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Graham v. United States

United States District Court, D. Rhode Island

June 19, 2017



          Mary M. Lisi Senior United States District Judge

         Pending before the Court is a Petition to Vacate, Set Aside or Correct Sentence Pursuant to 28 USC § 2255 (Doc. #150) (“Motion”) filed by Petitioner Damon Graham (“Petitioner” or “Graham”). The Government has filed an opposition to the Motion (Doc. #154) (“Opposition”), to which Graham filed a response (Doc. #155) (“Response”). No hearing is necessary.


         Graham was arrested on July 18, 2013, pursuant to a Criminal Complaint filed that day. An Indictment was filed on September 11, 2013, charging Graham with possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 846; possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 846; and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On September 18, 2013, Graham was arraigned on the Indictment. Following a December 6, 2013, hearing, the Court granted Graham's motion to proceed pro se and appointed Attorney Terence E. Livingston as stand-by counsel. The Government filed an Information Charging Prior Convictions, pursuant to 21 U.S.C. § 851, on January 6, 2014. A Superseding Indictment, retaining the counts contained in the original Indictment and adding charges of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), was filed on February 19, 2014. Graham was arraigned on the Superseding Indictment on February 26, 2014.

         On April 23, 2014, Graham pled guilty to six counts of the Superseding Indictment. The Government made an oral motion to dismiss the charges of possession of a firearm in furtherance of a drug trafficking crime, which the Court granted. Graham subsequently filed a motion to withdraw his guilty plea, which was denied at a July 17, 2014, hearing. Graham was sentenced on October 17, 2014, to a term of imprisonment of 186 months, to be followed by eight years of supervised release. Graham filed a Notice of Appeal that day. Judgment entered on October 22, 2014. On October 27, 2015, the Court of Appeals denied Graham's “frivolous” appeal. The appellate court's Mandate issued on November 18, 2015. Graham did not seek further review by the United States Supreme Court.

         Graham timely filed the instant § 2255 Motion on December 28, 2016.[1] On March 30, 2017, the Government filed an Opposition to the Motion. Graham filed a Response on May 19, 2017.


         I. Section 2255 and AEDPA

         Generally, the grounds justifying relief under 28 U.S.C. § 2255 are limited. A court may grant such relief only if it finds a lack of jurisdiction, a constitutional error, or a fundamental error of law. See United States v. Addonizio, 442 U.S. 178, 185 (1979)(“[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.”)(internal quotation marks omitted).

         Section 2255 states that:

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), which “imposed significant new constraints on proceedings under section 2255.” Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008)(footnote omitted). “Some of these constraints were temporal; for example, AEDPA established a one-year statute of limitations for filing a section 2255 petition.” Id. (citing 28 U.S.C. § 2255(f)). Others were numerical, requiring a petitioner to obtain preclearance from the circuit court before filing a second or successive petition. Id. (citing 28 U.S. § 2255(h)).

         II. Strickland

         A defendant who claims that he was deprived of his Sixth Amendment right to the effective assistance of counsel must demonstrate:

(1) that his counsel's performance fell below an objective standard of reasonableness; and
(2) a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984); United States v. Manon, 608 F.3d 126, 131 (1st Cir. 2010)(same). In assessing the adequacy of counsel's performance, a defendant “‘must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment, ' and the court then determines whether, in the particular context, the identified conduct or inaction was ‘outside the wide range of professionally competent assistance.'” Manon, 608 F.3d at 131 (quoting Strickland, 466 U.S. at 690); see also Strickland, 466 U.S. at 689 (noting that the court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...”). To show prejudice under Strickland, the defendant must demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A reasonable probability is one “sufficient to undermine confidence in the outcome.” Id. In making the prejudice assessment, the court focuses on the “fundamental fairness of the proceeding.” Manon, 608 F.3d at 131; see also Strickland, 466 U.S. at 696. “Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687; see also Reyes-Vejerano v. United States, 117 F.Supp.2d 103, 106 (D.P.R. 2000)(“The petitioner has the burden of proving both prongs of this test, and the burden is a heavy one.”). “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

         The same principles apply in the context of guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). The Hill Court held that “the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Id. at 58; see also Padilla v. Kentucky, 559 U.S. 356, 371 n.12 (2010)(“In Hill, the Court recognized-for the first time-that Strickland applies to advice respecting a guilty plea.”). The first prong of the Strickland test is nothing more than a restatement of the standard of attorney competence described above. Hill, 474 U.S. at 58.

The second, or “prejudice” requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Id. at 59; see also Lafler v. Cooper, 566 U.S. 156, 163 (2012)(“In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.”); id. at 164 (“In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.”). “To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.” Missouri v. Frye, 566 U.S. 133, 147 (2012). The Hill Court reiterated that, as stated in Strickland, “these predictions of the outcome at a possible trial, where necessary, should be made objectively ....” 474 U.S. at 59-60; see also Padilla, 559 U.S. at 372 (noting that “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances”).

         III. Analysis

         A. Ineffective assistance of counsel Graham alleges that he received ineffective assistance of counsel during the pre-trial stages of the proceedings.

         1. Failure to file motion to suppress

         Graham argues that counsel, prior to being appointed stand-by counsel, “fail[ed] to research and advance a meritorious Fourth Amendment claim that has prejudiced Petitioner.” Response at 7; see also id. at 4; Motion at 7. Specifically, Graham faults counsel for failing to file a motion to suppress evidence seized as a result of a dog sniff outside a storage unit. Motion at 7-8; Response at 5-7. Although a warrant was eventually sought and obtained to search the contents of the storage unit, Graham contends that the “search and violation” occurred prior to the issuance of the search warrant. Motion at 9.

         In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Supreme Court stated that:

Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.

Id. at 375; see also United States v. Mercedes-de la Cruz, 787 F.3d 61, 67 (1st Cir. 2015)(quoting Kimmelman). Because Graham cannot show that his Fourth Amendment claim is meritorious, in other words that a motion to suppress would have been successful, the first portion of his ineffective assistance claim fails. This is because a dog sniff outside a remote storage unit does not constitute a search within the meaning of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707 (1983)(concluding that “the particular course of investigation that the agents intended to pursue here-exposure of respondent's luggage, which was located in a public place, to a trained canine-did not constitute a ‘search' within the meaning of the Fourth Amendment”); see also United States v. Jacobsen, 466 U.S. 109, 123 (1984)(reiterating Place's holding that “subjecting luggage to a ‘sniff test' by a trained narcotics detection dog was not a ‘search' within the meaning of the Fourth Amendment”); United States v. Rodriguez-Morales, 929 F.2d 780, 788 (1st Cir. 1991)(holding that “the canine sniff of the exterior of a vehicle which is legitimately within the custody of the police is not a search within the meaning of the fourth amendment; and that subjecting the exterior of such a motor vehicle to the olfactory genius of a drug detection dog does not infringe upon the vehicle owner's fourth amendment rights”). Further, “upon receiving a positive indication that drugs were present, the authorities had probable cause to procure a warrant and carry out the thoroughgoing search of the automobile's interior which disclosed the cocaine cache.” Rodriguez-Morales, 929 F.2d at 789.

         Graham relies on Florida v. Jardines, 133 S.Ct. 1409 (2013), for his argument that a dog sniff is not always a search. Response at 5. Jardines, however, is distinguishable. In Jardines, the Supreme Court considered “whether using a drug-sniffing dog on a homeowner's porch to investigate the contents of a home is a ‘search' within the meaning of the Fourth Amendment.” 133 S.Ct. at 1413. The Court found that it was. Id. at 1417-1418 (“The government's use of trained police dogs to investigate the home and its immediate surroundings is a ‘search' within the meaning of the Fourth Amendment.”). Here, however, the drug-sniffing dog was nowhere near Graham's home or immediate surroundings. The officers were lawfully on the premises of the storage facility pursuant to an administrative subpoena. Motion, Ex. 2 (Narrative for Patrol of Detective Kevin R. Bosquet) at 2. The canine never entered the storage unit. See id., Ex. 1 at 1 (Narrative for Patrol of Officer Matthew C. Riley)(noting that he and K-9 Goro performed exterior sniffs of storage unit); id., Ex. 2 at 2 (noting that Officer Riley “walked his K-9 (Goro) by the storage unit”). The storage unit was not entered until a warrant was obtained to do so. See id., Ex. 1 at 1; id., Ex. 2 at 2. Therefore, Jardines is inapposite.

         Graham argues that the cases cited by the Government pre-date Jardines and implies that they are, therefore, no longer good law. Response at 5. However, post-Jardines, courts have continued to hold that dog sniffs not involving homes or curtilage are not searches within the meaning of the Fourth Amendment. See, e.g., United States v. Centeno-Gonzalez, 177 F.Supp.3d 721, 731 (D.P.R. 2016)(holding that firearms-detection dog sniff of defendant's vehicle was not search requiring probable cause and denying defendant's motion to suppress); United States v. Bates, 100 F.Supp.3d 77, 86 (D. Mass. 2015)(denying motion to suppress because “[t]here is no expectation of privacy in not having dog sniffs at mail facilities”); United States v. Taylor, 979 F.Supp.2d 865, 882 (S.D. Ind. 2013) (holding that because dog sniff of storage unit “did not constitute a Fourth Amendment search, it does not provide a basis to suppress the evidence subsequently discovered therein”).

         In Taylor, the defendant argued that the evidence found in the storage unit should be suppressed “because the dog sniff that revealed the presence of narcotics in the storage unit, which allowed law enforcement to obtain the search warrant, constituted an illegal Fourth Amendment search.” 979 F.Supp.2d at 879. The Taylor court rejected the defendant's argument, identical to the argument Graham makes here, that Jardines “undermined the once common belief, ” Response at 5, that a dog sniff was not a search, 979 F.Supp.2d at 879-81; see also id. at 880 (“Neither the Jardines majority's rationale, nor that in Justice Kagan's concurrence, support Mr. Taylor's position that the dog sniff in the instant case was a Fourth Amendment search. The majority's opinion was driven entirely by the fact that the dog sniff occurred in the curtilage of the defendant's home, which exceeded the scope of the limited license law enforcement had to enter the property. This case, of course, does not implicate this concern, as the dog sniff occurred on Hoosier Storage's property immediately outside the storage unit rented by Mr. Taylor.”). The Taylor court's reasoning is equally applicable in the instant case.

         Graham also relies on the Supreme Court's decision in Katz v. United States, 389 U.S. 347 (1967), to argue that he had a “reasonable expectation of privacy” in his effects, which were contained in the storage unit. Motion at 11; see also Response at 4. This contention is easily disposed of. “The Fourth Amendment ‘protects people from unreasonable government intrusions into their legitimate expectations of privacy.'” Place, 426 U.S. at 706-07 (quoting United States v. Chadwick, 433 U.S. 1, 7 (1977)); see also Katz, 389 U.S. at 351. However,

Official conduct that does not compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment. We have held that any interest in possessing contraband cannot be deemed legitimate, and thus, governmental conduct that only reveals the possession of contraband compromises no legitimate privacy interest. This is because the expectation that certain facts will not come to the attention of the authorities is not the same as an interest in privacy that society is prepared to consider reasonable. In United States v. Place, we treated a canine sniff by a well-trained narcotics-detection dog as sui generis because it discloses only the presence or absence of narcotics, a contraband item.

Illinois v. Caballes, 543 U.S. 405, 408-09 (2005)(internal citations and quotation marks omitted); see also Jacobsen, 466 U.S. at 123 (“Congress has decided-and there is no question about its power to do so-to treat the interest in ‘privately' possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably ‘private' fact, compromises no legitimate privacy interest.”).

         Accordingly, Graham had no legitimate privacy interest in the contents of the storage unit, and the dog sniff which revealed the presence of contraband was not an unconstitutional search. It necessarily follows that, had a motion to suppress been filed, it would not have succeeded and, therefore, counsel was not ineffective for choosing not to do so. See Kimmelman, 477 U.S. at 375. Moreover, for the same reason, Graham has not demonstrated prejudice under Strickland. See id.; see also Strickland, 466 U.S. at 694, 696.

         2. Failure to properly advise regarding plea

         In addition, Graham argues that “[b]y the advice provided to Petitioner during the plea bargain stage by standby counsel, this Petitioner was under the impression that the right to challenge prior litigated pretrial motions that were denied still existed with an open ...

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