United States District Court, E.D. North Carolina, Western Division
Earl Britt, Senior U.S. District Judge
matter is before the court on the government's motion for
summary judgment on petitioner's 28 U.S.C. § 2255
motion, (DE # 53.) Petitioner filed a memorandum in
opposition and an opposition statement to the
government's statement of undisputed facts. (DE ## 58,
2015, pursuant to a plea agreement, petitioner pled guilty to
a criminal information charging him with conspiracy to
distribute and possession with intent to distribute 28 grams
or more of cocaine base and possession of a firearm in
furtherance of a drug trafficking crime. The court allowed
petitioner's motion for a downward variance and sentenced
him to a total term of 120 months imprisonment. Petitioner
did not appeal. He timely filed his § 2255 motion, (DE #
39), as well as a supporting memorandum and exhibits, (DE ##
40, 41). The court denied the government's motion to
dismiss the § 2255 motion, (DE # 49), and the government
now moves for summary judgment.
Summary judgments are appropriate in those cases where there
is no genuine dispute as to a material fact and it appears
that the moving party is entitled to a judgment as a matter
of law. [S]ummary judgments should be granted in those cases
where it is perfectly clear that no issue of fact is involved
and inquiry into the facts is not desirable to clarify the
application of law. Moreover, on summary judgment, any
permissible inferences to be drawn from the underlying facts
must be viewed in the light most favorable to the party
opposing the motion. Where, however, the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, disposition by summary judgment is
United States v. Lee, 943 F.2d 366, 368 (4th Cir.
1991) (citations omitted).
alleges two claims in his § 2255 motion. First, he
alleges ineffective assistance of counsel based on
counsel's failure to investigate the facts and file a
motion to suppress. (DE # 39, at 4.) Specifically, petitioner
contends defense counsel should have challenged the warrant
for the search of his and his brother's car detail and
repair shop at 3009 Murchison Road, Fayetteville, North
Carolina. (Id.) According to petitioner, the warrant
was not supported by probable cause. (Id.)
prevail on an ineffective assistance of counsel claim,
“a person must show (1) that his attorney's
performance ‘fell below an objective standard of
reasonableness' and (2) that he experienced prejudice as
a result, meaning that there exists ‘a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.'” United States v. Fugit, 703
F.3d 248, 259 (4th Cir. 2012) (citations omitted).
It is a cardinal tenet of the Supreme Court's ineffective
assistance jurisprudence that “strategic choices made
after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” This
“highly deferential” standard is necessary
because it is “all too easy” to second guess
counsel's efforts after they have proven unsuccessful.
Meyer v. Branker, 506 F.3d 358, 371 (4th Cir. 2007)
has “wide latitude” to determine, as a tactical
matter, whether to file a motion to suppress. Morris v.
United States, Nos. 2:06-cv-00938, 2:05-cr-00125, 2008
WL 4763223, at *4 (S.D. Va. Oct. 27, 2008).
Therefore, “the failure to file a suppression motion
does not constitute per se ineffective assistance of
counsel.” Rather, counsel's ability to make
tactical decisions regarding a motion to suppress is such
that he may conclude that it is in the defendant's best
interest not to file a motion to suppress even if that motion
is potentially meritorious.
Id. (quoting Kimmelman v. Morrison, 477
U.S. 365, 384 (1986)) (footnote omitted).
defense counsel did not file a motion to suppress because he
concluded the motion lacked merit and because the filing of
such a motion would harm petitioner's case. According to
defense counsel's uncontradicted declaration,
received discovery in the case from the government and
investigated the validity of the subject search warrant.
(Leonard Decl., DE # 56-1, at 1, 2.) He recognized a
“weakness” in the warrant application,
that being, the controlled buys occurred before the business
moved to the 3009 Murchison Road location and the last buy
took place two months before the date of the application.
(Id. at 3.) Defense counsel and petitioner discussed
the issues petitioner had with the application, and
petitioner challenged certain statements attesting to his
conduct. (Id.) Defense counsel determined that the
statements petitioner challenged were unnecessary to a
finding of probable cause. (Id.) The court
agrees-the statements petitioner challenges concern his
personal involvement in illegal activity, which does not
affect the state judge's probable cause finding to search
the business. Cf. United States v. Lalor, 996 F.2d
1578, 1582 (4th Cir. 1993) (“In determining whether a
search warrant is supported by probable cause, the crucial
element is not whether the target of the search is suspected
of a crime, but whether it is reasonable to believe that the
items to be seized will be found in the place to be
searched.” (citing Zurcher v. Stanford Daily,
436 U.S. 547, 556 & n.6 (1978))).
even excluding all the statements in the warrant application
petitioner challenges, (see generally Mem., DE # 40,
at 5-11), given the totality of the circumstances, the state
judge had a substantial basis for concluding that there is a
fair probability that contraband or evidence of a crime would
be found at 3009 Murchison Road. See Illinois v.
Gates, 462 U.S. 213, 238-39 (1983) (“The task of
the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances
set forth in the affidavit before him, including the veracity
and basis of knowledge of persons supplying hearsay
information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. And
the duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that
probable cause existed.” (internal quotation ...