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Larry W. Norwood v. United States of America

July 21, 2011

LARRY W. NORWOOD, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Sue E. Myerscough, United States District Judge:

E-FILED Friday, 22 July, 2011 11:07:59 AM Clerk, U.S. District Court, ILCD

OPINION

The Court now considers Petitioner Larry W. Norwood's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255. See (d/e 1) (Petition). For the reasons that follow, the claims asserted in the Petition and via Petitioner's amendment to the Petition are DENIED.

1. FACTS

In May 2010, Petitioner filed the instant Petition. The Petition alleged that Petitioner received ineffective assistance of counsel when his trial counsel failed to either: (1) object to the admission of an edited digital video disc (DVD) recording of the traffic stop that led to his arrest; or (2) request that the unedited original of the DVD be played in "open court." Petitioner further alleged that his appellate counsel was ineffective for failing to present the same DVD. In November 2010, Petitioner was granted leave to amend the Petition so he could allege that his trial counsel failed to conduct an adequate investigation. See Order dated March 1, 2011. Specifically, Norwood's amended Petition alleges that his trial counsel was ineffective because counsel failed to call witnesses to challenge the validity of the traffic stop and failed to submit as evidence certain personal items.

A. The Traffic Stop

On April 24, 2006, as Petitioner traveled northbound on Interstate 55 in Sangamon Country, Illinois, Illinois State Police Trooper Nathan Miller observed Petitioner tailgating the vehicle in front of him. Furthermore, the cab of Petitioner's truck lacked proper markings such as the company name and address. For these reasons, Trooper Miller stopped Petitioner. Trooper Miller's vehicle was equipped with a video camera, and Miller wore an audio recording device throughout the stop. A search of the truck revealed three duffel bags of marijuana in the cab's sleeper compartment. Trooper Miller arrested Petitioner and read Petitioner his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).

Prior to the arrest, Trooper Miller asked Petitioner why Petitioner's truck lacked appropriate markings. Petitioner indicated that the truck had recently come back from the body shop. When a background check revealed Petitioner's prior conviction for conspiracy to distribute more than 100 kilograms of marijuana, Trooper Miller asked to search Petitioner's truck. Petitioner consented to the search. While awaiting backup, Petitioner admitted to Trooper Miller that he suspected he could be stopped by police.

Trooper Miller and other officers first searched the trailer of the truck and an attached refrigeration compartment. They discovered the marijuana inside the front, cab portion of Petitioner's truck.

B. The District Court Proceeding The United States charged Petitioner with possession of 100 or more kilograms of marijuana with intent to distribute. On June 29, 2006, Petitioner filed a Motion to Suppress Evidence. Petitioner alleged the marijuana was inadmissible because he had not consented to the search of his truck cab. Petitioner also asserted that, after the search of the trailer but before the search of the cab, he withdrew his consent to a search of the remainder of the truck. Finally, Petitioner argued that Trooper Miller lacked probable cause to initiate the stop because the truck bore proper markings.

On August 21, 2006, United States Magistrate Judge Byron G. Cudmore held a suppression hearing. Prior to the hearing, the Government provided Petitioner's attorney with an audio/video DVD recording of the traffic stop. Petitioner's trial counsel submitted an affidavit stating that he and Petitioner reviewed the DVD of the traffic stop prior to June 26-nearly two months before the suppression hearing.

At the suppression hearing, Trooper Miller, Sergeant Terry Carter, and Norwood testified to the events of the traffic stop. The Government submitted and played portions of an edited copy of the DVD recording of the stop. Petitioner's counsel did not object to admission of the edited DVD "so long as . . . the entirety of the video [was] available to show the segments" useful to the defense. Petitioner, through his counsel, introduced separate segments of the complete DVD. At the conclusion of the hearing, Petitioner's counsel moved to have a complete DVD admitted into evidence. Judge Cudmore ordered the Government to submit a duplicate of the complete DVD to be reviewed in chambers.

On August 23, 2006, after viewing the unedited DVD, Judge Cudmore entered a Report and Recommendation recommending that suppression be denied. United States v. Norwood, No. 06-30041, 2007 WL 581819, at *6, n.2 (C.D. Ill. (Feb. 20, 2007)). Judge Cudmore found Petitioner's testimony lacked credibility. Judge Cudmore also found the testimony of the state troopers to be credible. Id. Additionally, the Report and Recommendation noted that the Government provided a copy of the unedited DVD which Judge Cudmore reviewed in chambers on August 22, 2006. Id.

On September 26, 2006, the Court accepted the Report and Recommendation. Thereafter, Petitioner filed a Motion for Reconsideration. The Court denied that motion, upholding both the traffic stop and ...


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