United States District Court, Middle District of North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD UNITED STATES MAGISTRATE JUDGE
This Court (per now-Chief United States District Judge William L. Osteen, Jr.) entered judgment against Petitioner imposing, inter alia, a 180-month prison term, following his guilty plea to firearm possession by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Docket Entry 23; see also Docket Entry 29 (Sentencing Transcript); Docket Entry 31 (Plea Transcript).) The Fourth Circuit affirmed. United States v. Clay, 504 F. App’x 253 (4th Cir. 2013). Petitioner thereafter filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (“Section 2255 Motion”) (Docket Entry 35), along with a brief (Docket Entry 36). The United States responded (Docket Entry 39) and Petitioner replied (Docket Entry 41). The Court should deny relief.
Petitioner’s Section 2255 Motion asserts that his counsel provided ineffective assistance by failing to seek certiorari review in the United States Supreme Court based on Florida v. Jardines, __ U.S.__,
__, 133 S.Ct. 1409, 1413-18 (2013) (holding that “using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment”). (See Docket Entry 35, ¶ 12; Docket Entry 36 at 4-8.) That claim lacks merit.
Following his indictment, Petitioner (via counsel) “move[d] to suppress . . . spent shotgun shells found in [his] pockets pursuant to arrest and search; a pistol grip shotgun found on the porch of 5 Quad Oaks Drive, Greensboro; and any statements made by [him] subsequent to arrest.” (Docket Entry 10 at 1.) After a hearing, the Court (per now-Chief Judge Osteen) denied that motion (see Docket Entry 15 at 1-2, 6) and made the following factual findings:
1) “officers responded to a 911 call . . . that a black male wearing a tee shirt and jeans was discharging a shotgun at persons in the area of Aunt Mary and Quad Oaks streets” (id. at 2);
2) a responding officer “encountered [Petitioner] and another individual on the porch of 5 Quad Oak Street, a house located close to the corner of Aunt Mary and Quad Oak” (id.);
3) “[b]oth individuals walked off the porch and approached [the officer] before he got out of his car” (id.);
4) the officer thereafter “drove around the corner to Kildaire Street . . . [where he] spoke with several children who told him that ‘Nick’ had been shooting the gun” (id.);
5) “[t]he children identified ‘Nick’ as [Petitioner]” (id.);
6) “[w]hile on Kildaire Street, [the officer] placed [Petitioner] under arrest for a violation of [North Carolina law prohibiting disruptive public intoxication]” (id.);
7) that officer and a second officer then “drove back to 5 Quad Oak . . . [where, ] [b]efore stepping on the property, [the second officer] saw the pistol grip of a firearm on the front porch” (id. at 2-3);
8) the officers subsequently “walked up to the front porch, seized the shotgun, and knocked on the front door . . . [but] [n]o one answered” (id. at 3); and
9) the second officer “also saw an empty shotgun casing on top of some magazines in a hamper beside the shotgun . . . [and] seized the shotgun casing” (id.).
Based on those facts, the Court concluded that the officers lawfully made a “warrantless seizure of the firearm and the shell casing under the plain view doctrine.” (Id.) More specifically, the Court ruled that: 1) the officers lawfully walked up onto the porch and knocked on the front door (id. at 3-4 (quoting United States v. Taylor, 90 F.3d 903, 909 (4th Cir. 1996))); 2) exigent circumstances justified the warrantless seizure of said items when observed in plain view on the porch by officers lawfully standing there (id. at 4-5 (quoting United States v. Legg, 18 F.3d 240, 244 (4th Cir. 1994), and United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991))); and 3) “the shotgun and the spent shell were readily recognizable as incriminating evidence at least as to ...