United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney y Chief United States District Judge
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1), and motion to amend, (Doc.
No. 4). The motion to amend will be granted and § 2255
relief will be denied.
was charged in the underlying criminal case with: Count (1),
possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g)(1); and Count (2), possession of a
detectable amount of marijuana in violation of 21 U.S.C.
§ 844(a). (Crim. Case No. 3:13-cr-275, Doc. No. 7). Both
offenses were alleged to have occurred on or about April 5,
filed a motion to suppress through counsel, arguing that the
firearm, marijuana, and Petitioner's statements were the
fruit of an illegal search and seizure. (Id., Doc.
No. 8). An evidentiary hearing came before Magistrate Judge
Keesler at which Petitioner and Officer Brian Russell
testified, summarized as follows:
On April 5, 2013, Officers B.K. Russell
(“Russell”) and R.M. Anderson
(“Anderson”) visited Defendant at his residence
to conduct an investigatory follow-up of a break-in that
occurred at Defendant's home the night before. Defendant
does not dispute he invited both officers into his residence
at this juncture. Russell entered Defendant's living room
through the front door and immediately smelled the odor of
burnt marijuana. Three people were in the living room:
Defendant, Defendant's son, and a repairman working on
the back door. After fifteen minutes conversing with the
officers inside the residence, Defendant led both officers to
the backyard. While outside, Anderson tapped her nose in
Russell's direction. Officer Russell testified
“that's something we typically do.... If we made
any kind of-you know, I guess notice of an odor like
[marijuana], that would be the way we would indicate that
between ourselves ...”
While still outside, Russell told Defendant he smelled
marijuana. Defendant admitted there was marijuana inside the
home, and Russell asked if he could go inside to retrieve it.
Defendant verbally consented, opened the front door of the
home and stood sideways, motioning for the officers to
re-enter. Once inside, Russell asked Defendant where the
marijuana was located, and Defendant said it was in the
bedroom. Defendant led both officers to a partially closed
door and asked if the officers could wait outside while he
entered the room to ensure his girlfriend was
“decent.” Russell allowed Defendant to enter the
room and close the door. Defendant opened the door after a
minute or two and Russell observed Ms. Katie Gowen,
Defendant's girlfriend, lying on the left side of the
bed. Russell inquired again about the marijuana. Defendant
handed Russell an aluminum foil, homemade pipe that appeared
to contain marijuana residue and a container that appeared to
hold several marijuana roaches.
Reacting to Defendant's heightened nervousness at the
time, Russell asked if there were any weapons in the house.
Defendant answered yes, proceeded to the left side of the bed
and grabbed a gun from under the mattress. Russell repeatedly
instructed Defendant not to retrieve the gun but Defendant
removed the clip from the gun, ejected a live round from the
chamber, reloaded the round into the clip, and placed the gun
and clip on the bed. In the same few seconds, Russell
released the small, belted latch over his own weapon but did
At that point, Russell smelled the odor of “green
marijuana” and asked Defendant if there was any more in
the home. Defendant told Russell there was marijuana, and Ms.
Gowen handed a jar of what appeared to be marijuana to
Russell. Russell asked if he, Anderson, Defendant and Ms.
Gowen could talk further in the living room and Defendant
After Defendant and Ms. Gowen led Russell and Anderson to the
living room, Russell asked Defendant for consent to search
the rest of the residence. Defendant asked about the process,
and Russell explained that Defendant could consent as he had
up to that time, or if he declined, Russell would apply to a
judge for a search warrant. Defendant's son, who was
present in the living room, advised Defendant to require the
officers to obtain a search warrant. Defendant chose to
consent to the search, and Russell went out to his patrol car
to retrieve the paperwork and call for additional officers.
Upon Russell's return, Defendant reviewed, signed, and
dated the consent to search form. The additional officers
arrived, and Defendant himself opened the door for one of the
officers and allowed him inside the house. During this time,
Defendant got up to pay the repairman for the repair of the
back door. In addition to the marijuana, paraphernalia, gun
and ammunition found, officers took photographs and seized
United States Currency. Both the Defendant and Ms. Gowen were
placed under arrest.
United States v. Brown, 2014 WL 2511378 at *1-2
(W.D. N.C. June 4, 2014) (citations omitted).
Keesler concluded that Petitioner's suppression hearing
testimony was incredible and impossible to reconcile with the
other evidence presented, and that no Fourth Amendment
violation occurred. (Case No. 3:13-cr-275, Doc. Nos. 20, 23).
The Court adopted Judge Keesler's recommendations and
denied Petitioner's motion to suppress. (Id.,
Doc. No. 27).
case came before the Court for a bench trial on July 15,
2014, at which time the Court questioned the legal basis for
conducting a bench trial rather than a jury trial. The
parties explained that they had agreed to a bench trial
because Petitioner stipulated to the majority of the elements
yet wanted to preserve his right to appeal the suppression
issue, yet the Government would not agree to a conditional
THE COURT: … Let me first ask the Government.
What's the Government's purpose in entering into this
MS. FERRY: Your Honor, as Ms. Oseguera indicated previously,
we are unwilling to do a conditional plea in this
circumstance. We understand that the defendant
wishes to preserve his appellate rights, and we want to do
that in a way that is going to be the most expeditious for
all parties involve. That is one of the reasons we agreed to
a bench trial in this case.
THE COURT: So you refuse to enter into an 11(b)
MS. FERRY: That's correct.
(Id., Doc. No. 29 at 2) (emphasis added).
counsel agreed with the Government that a bench trial was
appropriate to preserve Petitioner's appellate rights
because the Government would not agree to a conditional plea:
MS. OSEGUERA: … I do agree with the Government in this
case, and the reason I do and, you know, speaking on behalf
of my client, Your Honor, is because we are trying to
preserve his appellate issue.
He had a constitution right to file a motion. It was not
frivolous. I filed the motion. It was very, very debated in
front of the magistrate judge. I have been asking the
Government for a conditional plea since the
beginning. Since - I think their e-mails go back to
December of last year requesting a conditional plea.
I just as recently as last Tuesday right after we got
out of court, Your Honor, again I asked for a conditional
plea in this case. The Government responded with
this is a - the suppression issue is a factual dispute, not a
legal dispute. And again, I'm still trying - I continue
to ask the Government what is a legal dispute? What did I not
bring up properly?
But, again, I don't believe the motion was frivolous. It
was not bare bones either. It was highly contested.
What we are - the reason we are agreeing with the Government
- initially we did not want to stipulate anything, because
the Government informed me that they did not want to at
sentencing provide acceptance of responsibility points. They
did start bringing up obstruction of justice, because my
client did testify at the suppression motion.
So today, Your Honor, again, we are accepting
responsibility as much as we can for this offense.
We're trying to make this as easy as possible for the
Government and for the Court so we can get to sentencing.
And I did speak with my client, Mr. Brown, and he has agreed
to continue the case until the September docket call, and we
can move forward with a jury trial. At that point we will
remain silent, but we will move forward with a jury trial at
(Id., Doc. No. 29 at 13-14) (emphasis added).
Court disagreed with the parties about the appropriateness of
a bench trial with factual stipulations, finding that Fourth
Circuit case law suggested that such a proceeding would waive
Petitioner's appellate rights, and set the case for a
jury trial, which commenced September 3, 2014.
start of the jury trial, the Court conducted a colloquy with
Petitioner about his knowing and voluntary agreement to
signed stipulations addressing to several elements of the
offenses. Petitioner stated that he understood the
Government's burden of proof and nevertheless wished to
stipulate to the factual issues. (Id., Doc. No. 52
at 26-32). The Court then addressed the existence of any plea
offers. The parties were unclear on the history of the plea
negotiations and agreed to check the record to address the
issue more accurately on the next day of trial. In open
court, defense counsel proposed a plea to Count (2) and
dismissal of Count (1), but the prosecutor stated on the
record that the Government was not interested. (Id.,
Doc. No. 52 at 34).
parties addressed the status of the Government's best
plea offer on the next day of trial as follows:
THE COURT: … Ms. Ferry, do you know what the last best
offer was for Mr. Brown?
MS. FERRY: Yes, sir. We had extended him a plea
agreement before the superseding indictment was returned,
which would be a plea to Count One, the 922(g)
count. And then once that was rejected, we