DERRICK R. YOUNG, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MICHAEL P. McCUSKEY, District Judge.
On June 26, 2012, Petitioner filed his well-drafted and well-argued Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (#1). On July 25, 2012, the Government filed its Response (#4). On September 17, 2012, Petitioner filed his Reply (#7). The court has reviewed the briefs and transcripts. Following this careful review, Petitioner's Motion (#1) is DENIED.
On November 3, 2008, police officer Scott Rosenbery observed a car make a right-hand turn without signaling. Rosenbery initiated a traffic stop by activating his emergency lights. After the car stopped, the driver, who was the vehicle's only occupant, identified himself as Petitioner. Rosenbery learned that Petitioner was on parole.
Rosenbery asked Petitioner to step out of his car. Rosenbery then directed Petitioner to interlock his hands over his head, but Petitioner placed his hands on the hood of his car instead. By this time, a second squad car had arrived at the scene, and another police officer stood behind Rosenbery while he was talking to Petitioner. When Rosenbery repeated his order directing Petitioner to place his hands over his head, Petitioner began to run.
The two officers chased after Petitioner, who ignored their orders to stop. Rosenbery fired a Taser, and Petitioner fell to the ground. The two officers secured Petitioner's hands with cuffs and lifted him to his feet. As they did so, Rosenbery observed a clear plastic bag containing marijuana on the ground where Petitioner had fallen and seized it as evidence. While the officers escorted Petitioner to the squad car, Petitioner began squirming and moving his hands toward the front-right pocket of his jeans. At the squad car, the officers searched Petitioner's pockets. In Petitioner's front-right jeans pocket, the officers found 42 packets of heroin, individually wrapped in tinfoil. During a post-arrest interview, Petitioner admitted the heroin was his and said that he had intended to sell it in Decatur.
On September 1, 2009, Petitioner was charged by indictment with one count of knowingly possessing a mixture and substance containing heroin, a Schedule I controlled substance, with the intent to distribute, in case 09-CR-20067. (No. 09-CR-20067, #4). On April 9, 2010, Petitioner filed, among other things, a motion to suppress the heroin as improperly seized. The motion raised two claims: (1) the traffic stop was invalid because Petitioner had signaled as required; and (2) Petitioner's arrest was improper because it was made "without probable cause and/or, because he was on parole." On May 27, 2010, this court held a hearing on the motion to suppress. Petitioner's counsel noted, in pertinent part, as follows:
[T]he only issue I see, Your Honor, is the parole search. Clearly under the testimony before us, Your Honor - and there's no question of its credibility; it's the only testimony we heard - my client failed to signal, and certainly an officer is entitled to pull someone over for a traffic violation.
When [the officer] received word from, by radio that my client was on parole - and Your Honor, I know, is well aware of this because we've argued this issue before the Court before.... The Supreme Court has held that when an individual is on parole a police officer may search him.
The other issue, Your Honor, would be: Do they have the right to arrest him? And I think it's probably a distinction without a difference in this particular case because, to search him, first you must secure him.
Prior to the search, the officer was unable to search - secure my client and search him, and then the chase ensued. And, of course, a new crime for which the officer had probable cause to arrest came into being; that is, escaping from the police officer. At that point, [Petitioner] clearly had the right to make the search. [Petitioner] was in, in custody, and we go from there.
On this issue, this court's primary concern was whether the officer had "a right to ask [Petitioner] to put his hands on the vehicle instead of writing the ticket and allowing him to leave." In response, the Government first argued that once Rosenbery had probable cause to believe Petitioner had committed a traffic offense, Petitioner could be arrested and searched. Second, the Government argued that because Petitioner was on parole, the officer could lawfully search Petitioner pursuant to Samson v. California, 547 U.S. 843 (2006) (holding that a suspicionless search of a parolee, under California parole terms, did not violate Fourth Amendment). Petitioner's counsel noted that Samson v. California was controlling and conceded this issue. This court then denied Petitioner's motion to suppress. Further, this court found that Rosenbery was credible and that Rosenbery had probable cause to stop Petitioner for failing to signal a right-hand turn. This court also found that Petitioner had fled before any search occurred, and that the flight and possession of marijuana supplied probable cause for Rosenbery to arrest, take into custody, and search Petitioner. Thus, this court concluded that the search of Petitioner's jeans pocket incident to arrest was with probable cause and therefore valid.
On August 6, 2010, Petitioner consented to a change-of-plea proceeding before United States Magistrate Judge David G. Bernthal. At the outset of the hearing, the court confirmed with the parties that the guilty plea was an "open plea" and that there was no plea agreement between the parties. Following a thorough plea colloquy with Petitioner, during which the court twice more affirmed that Petitioner was pleading guilty without any agreement, the court entered a report recommending that this court accept the guilty plea. On September 1, 2010, this court approved the recommendation of the magistrate judge and accepted Petitioner's guilty plea.
On December 21, 2010, this court held Petitioner's sentencing hearing. The Presentence Investigation Report (PSR) listed three prior convictions that qualified Petitioner for career offender status at his sentencing. These were two convictions for a controlled substance offense: Possession of a Controlled Substance with Intent to Deliver (namely, cocaine) (Macon County #04-CF-1326) (#29 ¶ 44) and Possession of Cannabis with Intent to Deliver (Macon County #04-CF-769) (#29 ¶ 43), and one prior conviction for a crime of violence: Aggravated Battery with a Firearm (Macon County #97-CF-733) (#29 ¶ 41); see also (#29 ¶ 26). The PSR concluded that because Petitioner was 35 years old when he committed the underlying offense, which was a felony controlled substance charge, he was considered a Career Offender under the sentencing guidelines. Finally, PSR noted that Petitioner had an advisory guideline imprisonment range of 188 to 235 months. Neither party objected to the PSR, so Petitioner was sentenced to 188 months of imprisonment to be followed by a six-year term of supervised release.
This court then informed Petitioner of his right to appeal his sentence and the ways he could file the appropriate notice of appeal. During this instruction, Petitioner's attorney indicated that Petitioner intended to challenge the denial of the motion to suppress on appeal. Regrettably, due to a misunderstanding, this court erroneously informed Petitioner that he could appeal the denial of his motion to suppress, and the Government did not correct this court.
Petitioner appealed his conviction, claiming that this court erred in denying his pretrial motion to suppress evidence. The Seventh ...