United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge
pending and ready for resolution is the motion to vacate
sentence filed by Petitioner Gabriel Vashon Seay. (ECF No.
41). The Court ruled on two of the issues identified in the
motion to vacate previously, (ECF No. 69, at 89-91), and the
remaining issue is whether Petitioner received ineffective
assistance of counsel when counsel advised Petitioner that
the motion to suppress was unlikely to succeed. For the
following reasons, the motion to vacate will be denied.
February 12, 2014, law enforcement officers stopped
Petitioner for failing to use his left turn signal when he
pulled out of a gas station. (ECF No. 69, at 6). During the
stop, Petitioner informed the officers that he did not have a
valid license, and the officers found an outstanding warrant
for Petitioner from Dougherty County, Georgia. (ECF No. 28-1,
at 1). Officers arrested petitioner for the traffic violation
and transported Petitioner to the police station to determine
whether extradition was pending on the outstanding warrant.
(ECF No. 55-2, at 5). After bringing Petitioner to the police
station and before transporting him to the Department of
Corrections, officers searched Petitioner and found 26.95
grams of cocaine base on his person. (ECF No. 28-1, at 1).
enforcement officers then went to Petitioner's apartment
building. The officers took Petitioner's keys
and key fob from him during the arrest and may have used the
fob to enter his apartment building. (ECF Nos. 21; 55, at 4;
55-2, at 5).
unit was brought onto the floor where Petitioner's
apartment was located, it sniffed the door, and alerted to
the presence of drugs. (ECF No. 55-2, at 5-6). Officers
subsequently obtained a warrant and searched Petitioner's
residence. In addition to a pistol, cash, a scale, and other
items suggestive of drug trafficking, they found:
“87.35 grams cocaine base; 452.36 grams cocaine HCl;
331.9 grams of 3, 4-Methylenedioxymethcathinone (Methylene),
a Schedule I controlled substance; 32.96 grams heroin; and
31.74 grams marijuana.” (ECF No. 28-1, at 1).
April 1, 2014, Petitioner was charged in a criminal complaint
with possession with intent to distribute controlled
substances. (ECF No. 1). On October 29, 2014,
Petitioner's counsel moved to suppress the evidence found
from the initial stop and the subsequent search. (ECF No.
21). On January 20, 2015, Petitioner pled guilty to an
Information charging possession with intent to distribute 28
grams or more of cocaine base in violation of 21 U.S.C.
§ 841 and one count of possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924. (ECF No. 26). On March 30, Petitioner was
sentenced to 144 months of imprisonment. (ECF No. 38).
being charged and pleading guilty, Petitioner discussed his
case and the motion to suppress with his counsel on multiple
occasions. Counsel showed Petitioner the discovery and his
independent research about the stop. Counsel advised
Petitioner to take a plea offer and told Petitioner that the
motion to suppress was unlikely to succeed. (ECF No. 69, at
14, 33-34, 51-58, 63-65).
November 3, 2015, Petitioner filed a motion to vacate
sentence pursuant to 28 U.S.C. § 2255 asserting
ineffective assistance of counsel. (ECF No. 41). Petitioner
claimed his counsel was ineffective for failing to file an
appeal when requested to do so, for failing to investigate
the initial stop and search,  and for coercing Petitioner into
accepting a plea. The Government responded to the initial
motion to vacate on March 4, 2016. In a supplement to his
motion to vacate filed on July 19, Petitioner pointed out
that in Florida v. Jardines, 569 U.S. 1 (2013), the
Supreme Court of the United States held that the use of a
drug-sniffing dog on a defendant's porch was a search.
Petitioner also claimed that “Jardines has
been extended to the hallway outside an apartment's
door” by the United States Court of Appeals for the
Seventh Circuit. (ECF No. 55, at 5).
September 2, 2016, an evidentiary hearing was held to
determine the merits of the motion to vacate. At the hearing,
the court rejected the ineffective assistance of counsel
claim as it related to a failure to file a requested appeal,
concluding that Petitioner had not met his burden to show
that he had asked his attorney to challenge his sentence. The
court also rejected the ineffective assistance claim as it
related to the allegation that Petitioner was coerced into
taking the plea. The court reserved ruling on whether
Petitioner had shown ineffective representation by counsel
based on his advice as to the wisdom of litigating the
suppression issue, as opposed to taking the plea offer. (ECF
No. 69, at 89-91). In a follow-up telephone conference, the
parties were ordered to brief whether counsel was ineffective
for advising Petitioner that the motion to suppress was
unlikely to succeed.
Standard of Review
prevail on a claim of ineffective assistance of counsel, a
petitioner needs first to show that “counsel's
efforts were objectively unreasonable when measured against
prevailing professional norms.” Frazer v. South
Carolina, 430 F.3d 696, 703 (4th Cir. 2005).
“Where, as here, a [petitioner] is represented by
counsel during the plea process and enters his plea upon the
advice of counsel, the voluntariness of the plea depends on
whether counsel's advice ‘was within the range of
competence demanded of attorneys in criminal
cases.'” Hill v. Lockhart, 474 U.S. 52, 56
(1985) (quoting McMann v. Richardson, 397 U.S. 759,
771 (1970)). In evaluating objective unreasonableness,
“a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance[.]” Strickland
v. Washington, 466 U.S. 668, 689 (1984).
addition, a petitioner must show prejudice meaning that
“there is a reasonable probability that, but for
counsel's unprofessional errors, the results of the
proceeding would have been different.”
Strickland, 466 U.S. at 694. For a guilty plea, this
requires showing that with proper legal counsel, a petitioner
“would not have pleaded guilty and would have insisted
on going to trial.” Hill, 474 U.S. at 59.
motion to vacate pursuant to 28 U.S.C. § 2255 based on
ineffective assistance of counsel, “[t]he
challenger's burden is to show ‘that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment.'” Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at
687). “The question is whether an attorney's
representation amounted to incompetence under
‘prevailing professional norms, ' not whether it
deviated from best practices or most common custom.”
Harrington, 562 U.S. at 105 (Strickland, 466 U.S. at
190). In other words, “[f]or counsel's performance
to be constitutionally ineffective, it must have been
completely unreasonable, not merely wrong.” Boyd v.
Ward, 179 F.3d 904, 914 (10th Cir. 1999).
ineffective assistance of counsel claim is based on
counsel's advice to Petitioner that the motion to
suppress was unlikely to succeed. The advice implicates two
different issues of Fourth Amendment jurisprudence.
Petitioner first argues that his initial stop was pretextual.
(ECF No. 41, at 5-8). As will be discussed, regardless of
whether the initial stop was pretextual, ...