OMNIBUS ORDER ADOPTING IN PART AND REJECTING IN PART REPORT & RECOMMENDATIONS
Acting pro se, Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. # 112). In his motion, Defendant argues he was denied effective assistance of counsel based on ten alleged errors by his pretrial and trial counsel: (1) failure to challenge the search and seizure of his vehicle, and his arrest; (2) failure to conduct a reasonable investigation prior to trial; (3) failure to adequately cross-examine the prosecution's witnesses, Officer Steve Dickerson, Deputy Jeff Ruber, and Detective Greg Aylor; (4) failure to object to prosecutorial misconduct, including references to Robinson's invocation of his right to remain silent, improper vouching for Government witnesses, improper cross-examination of Robinson and references to his testimony, and inappropriate testimonial statements made by the prosecutor; (5) failure to admit into evidence a receipt from Auto Zone; (6) failure to pursue admission of evidence of a dog bite over the trial judge's exclusion of such evidence; (7) failure to object to allegedly improperly admitted evidence; (8) deficient closing argument; (9) failure to object to instances of judicial misconduct; and (10) alleged collusion with the prosecution to obtain Robinson's conviction. Pursuant to the Court's local practice, the motion was referred to a Magistrate Judge for preparation of a report and recommendation.
The matter is presently before the Court primarily upon the Magistrate Judge's Report and Recommendation ("R&R) (Doc. # 159), wherein he recommends that Defendant's motion be denied. Defendant has filed Objections to the R&R (Doc. # 170) wherein he continues to argue that his trial counsel was ineffective. Defendant's objections are considered de novo. United States v. Evans, 581 F.3d 333, 338 n.4 (6th Cir. 2009) (a district court judge reviews a magistrate judge's factual findings for clear error and reviews his legal conclusions de novo).
The United States having filed no response to the Objections, and the time to do so having now expired, the R&R and Objections thereto are now ripe for the Court's review. Upon review, all of Defendant's Objections lack merit, except his objection to counsel's failure to challenge the search of his vehicle. Thus, Defendant's Objections will be overruled in part and sustained in part, and the R&R will be partially adopted as the Court's opinion.
This matter is also before the Court on the Report and Recommendation (R&R) of the United States Magistrate Judge (Doc. # 169) entered on February 26, 2013, recommending that Defendant's Motion to Amend Rule 41(g) Motion (Doc. # 137) be granted, and his Motion to Return Seized Property and Items, Pursuant to Rule 41 of the Federal Rules of Criminal Procedure (Doc. # 126) be denied. Defendant has filed Objections to the R&R (Doc. # 172). The United States having filed no response to the Objections, and the time to do so having now expired, the R&R and Objections thereto are now ripe for the Court's review. Upon review, the Court will overrule the Objections and adopt the R&R as the Court's opinion.
II. FACTUAL AND PROCEDURAL BACKGROUND
The following factual and procedural background is taken from the Sixth Circuit's opinion affirming Defendant's conviction:
On September 10, 2007, at about 2:00 a.m., the alarm at the Fifth Third Bank located near Erlanger, Kentucky was triggered. When Elsmere Police Officer Steve Dickerson arrived at the bank, he observed a person wearing dark clothing and white shoes and gloves run into a grassy field behind the bank. Dickerson pursued the suspect but lost contact in the darkness as the suspect reached the woods next to the field. Dickerson called for assistance from a canine unit. Boone County Sheriff Deputy Jeff Ruber responded with his police dog. After an hour of searching the woods and area around a nearby apartment complex, nothing had been turned up.
At about 3:47 a.m., Erlanger Police Officer Dave Lillich showed up with his German shepherd police dog, Sombie. Sombie discovered several bags of tools in the knee-high grass of the grassy field. Among the tools were a drill, screwdrivers, pliers, duct tape, wooden dowel rods (with hooks taped to the ends), hand-held grinder, extension cord, and a hydraulic "porta-power" tool.
At about 4:15 a.m., a resident of the neighboring apartment complex, Eugene Harris, advised the police that he had, from his balcony, observed a suspicious looking man in the parking lot. Harris said that when he asked the man what he was doing, he answered, "this is my car." He then got into and drove off in what Harris described as a large dark car-a Ford or a Continental. Acting on the tip, Officer Lillich and Deputy Ruber found a black Lincoln Continental parked near Harris's condominium. It was unoccupied. As Sombie searched around the area, he alerted at a fenced-in trash collection area. Lillich ordered anyone inside to come out. As soon as Sombie entered the fenced-in area, a man jumped out and took off running. With Sombie's help, the officers managed to apprehend the suspect, who turned out to be defendant John Robinson.
The officers searched the area where Robinson had been hiding and found dark clothing, white gym shoes, tan gloves, a flashlight and a ski mask. Inside the Lincoln, owned by Robinson's foster brother, the officers found mail bearing Robinson's name, road atlases and maps, a card bearing the name and number of a locksmith, driving directions to various Fifth Third Bank locations, a bank deposit bag containing seven $100 bills, dowel rods (with fish hooks) and bags (like those found in the grassy field) containing "porta-powers," extension cords, sledgehammers, bolt cutters, pry bar, long rods, hammers, black electrical tape, a stethoscope for tools, and a snake-type device.
Investigation at the bank revealed that the night deposit box lock had been drilled and the plastic or fiberglass covering of the box had been ground or drilled, creating white dust. Duct tape was also found at the night deposit box. After Robinson was arrested and advised of his rights, he declined to make a statement to the police.
Robinson was subsequently charged by indictment in the Eastern District of Kentucky with a single count of attempting to enter a bank with intent to commit a felony, in violation of 18 U.S.C. § 2113(a). Attorney Gary Sergent was appointed to represent Robinson. Robinson moved to suppress evidence found in the Lincoln. The motion was denied and the ruling has not been appealed. On February 7, 2008, the district court granted Robinson's motion to permit withdrawal of counsel, based on "professional differences." Attorney F. Dennis Alerding was appointed. On February 20, Robinson, acting pro se, and observing that Alerding seemed to be too busy to properly prepare for Robinson's upcoming trial date, requested the court consider appointing another attorney. The request was inserted in Robinson's pro se motion for a bill of particulars and discovery. The district court rejected the motions, noting that Robinson was represented by an experienced member of the federal public defender panel, and directed the Clerk to disregard any further pro se submissions by Robinson.
As trial commenced on March 3, Robinson did not renew his request for appointment of new counsel or otherwise express dissatisfaction with Alerding's representation. The jury trial lasted three days. After the prosecution presented proofs consistent with the above summary of the police officers' findings in the vicinity of the Fifth Third Bank on September 10, 2007, defendant Robinson testified, offering an innocent explanation for his presence and unusual behavior in Erlanger.
Robinson testified that he was a resident of Jeffersontown, Kentucky, just outside Louisville. He was the owner of a small trucking company and earned extra money by repairing others' trucks and by buying cars at auction, fixing them and reselling them. This explained his possession of numerous tools.
On the evening of September 9, 2007, Robinson explained, he received a call from a man whose semi-truck had broken down at a rest stop in northern Kentucky. He agreed to drive there for $50 and charged $50/hour to work on the truck. On the way to the rest stop in a black Lincoln, Robinson dropped off an acquaintance, Hector Gonzales, at an apartment complex in Erlanger (approximately 80 miles northeast of Jeffersontown), which happened to be near a Fifth Third Bank. Gonzales took bags of tools with him, saying he needed a couple of hours. Robinson proceeded to the rest stop, where he found the semitruck and repaired it.
He testified that he also assisted another motorist at the rest stop with her Toyota Celica. In fact, in the early morning hours of September 10, he sought out a nearby auto parts store (a 24-hour AutoZone store) to buy a replacement distributor cap. He produced a receipt showing that the purchase had been made at 1:37 a.m. Robinson believed it was about 3:00 a.m. when he returned to the rest stop and replaced the Toyota distributor cap.
He then returned to Erlanger to pick up Gonzales. As he approached the apartment complex, he noticed police in the adjacent field. Because Gonzales was not waiting where Robinson had dropped him off the previous evening, Robinson parked his car and walked around the parking lot to make himself visible. After a brief exchange with an apartment resident, who asked what he was doing, Robinson got back in his car and began to drive off. He parked again to secure the hood of the car when he realized it was unlatched. As he was about to re-enter the car, Robinson noticed a police officer approaching. Rather than risk a confrontation with the police, Robinson decided to hide behind a fence.
Robinson had an explanation for this rather unusual behavior, too. He testified that he had been pulled over by the police near Louisville at about 3:00 a.m. one morning a few weeks earlier. What began on that occasion as a routine traffic stop became something of a traumatic event. Robinson was ordered to get out of his car and get down on the ground. He was handcuffed and placed in a patrol car for a few minutes before the officers realized he was not the "John Robinson" who was wanted on a warrant for murder in Florida. It was because of this earlier case of mistaken identity that Robinson said he wanted to avoid another encounter with the police.
So, when the officers approached the fenced-in area where he was hiding, he decided to take off and run. He admitted this was "stupid." He ran for a couple of minutes before he was caught and arrested.
On cross-examination, Robinson admitted he had been previously convicted, in 1995, of money laundering, causing transportation of stolen vehicles, and failing to file timely tax returns. He had been sentenced to a prison term of 162 months for these offenses and was still subject to post-release supervision on September 10, 2007. He further acknowledged that by leaving the Western District of Kentucky and traveling to the rest stop in northern Kentucky without his supervising probation officer's express permission, he had violated a condition of his supervised release. Robinson explained that since the need to drive to northern Kentucky had come up unexpectedly on a Sunday evening, he planned to advise his probation officer the next day.
After about three hours of deliberation, the jury reached its verdict, finding defendant Robinson guilty as charged of attempted bank burglary. Shortly thereafter, Robinson's attorney, Dennis Alerding, was allowed to withdraw and new counsel, Derek Gordon, was appointed. On July 22, 2008, the district court sentenced Robinson to a 72-month term of imprisonment, followed by three years of supervised release.
Shortly after filing his notice of appeal, Robinson sought and obtained substitution of appointed counsel, replacing Gordon with David Mills.
III. ANALYSIS OF R&R ON DEFENDANT'S SECTION 2255 MOTION
To secure relief pursuant to 28 U.S.C. § 2255, the petitioner must show "a fundamental defect which inherently results in a complete miscarriage of justice." Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). A petitioner "must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect of influence on the . . . jury's verdict." Griffin, 330 F.3d at 736 (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Defendant alleges that his attorney provided ineffective assistance of counsel in a number of ways. Claims of ineffective assistance of counsel are governed by the Supreme Court's well-settled analysis in Strickland v. Washington, 466 U.S. 668 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. To prevail on an ineffective assistance of counsel claim, a petitioner must satisfy a two-part test. First, the petitioner must establish that his counsel's performance was deficient, which requires a showing that "counsel's representation fell below an objective standard of reasonableness." Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (quoting Strickland, 466 U.S. at 688). Second, the petitioner "must show prejudice by establishing there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.
This is a high burden to meet. As the Strickland Court stated, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. Reviewing courts are not to assess counsel's performance with the benefit of hindsight, but instead attempt to "reconstruct the circumstances of counsel's challenged conduct" and "evaluate the conduct from counsel's perspective at the time." Id. Because of the inherent difficulties in making this evaluation, the Supreme Court instructs reviewing courts to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. Notwithstanding this substantial degree of deference, "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case" to establish a claim of ineffective assistance of counsel. Id. at 693.
A. Counsel's Alleged Failure to Adequately Litigate Fourth Amendment Claims
1. The Search of Defendant's Vehicle
Following Defendant's arrest, Detective Greg Aylor of the Erlanger Police Department applied for a search warrant to search Defendant's vehicle. Aylor's Affidavit identified the vehicle as a black 1999 Lincoln Continental, and requested a warrant to search the vehicle for "any items related to burglary, or items consistent with past burglaries from banking institutions or other businesses including bank locations, routes to banks, maps and atlases, and other evidence of personal belongings related to John A. Robinson . . . ." (Doc. # 18-3 at 4).
The Aylor Affidavit then recited the following facts to support probable cause for the search:
Affiant states that on September 10, 2007 the Erlanger Police arrested John
A. Robinson after he attempted to break into a night deposit box at the 5/3 Bank in Erlanger, KY. Mr. Robinson was using a drill, a grinder and other advanced burglary techniques during this crime. Mr. Robinson fled the area and was captured by K9 after the incident. Mr. Robinson is suspected in 17 related bank burglaries. Based on all of the above, the Affiant requests that the search warrant be issued to search the above described vehicle, which is in the custody of the Erlanger Police . . . . (Id.). Based on the Aylor Affidavit, a Kenton County District Court judge issued the warrant.
The ensuing search of the Lincoln uncovered numerous pieces of incriminating evidence, including: mail bearing Robinson's name, road atlases and maps, a card bearing the name and number of a locksmith, driving directions to various Fifth Third Bank locations, a bank deposit bag containing seven $100 bills, dowel rods (with fish hooks) and bags (like those found in the grassy field behind the bank) containing "porta-powers," extension cords, sledgehammers, bolt cutters, pry bar, long rods, hammers, black electrical tape, a stethoscope for tools, and a snake-type device.
Defendant argues that his pre-trial attorney, Gary Sergent, was ineffective for failing to challenge the sufficiency of the warrant authorizing the search of his vehicle. Sergent pursued an alternative strategy, filing a motion to suppress evidence seized from closed containers within the Lincoln as outside the scope of the warrant. That motion was denied.
To succeed on his claim of ineffective assistance of counsel, Defendant must prove deficient performance and prejudice. To establish deficient performance, he must prove that his Fourth Amendment claim has merit. "Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison,477 U.S. 365, 375 (1986).
a. The Affidavit lacked a nexus between Defendant and the Lincoln
Defendant contends that his Fourth Amendment claim has merit because the Aylor Affidavit failed to establish any connection between the robbery and the Lincoln. In determining whether probable cause exists to support issuance of a search warrant, the issuing magistrate's task is "simply to make a practical common sense decision whether, given all the circumstances set forth in the affidavit before him,...there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Laughton, 409 F.3d 744, 747 (6th Cir. 2005) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). "There must, in other words, be a nexus between the place to be searched and the evidence sought." United States v. Gardiner, 463 F.3d 445, 470 (6th Cir. 2006) (internal citations omitted); see also, United States v. Williams, 544 F.3d 683 (6th Cir. 2008) (internal citation and quotation omitted). It is not enough for the search warrant affidavit to state that "the owner of property is suspected of crime." United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006).
This place-evidence nexus was completely absent from the Aylor Affidavit. The Affidavit did not tie Defendant to the Lincoln in any way, or explain the Lincoln's significance at all. It failed to describe where the Lincoln was found, who owned it, or why the police believed that the fruits or instrumentalities of crime would be found inside it. Given this dearth of information, the issuing magistrate could not even have inferred that evidence of the robbery might be found in the Lincoln. Cf. Williams, 544 F.3d at 688 (holding that issuing magistrates may sometimes "infer that a criminal suspect keeps the 'instrumentalities and fruits' of his crime in his residence"); Wayne R. LaFave, Search and Seizure § 3.7(d) at 381--84 (3d ed. 1996) (stating that in robbery cases, it is sometimes "proper [for the magistrate] to infer that the criminal would have the fruits of his crime in his residence, vehicle or place of business.") (internal citation and quotation omitted). Therefore, no probable cause existed to support the instant search warrant.
b. The good faith exception does not apply
The Government argues that the search is saved by the good faith exception of United States v. Leon, 468 U.S. 897 (1984). The good faith exception applies if evidence is "obtained in objectively reasonable reliance on a subsequently invalidated search warrant." United States v. Carpernter, 360 F.3d 591, 595 (6th Cir. 2004). The good faith inquiry is less demanding than probable cause. McPhearson, 469 F.3d at 526. It requires "examination of the affidavit for particularized facts that indicate veracity, reliability, and basis of knowledge and go beyond bare conclusions and suppositions." Id.
The Sixth Circuit has recognized four scenarios in which the good faith exception does not apply: (1) when the affidavit contains a known or reckless falsity; (2) when the magistrate who issued the warrant wholly abandoned his or her role; (3) when the affidavit lacks an indicia of probable cause such that reliance on it is objectively unreasonable; and (4) when the warrant is facially invalid such that it cannot reasonably be presumed valid. United States v. McPhearson, 469 F.3d 518, 525 (6th Cir.2006).
Here, the first, third, and fourth scenarios all apply to the Aylor Affidavit. The first scenario applies because the Affidavit contained known or reckless falsities. It stated that the police arrested Defendant after he attempted to break into a night deposit box at the 5/3 Bank in Erlanger, KY. Mr. Robinson was using a drill, a grinder and other advanced burglary techniques during this crime. Mr. Robinson fled the area and was captured by K9 after the incident. (Doc. # 18-3 at 4). The Affidavit thus clearly implies that Defendant was caught red-handed robbing the bank, that he was seen using certain tools, and that no questions existed regarding his identity.
This was, of course, not correct. Officer Steve Dickerson, the first officer to arrive at the bank, witnessed a black male (not identified as Defendant at the time) walking away from the bank. He did not see this suspect trying to break into the bank, or using any tools. He then lost track of the suspect after the suspect fled through a nearby field. It was not until two and a half hours later that police apprehended Defendant in a nearby apartment complex. The Affidavit completely omits this lengthy search for the suspect. In light of these facts, Aylor must have either known that his assertions were false and misleading, or acted with reckless disregard as to their truth.
The third and fourth scenarios apply because the Aylor Affidavit is so "bare bones" that it "preclude[s] application of the good faith exception." Id. at 526. As described above, the Affidavit failed to establish any nexus between the robbery and the Lincoln. This lack of a place-evidence nexus distinguishes the instant case from Sixth Circuit cases where a minimal place-evidence nexus justified application of the good faith exception. See, e.g., United States v. Frazier, 423 F.3d at 526, 536--37; Carpenter, 360 F.3d at 595--96; United States v. Van Shutters, 163 F.3d 331, 337--38 (6th Cir.1998). The officers' reliance on the search warrant was therefore unreasonable, and the warrant was thus ripe for a motion to suppress.
c. Defendant apparently had standing to challenge the search warrant
Defendant's first attorney, Gary Sergent, has submitted a letter to Assistant United States Attorney Elaine Leonhard (Doc. # 133-3), explaining that he opted not to challenge the warrant because his client did not own the Lincoln. Instead, he decided to file a motion to suppress arguing that the police had exceeded the scope of the warrant. He claims that this strategy was designed to "avoid a standing argument."
The Magistrate Judge found no error in Sergent's approach. In his R&R recommending denial of the instant motion, the Magistrate Judge concluded that Defendant did not have standing to challenge the search warrant because there was insufficient evidence that he owned the vehicle.*fn1 In his objections to the Magistrate's R&R,
Defendant argues that whether he owned the vehicle is irrelevant; what is important, he asserts, is that he possessed the vehicle with the title-holder's permission, and thus had standing to challenge the search.
"It is well-established that a driver of a borrowed vehicle may establish a reasonable expectation of privacy in a vehicle even though that driver is not the owner of the vehicle." Johnson v. United States, 604 F.3d 1016, 1020 (7th Cir. 2010); Cf. United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001) (unauthorized driver of a rental car had legitimate expectation of privacy in the car because, among other factors, he had permission from the authorized driver); United States v. Dunson, 940 F.2d 989, 994-95 (6th Cir. 1991) (passenger in a borrowed vehicle who had borrowed the vehicle together with the driver had a legitimate expectation of privacy in the vehicle). To establish a reasonable expectation of privacy in a borrowed vehicle, the driver must demonstrate two factors: lawful possession and control. Johnson, 604 F.3d at 1020. Each inquiry is fact specific. However, as a general matter, lawful possession will be found where the driver was operating the vehicle with the permission of the owner. Id. Control will be found where the driver had ...