United States District Court, W.D. Tennessee, Western Division
ORDER DENYING & DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255 ORDER DENYING CERTIFICATE OF APPEALABILITY ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
S. THOMAS ANDERSON, District Judge.
On May 21, 2012, Defendant Rico Rice, Bureau of Prisons inmate registration number XXXXX-XXX, an inmate at the Federal Correctional Institution (""FCI") in Forrest City, Arkansas, filed a motion pursuant to 28 U.S.C. § 2255 alleging that trial counsel provided ineffective assistance. (ECF No. 1.) On February 6, 2013, the Court directed the United States to respond to the motion to vacate. (ECF No. 6.) On March 27, 2013, the United States filed an answer contending that Defendant's motion is without merit. (ECF No. 10.) On April 26, 2013, Defendant filed a reply. (ECF No. 11.)
I. PROCEDURAL HISTORY
On March 24, 2009, a federal grand jury returned a three-count indictment against Defendant Rico Rice. (Indictment, Criminal ("Cr.") ECF No. 6.) Defendant Rice was charged with possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g) (Count One); possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)6> (Count Two); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Three). ( Id. ) On February 22, 2010, Attorney Jim Thomas filed a motion to suppress. (Cr. D.E. 29.) On May 13, 2010, the Court held an evidentiary hearing on Defendant's motion to suppress all evidence acquired as a result of his traffic stop. (Cr. ECF No. 39.) After listening to the testimony of Officer Eugene Burnett and reviewing the following exhibits: (1) the tow recovery report form; (2) Defendant's arrest ticket; (3) the Memphis Police Department tow policy; (4) the vehicle search form; (5) the vehicle seizure form; and (6) the evidence bag, the Court denied the motion to suppress. ( Id. ) The Court stated:
Well, the two issues obviously that the court is concerned with will be first, the traffic stop, whether or not there was probable cause for the officer to initiate the traffic stop. And the court finds based on the testimony - and of course keeping in mind that the only testimony before the court at this time is Officer Burnett's testimony, and the court has no reason at this point to believe that Officer Burnett's testimony was not credible, so the court finds at this point that the traffic stop was reasonable, that there was probable cause to believe that the defendant had, in fact, run the red light at that time based strictly on the testimony of Officer Burnett. Now, then that takes us to the second issue, which is the more pertinent to this case, having to do with whether or not, based upon the traffic stop and the overall circumstances, there was probable cause for Officer Burnett to do an additional search of the vehicle. Officer Burnett has testified that based upon his years of experience and his knowledge gained through his experience in law enforcement that he is able to detect the odor of raw marijuana. Again, all I have before me at this point, Mr. Thomas, is just the testimony of Officer Burnett, and I have no reason to believe that that testimony is not credible or reliable. So it is the court's finding that, based upon Officer Burnett's testimony that he did smell raw marijuana, that he had probable cause to continue the search of the vehicle because he had probable cause to believe that there were, that there was the possibility or possibly evidence of additional crimes located within the vehicle. And it's the court's belief that under Arizona versus Gant that in this circumstance - obviously we are dealing with some circumstances now where the courts are finding and I myself have found that under Arizona versus Gant that it was not proper to conduct an additional search of the vehicle, but in this case, based upon the fact that Officer Burnett's testified that he did smell the raw marijuana when the window was rolled down, it is my conclusion that he had probable cause to continue to search the vehicle for evidence of other crimes. Now, of course he found - he testified that he found the two small baggies containing marijuana and that the other substances and the scales and, what was it, baggies I believe were found by the other officers when they arrived on the scene and conducted the inventory search. Again, based strictly on the testimony of Officer Burnett, I cannot conclude that it was improper for the officers to conduct the inventory search. At that time the vehicle was parked on a public street. The court's already found that they had probable cause to make the initial stop and probable cause to make the search of the vehicle based upon the smell of the raw marijuana. At that point it would be reasonable for the officers to conduct an inventory of the vehicle, and of course the items were found at that time, which under the Tennessee forfeiture law would enable them to take possession of the vehicle subject to forfeiture. So based upon all those factors, it is the court's conclusion that the motion to suppress should be denied.
(Cr. ECF No. 67 at PageID 139-41.)
On June 2, 2010, Defendant Rice filed a pro se motion to dismiss counsel. (Cr. ECF No. 24.) On June 24, 2010, Attorney Thomas filed a motion seeking to withdraw from Defendant's representation based on "a complete breakdown in effective communication." (Cr. ECF No. 43.) On June 29, 2010, Chief United States Magistrate Judge Diane K. Vescovo granted counsel's motion to withdraw and appointed new counsel for Defendant. (Cr. ECF Nos. 46-47.) On February 24, 2011, Attorney Linda Garner filed a motion to dismiss the indictment based on a violation of the Speedy Trial Act. (Cr. ECF No. 55.) On March 3, 2011, Rice pled guilty to Count Three of the indictment, pursuant to a written plea agreement. (Minute ("Min.") Entry, Cr. ECF No. 57.)
The plea agreement provided as follows:
The following constitutes the Plea Agreement reached between the United States, represented by EDWARD L. STNATON, III, United States Attorney for the Western District of Tennessee, and MICHELLE L. KIMBRIL-PARKS, Assistance United States Attorney, the defendant RICO RICE, represented by LINDA GARNER, defense counsel. The parties enter into the following Plea Agreement pursuant to Rule 11(c)1(c) of the Federal Rules of Criminal Procedure. It being the intention of the parties that the Court may accept or reject this agreement immediately or after having had an opportunity to review the pre-sentence report, but may not modify the agreement. Except with respect to any non-binding recommendations to be made by the United States, if the Court rejects the agreement either party may withdraw from the agreement.
RICO RICE agrees that he will enter a voluntary plea of guilty to count THREE of the indictment.
The United States agrees to dismiss any remaining counts of the indictment against the defendant at the appropriate time.
The parties agree to recommend that the court impose a term of 70 months imprisonment.
Given the facts in the possession of the United States at the time of the writing of this agreement, the United States does not oppose the defendant receiving acceptance of responsibility credit pursuant to U.S.S.G. Section 3E1.1 The defendant understands that if the United States receives information between the signing of this agreement and the time of the sentencing that the defendant has previously engaged in, or it he engages in the future, in conduct inconsistent with the acceptance of responsibility, including, but not limited to, participation of any additional criminal activities between now and the time of sentencing, this position could change. Further, the defendant understands that whether or not acceptance of responsibility credit pursuant to Section 3E1.1 is granted is a matter to be determined by the district court. Failure of the district court to grant acceptance of responsibility credit is not a basis for RICO RICE to withdraw his guilty plea.
The Defendant is aware that Title 18, United States Code Section 3742 gives him the right to appeal the sentence imposed by the Court. Acknowledging this, defendant knowingly and voluntarily waives his right to appeal any sentence imposed by the Court and the manner in which the sentence is determined so long as the sentence is within the applicable guideline range. This waiver is made in exchange for the concessions made by the United States in this Plea Agreement. The waiver in this paragraph does not apply to claims relating to prosecutorial misconduct and ineffective assistance of counsel.
The defendant understands and agrees that the special assessment is due and payable to the United States District Court office immediately following the defendant's sentencing.
RICO RICE agrees that this plea agreement constitutes the entire agreement between himself and the United States and that no threats have been made to induce him to plead guilty. By signing this document, RICO RICE acknowledges that he has read this agreement, has discussed it with his attorney and understands it.
(Plea Agreement, Cr. ECF. 58 at PageID 68-71.)
Defendant advised that Court that he had discussed his case "completely and fully" with his attorney, that she had "been able to explain to [his] satisfaction what the facts of the case are, what the law would be that would apply to those facts and what [his] options are about whether to plead guilty or go to trial, " and that he was "satisfied with [her] representation." (Cr. ECF No. 69 at PageID 148-49.) Defendant told the Court he understood that he was "giving up [his] right to appeal [his] conviction." ( Id. at PageID 151.) The United States summarized the evidence:
Had this matter gone to trial the facts would have been that on March 19, 2009 members of the Memphis Police Department OCT CAT Unite were in the area of Overton Crossing and at Whitney Road checking for criminal activity here in Memphis, Shelby County. The defendant was observed driving a black Infiniti westbound Whitney Road, disregarded a red light at Overton Crossing to go southbound on Overton Crossing. The defendant was pulled over by Detective Burnett and advised of the violation. While advising the defendant there was a strong odor of raw marijuana coming from the vehicle. The officer called for additional officers to make the scene. During the traffic stop the defendant was observed to make further movement as if he was reaching for something between the driver's seat and the console. He was given several verbal commands to show his hands. He refused to comply. Officer Burnett had the defendant open the driver's side door, at which time the defendant exited and attempted to fight by swinging his right fist at the officer. The defendant was taken into custody. After a brief struggle Defendant Rice did not sustain any injuries and did not require any medical treatment. The defendant was placed under arrest for disorderly conduct and disregarding a red light. The detectives - additional officers made the scene and searched the vehicle and recovered a backpack containing several small bags of marijuana as well as a digital scale, a box of sandwich bags, a black Taurus 40 caliber firearm, $337 in cash. The marijuana weighed 404 grams. There was an additional - in the defendant's wallet was an additional $800 in case. The firearm was examined by a member of the ATF and found to be manufactured outside the state of Tennessee. It was also determined that prior to the commission of this offense Mr. Rice had been convicted of a felony and these events did happen here in the Western District of Tennessee.
( Id. at PageID 160-62.) The Defendant admitted that the statements concerning his possession of the Taurus 40 caliber semi-automatic pistol were substantially true and correct and that he "intentionally possess[ed] a Taurus 40 caliber semi-automatic pistol while engaged in a drug trafficking crime for which [he] could be prosecuted." ( Id. at PageID 162-63.) The Court accepted Defendant's guilty plea. ( Id. at PageID 163.) Defense counsel made an ...