United States District Court, D. Maryland
DEVONTAE WEST Registration No. 38538-007,
UNITED STATES OF AMERICA
DEBORAH K. CHASANOW, United States District Judge
pending and ready for resolution are the following motions
filed by Petitioner Devontae West (“Petitioner”):
(1) a motion to vacate sentence (ECF No. 80); (2) a motion
for an immediate evidentiary hearing (ECF No. 92); (3) a
motion for release pending resolution of the motion to vacate
(ECF No. 93); and (4) a motion for alternative judgment (ECF
No. 94). The issues have been briefed, and the court now
rules, no hearing being deemed necessary. Local Rule 105.6.
For the following reasons, Petitioner's motions will be
was arrested in the District of Columbia on May 22, 2013 in
connection with a series of bank robberies. During the
arrest, police handcuffed Petitioner, patted him down, and
confiscated his phone. Police transported Petitioner to the
police station where police booked Petitioner and placed him
into a bullpen. A detective interrogated Petitioner for the
first time at which point Petitioner asserted his Fifth
Amendment right to remain silent. After waiting for some
period of time, the detective returned with an agent of the
Federal Bureau of Investigations (“FBI”), and
they attempted to interrogate Petitioner. Petitioner again
asserted his Fifth Amendment right to remain silent. Police
returned Petitioner to the bullpen.
kept Petitioner's phone with them after the arrest, and
searched it hours after the arrest. (It is not clear where
Petitioner asserts it was searched - D.C. or Maryland.) On
the phone, police found images of Petitioner engaged in
sexual acts with a fifteen year-old. Based on these images,
Police obtained a search warrant for Petitioner's phone.
(ECF No. 80-3, at 3-8).
not included in the motion to vacate, it appears Petitioner
was transferred from the District of Columbia to state
authorities in Maryland within a couple of days. Eventually,
Maryland charges were dismissed in favor of federal
point after his arrest, Petitioner obtained counsel. During
the course of representation, Petitioner told his attorney
what happened in regard to the search of his phone, but his
counsel “refused to put in a motion to suppress
evidence from [the] cellphone[.]” (ECF No. 80-3, at 6).
Counsel did not investigate the search and instead told
Petitioner that even if the police had no warrant, they
“could search what they want[ed].” (Id.
October 16, 2013, Petitioner was indicted for one count
conspiracy to commit bank robbery in violation of 18 U.S.C.
§ 371, one count of bank robbery in violation of 18
U.S.C. § 2113(a), and one count of production of child
pornography in violation of 18 U.S.C. § 2251(a). (ECF
No. 1). On March 13, 2014, the Government filed a superseding
information as to Petitioner. (ECF No. 38). On March 26,
Petitioner pled guilty to one count of possession of child
pornography and one count of conspiracy to commit bank
robbery. (ECF No. 43). On June 16, Petitioner was sentenced
to a 144 month term of imprisonment - 120 months for
possession of child pornography and a consecutive term of
twenty-four months for conspiracy to commit bank robbery.
(ECF No. 70).
filed a motion to vacate sentence on April 27, 2015.
Petitioner argued that counsel was ineffective for failing to
move to suppress the pictures found on his phone and for not
raising a mistake of fact defense. (ECF No. 80). The
Government responded (ECF No. 87), and Petitioner replied
(ECF No. 88). Petitioner also filed a motion for immediate
grant of evidentiary hearing (ECF No. 92), a motion for
release pending the resolution of the § 2255 motion (ECF
No. 93), and a motion for an alternative judgment (ECF No.
Motion to Vacate
claims ineffective assistance of counsel on two grounds: (1)
that counsel was ineffective for failing to investigate a
possible mistake of fact defense; and that counsel was
ineffective for not moving to suppress the photos found from
the search of his cellphone. (ECF Nos. 80-2, 80-3). The
Government argues that counsel was not ineffective because he
successfully negotiated a plea agreement ...