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Tipton v. United States

United States District Court, E.D. Tennessee, Greeneville

November 15, 2016

DARRELL TIPTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE.

         Following a jury trial, Darrell Tipton (“petitioner”) was found guilty of being a convicted felon in possession of two firearms and ammunition. He was sentenced to 293 months imprisonment which is to be served consecutively to a 124-year state sentence. He has filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. [Doc. 95]. For reasons discussed in this memorandum and order, his motion is DENIED.

         I. BACKGROUND

         On October 26, 2005, there was an outstanding warrant for petitioner's arrest issued by a Missouri court. There also was a federal warrant for petitioner's arrest for unlawful flight from the state of Missouri to avoid prosecution.[1] On October 26, 2005, the Unicoi County sheriff's office had information that petitioner was at his mother's house in Erwin. Petitioner was considered to be armed and dangerous. In an effort to minimize the possibility of a deadly confrontation and the concomitant risk to innocent people, officers surrounded his mother's house, and then prevailed upon a family member to call the house to tell defendant that officers were on their way to arrest him. Soon after the phone call was made, petitioner and a young man, later learned to be Abel Lopez, petitioner's nephew, ran from the house. Petitioner was seen carrying a rifle and a backpack[2].

         Ignoring the officers' shouts to stop and surrender, petitioner and Lopez sped away in a car driven by Lopez. After a high speed chase of some four miles, the car was stopped.[3]Petitioner was immediately arrested on account of the federal and Missouri warrants. A search of petitioner's person pursuant to his arrest revealed .22 caliber ammunition in his pants pocket.[4]Lopez also was arrested, but the charges were later dismissed when the officers testified before the state judge that Lopez was an unwilling participant in petitioner's flight.[5]

         After the vehicle was towed to the sheriff's office, an inventory search was conducted. The rifle, a .22 caliber, was lying in plain view on the rear floorboard. The backpack also was in the rear seat. It was searched and in it was a .22 caliber handgun.[6] Those firearms and the ammunition led to his indictment in this court on December 13, 2005.

         Before his indictment in this court, petitioner had been extradited to the state of Missouri to stand trial on the charges pending in that state. In November 2008, he was convicted in a Missouri court of two counts of First Degree Assault, two counts of Armed Criminal Action, and Unlawful Use of a Weapon, and in May 2009, he was sentenced to a total of 124 consecutive years of imprisonment.[7]

         On May 26, 2009, this court issued the writ of Habeas Corpus Ad Prosequendum to secure petitioner's presence before this court to stand trial on the 2005 indictment. His initial appearance and arraignment occurred on August 28, 2009.[8]

         Attorneys Tim Moore and Nikki Pierce of Federal Defender Services were appointed to represent petitioner. He went to trial on April 6, 2010, and was convicted on April 7. His Guideline Range 235 to 293 months.[9] This court sentenced him to 293 months.[10]

         Petitioner appealed to the Sixth Circuit Court of Appeals, raising three issues: (1) that the delay between his indictment on December 13, 2005 and his initial appearance on August 28, 2009 violated his Sixth Amendment right to a speedy trial; (2) that he was entitled to a new trial because the prosecutor during a sidebar conference referred to “murder warrants” for petitioner's arrest issued by the states of Florida and Missouri which was overheard by the jury; and (3) that this Court abused its discretion by ordering his sentence for the federal conviction to be served consecutively to the sentence imposed by the Missouri court. The Court of Appeals rejected each of his arguments and affirmed his conviction and sentence.[11]

         II. STANDARD OF REVIEW FOR §2255 CLAIMS

         This Court must vacate and set aside petitioner's sentence if it finds that “the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . .” 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the court may summarily dismiss the § 2255 motion under Rule 4.

         When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.” O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).

         To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). See also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996).

         In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982). When a § 2255 Petitioner claims he was denied his sixth amendment right to effective assistance of counsel, it is noted that an attorney is presumed to have provided effective assistance, and the Petitioner bears the burden of showing that the attorney did not, Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003). Petitioner must prove that specific acts or omissions by his attorney were deficient and that the attorney failed to provide “reasonably effective assistance, ” Strickland v. Washington, 466 U.S. 668, 687 (1987), which is measured by “prevailing professional norms, ” Rompilla v. Beard, 545 U.S. 374, 380 (2005). If Petitioner crosses this evidentiary hurdle, he must then show “a reasonable probability that, but for [the attorney's acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S. at 694. In other words, he must show that he was prejudiced by the attorney's deficient representation:

To succeed on an ineffective assistance claim, a defendant must show that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [A court's ] review of counsel's performance is “highly deferential.” Id. at 689, 104 S.Ct. 2052. [The court must] “judge the reasonableness of of the time of counsel's conduct.” Id. at 690, 104 S.Ct. 2052. The defendant “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. To establish “prejudice, ” a “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011). And, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

Docherty v. United States, 536 Fed.Appx. 547, 551 (6th. Cir. 2013).

         III. PETITIONER'S CLAIMS

         A. Ground One: Evidence was seized pursuant to an unconstitutional search

         There are two independent but equally valid reasons why this claim is meritless. First, it has been procedurally defaulted. Petitioner could have raised this issue in his direct appeal, but he did not. He cannot raise an issue in a collateral attack that could have been raised in a direct appeal, Sullivan v. United States, 587 Fed. App'x 935, 942 (6th Cir. 2014). A petitioner can overcome the bar of procedural default only if he can demonstrate either “cause and actual prejudice, or that he is actually innocent, ” Bousley v. United States, 523 U.S. 614, 622 (1998). Petitioner claims actual innocence in his Reply brief.[12] Because he raises a number of claims in that reply, it will be discussed separately in Section IV of this memorandum. Suffice it to say at this point that his claim of actual innocence fails.

         Second, petitioner's argument that the evidence-- a .22 caliber rifle, a .22 caliber handgun, and .22 caliber ammunition-- was unconstitutionally seized is simply wrong as a matter of law. After the car in which petitioner fled had been stopped and petitioner arrested, the car was taken to the Unicoi County sheriff's office where an inventory search was performed. In plain view in the back floorboard and seat were the rifle and backpack.[13] The officers were aware petitioner was a convicted felon. As such, they were aware he could not lawfully possess a firearm. The rifle was therefore illegal contraband and in plain view. Contraband in plain view may be seized without a warrant if the officer immediately recognizes its incriminating nature, United States v. Bradshaw, 102 F.3d. 204, 210-11 (6th Cir. 1996). Additionally, petitioner had no standing to complain of the search of the car since he did not own it, and he was not driving.[14]See, Rakas v. Illinois, 439 U.S. 128 (1978). The warrantless seizure of the rifle was constitutional.

         Petitioner was seen carrying the rifle in one hand and the backpack in the other as he bolted from his mother's house.[15] At the very least, since petitioner had been arrested and the sheriff's department thus responsible for the protection of his property, an inventory search of the bag's contents was appropriate, United States v. McCoy, 102 F.3d. 239, 240 (6th Cir. 1996).

         Lastly, the ammunition was found in petitioner's pants' pocket after a pat-down search of his person following his removal from the car and his arrest.[16] A warrantless search incident to a lawful arrest is ...


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