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Thomas v. United States

United States District Court, E.D. North Carolina, Western Division

June 26, 2019



          W. Earl Britt, Senior U.S. District Judge

         This 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, 59.)

         In 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 appropriate.

United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991) (citations omitted).

         Petitioner 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.)

         To 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) (citations omitted).

         Counsel 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).

         Here, 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, [1] he 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, [2] 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))).

         Furthermore, 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 ...

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