United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, Magistrate Judge.
This case comes before the undersigned United States Magistrate Judge for a recommended ruling on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Docket Entry 61) ("Section 2255 Motion"). For the reasons that follow, the Court should deny the instant Section 2255 Motion.
The Court (per Senior United States District Judge N. Carlton Tilley, Jr.) previously entered a Judgment against Petitioner imposing, inter alia, a total prison term of 294 months, upon his guilty plea to possessing with intent to distribute 12.8 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) (with an offense date of September 3, 2009), as well as for possessing firearms in furtherance of that drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Docket Entry 42; see also Docket Entry 1 (Indictment); Docket Entry 35 (Plea Agt.); Docket Entry 39 (Plea Hrg. Tr.); Docket Entry 49 (Sent'g Hrg. Tr.).) The United States Court of Appeals for the Fourth Circuit affirmed and the United States Supreme Court refused review. United States v. Roberts, 467 F.Appx. 187 (4th Cir.), cert. denied, ___ U.S. ___, 133 S.Ct. 47 (2012). Petitioner then timely filed the instant Section 2255 Motion (Docket Entry 61), followed by a Supplemental Memorandum of Law in Support (Docket Entry 69). The United States responded (Docket Entry 71) and Petitioner replied (Docket Entry 73).
Petitioner's Section 2255 Motion asserts these four claims:
1) "Officers created [the] exigency [that they relied upon to justify a search] by purposely allowing [a fugitive] to enter Petitioners [sic] residence by using unreasonable and poor investigative tactics" (Docket Entry 61 at 2 ("Ground One"));
2) "Officers had sufficient probable cause to obtain a search warrant prior to approaching Petitioners [sic] residence [and creating exigent circumstances]" (id. at 4 ("Ground Two"));
3) "Petitioner should have been sentenced under [the Fair Sentencing Act's] more lenient penalty provision" (id. at 5 ("Ground Three")); and
4) "Petitioners [sic] counsel was ineffective by not investigating and preparing for Petitioners [sic] [d]irect appeal" (id. at 6 ("Ground Four")).
Grounds One and Two: Unlawful Search Claims
Prior to pleading guilty, Petitioner moved to suppress all evidence "obtained as a result of the unlawful search and seizure conducted... at [his residence (a townhouse-style condo)]... in violation of the Fourth Amendment." (Docket Entry 10 at 1.) Specifically, Petitioner contended (in his Memorandum in Support of his Motion to Suppress) that, after "conduct[ing] surveillance at [his condo], for the purpose of serving a Federal arrest warrant on Mr. Jevon Nicholson..., [law enforcement officers] decided to approach the condo and make contact with the occupants and attempt to consensually search the condo." (Docket Entry 11 at 1.) According to that Memorandum (which principally relied for legal support on United States v. Mowatt, 513 F.3d 395 (4th Cir. 2008) (see Docket Entry 11 at 3-4)), the officers did not properly attempt to obtain consent, but rather "impermissibly created or manufactured [an] exigency' in order to justify [a] warrantless entry [of the condo by]... approaching the back door of the condo (instead of the front door) at approximately 10:30 p.m. while a pitbull was chained close to the back door, ... causing it to bark incessantly." (Id. at 4.) That Memorandum continued: "The barking in turn caused [Petitioner's brother] to exit the back door and encounter [officers] who stated POLICE, let us see your hands.' [Petitioner's brother] then retreated into the condo... [while] reach[ing] for his waist band with his right hand and remov[ing] an object... [which an officer said] was a hand gun." (Id. at 5 (some internal quotation marks omitted).)
As described in that Memorandum, this allegedly unconstitutional sequence of events thereafter occurred:
1) officers ordered Petitioner's brother to exit the condo, handcuffed him as he did, and "removed [a] sheet [hanging in the rear door] to allow officers to see inside the [condo]" (id. at 2);
2) "[a]round the time [Petitioner's brother] exited the back door, [Mr.] Nicholson exited the front door and retreated back inside... [but ultimately] came back out the front door and surrendered" (id.); and
3) after learning from "officers at the front door that [Mr.] Nicholson was in custody[, ]... [o]fficers then entered the back door to conduct a sweep... [during which] contraband was observed in plain view [whereupon] a search warrant was obtained and executed yielding additional contraband" (id. at 2-3).
The Court (per now-Chief United States District Judge William L. Osteen, Jr.) held a hearing, at which three officers testified and the United States introduced six photographs. (See Docket Entry 50 at 2 (providing index of hearing evidence); see also id. at 4-105 (documenting evidentiary portion of hearing).) Upon the completion of the hearing evidence, Petitioner's counsel argued that the Court should grant the Motion to Suppress because:
1) the officers "ha[d] probable cause to get a search warrant [for the condo] to serve the arrest warrant [for Mr. Nicholson]" (id. at 129; see also id. at 129-30 ("[The man officers saw enter the condo] fit the description [of Mr. Nicholson]. He was driving the car [Mr. Nicholson] was supposed to be in. They had information [Mr. Nicholson] would be there."));
2) the officers created exigent circumstances by approaching the condo's back door, particularly given the hour and the pit bull's presence (see id. at 130-31; see also id. at 132 ("[T]he Court can take judicial notice that strangers use the front door.... That's what is expected of people.... [I]t's 10:30 at night [and] there's a pit bull chained back there.... [The officers] claim they didn't know that pit bull was ...