United States v. Conner
| Decision Date | 02 December 2015 |
| Docket Number | Criminal Case No. 4:13-cr-20726,Civil Case No. 4:15-cv-10551 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. TRAVIS A. CONNER, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
HON. MARK A. GOLDSMITH
Before the Court is Defendant Travis A. Conner's motion to vacate sentence pursuant to 28 U.S.C. § 2255. Defendant argues that his counsel was ineffective for failing to file a motion to suppress certain evidence. Def. Mot. at 1 (Dkt. 14). Defendant also argues that his counsel was ineffective for failing to challenge certain details regarding his criminal history in the Presentence Investigation Report ("PSIR"). Id. at 7. Because Defendant's claims are without merit, the motion is denied.
In July of 2013, agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") obtained information that Defendant was possibly trafficking illegal drugs from 554 E. Harriet Street in Flint, Michigan. Gov't Resp. at 2 (Dkt. 18). ATF surveillance teams observed Defendant going to and from that residence. Id. An ATF agent informed Defendant's then- probation officer with the Michigan Department of Corrections ("MDOC"), Anthony Ford, of the ATF's investigation. Def. Mot. at 3.1
On July 11, 2013, Agent Ford obtained an arrest warrant for Defendant for unrelated probation violations. One violation was based on a police report filed on May 22, 2013 concerning a complaint by Lisia Williams, Defendant's girlfriend, that he had assaulted her. Gov't Resp. at 2-3. Another probation violation supporting the arrest warrant was Defendant's failure to provide a current address to his probation agent. Id. at 3.
On July 12, 2013, Agent Ford went with the ATF agents to 554 E. Harriet in order to arrest Defendant. Id. Ms. Williams answered the door and allowed the agents to enter, telling the agents that Defendant was sleeping upstairs. Id. Defendant was arrested without incident. Id. During the arrest, the agents noticed a shotgun, a handgun case, and multiple boxes of ammunition in plain view. Id. When questioned, Defendant admitted that there also was a loaded handgun under the mattress where he had been sleeping. Id.
Based on that evidence and Defendant's arrest history, a state district judge issued a search warrant for 554 E. Harriet Street. Gov't Resp., Ex. 1 at 15 (Dkt. 18-2). During the search, the ATF agents recovered the shotgun and the handgun. Gov't Resp. at 4. In addition to the weaponry, the agents discovered crack cocaine, a portable scale, a razor blade and glass cutting board, plastic bags, and numerous keys. Id.
Ms. Williams stated that the shotgun and handgun were hers and were legally purchased. Id. at 5. She also stated that the keys were to her then-vacant rental properties, and that Defendant was the only other person who had access to those properties. Id. at 4-5. Ms. Williams permitted the agents to search those two properties. Id. Inside one of the properties,agents discovered a duffle bag containing numerous weapons and ammunition. Id. Ms. Williams stated that the items were not previously there, and she denied knowledge of the duffle bag and its contents. Id.
A federal grand jury returned a two-count indictment against Defendant on October 2, 2013, charging him with possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1). Indictment at 1-2 (Dkt. 1). On November 20, 2013, Defendant entered into a Rule 11 plea agreement with the Government, pleading guilty to the drug count (Dkt. 10). As part of the agreement, the Government agreed to dismiss the firearm charge. Plea Agreement at 6. Defendant was sentenced to 52 months of imprisonment. Am. Judgment at 2 (Dkt. 13).
This motion is brought pursuant to 28 U.S.C. § 2255, which provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255.
To prevail on a § 2255 motion, "a petitioner must demonstrate the existence of an error of constitutional magnitude which has a substantial and injurious effect or influence on the guilty plea or the jury's verdict." Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005). Non-constitutional errors generally are outside the scope of § 2255 relief. See United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a § 2255 motion alleging non-constitutional error only by establishing "a fundamental defect which inherently results in acomplete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (internal quotation marks and citation omitted).
A court should grant a hearing to determine the issues and make findings of fact and conclusions of law on a § 2255 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). "'[N]o hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). "If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rules Governing § 2255 Cases, Rule 4(b).
Defendant raises two primary arguments in support of his motion: (i) counsel was ineffective for purportedly failing to investigate a potential motion to suppress evidence; and (ii) counsel was ineffective for failing to challenge Defendant's criminal history score in the Presentence Investigation Report. Both arguments lack merit.
Defendant first argues that his counsel was deficient for failing to investigate a potential motion to suppress the evidence discovered during the execution of the July 11, 2013 arrest warrant.2 Def. Mot. at 7. To satisfy the rigorous standard required to sustain such a claim,Defendant must show "(1) that counsel's performance was deficient in that it 'fell below an objective standard of reasonableness;' and (2) that the defendant was prejudiced as a result of his counsel's deficient performance." See United States v. Bailey, 547 F. App'x 756, 765 (6th Cir. 2013) (quoting Strickland v. Washington, 466 U.S. 668, 687-688 (1984)). The Court has "no reason . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697; see also Campbell v. United States, 364 F.3d 727, 730 (6th Cir. 2004) ().
Where the principal allegation of ineffectiveness is defense counsel's failure to competently litigate a Fourth Amendment claim, the defendant must also prove that his Fourth Amendment claim is meritorious. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Otherwise, there can be no prejudice from counsel's failure to move to suppress the evidence. Id. Because Defendant's Fourth Amendment claim is without merit, the Court holds that his ineffective assistance claim fails.
Defendant asserts that the ATF agents and Agent Ford "concocted a scheme" to obtain the arrest warrant, and that the only reason Agent Ford sought the arrest warrant was so that ATF agents could accompany Agent Ford into the 554 E. Harriet Street residence. Def. Mot. at 3. Defendant appears to invoke what is known as the "stalking horse" theory, although he does not identify it as such. See, e.g., United States v. Penson, 141 F. App'x 406, 410 (6th Cir. 2005). Under the "stalking horse" theory, a search by a probation or parole officer is illegal when it is a "subterfuge" for a criminal investigation by another law enforcement officer who lacks an independent basis for probable cause to conduct his or her own search. Id.
The premise of the theory is that the Fourth Amendment is violated based on the subjective intent of a law enforcement officer, regardless of whether the officer has an objectively legitimate basis for his conduct. In our case, Defendant contends that Agent Ford's subjective intent to assist ATF in accomplishing its law enforcement objective invalidates the arrest, regardless of whether Agent Ford had an objectively legitimate basis in law to effect an arrest.
However, Defendant cannot mount a challenge to conduct otherwise lawful under the Fourth Amendment on the basis of pretext. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that a traffic stop - that a reasonable officer could have effected based on objective evidence to support reasonable suspicion of a traffic violation - was not invalid, even if the officer was subjectively motivated to investigate other violations of the law for which he had no reasonable suspicion. Id. at 813. Where there are no countervailing constitutional concerns - such as an intentionally discriminatory application of the law based on racial animus - "[s]ubjective intentions play no role in ordinary, probable-cause Fourth...
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