Neal v. United States
| Docket Number | 3:22-CV-715 DRL,3:21-CR-62 DRL |
| Decision Date | 22 August 2023 |
| Parties | ANDRE NEAL, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Indiana |
Daimon R. Leichty, Judge, United States District Court.
Andre Neal filed a pro se petition to vacate his sentence under 28 U.S.C. § 2255. He says his attorney provided ineffective assistance by not filing a motion to suppress evidence from the traffic stop leading his arrest or conducting adequate research and investigation. The court denies the petition.
On July 13, 2021, the government charged Mr. Neal with interstate travel in aid of racketeering under 18 U.S.C. § 1952(a)(3). An information and signed plea agreement were filed the same day. In the plea agreement, Mr. Neal admitted to the offense, acknowledged the statutory range of his offense, and agreed to waive his right to appeal and to contest his conviction and sentence, except on the basis of ineffective assistance of counsel. On August 10, he pleaded guilty, and the court accepted his plea. On November 19, the court sentenced him to 60 months in prison. No direct appeal followed.
In extraordinary situations, the court may vacate, set aside, or correct a prisoner's sentence. 28 U.S.C. § 2255(a); Hays v. United States, 397 F.3d 564, 566-67 (7th Cir. 2005). The writ of habeas corpus is secured by the United States Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const., Art. I, § 9, cl. 2. Historically, criminal defendants subject to a final conviction were entitled to habeas relief only if the court that rendered the judgment lacked jurisdiction. Ex parte Watkins, 28 U.S. 193, 202 (1830). The writ has since been expanded to provide prisoners relief from various violations of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2255(a); Danforth v. Minnesota, 552 U.S. 264, 272 (2008); Estelle v. McGuire, 502 U.S. 62, 68 (1991). This writ is not a substitute for direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir. 1995).
When reviewing a § 2255 petition, the court examines the petition and the entire record. The court will hold an evidentiary hearing when the petitioner alleges facts that if proven, would entitle him to relief. Torres-Chavez v United States, 828 F.3d 582, 586 (7th Cir. 2016); see also 28 U.S.C. § 2255(b). Allegations that prove merely “vague, conclusory, or palpably incredible” rather than detailed and specific won't suffice. Machibroda v. United States, 368 U.S. 487 495 (1962). Likewise, when the petition and records conclusively show the petitioner isn't entitled to relief, the court needn't hold an evidentiary hearing. Boulb v. United States, 818 F.3d 334, 339 (7th Cir. 2016). That is the case here.
Mr Neal argues his trial counsel was constitutionally ineffective. The Sixth Amendment to the United States Constitution guarantees a defendant the right to counsel-including the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To show a violation of this right, a petitioner must establish that (1) his counsel's performance was deficient, and (2) the deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). “A defendant's failure to satisfy either prong is fatal to his claim.” Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993); see also Strickland, 466 U.S. at 697; Hutchings v. United States, 618 F.3d 693, 697 (7th Cir. 2010). This same two-part test applies to “challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985).
In the guilty plea context, a modified version of the Strickland standard applies. United States v. Smith, 989 F.3d 575, 581 (7th Cir. 2021). To assess counsel's effectiveness at the plea stage, the performance prong remains largely unchanged: the petitioner “must allege that he entered the plea agreement based on advice of counsel that fell below constitutional standards.” Hurlow v. United States, 726 F.3d 958, 966-67 (7th Cir. 2013). On the prejudice prong, however, the petitioner must show “that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Smith, 989 F.3d at 581; United States v. Cieslowski, 410 F.3d 353, 359 (7th Cir. 2005).
Mr. Neal contends that his counsel performed deficiently by not filing a motion to suppress evidence arising out of the traffic stop that led to his arrest. A petitioner meets his burden on the performance prong when his counsel's representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Courts “presume that counsel [was] effective, and a defendant bears a heavy burden in making out a winning claim based on ineffective assistance of counsel.” United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002). An attorney's representation “need not be perfect, indeed not even very good, to be constitutionally adequate.” Delatorre v. United States, 847 F.3d 837, 845 (7th Cir. 2017) (quotation omitted).
When a petitioner alleges that counsel was ineffective for failing to move to suppress evidence, the law requires him to “prove the motion was meritorious,” Long v. United States, 847 F.3d 916, 920 (7th Cir. 2017) (quoting Cieslowski, 410 F.3d at 360), else “counsel cannot have been ineffective for failing to pursue what . . . would have been a meritless suppression motion,” United States v. Stewart, 388 F.3d 1079, 1085 (7th Cir. 2004); see also Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (); Gentry v. Sevier, 597 F.3d 838, 851-52 (7th Cir. 2010) (same).
Mr. Neal offers no cogent argument why his attorney was deficient for not pursuing a motion to suppress at the time. Mr. Neal points to his co-defendant (Marilyn Garcia) who filed a successful motion to suppress evidence from the traffic stop, leading eventually to the indictment's dismissal. Ms. Garcia was driving the car while Mr. Neal was a passenger. Mr. Neal argues that because her motion to suppress was successful, so too would have been his.
The Fourth Amendment protects against the government's unreasonable intrusion into a person's house, papers, effects, or his very person. Florida v. Jardines, 569 U.S. 1, 5 (2013); Katz v. United States, 389 U.S. 347, 350-51 (1967). Unless an exception applies, warrantless searches are unreasonable under the Fourth Amendment. Arizona v. Gant, 556 U.S. 332, 338 (2009). A law enforcement officer may search a vehicle without a warrant if there is probable cause, United States v. Kizart, 967 F.3d 693, 695 (7th Cir. 2020), which exists “if, given the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place,” Smith, 989 F.3d at 581-82 (quoting United States v. Eymann, 962 F.3d 273, 286 (7th Cir. 2020).
Mr. Neal was caught in a car with more than $100,000 currency and more than one kilogram of cocaine. Sergeant Kenneth Williams, a fifteen-year interdiction veteran with the Hobart Police Department, conducted the traffic stop. His police report and subsequent investigatory reports from the traffic stop indicate that he stopped the vehicle because it was going five miles over the speed limit and had crossed the white fog line, and that he initiated a search because he smelled a faint odor of marijuana when approaching the car. “A police officer who smells marijuana coming from a car has probable cause to search that car.” United States v. Franklin, 547 F.3d 726, 733 (7th Cir. 2008). The search “lawfully extends to all parts of the vehicle in which contraband or evidence could be concealed, including closed compartments and trunks.” United States v. Patterson, 65 F.3d 68, 70 (7th Cir. 1995).
Just on its face, it would not be obvious to counsel that the sergeant lacked probable cause for his search if he smelled marijuana. As it turned out in Ms. Garcia's case, the court determined that the totality of the record established that law enforcement lacked probable cause to search the vehicle and measurably prolonged the traffic stop beyond its mission to issue a mere warning by conducting a canine free air sniff. Though Mr. Neal could have pursued the same Fourth Amendment argument, given he was in the same car and subject to the same search, this does not end the inquiry. A Kimmelman, 477 U.S. at 382. The court must analyze whether counsel's performance fell outside the range of professionally competent assistance “from counsel's perspective at the time of the alleged error and in light of all the circumstances” Id. at 381.
Ms Garcia was indicted on the same charge as Mr. Neal on September 8, 2021. This was about one month after Mr. Neal had already pleaded guilty to an information. The court granted Ms. Garcia's motion to suppress evidence from the traffic stop on June 17, 2022-long after Mr. Neal was sentenced on November 19, 2021. Looking at the evidence available to counsel at the time, without the benefit...
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