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Seay v. United States

United States District Court, D. Maryland

April 2, 2018



          DEBORAH K. CHASANOW United States District Judge

         Presently 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[1] 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.

         I. Background

         A. Factual Background

         On 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).

         Law enforcement officers then went to Petitioner's apartment building.[2] 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.[3] (ECF Nos. 21; 55, at 4; 55-2, at 5).

         A K-9 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).

         On 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).

         Between 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).

         B. Procedural Background

         On 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, [4] 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).

         On 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.

         II. Standard of Review

         To 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).

         In 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.

         In a 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).

         III. Analysis

         The 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, ...

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