United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
JOSEPH M. HOOD, Senior District Judge.
This matter is before the Court upon the Report and Recommendation of Magistrate Judge Hanly A. Ingram. [D.E. 107]. Petitioner filed a pro se Motion to Vacate, Set Aside, or Correct a Sentence under 28 U.S.C. § 2255. [D.E. 70]. The matter was then referred to Magistrate Judge Ingram for a recommended disposition. The Magistrate Judge filed his Report and Recommendation on June 5, 2014, and Petitioner, after requesting an extension of time, [D.E. 109], timely filed his objections to the Report and Recommendation on July 9, 2014. [D.E. 112]. This matter is now ripe for the Court's consideration.
I. Procedural History and Standard of Review
Generally, "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). After reviewing the Report and Recommendation in this case and reviewing the findings de novo, the Court adopts in part and rejects in part the Magistrate Judge's recommendation to deny Petitioner relief.
Officer Ricky Lynn was patrolling Greenwood Avenue in Lexington, Kentucky on April 28, 2010. Officer Lynn was the Neighborhood Resource Officer for the area encompassing Greenwood Avenue. [D.E. 58 at 5-6]. Officer Lynn testified that, as Neighborhood Resource Officer, he was in the area due to an increase in complaints of shots being fired in the area and complaints of narcotic sales. [D.E. 58 at 8-9]. According to Officer Lynn, these complaints had been daily in the time leading up to his encounter with Petitioner. [D.E. 58 at 9].
Officer Lynn testified that, while parked observing Greenwood Avenue, a vehicle, containing Petitioner and two others, passed him, with none of the passengers wearing a seat belt. [D.E. 58 at 11]. Officer Lynn then got in position to follow the car and observed the car make a left hand turn without signaling. [D.E. 58 at 11-12]. At that point, Officer Lynn activated his emergency lights and stopped the vehicle. [D.E. 58 at 11-12]. Upon approaching the vehicle, Officer Lynn noticed an open liquor bottle in the floor board of the back seat. [D.E. 58 at 13]. When arriving at the front of the car, Officer Lynn noticed that there was a crack in the windshield obstructing the driver's view. [D.E. 58 at 14]. Officer Lynn asked for identification and the driver and front seat passenger complied, but the passenger in the back seat stated he had no identification. [D.E. 58 at 13]. However, the passenger in the back seat provided his social security number. [D.E. 58 at 14]. Officer Lynn then used this information to run a check on all of the occupants of the vehicle. [D.E. 58 at 15-16]. The occupants of the vehicle were Darryl Stewart, William Higgins, and Petitioner, Dante Stewart. [D.E. 58 at 14].
The records check of Darryl Stewart revealed that he had six prior offenses for carrying a concealed deadly weapon, a charge for minor in possession of a handgun, and a charge for violation of a protective order. [D.E. 58 at 18-19]. Additionally, Darryl Stewart had a probation violation, [D.E. 58 at 19], and had been booked for a charge of assault in the fourth degree. [D.E. 58 at 20]. When Officer Lynn entered Higgins' social security number it revealed that he had a prior drug trafficking offense and a parole violation. [D.E. 58 at 23-24].
When reviewing the criminal history of Petitioner, Officer Lynn noted that Petitioner had four wanton endangerment charges, all on the same day. [D.E. 58 at 21]. Officer Lynn testified that part of his job with the Lexington Police Department was instructing officers on how to write mobile reports through computers in their cars. [D.E. 58 at 17]. Based upon the way Officer Lynn teaches officers to write up reports, [D.E. 58 at 59], and all of his training and experience, Officer Lynn believed the wanton endangerment charges involved a firearm. [D.E. 58 at 22]. Additionally, Petitioner had a previous charge for possession of marijuana. [D.E. 58 at 21].
Officer Lynn testified that he called in the stop at 10:34 a.m., another officer joined the stop at 10:35 a.m., and Officer Lynn requested a canine unit and a back-up unit at 10:43 a.m. [D.E. 58 at 25]. The canine unit arrived at 10:49 a.m. [D.E. 58 at 27]. Officer Lynn testified that in the time between calling for the canine unit and its arrival, he began writing a citation for failing to signal, failing to wear seatbelts, for the open liquor bottle, and for the broken windshield, [D.E. 58 at 27], but was unable to complete the citation before the canine unit arrived.
Upon the canine officer arriving, the occupants were asked to get out of the car. [D.E. 58 at 29]. Based upon all of the information available to Officer Lynn, he decided to conduct a frisk of all the passengers. Officer Lynn first conducted a patdown frisk of Petitioner and found a.25 caliber semiautomatic handgun with a round in the chamber in the back pocket of Petitioner's pants. [D.E. 58 at 29-31]. Officer Lynn's record check had revealed that none of the occupants had a concealed carry permit. [D.E. 58 at 15]. Officer Lynn placed Petitioner under arrest and gave him the Miranda warning. [D.E. 58 at 32].
Around the same time Officer Lynn found the handgun in Petitioner's pants, the dog alerted on the car. [D.E. 58 at 32]. After the dog alerted, the officers began searching the car and found a loaded handgun in the floorboard under the driver's seat. [D.E. 58 at 34]. Darryl Stewart immediately claimed ownership of this gun. [D.E. 58 at 35].
Once in the booking area of the police department, and while Officer Lynn was not looking, a bag of crack cocaine appeared on the floor between Petitioner, Darryl Stewart, and William Higgins. [D.E. 58 at 38-39]. Officer Lynn noticed that Petitioner's pants were unzipped. [D.E. 58 at 39]. Officer Lynn asked another officer to pull the video of the area and Petitioner then admitted the drugs were his. [D.E. 58 at 39]. Petitioner eventually admitted that he had another bag of crack cocaine on his person. [D.E. 58 at 39-41].
Based upon this conduct, Petitioner was charged with possession with intent to distribute crack cocaine, a violation of 21 U.S.C. § 841(a)(1), and carrying a firearm in furtherance of drug trafficking, a violation of 18 U.S.C. § 924(c)(1). [D.E. 1]. Petitioner filed a motion to suppress arguing that Officer Lynn did not have reasonable suspicion to conduct the pat-down search that led to discovery of the handgun. [D.E. 17]. After an evidentiary hearing, the motion to suppress was denied. [D.E. 26]. Petitioner then entered a conditional plea of guilty to all charges, expressly reserving the right to appeal the Court's denial of his motion to suppress. [D.E. 60].
Petitioner was sentenced and filed a notice of appeal. [D.E. 45, 48]. Petitioner's appeal was held in abeyance pending the Supreme Court's decision in Dorsey v. United States and Hill v. United States, [D.E. 63], and remanded to the Court upon Petitioner's motion for remand for resentencing after the disposition of Dorsey and Hill. [D.E. 66]. Upon the Court's own motion pursuant to 28 U.S.C. § 3582(c)(2), Petitioner's sentence on Count 1, possession with intent to distribute crack cocaine, was reduced from 60 months to 24 months. [D.E. 68]. Petitioner filed no further appeal, including an appeal of the Court's decision to deny Petitioner's motion to suppress.
On December 18, 2012, Petitioner filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging that reasonable suspicion did not exist to conduct a pat-down, that his conviction is no longer a drug trafficking crime, and that appellate counsel provided ineffective assistance. [D.E. 70]. Petitioner's request for a writ of habeas corpus was referred to Magistrate Judge Hanly A. Ingram. Magistrate Judge Ingram issued a report and recommendation recommending that the Court deny Petitioner's motion to vacate and not issue a certificate of appealability. [D.E. 107].
Petitioner raises five objections to the report and recommendation issued by the Magistrate Judge. First, Petitioner objects to the Magistrate Judge's finding that Officer Lynn's pat-down of Petitioner was supported by reasonable suspicion. [D.E. 112 at 2]. Second, Petitioner argues that the inevitable discovery doctrine cannot apply based upon the later positive indication by a drug dog because the United States did not prove the reliability of the drug dog. [D.E. 112 at 6]. Then, Petitioner argues that the Magistrate erred by not finding that he was entitled to counsel at resentencing. [D.E. 112 at 8]. Next, Petitioner argues that the Magistrate Judge erred by finding that the evidence did not show that Petitioner instructed counsel to file an appeal. [D.E. 112 at 11]. Finally, Petitioner argues that the Magistrate Judge applied an incorrect standard when determining that Petitioner did not set forth a meritorious ineffective assistance of counsel claim. [D.E. 112 at 14].
Upon de novo review, the Court adopts in part and rejects in part the Magistrate Judge's findings and will deny in part and grant in part Petitioner's petition.
1. Officer Lynn's pat-down was supported by reasonable suspicion.
Officer Lynn's pat-down search of Petitioner was supported by reasonable suspicion. "A concern for officer safety permits a variety of police responses in differing circumstances, including ordering a driver and passenger out of a car during a traffic stop and conducting pat-down searches upon reasonable suspicion that they may be armed and dangerous. " Bennett v. City of Eastpointe, 410 F.3d 810, 822 (6th Cir. 2005) (citations omitted) (internal quotation marks omitted). "To justify a patdown search, the officers must articulate specific facts that would warrant a reasonably prudent man in the circumstances... in the belief that his safety or that of others was in danger.'" Id. at 822 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).
"Reasonable suspicion is based on the totality of the circumstances and must require articulable reasons' and a particularized and objective basis for suspecting the particular person... of criminal activity.'" Joshua v. DeWitt, 341 F.3d 430, 443 (6th Cir. 2003) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. Pertinent circumstances include the officer's own direct observations, dispatch information, directions from other officers, and the nature of the area and time of day during which the suspicious activity occurred. While an individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime, police officers are not ...