United States v. Ellis

UNITED STATES OF AMERICA, Plaintiff, v. BRETT W. ELLIS, Defendant.

CRIMINAL ACTION No. 12-20093-01-KHV

CIVIL ACTION No. 14-2578-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

January 18, 2017

MEMORANDUM AND ORDER

On November 19, 2013, the Court sentenced defendant to 72 months in prison. This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #76) filed November 10, 2014. For reasons stated below, the Court overrules defendant's motion and denies a certificate of appealability.¹

Factual Background

On July 12, 2012, a grand jury charged Brett Ellis with two counts of receiving and distributing child pornography and one count of possessing child pornography. See Indictment (Doc. #1). Defendant filed a motion to suppress. Based on proffers from counsel and testimony at the hearing on defendant's motion to suppress, the Court found the following facts:

The Green Circle in Kansas City, Missouri is a store which sells hydroponic grow equipment that individuals sometimes use to grow marijuana. On March 16, 2011 at 1:07 p.m., Missouri Highway Patrol Trooper [Sergeant Jim] Wingo saw a white male individual make a purchase at the store, exit the store and get into a Ford sedan. Trooper Wingo gave the vehicle information to law enforcement officers who determined that the car was registered to Brett Ellis at 134 North Center, Apartment D in Gardner, Kansas.

On April 15, 2011, Sergeant [Thomas] Reddin of the Sheriff's Office in Johnson County, Kansas found a single trash bag in the community dumpster located behind defendant's residence. Officers searched the trash bag and verified that it belonged to defendant. Within the bag, officers found an unopened letter from Farmer's Insurance Group addressed to defendant, printed e-mail correspondence of defendant, and several green leaves including three small whole leaves which Sergeant Reddin recognized as marijuana leaves. [Footnote in original: The printed email correspondence related to the purchase and shipment of a carbon dioxide (CO2) regulator valve. Defendant had inquired whether a certain valve would fit a certain size CO2 tank. A CO2 regulator valve is part of the equipment which individuals use to cultivate marijuana.] In addition, officers found a zip lock baggie with a piece of paper with the notation "White Widow (H)" written on it. Based on a Google search, officers learned that the phrase "White Widow" relates to the White Widow marijuana strain. Officers found links to web sites where seeds of that particular strain could be purchased. Officers conducted a field test of the vegetation seized from the trash bag. The test resulted in a positive indication for the presence of THC, the active ingredient in marijuana. As with any field test, the test was presumptive, but not conclusive, for the presence of the substance.

Sergeant Reddin is an experienced law enforcement officer who has been involved in at least ten investigations of indoor marijuana grow operations. Through his training and experience, he has come to recognize that the presence of marijuana leaves is often indicative of the presence of live marijuana plants. Based on the above information, Mark Burns, a Deputy Sheriff with the Johnson County Sheriff's Department, prepared an affidavit for search warrant and presented it to Judge Kevin Moriarty of the District Court of Johnson County, Kansas. Judge Moriarty found probable cause to search defendant's apartment and issued a warrant. The warrant authorized the search and seizure of "all computers, computer software, computer systems, computer networks and supporting documentation, as defined in K.S.A. 21-3755(a)(2),(3),(5),(6), and (10), and all electronic and magnetic media stored therein, together with all storage devices, internal and external to the computer or computer system, including but not limited to: floppy disks, diskettes, hard disks, CD Roms, DVD ROMs, magnetic tapes, removable media drives, optical media, printers, modems, fax machines, digital scanners, digital cameras, system servers, video displays, and any other electronic or magnetic devises used as peripheral to the computer, or computer systems, for violations of K.S.A. 21-36a05, indicia ofownership, user information, identifying or purporting to identify a user, installer, or licensee of operating system software or application software or data affiliation, of the above described items and documents, images, or correspondence." Search Warrant at 1, attached as Exhibit B to Defendant's Motion To Suppress Evidence (Doc. #24).

Memorandum And Order (Doc. #33) filed December 10, 2012 at 1-3.

During the search of defendant's computer for evidence of marijuana cultivation and trafficking, officers found evidence related to defendant's receipt and possession of child pornography. Plea Agreement Pursuant To Fed. R. Crim. P. 11(c)(1)(C) (Doc. #63) ¶ 2. Officers applied for and received a search warrant for evidence related to child pornography. Id. During the search, agents found more than 100 videos and more than 10,000 images of child pornography. Id.

On December 10, 2012, the Court overruled defendant's motion to suppress. Memorandum And Order (Doc. #33). On June 17, 2013, pursuant to a plea agreement under Rule 11(c)(1)(C), Fed. R. Crim. P., defendant pled guilty to Count 3 which charged possession of child pornography. See Plea Agreement Pursuant To Fed. R. Crim. P. 11(c)(1)(C) (Doc. #63).² The agreement proposed a sentence of 72 months in prison. See id., ¶ 3. Defendant had a total offense level of 28 with a criminal history category II for a guideline range of 87 to 108 months. See Presentence Investigation Report (Doc. #65) filed September 4, 2013, ¶ 96. On November 19, 2013, the Court accepted the Rule 11(c)(1)(C) agreement and sentenced defendant to 72 months. Melanie S. Morgan represented defendant throughout the proceedings.

Defendant did not appeal. On November 10, 2014, defendant filed a motion to vacate his sentence under 28 U.S.C. § 2255. Liberally construed, defendant's motion alleges that Morganprovided ineffective assistance because (1) she did not procure an expert to testify at the hearing on defendant's motion to suppress; (2) she did not obtain transcripts from state court which showed that defendant was not ever arrested or charged with being a drug dealer; (3) she did not explain or keep current on relevant case law regarding search and seizure and (4) she advised defendant to plead guilty without investigating, explaining or asserting additional grounds to suppress. Motion Under 28 U.S.C. § 2255 (Doc. #76) at 4-8; Motion For Leave To Expand The Record Of [Defendant's] 28 U.S.C. § 2255 [Motion] With New Evidence (Doc. #106) filed October 7, 2016 at 1-2; Defendant's Reply To Government Response To Defendant's Motion Pursuant To 28 U.S.C. § 2255 (Doc. #108) filed October 7, 2016 at 1.

Analysis

The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To establish ineffective assistance of counsel, defendant must show that (1) the performance of counsel was deficient 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, 694 (1984). To meet the first element, i.e. counsel's deficient performance, defendant must establish that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In other words, defendant must prove that counsel's performance was "below an objective standard of reasonableness." United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992). Strickland mandates that the Court be "highly deferential" in its review of counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professionalassistance." 466 U.S. at 689. The Court must not second-guess counsel's assistance with the benefit of hindsight simply because defendant was convicted and sentenced to a lengthy prison term. See id.

To show prejudice in the guilty plea context, defendant must show a reasonable probability that but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002); Miller v. Champion, 262 F.3d 1066, 1068-69 (10th Cir. 2001). As part of his proof, defendant must show that "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000)). Defendant's mere assertion that but for counsel's errors, he would have insisted on trial is necessary, but ultimately insufficient to entitle him to relief. Miller, 262 F.3d at 1072; United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993). The Court evaluates the factual circumstances surrounding the plea to predict "whether the outcome of the district court proceedings would have been different if his counsel had not committed the alleged errors." Clingman, 288 F.3d at 1186; see Miller, 262 F.3d at 1072 (court examines factual circumstances surrounding plea to determine whether petitioner would have proceeded to trial). While defendant need not show that he would have prevailed at trial, his prospects of succeeding inform the Court's view whether he in fact would have gone to trial absent the alleged errors. United States v. Triplett, 263 F. App'x 688, 690 (10th Cir. 2008); see Clingman, 288 F.3d at 1186. The strength of the government's case is often the best evidence whether defendant in fact would have changed his plea and...