United States v. Wilson

UNITED STATES OF AMERICA v. ALDO RAY WILSON, Defendant.

Case No.: 4:10cr25/RH/CAS

Case No.: 4:12cv470/RH/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

July 27, 2015

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant's amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 65). The Government filed a response (doc. 69) and Defendant filed a reply. (Doc. 70). Defendant also filed a "Supplement of Supreme Court Authority and an Actual Innocence Claim Relevant to the Armed Career Criminal Enhancement Imposed on Him by way of Prior Convictions." (Doc. 72). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After reviewing the record, the court directed the Government to file a supplemental memorandum and afforded Defendant the opportunity to file a supplemental reply. They have now done so. (Docs. 78, 79). After a careful review of the record and the arguments presented, it is the opinion of the undersigned that Defendant has not raisedany issue requiring an evidentiary hearing and that the amended § 2255 motion should be denied. See Rules Governing Section 2255 Cases 8(a) and (b).

PROCEDURAL BACKGROUND

On April 14, 2010, Defendant was charged in a single count indictment with knowing possession of a firearm and ammunition by a convicted felon. (Doc. 1). William Rourke Clark, Jr. of the office of the Federal Public Defender was appointed to represent him. In late May, the defense moved for a continuance, and the trial was continued from June 7 until August 2, 2010. (Docs. 16, 17). Near the end of June, Defendant submitted a letter directly to the district court, which the court directed the clerk to docket, but upon which the court took no further action. (Docs. 19, 20). In the letter, Defendant informed the court that he had asked his attorney to file a motion to suppress two months earlier, in April of 2010, but counsel had not done so. (Doc. 20). Defendant explained in this letter that he did not want the court to remove his attorney, but he wanted the court to talk to counsel about this matter. Appended to Defendant's letter was a copy of a letter from then-assistant state public defender, Tiffany Jones who represented Defendant on state charges arising out of the same incident. In her letter, Ms. Jones advises Defendant that his state charges will be dropped due to the federal prosecution, and suggests that Defendant's new attorney should be able to have the evidence against him suppressed, because the arresting officer had no legal right to be in the place he was, within the curtilage of Defendant's property, when he observed the gun in Defendant's vehicle. (Doc. 20 at 2).

The court held a conference with the parties on August 3, 1010, and Defendant again brought up the issue of the motion to suppress. (See doc. 53). Defendant told the court that he did not want to continue with jury selection at that time, again referencing the fact that he had asked counsel to file a motion to suppress back in April. He mentioned that he had even written the court a letter about this, but counsel had not yet filed the motion. (Doc. 53 at 4). In response to Defendant's statement, the court asked counsel to explain the Government's evidence. Counsel stated that a police officer, in the process of arresting his client after a traffic stop, discovered a firearm in plain view in the vehicle Defendant was driving, and "that's the firearm that Mr. Wilson wants me to file a motion to suppress the evidence." (Id. at 6). Counsel stated that the traffic stop was conducted after law enforcement ran the tag on the vehicle, discovered it was owned by a person who had been driving with a suspended license, and the officer recognized Mr. Wilson as fitting the description of the owner of the vehicle. (Id. at 6-7). Defendant interjected a question, asking "how can you stop me in my yard, me and my truck in my yard?" (Id.). The following exchange then took place:

MR. CLARK: That is the other issue on - in Mr. Wilson's case, is the fact that the police officer doesn't indicate where he stopped him, other -

THE DEFENDANT: He never stopped me nowhere.

MR. CLARK: - than an address on Volusia Street. Mr. Wilson says he was in his yard on Volusia Street but at a different address. I think the testimony will probably resolve that issue, but -

THE COURT: Mr. Wilson, you were behind the wheel?

THE DEFENDANT: No, sir. I'm standing in my yard. My truck is locked up. They arrested me and took my key and checked my truck.

THE COURT: And he's in his own yard.

(Id. at 7-8). At this point the court asked the Government what the officer said was the basis for stopping Defendant. The Government responded by summarizing the evidence it would expect to present as follows:

The officer will testify, in his routine patrol at a traffic light, or whatever, he will routinely run tags of vehicles around him. The evidence that the government would anticipate putting on at trial is that in this instance, the defendant's vehicle was directly in front of the officer's vehicle on Volusia Street.

The Defendant stopped - it's a two-lane street with a solid yellow line-and he was going to turn into a driveway. That driveway was closed by a fence. The defendant had to stop, exit his vehicle, leave it in the lane of traffic, when the officer parked behind him, and crossed the street to open the fence.

During this period of time, the officer ran the tag. In fact, the anticipated testimony, the defendant waved at the officer when he walked across the street to open the gate.

During this period of time, certain, I believe all, but at least some of the vehicles with the Tallahassee Police Department were equipped with a mobile data terminal. That information came back rather quickly. The officer can more accurately provide the information to the court; but, in essence, during the period of time in which Mr. Wilson crossed the street, opened the fence, got back in his vehicle and turned into the driveway, the officer was going to pull forward at that point, now his lane being unobstructed by the Defendant's vehicle; and, as he began to pull forward, he was alerted in a matter of seconds or so that the registered owner of that vehicle was suspended or habitually-revoked based on DUI.

(Doc. 53 at 8-9). The court then reiterated its understanding that Defendant had wanted counsel to file a motion to suppress and counsel had not done so, but that in all other respects the representation had been adequate. Defendant confirmed this. (Id. at 9). There was no further discussion of the motion to suppress.

The case was tried before a jury the following week. The presentation of evidence concluded in one day, and the jury returned to continue deliberations thefollowing day. Shortly thereafter reconvening, the jury sent a written communication to the court which read:

1. Did either officer have probable cause to search the vehicle of the defendant?

2. What constitutes probable cause?

(Doc. 55 at 2). The court responded as follows:

TO THE JURY:

The issue in the case is whether the defendant knowingly possessed the gun or ammunition. You must decide that issue based on the evidence that was introduced during the trial and the instructions I have given you.

If, in deciding that issue, you believe it relevant to consider the information the officers had when they found the gun, then in deciding what information they had, you must rely solely on the evidence introduced during the trial. They had no other information.

If, in asking about probable cause, you are considering whether it was proper for an officer to look in the truck and find the gun, then you are instructed as follows. First, whether it was legal for an officer to look in the truck is an issue for me, not for you. Second, if it happened as the officers testified, it was legal. The evidence introduced during the trial was properly introduced. Whether to believe the evidence, and whether the evidence establishes beyond a reasonable doubt that the defendant knowingly possessed the firearm or ammunition, are issues for you alone to determine. "Probable cause" is not a concept that is relevant to your deliberations in any way.

(Doc. 32 at 2). Neither side objected to the court's response to the question. (Doc. 55 at 2) Less than thirty minutes after receiving the court's response, the jury returned a verdict of guilty. (Doc. 55 at 2, 4; doc. 33).

The PSR calculated that Defendant was a Career Offender pursuant to § 4B1.1 U.S.S.G., and had a criminal history category of VI. (See doc. 41). The applicable advisory guidelines range was 235 to 293 months. Defendant was sentenced at the lowend of this range to a term of 235 months, despite the court's finding that Defendant had given untruthful testimony with respect to the offense conduct. (Doc. 56 at 9-10).

Defendant appealed, contending that his sentence was procedurally unreasonable. (See doc. 60 at 4). The Eleventh Circuit Court of Appeal affirmed the sentence.¹ (Id.).

Defendant timely filed the instant § 2255 motion, raising a single ground for relief. He contends that counsel was constitutionally ineffective when he failed to file a motion to suppress, which would have resulted in the exclusion of the only evidence against him. The Government claims that Defendant's motion is procedurally barred and without merit. He later filed a supplement in which he seeks to challenge the application of the ACCA. The Government asserts that such a claim is procedurally and temporally barred.

LEGAL ANALYSIS

General Standard of Review

Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to § 2255 are extremely limited. A prisoner is entitled to relief...