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Mosby v. United States

July 20, 2010

CORY D. MOSBY, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge

OPINION & ORDER

Petitioner, Cory D. Mosby, is before the Court on a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, filed on July 24, 2009 (Doc. 2). On October 13, 2009, Respondent filed a Response in opposition (Doc. 8) to Petitioner's Motion to Vacate. Petitioner filed a Reply on December 14, 2009 (Doc. 10). For the reasons stated below, the Court finds that an evidentiary hearing is unnecessary, and Petitioner's Motion to Vacate is DENIED.

Petitioner has requested an evidentiary hearing on his claim of ineffective assistance of counsel. (Doc. 10). He is entitled to an evidentiary hearing only if he has alleged facts that, if proven, would entitle him to relief. Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). As discussed below, Petitioner has not met this burden. As the factual issues relevant to Petitioner's claims in this action can be resolved on the record, an evidentiary hearing is not required. Oliver v. United States, 961 F.2d 1339, 1343 (7th Cir. 1992).

BACKGROUND

On May 2, 2007, following a jury trial in this Court, Petitioner was found guilty of three charges: (1) possession with the intent to distribute more than 50 grams of cocaine base (crack) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); (2) possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c); and (3) felon in possession of a firearm in violation of 18 U.S.C. § 922(g). (06-cr-10072, Doc. 40).

The Government's case against Petitioner was based on the contents of a white garbage bag seized during a traffic stop at 5:00 pm on August 23, 2006. On November 1, 2006, Petitioner's counsel filed an unsuccessful motion to suppress the evidence found in the white garbage bag. (06-cr-10072, Doc. 14). At the suppression hearing, defense counsel argued that the officers did not have probable cause to stop the vehicle, nor did they have probable cause to search it. (06-cr-10072, Doc. 60 at 63-66). The Court held that property damage committed by the vehicle's driver earlier in the afternoon gave cause to stop the vehicle. (06-cr-10072, Doc. 60 at 72). The Court further found that though there was conflicting testimony on whether the driver consented to a search of the vehicle, the more credible testimony showed that she did. (06-cr-10072, Doc. 60 at 70-71). The Seventh Circuit, on direct appeal, upheld the District Court's ruling, and further added that the because one of the arresting officers smelled marijuana, there was probable cause to search the vehicle regardless of consent. United States v. Mosby, 541 F.3d 764, 765 (7th Cir. 2008).

DISCUSSION

28 U.S.C. § 2255 provides that a sentence may be vacated, set aside, or corrected "upon the ground that the sentence was imposed in violation of the Constitution." For Sixth Amendment claims of ineffective counsel, the Supreme Court established a two-prong test in Strickland v. Washington, 466 U.S. 668 (1994). In order to prevail, Petitioner must establish that (1) counsel's representation fell below the threshold of objective reasonableness, and (2) but for counsel's deficiency, there is a reasonable probability that Petitioner's trial would have turned out differently. Id. at 687, 694. This Court must apply the strong presumption that the performance of Petitioner's trial counsel fell within the range of reasonable professional assistance. Id. at 689. Failure to test the prosecution's case at specific points is not enough to overcome this presumption -- counsel must "entirely fail to subject the prosecution's case to meaningful adversarial testing."

United States v. Cronic, 466 U.S. 648, 659 (1984).

Petitioner contends in his § 2255 Motion that both Spencer Daniels and Chester Slaughter, counsel at the suppression hearing and trial, respectively, provided ineffective assistance. He identifies three areas where counsel was allegedly constitutionally deficient: (1) Daniels' failure to effectively cross-examine Officer Gray at the suppression hearing; (2) both attorneys' failure to challenge Petitioner's arrest as a Fourth Amendment violation; and (3) Slaughter's failure to adequately argue on direct appeal that the van's driver could not consent to a search of the white garbage bag.

I. Counsel's Failure to Effectively Cross-Examine Sergeant Mushinsky at the Suppression Hearing

Petitioner alleges that his counsel provided ineffective assistance by failing to cross-examine Sergeant Mushinsky when he testified to smelling marijuana outside the van. (Doc. 2, 7-8). Petitioner alleges that had counsel challenged the testimony by noting the police report lacked documentation of a marijuana odor, Sergeant Mushinsky's credibility would have suffered. The Court finds that this argument by Petitioner fails both prongs of Strickland.

Probable cause exists when, based on a totality of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). It requires a probability, not absolute certainty, that contraband or evidence of a crime will be found. United States v. Farmer, 543 F.3d 363, 377 (7th Cir. 2008); see also United States v. Sidwell, 440 F.3d 865, 869 (7th Cir.2006) (stating that "probable cause requires only a probability or a substantial chance that evidence may be found"). In determining whether there is probable cause to search, law enforcement officers may draw reasonable inferences from the facts based on their training and experience. United States v. Reed, 443 F.3d 600, 603 (7th Cir. 2006). Moreover, "if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Wyoming v. Houghton, 526 U.S. 295, 300 (1999) (quoting United States v. Ross, 459 U.S. 798, 825 (1982)). This rule applies to all containers, open or closed, "without qualification as to ownership." Houghton, 526 U.S. at 300. However, a warrantless search of an automobile is nonetheless "defined by the object of the search and the places in which there is probable cause to believe that it may be found." Ross, 459 U.S. at 824.

The Court begins by noting that Petitioner's argument fails the second prong of Strickland. When Officer Marion instructed Sergeant Mushinsky to pull over the van that contained Petitioner, he informed Sergeant Mushinsky that he was performing surveillance on Petitioner when he witnessed the van's driver slash the tires of a vehicle (06-cr-10072, Doc. 60 at 7). Furthermore, he relayed to Sergeant Mushinsky that the driver was previously armed with a knife. (06-cr-10072, Doc. 60 at 7). Sergeant Mushinsky testified that once he learned of the possible presence of a knife, he ...


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