United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
D. SCHROEDER, District Judge.
the court is a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 by Kenyon Donte
Dockery. (Doc. 29.) The Government has responded (Doc. 31),
and Dockery filed a reply (Doc. 33). The motion is therefore
ready for decision. For the reasons set forth below, it will
after midnight on March 27, 2012, Greensboro Police Officer
Robert Malone received a call from an informant reporting
frequent visitors of short duration to a white vehicle near a
specified apartment unit, conduct indicative of drug
trafficking. Officer Malone responded and found Dockery
sitting in the driver's seat of a parked white car
outside of the designated apartment unit. Dockery was
accompanied by one other passenger. Officer Malone approached
the driver's side of the car to ask what they were doing,
and Dockery responded that they were visiting an uncle.
asked for an identification, Dockery turned his back to
Officer Malone in order to reach into the center console. The
officer, who testified that the area was known for high crime
and drug trafficking, said he was concerned for his safety
when Dockery turned his back (Doc. 22 at 16) and immediately
asked for Dockery to lean back. But Dockery did not comply.
Officer Malone then grabbed Dockery's shoulder to move it
back so that he could observe Dockery's hands, and when
he did, observed clear plastic bags and a roll of cash in the
console. Officer Malone asked Dockery to step out of the car
and asked for consent to search. Dockery consented to a
search of his person but not of his car.
time, a second Greensboro Police Officer, Jonathan Chasten,
arrived. Officer Chasten asked Dockery's passenger to
step out of the vehicle. The passenger consented to a search
of his person, which resulted in the officer finding a glass
smoking pipe. The passenger also admitted to swallowing a bag
of crack cocaine that he was concealing in his mouth. Officer
Chasten arrested the passenger for possession of drug
paraphernalia. Both officers then searched the car for
August 27, 2012, a federal grand jury returned a one-count
indictment against Dockery, which charged him with being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924 (a)(2). (Doc. 1.) On October
17, 2012, Dockery filed a motion to suppress, seeking to
exclude evidence seized from the vehicle and statements made
to authorities after his arrest. (Doc. 9.) On November 21,
2012, this court denied the motion. (Doc. 24 at 7.) Dockery
then entered a conditional plea of guilty to the indictment,
pursuant to a plea agreement that reserved his right to
contest the denial of his motion to suppress. (Doc. 16.) On
March 26, 2013, this court sentenced Dockery to a term of 82
appealed his conviction and sentence to the Fourth Circuit,
arguing that this court erred in denying his motion to
suppress and that the court imposed an unreasonable sentence.
United States v. Dockery, 547 F.App'x 339 (4th
Cir. 2013). The Fourth Circuit affirmed on both grounds.
Id. As to the motion to suppress, the court's
holding rested on two theories: that Malone possessed
reasonable suspicion to seize Dockery when he approached his
car, and that the officers had probable cause to search
Dockery's vehicle after arresting Dockery's
passenger. On March 2, 2015, Dockery filed this timely
motion, arguing that his trial attorney provided ineffective
assistance in failing to adequately argue his motion to
suppress. (Id. at 16-23.)
attacks brought pursuant to 28 U.S.C. § 2255 are limited
to claims of constitutional magnitude or to errors which
inherently result in a complete miscarriage of justice.
United States v. Addonizio, 442 U.S. 178, 184-86
(1979); Hill v. United States, 368 U.S.
424, 428 (1962); see also United States v. Timmreck,
441 U.S. 780 (1979). To demonstrate ineffective assistance of
counsel, Petitioner must show that (1) his attorney's
performance fell below a reasonable standard for defense
attorneys, and (2) there is a reasonable probability that but
for the attorney's incompetent performance, the result of
the proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 687-91 (1984). Because a
strong presumption of reasonable professional assistance
attaches to an attorney's conduct, a court should apply a
"heavy measure of deference" to an attorney's
decisions. Id. at 689-91. Relief for ineffective
assistance of counsel can be granted only if petitioner can
show specific errors made by counsel. United States v.
Cronic, 466 U.S. 648, 666 (1984).
contends that his trial attorney provided ineffective
assistance because he failed to advance several arguments in
support of the motion to suppress. First, Dockery argues that
his attorney neglected to clarify that the initial
interaction between Dockery and Officer Malone was
consensual, rather than an investigatory stop. (Doc. 29 at
16.) Second, Dockery claims that his attorney erred when he
referred to Officer Malone's grabbing of Dockery's
shoulder as a seizure and not a search. (Doc. 33 at 3.)
Third, Dockery contends that his attorney failed to explain
that Dockery's rights were violated when Officer Malone
initiated the alleged search by reaching into the car to grab
his shoulder without justification. (Doc. 29 at 17; Doc. 33
at 1-2.) Fourth, Dockery argues that his attorney was
ineffective for not highlighting the fact that Officer
Malone's alleged search occurred before Dockery's
passenger was arrested. (Doc. 29 at 23.) Fifth, Dockery
alleges that his attorney failed to explain that
Dockery's decision to turn his back to Officer Malone was
reasonable, as it was the only way for Dockery to access the
console in order to grab his wallet and identification.
(Id. at 18.)
response, the Government argues that Dockery is attempting to
re-litigate his motion to suppress through this § 2255
motion, a strategy the Fourth Circuit foreclosed in
Boeckenhapt v. United States, 537 F.2d 1182, 1183
(4th Cir. 1976). The Government also argues that Dockery
fails to point out specific errors made by his counsel that
would fall below an objective standard of reasonableness.
(Doc. 31 at 5-6.) Finally, the Government contends that, even
if Dockery were able to meet Strickland's first
prong, he cannot prove that but for such errors, the result
of the contested proceedings would have been different.
(Id. at 7-9.)
Dockery's ineffective assistance of counsel claim may be
similar to his earlier Fourth Amendment claim, the former was
not expressly raised on direct appeal. Thus, Dockery's
motion “cannot be dismissed wholesale” under
Boeckenhapt. United States v.
Parker, No. 96-7315, 1996 WL 721834, *1 (4th Cir. Dec.
17, 1996). However, while Dockery may now disagree with his
counselor's strategic decisions in arguing his motion to
suppress, he fails to demonstrate that the representation
fell short of a reasonable standard for a defense attorney.
Dockery's attorney's decision not to argue that the
initial interaction between Dockery and Officer Malone was
consensual was sensible, as the Government had already
conceded that point. (Doc. 12 at 7.) In any event, it does
not matter because the court acknowledged as much when
articulating its ruling on the motion to suppress. (Doc. 24
at 4 (the court noting, “And I should say, by ...