Mullis v. Hopkins, 4:99CV3221 (D. Neb. 3/7/2001)
| Decision Date | 07 March 2001 |
| Docket Number | 4:99CV3221. |
| Parties | EDWARD A. MULLIS, Petitioner, v. FRANK X. HOPKINS, Respondent. |
| Court | U.S. District Court — District of Nebraska |
This matter is before me on Edward A. Mullis' Petition for Writ of Habeas Corpus, filing 1. The respondent has filed an answer and the state court records, briefs, and opinions that he deems relevant to the claims raised by the petitioner, filing 31. After reviewing the materials submitted by the parties, I find that the petitioner is not entitled to federal habeas relief.
On August 31, 1996, the Merrick County Sheriff's Office received a complaint of a "suspicious blue van" parked in a field at 10th Avenue and 20th Street, in Central City, Nebraska. Upon responding to this call, Deputy Jimmy R. James found nothing suspicious at the reported address, but, while driving down 10th Avenue, he did observe a blue van parked at the Ace Motel. As he approached this vehicle, Deputy James saw the petitioner, who was sitting in the driver's seat, and questioned the petitioner regarding his recent whereabouts. During this discussion, Deputy James noticed a "strong smell of marijuana" coming from the petitioner and asked the petitioner if he had been smoking any illegal drugs. The petitioner responded in the affirmative and handed Deputy James a marijuana joint. Around this time, Officer Gary Wagner of the Central City Police Department arrived at the scene, and the petitioner indicated that he had more marijuana in his motel room. The officers requested permission to enter his room, and the petitioner allegedly consented, advising the officers where the marijuana could be found.2 The petitioner, who was by this time handcuffed, was then directed to sit on his bed while Deputy James entered the motel room.
Deputy James entered the room, found the marijuana, advised the petitioner that he was under arrest, and read him his Miranda rights. While in the room, the officers also noticed a lap top computer, a coffee maker, and at least one bag filled with rolls of coins. The officers questioned the petitioner about these items, as similar items had apparently been the subject of a recent burglary in the area. The sheriff arrived on the scene a short time thereafter and discovered several marijuana plants in the petitioner's bathroom, next to the shower area. The officers then secured the room until a search warrant could be obtained and transported the petitioner to the county jail.
The petitioner was charged with possession of less than one pound of marijuana, harvesting marijuana, and three counts of burglary. He waived his preliminary hearing, tendered a plea of not guilty as to all five counts at his November 18, 1996, arraignment, and "insisted" that his counsel request a suppression hearing. On the day of the scheduled hearing, the petitioner's appointed counsel, James A. Wagoner, encouraged the petitioner to abandon the suppression hearing, telling him that "`[t]here was little hope of succeeding in a challenge against the officer's assertions that consent was voluntarily given.'" Petition for Writ of Habeas Corpus at 5, ¶ 4, filing 1 [hereinafter Petition]. According to the petitioner, his counsel "`would not' attempt to challenge the legality of the arrest." Id. (emphasis in original). Counsel then advised the petitioner to accept the State's offer to drop the possession count and two burglary counts in exchange for the petitioner's guilty plea as to one count of attempted harvesting and one count of attempted burglary. After unsuccessfully urging his counsel to pursue suppression on the ground that the petitioner was illegally detained, the petitioner "reluctantly agreed" to plead to the reduced charges. Id. at 6, ¶ 9.
On December 2, 1996, the petitioner pleaded guilty to attempted harvesting of marijuana and attempted burglary before the Merrick County District Court in Central City, Nebraska. He was subsequently sentenced to two consecutive terms of three to five years in prison. Although the petitioner did not directly appeal his conviction or sentence, he did file a motion for post-conviction relief in Merrick County District Court on June 26, 1997.3 In this motion, the petitioner alleged that his counsel provided ineffective assistance by advising him to abandon the scheduled suppression hearing and to plead guilty to the reduced charges. Claiming that he would not have pleaded guilty but for his counsel's advice, the petitioner asserted that a suppression hearing would have revealed, inter alia, the following: (1) the police conducted an illegal investigative detention without a reasonable suspicion that the petitioner was engaged in criminal activity; (2) the police conducted an illegal detention as a pretextual ruse to facilitate an unconstitutional search for any possible evidence of crime; (3) a warrant was issued in the absence of probable cause; (4) the police executed a facially-invalid and unconstitutional general warrant to search the petitioner's possessions; (5) the police grossly exceeded the terms of the general warrant and indiscriminately seized property on a "mere hunch and whim" that the property could be connected to some crime; and (6) the police violated state law in serving the warrant at night and in failing to ensure that the inventory was properly witnessed.4 According to the petitioner, a favorable ruling on suppression would have resulted in insufficient evidence to support his conviction. Thus, the petitioner concluded, his counsel was constitutionally ineffective in failing to pursue and investigate readily-available facts that supported viable suppression claims.
In an order dated June 15, 1998, the Merrick County District Court summarily dismissed the petitioner's post-conviction motion without a hearing. On appeal to Nebraska Court of Appeals, the petitioner argued that the district court erred as follows: (1) in dismissing the petitioner's motion without first determining whether the petitioner would have obtained a favorable ruling on suppression; and (2) in concluding that the records and files in the case affirmatively established that the petitioner was entitled to no relief. In support of his appeal, the petitioner relied on a number of documents that apparently were not in the Bill of Exceptions, including police statements regarding his alleged detention and arrest, the warrant application, the search warrant, and the return and inventory list. The State of Nebraska, arguing that a bill of exceptions is the only vehicle for bringing evidence before an appellate court, moved to strike these documents, as well as all references to these documents, from both the record and the petitioner's brief. The State also moved for summary affirmance or summary dismissal, asserting, inter alia, that dismissal was appropriate for lack of jurisdiction. The Nebraska Court of Appeals sustained the State's motions to strike and for summary affirmance, but specifically denied its motion for summary dismissal.
The petitioner then filed a Petition for Further Review with the Nebraska Supreme Court. According to the petitioner, the district court clearly erred in dismissing the petitioner's post-conviction motion without an evidentiary hearing, and the court of appeals clearly erred in failing to remand his case to the district court for such a hearing. In an order dated June 30, 1999, the Nebraska Supreme Court overruled the petition for review.
The petitioner filed the present Petition for Writ of Habeas Corpus, filing 1, on August 5, 1999, alleging five grounds for relief. Four of these grounds are based on the petitioner's claim that he was denied effective assistance of counsel, as demonstrated by (1) counsel's urging petitioner to abandon the suppression motion on the day of the hearing; (2) counsel's urging petitioner to plead guilty to two charges in exchange for dismissal of three other charges; (3) counsel's "blatant refus[al]" to argue for suppression on the basis that the police illegally detained him; and (4) petitioner's "reluctant[] agree[ment]" to plead guilty to reduced charges. Petition at 5-6 (Ground One). Recognizing that his ineffective-assistance claim hinges on a meritorious suppression issue that his counsel should have pursued, the petitioner also alleges several Fourth Amendment violations and state law violations connected to his alleged detention, his arrest, the search of his motel room, and the seizure of his belongings. Petition at 6-7 (Grounds Two, Three, and Four). Finally, in his fifth ground for relief, the petitioner asserts that he was denied due process of law throughout his state post-conviction proceedings. Petition at 7-9.
Upon initial review, the magistrate judge5 concluded that the petitioner's claims were barred by the United States Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976), and recommended that the petition be denied. Filing 6. In a November 15, 1999, order, I adopted the recommendation, denied the petition, and entered judgment in favor of the respondent. Filing 8. The petitioner then filed a notice of appeal on December 9, 1999. Filing 9. In an order dated January 5, 2000, the Eighth Circuit Court of Appeals remanded the case for consideration in light of Tiedeman v. Benson, 122 F.3d 518 (8th Cir. 1997), with directions that, if granted, the certificate of appealability specify the issue or issues to be considered on appeal. Filing 11.
Concluding that the remand was "for all purposes and not limited to the matter of a certificate of appealability," I vacated my prior order adopting the magistrate judge's Report and Recommendation and referred the matter to the magistrate judge for further proceedings. Filing 12. The magistrate judge, after tentatively determining that the petitioner had exhausted his state remedies, appointed counsel to represent the petitioner and...
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