened storage unit had actual authority to consent to search based on his "position as lessee of the unit and his active participation in renting and using the facility"); United States v. Manafort, 323 F.Supp.3d 768, 778 (E.D. Va. 2018) (similar).

A reasonable defense attorney would also know that Yahia had apparent authority to consent. Yahia was in Hamdan's car when the police pulled it over, suggesting either a partnership or employment relationship. Yahia told the police about the second storage unit, demonstrating knowledge about the operation; led the officers to the unit; and consented to them searching it. Trial Tr. 197, 368. Based on those facts, the officers' belief in Yahia's authority to consent was reasonable. A suppression motion would fail based on Yahia's actual or apparent authority, so forgoing the motion was adequate performance. See Long, 847 F.3d at 921 (rejecting ineffectiveness claim based on failure to file suppression motion where petitioner "alleged no facts suggesting that the motion would have succeeded").

Because the consent was valid, I need not reach the government's arguments that a suppression motion would have been denied because, even if the consent wasinvalid, the inevitable-discovery doctrine would have applied to save the search. In the interest of completeness, I agree that inevitable discovery likely would have doomed a suppression motion. The inevitable-discovery doctrine applies when "the challenged evidence ultimately would have been discovered through lawful means." United States v. Eymann, 962 F.3d 273, 288 (7th Cir. 2020). The police had obtained a warrant to search the first storage unit, and between the results of that search and Yahia's cooperation, there was probable cause to obtain a warrant for the second unit. See United States v. Jones, 861 F.3d 638, 643-44 (7th Cir. 2017) (applying inevitable discovery to warrantless search where the government "had legal justification for a warrant").⁵

Hamdan's trial counsel reasonably decided not to file a suppression motion because such a motion would not have succeeded. Yahia had actual and apparent authority, and the...