Opinion
Civil No. CCB-10-2771 Related Crim. No. CCB-06-57
11-14-2012
UNITED STATES OF AMERICA v. JERMARL JONES
MEMORANDUM
Petitioner Jermarl Jones has filed a motion to vacate his conviction under 28 U.S.C. § 2255. (ECF No. 115.) Jones claims that his counsel was ineffective for failing to file a motion to suppress evidence prior to trial, or raising the issue on direct appeal, and that his conviction should be vacated under the Sixth Amendment. For the reasons set forth below, Jones's motion will be denied.
Jones was convicted of conspiracy to distribute narcotics on March 6, 2008. He was sentenced to 240 months of incarceration. Subsequently, Jones appealed on various grounds and his conviction was affirmed. See United States v. Jones, 345 F. App'x 872 (4th Cir. 2009). The conviction of Jones rests in part on evidence that was seized at Apartment H of 10 Breezy Tree Court, an apartment complex in Cockeysville, Maryland. See Jones, 345 F. App'x at 880. Jones now asserts that his trial counsel was ineffective because counsel decided to argue that Jones had no relationship to the Breezy Tree apartment whatsoever, rather than attempting to argue that Jones had standing to suppress the evidence found at the apartment under the Fourth Amendment. Before Jones was arrested, his co-defendant had successfully suppressed the evidence found in the Breezy Tree apartment. (See Memorandum, ECF No. 117-1.) Jones admits that his trial counsel elected not to file a motion to suppress because counsel believed it "would be to[o] risky a strategy." (Jones Affidavit, ECF No. 117-2, ¶ 8.) Jones's counsel explained to him that "in order [to] suppress evidence from Breezy Tree . . . [Jones] would have to show that [he] was connected in a meaningful way to that apartment. . . . [A]ny admission of or ties to Breezy Tree Court would be used at Trial." (Id. ¶¶ 9-10.) Jones agreed. (Id. ¶ 11.)
The court evaluates a claim of ineffective assistance of counsel under a two-pronged test:Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Strickland v. Washington, 466 U.S. 668, 687-89 (1984)). In Kimmelman v. Morrison, the Supreme Court specifically addressed a claim of ineffective assistance for failing to file a motion to suppress evidence. 477 U.S. 365, 385 (1986). There, the Court held that counsel was ineffective because the failure to file such a motion was "not due to strategic considerations, but because, until the first day of trial, [counsel] was unaware of the search and of the State's intention to introduce [the evidence]." Id.; cf. Meyer v. Branker, 506 F.3d 358, 371 (4th Cir. 2007) ("It is a cardinal tenet of the Supreme Court's ineffective assistance jurisprudence that 'strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.'") (quoting Strickland, 466 U.S. at 690).
In order to succeed on a claim of ineffective assistance of counsel, a defendant must show: (1) that his counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance was prejudicial. . . . Under the first prong . . . , a defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness under "prevailing professional norms." In evaluating counsel's performance, [the court] must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."
As a preliminary matter, the court will assume, without deciding the issue, that Jones has not procedurally defaulted on a claim of ineffective assistance, even though he did not present the claim in his direct appeal to the Fourth Circuit, because the claim involves evidence not on the trial record. See Bond v. United States, 1 F.3d 631, 634-36, 638 (7th Cir. 1993) (holding that petitioner did not default in failing to claim ineffective assistance for not filing a motion to suppress on direct appeal because such a claim required extrinsic evidence beyond the trial). For this reason, however, Jones's claim that his appellate counsel was ineffective also fails. It appears from Jones's own testimony that the limited scope of direct appeal to the trial record is precisely the reason appellate counsel decided not raise it. (See Jones Affidavit ¶¶ 16-18.)
As to his trial counsel, Jones's claim falls under both prongs of Strickland. Under the first prong, it is obvious from the record and from Jones's own affidavit, submitted with his motion, that his counsel's decision not to pursue a motion to suppress the evidence found at the Breezy Tree apartment was a strategic decision, (See Jones Aff. ¶ 8), which, as noted above, is virtually unchallengeable. If Jones's counsel had pursued a motion to suppress the evidence, he would have had to admit, even insist, that Jones had a reasonable expectation of privacy in the Breezy Tree apartment, see United States v. Rusher, 966 F.2d 868, 873-74 (4th Cir. 1992), and provide a witness the government was unable to find (Linnea Worthington), who would apparently link him to the apartment. Instead, counsel's trial strategy was to suggest that Jones was completely unaware of the contents of the apartment and that he had no affiliation with it. (See Trial Tr., ECF No. 117-5, at 7-8.) Given the "strong presumption" that counsel acted professionally, Jones has not met his burden of showing that his counsel's strategic decision to forgo a motion to suppress in favor of an alternate strategy was "below an objective standard of reasonableness," especially because he does not claim, nor is there any indication, that counsel did not thoroughly investigate Jones's case before reaching his strategic decision.
This is an excerpt from the trial that Jones attached to his memorandum in support of his motion.
Jones cannot satisfy the second prong of Strickland because it is unlikely that a motion to suppress would have succeeded. In order to show prejudice under Strickland, the petitioner must show that, had counsel not made the alleged error, "[t]he likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 131 S. Ct. 770, 792 (2011). In order to succeed on his motion to suppress, Jones would first have had to demonstrate that he had a legitimate expectation of privacy in the apartment. See Rusher, 966 F.2d at 873-74. According to the officer who initially entered the apartment, there was an abundance of drug paraphernalia in plain view throughout the apartment, but no beds or other furnishings. (See (6/2/2006 Hearing Tr. at 28-32.) While Jones now produces an affidavit from the lessee of the apartment claiming that she leased it for Jones and that she gave him "total dominion and control" over the apartment, his name was not on the lease. (See Worthington Affidavit, ECF No. 117-3.) In fact, Jones did not have a key to the apartment on him when he was arrested, yet his co-defendant did have a key, and his co-defendant testified that the only other key was held by a third individual. (Hearing Tr. at 13-20.) Thus, under the totality of the circumstances, it is likely that the court would have concluded that Jones was merely "running a drug ring" out of the apartment of a third party, which would not have entitled him to a reasonable expectation of privacy. See United States v. Gray, 491 F.3d 138, 146-47 (4th Cir. 2007) (affirming that defendant had no expectation of privacy where he was found in an apartment clearly used for drug trafficking, he did not have a key to the apartment, he was not planning to stay over, and he was a "business, not a social, guest"). In short, Jones was not prejudiced by his counsel's failure to file a motion to suppress.
This hearing was for Jones's co-defendant's motion to suppress.
Accordingly, Jones's motion will be denied. Furthermore, a certificate of appealability is not warranted and shall be denied. See 28 U.S.C. § 2253(c).
Of course, Jones may seek a certificate of appealability from the Fourth Circuit if he chooses to do so.
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Catherine C. Blake
United States District Judge