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Roberts v. United States

United States District Court, M.D. North Carolina

June 9, 2015



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").[1] 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.).)[2] 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).[3]


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.)[4] 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.)[5] 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 ...

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