United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
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,
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).
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.
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).
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
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).
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
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).
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).
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).
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
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
Officer Gerson … determined it was registered to Mrs.
Elizabeth Mason, Defendant's mother…. [and]
determined that, as the owner, Mrs. Mason's consent was
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
There is no evidence that Mrs. Mason's consent was the
result of coercion or intimidation or was otherwise given
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).
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 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).
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).
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).
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).
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.
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).
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).
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 §