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Ingram v. United States

United States District Court, W.D. North Carolina, Charlotte Division

August 27, 2019

SHIRLEY INGRAM, JR., Petitioner,


          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court on Petitioner's Superseding Amended 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, (Doc. 24).

         I. BACKGROUND[1]

         Petitioner was charged in the underlying criminal case by Superseding Indictment with: Count (1) possession of a firearm by a convicted felon (18 U.S.C. §§ 922(g)(1), 924(e)(1)); and Count (2) possession of a firearm in furtherance of a drug trafficking crime, i.e., possession with intent to distribute a controlled substance (18 U.S.C. §§ 924(c)(1), 3559(c)). (3:10-cr-69, Doc. No. 25).

         Petitioner filed a Motion to Suppress evidence including a Glock handgun that was seized from a BMW registered in his mother's name, arguing that his mother was not able to give valid consent for the search due to dementia. (Id., Doc. No. 9).

         At the suppression hearing, Officer Bright testified that he responded to Lachica Alexander's residence pursuant to a 911 call about a domestic dispute. (3:10-cr-69, Doc. No. 19 at 7). When Officer Bright arrived at the scene, Ms. Alexander reported that her boyfriend, Petitioner, is a convicted felon and had locked himself inside her residence and that he had a gun. (Id., Doc. No. 19 at 8). Officer Bright knocked on the door several times and gave one verbal command to open the door. Petitioner came to the front door and Officer Bright immediately frisked him for weapons; Petitioner did not have any weapons on his person at that time. Officer Bright asked Petitioner what was going on and Petitioner told him about an argument with Ms. Alexander about groceries. (Id., Doc. No. 19 at 8-9).

         During this conversation, Officer Bright clearly saw in Petitioner's loose shirt pocket an old prescription pill bottle with a dirty, worn sticker with no name but had “H-Y” on it. (Id., Doc. No. 19 at 9). In the officer's training and experience as a narcotics officer, H-Y means hydrocodone, which is an illegal substance. (Id.). Officer Bright grabbed the pill bottle from Petitioner's shirt pocket, turned it on its side, and could see that there were several different types of pills and a small bundle of marijuana inside. (Id.). Officer Bright seized the pill bottle from Petitioner's shirt pocket and asked him to wait on the front porch.

         Officer Bright then went into the residence with Ms. Alexander who immediately asked if he found a gun on Petitioner. Officer Bright indicated that he had not, and she said “Well, if it's not on him, he's either hid it or it's in his car.” (Id., Doc. No. 19 at 10). Ms. Alexander started searching around the residence and motioned for Officer Bright to follow her into her bedroom. Ms. Alexander immediately noticed a laundry detergent box under her bed and opened the top. A medium sized bag of marijuana was inside the detergent box along with a heavy black nylon bag containing a locked Heckler & Koch firearm. (Id., Doc. No. 19 at 10-11). In the bag with the firearm was dentification belonging to one of Ms. Alexander's roommates, Flight Deck Officer Levi Patterson. (Id., Doc. No. 19 at 36). It was only “[a]fter putting the gun on the bed…” that Officer Bright “[w]ent out on the front porch and … took the defendant into custody.” (Id., Doc. No. 19 at 12).

         Petitioner was then searched and officers found a large key ring. Officer Bright asked Petitioner whether the gray BMW in front of the residence was his and “[Petitioner] said it was his mother's and that [Officer Bright] could not search it.” (Id., Doc. No. 19 at 12). At that point, a K-9 unit was called. (Id., Doc. No. 19 at 24). The dispatcher located the vehicle's registered owner, Elizabeth Mason, who is Petitioner's mother. (Id., Doc. No. 19 at 25). Officer Klimasewiski went to Mrs. Mason's home to attempt to get consent to search the BMW and Mrs. Mason invited him inside to talk. (Id., Doc. No. 19 at 46). Mrs. Mason made conversation and Officer Klimasewiski explained why he was there. Mrs. Mason did not immediately recall the vehicle and said she does not drive. (Id., Doc. No. 19 at 47). The officer explained that her son might be driving the car and she said “[o]h yeah, ” and that “[s]he remembered one day her son took her to the DMV and had her … register the car in her name.” (Id., Doc. No. 19 at 48). The officer explained that he wanted to search the car. Mrs. Mason agreed and signed a consent form which was introduced into evidence. (Id., Doc. No. 19 at 49-51); (Id., Doc. No. 14-1). This entire conversation took place in front of Mrs. Mason's husband. (Id., Doc. No. 19 at 50). Mrs. Mason behaved rationally the entire time the officer was present, she understood that he was a police officer, and she appeared to understand the nature of her consent. (Id., Doc. No. 19 at 51-52). The officer invited Mrs. Mason to come witness the search but she declined for health reasons, but her husband agreed to come with the officer. (Id., Doc. No. 19 at 53). On cross-examination, Officer Klimasewiski explained that Mrs. Mason was very supportive of the police and explained that “if there was any way to help police officers, she was going to do that” and that one of her sons is a retired police officer. (Id., Doc. No. 19 at 58).

         The defense called Charlene Anderson, Petitioner's sister, who testified that their mother has Alzheimer's and problems with her behavior began two or two-and-a-half years earlier. She started wrapping items including mail and money in paper towels and put them in bags and no longer recognizes her children. (Id., Doc. No. 19 at 61-67). Two years earlier, Mrs. Mason had accidentally shot herself in the foot with a rifle, did not recall the incident, and thought she had stepped on a nail. (Id.). Anderson testified that, “[w]hatever the policeman wanted, [Mrs. Mason] would have followed through with it because he is a police officer, ” and it would not have occurred to her that she had the right to do something different. (Id., Doc. No. 19 at 70).

         Mr. Mason testified for the defense that his wife is in a nursing home. (Id., Doc. No. 19 at 83). He did not recall a police officer talking to his wife or signing a paper but he did recall police taking him to go get a car and driving it back. (Id., Doc. No. 19 at 84-85).

         Petitioner testified at the suppression hearing that, when police came to his home, he opened the door because he thought it was Ms. Alexander. The first thing the officer did was to reach into his pocket and grab the pill bottle and immediately handcuffed him. When officers asked if they could search his car he said “[n]o, you can't search my car … I ain't done nothing wrong.” (Id., Doc. No. 19 at 87-88). He denied saying that it was his mother's car and, when he told officers that they could not search it, they called for dogs. (Id., Doc. No. 19 at 89). He testified that his mother is 76 years old, does not recognize him, and he did not know anyone had gone to his mother's house until after he was in jail. (Id., Doc. No. 19 at 90).

         The Court denied the Motion to Suppress and made the following findings of fact:

Upon arriving at the scene, Officer Bright encountered Ms. Lachica Alexander who informed Officer Bright that her boyfriend was a convicted felon and that there was a firearm inside the house. Officer Bright … knocked on the front door of the house, identifying himself as CMPD and giving a voice command to open the door…. Officer bright … frisked Defendant for weapons and found none. Responding to Officer Bright's questions, Defendant informed Officer Bright that he and Ms. Alexander had been in an argument over groceries.
During this discussion, Officer Bright noticed that Defendant was wearing an over-sized shirt made of a loose, silk-like material. In Defendant's shirt-pocket, Officer Bright was able to clearly see a prescription pill bottle…. Based on the appearance of the bottle, Officer Bright concluded from his training and experience that the pill bottle was likely used to transport narcotics.
Officer Bright reached into Defendant's shirt-pocket and seized the pill bottle. Officer Bright saw that the pill bottle contained several different types of pills and a small bundle of what appeared to be marijuana….
Officer Bright asked Defendant to wait with Officer Secundi on the front porch of the house and addressed Ms. Alexander, brining her inside the house…. Ms. Alexander signaled for Officer Bright to follow her into the bedroom, where Officer Bright saw a Gain laundry detergent box lying under the bed…. When Ms. Alexander opened the box, Officer Bright saw that it contained a clear plastic bag containing what appeared to be marijuana sitting on top of a black nylon bag … and determined from the weight that the bag contained a heavy item, which Officer Bright suspected to be either a firearm or a heavy piece of metal.
Officer Bright unzipped the bag enough to observe the grip and butt of a firearm, later determined to be a H&K USP .40 caliber pistol….
Officer Bright then went out onto the front porch and handcuffed Defendant, placing him under arrest
Officer Bright testified that Defendant was placed under arrest for possession of the marijuana and H&K firearm found in the detergent box, not Defendant's possession of the pill bottle containing marijuana and other pills.
During a search of Defendant's person, Officer Bright found a key ring. Officer Bright asked Defendant if the vehicle parked in front of the house, a gray 2003 BMW 745Li, was his vehicle. Officer Bright testified that Defendant “said it was his mother's and that [Officer Bright] could not search it.” Officer Bright called for additional units…. Upon arriving at the scene, Officer Gerson assumed the investigation… [and] determined that a K-9 unit would be necessary to conduct a search of the exterior of the vehicle….
Both Officer Gerson and Officer Brown asked Defendant if they would be able to search the vehicle [and] … Defendant told the CMPD officers “he could not give consent to search the car. It belonged to his mother.” …
[T]he Court finds as a matter of fact that Defendant's independent statements to Officer Bright and Officer Gerson constituted a disclaimer of ownership of the vehicle and a disavowal of authority to consent to a search. Defendant did not refuse a search of the vehicle; rather he pretended as if he could not authorize a search of the BMW….
Officer Gerson … determined it was registered to Mrs. Elizabeth Mason, Defendant's mother…. [and] determined that, as the owner, Mrs. Mason's consent was necessary.
Officer D.P. Klimasewiski … drove to Mrs. Mason's house … to ask her consent…. Mrs. Mason signed a consent form … permitting the police to conduct a search of the 2003 BMW 745Li.
Nothing in Mrs. Mason's behavior or physical demeanor indicated to Officer Klimasewiski that she lacked capacity to consent.
There is no evidence that Mrs. Mason's consent was the result of coercion or intimidation or was otherwise given involuntarily.
Based on all the evidence presented concerning Mrs. Mason's mental capacity (e.g. Mrs. Mason's comprehension during Officer Klimasewiski's interview, Mr. Mason's willingness to sign the consent form as a witness, and Mrs. Anderson's hearsay statement regarding Mrs. Mason's diagnosis), the Court finds as a matter of fact that Mrs. Mason was of sufficiently sound mind and had adequate mental capacity to appreciate the consequences of consenting to the search.

(Id., Doc. No. 43 at 8) (emphasis added).

         The Court concluded that Petitioner retained a reasonable expectation of privacy in the vehicle and therefore had standing to challenge the search under the Fourth Amendment. However, Petitioner's testimony regarding his statements to police was “incredible and false” and that he disclaimed the authority to consent to a search. (Id., Doc. No. 43 at 14). The Court found that Mrs. Mason had authority to consent to the search, she had the capacity to consent, and that her consent was freely and voluntarily given under the totality of the circumstances. (Id., Doc. No. 43 at 15-20). The Court also rejected Petitioner's claim that the length of time he was detained at the scene while officers were obtaining Mrs. Mason's consent was unreasonable because he had been arrested at that point and was not subjected to a lengthy Terry[2] stop. In conclusion, the Court found that “the search of the 2003 BMW 745Li was the result of the voluntary consent of a third-party possessing common authority over the vehicle to permit the search [and] [a]ccordingly, the seizure of the items taken from the vehicle was lawful.” (Id., Doc. No. 43 at 24).

         At trial, the Government presented evidence about Officer Bright's contact with Ms. Alexander, Petitioner, and his actions in the residence consistent with the evidence at the suppression hearing. The Government further presented evidence that Ms. Alexander's roommate, Levi Patterson, had the H&K handgun issued to him for his job, he keeps the handgun in his closet, and nobody had permission to go in his closet and take it. (Id., Doc. No. 83 at 270, 280, 290). The Government presented evidence that a Glock handgun, digital scale, marijuana and cocaine residue, and ziploc bags were recovered from the BMW's trunk. (Id., Doc. No. 83 at 135, 315). DNA consistent with Petitioner was found on the Glock handgun with a probability of 1 in 662. (Id., Doc. No. 84 at 84-86).

         Detective Randy Call testified that he conducted a recorded interview with Petitioner on the afternoon of his arrest after providing him Miranda warnings. At first, Petitioner said that he did not drive the BMW that day and that Ms. Alexander was the last one to drive it. (Id., Doc. No. 84 at 171). He also initially denied having a gun in the BMW's trunk. (Id., Doc. No. 84 at 15-74). Petitioner then admitted that the scales found in the trunk were to weigh a shipment of marijuana that was expected later than week and offered to provide Detective Call information about the shipment of 800 pounds of marijuana if Petitioner did not get a felony charge for the handgun. (Id., Doc. No. 84 at 174-75, 178).

         While instructing the jury, the Court read the relevant portion of the Superseding Indictment to the jury and instructed the jury on the elements of the offense. See (3:10-cr-69, Doc. No. 86 at 55-59).

         The special verdict form referred to Count (1) of the Superseding Indictment and provided the jury with two alternates: (a) the Heckler & Koch .40 caliber pistol and (b) the Glock .40 caliber pistol. (Id., Doc. No. 53). The jury unanimously found that Petitioner was guilty of Count (1)(b) with regards to the Glock .40 caliber pistol, and guilty in Count (2) of possessing the Glock .40 caliber pistol in furtherance of a drug trafficking crime. (Id., Doc. No. 53).

         The Presentence Investigation Report (“PSR”) calculated the base offense level for Count (1) as 14 because the offense is a violation of § 922. (Id., Doc. No. 68 at ¶ 14). However, Petitioner qualifies as an armed career criminal based on prior convictions for violent felonies or serious drug offenses (breaking and entering 76CR49165, 76CR43321, breaking and entering and larceny, 80CRS52187, preparation to commit burglary 83CRS68062, second-degree kidnapping 87CRS18069, breaking and entering 87CRS18071, and breaking and entering 86CRS14807), and the base offense level for Count (1) is therefore 33. (Id., Doc. No. 68 at ¶ 20). Count (2) has a term of imprisonment required by statute. (Id., Doc. No. 68 at ¶ 23). The PSR's criminal history section scored seven criminal history points and a criminal history category of III, however, the criminal history category for career offenders is IV. (Id., Doc. No. 68 at ¶¶ 50, 51). The resulting guidelines range was 188 to 235 months' imprisonment followed by at least two years but not more than five years of supervised release. (Id., Doc. No. 68 at ¶¶ 121, 125).

         The Court adjudicated Petitioner guilty and sentenced him to a total of 240 months' imprisonment (180 months for Count (1) and 60 months, consecutive, for Count (2)), and three years of supervised release. (Id., Doc. No. 79).

         Petitioner argued on direct appeal that the Court erred by denying his Motion to Suppress, denying his Motion for Judgment of Acquittal because there was insufficient evidence to support the § 924(c) conviction, designating him an armed career criminal based on prior convictions that do not qualify as predicate offenses, and imposing an armed career criminal sentence based on facts not alleged in the indictment and proved to the jury beyond a reasonable doubt. The Fourth Circuit Court of Appeals affirmed. United States v. Ingram, 597 Fed.Appx. 151 (4th Cir. 2015). It held with regards to the ACCA claim that its “recent decision in United States v. Mungro, 754 F.3d 267 (4th Cir. 2014), … holding that § 14-54(a) ...

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