USA v. Timothy Foster

Filing

OPINION filed AFFIRMING Foster s conviction without prejudice to Foster s right to bring a claim of ineffective assistance of counsel in a timely proceeding pursuant to 28 U.S.C. 2255. Decision not for publication pursuant to local rule 206. Karen Nelson Moore, Authoring Circuit Judge; Jeffrey S. Sutton, Circuit Judge and Bernice Bouie Donald, Circuit Judge.

Case: 10-4135

Document: 006111196711

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0104n.06
FILED

No. 10-4135

Jan 27, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee,
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v.
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TIMOTHY A. FOSTER,
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Defendant-Appellant.
_______________________________________)

LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

OPINION

Before: MOORE, SUTTON, and DONALD, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Timothy A. Foster (“Foster”), on direct
appeal from his conviction for being a felon in possession of a firearm, raises a claim of ineffective
assistance of counsel. In accordance with the preference expressed by the Supreme Court in
Massaro v. United States, 538 U.S. 500 (2003), we affirm Foster’s conviction without prejudice to
Foster’s right to bring a claim of ineffective assistance of counsel in a timely proceeding pursuant
to 28 U.S.C. § 2255.
I. BACKGROUND
In January 2010, Foster was completing a one-year term of parole for a prior state felony
conviction and reporting to state parole officer, James Klemens (“Klemens”). On January 20, 2010,
Klemens, along with other police officers from the Canton Police Department, conducted a
warrantless parole search of Foster’s residence discovering two firearms and a small quantity of

Case: 10-4135

Document: 006111196711

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United States v. Foster
marijuana. Immediately after the search, at the police station, Foster admitted to ownership of the
firearms.
On February 24, 2010, Foster was indicted in the United States District Court for the
Northern District of Ohio for one count of being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Foster entered a plea of not-guilty and moved to suppress the firearms and
incriminating statements as fruits of an unlawful search. Foster argued that Klemens and the other
Canton police officers lacked reasonable suspicion to conduct a parole search of his residence. In
response, the government contended that the search was justified in light of two tips Klemens
received indicating that Foster was selling drugs as well as Klemens’s observation that Foster
appeared to have money to pay for anger-management classes and new clothing despite being
unemployed.
Before the motion to suppress could be resolved, Foster moved to dismiss counsel because
of “an impasse” preventing counsel and client from “get[ting] along to do the business” required.
R. 26 (Pro Se Mot. to Relieve Counsel). The district court granted Foster’s motion and appointed
replacement counsel. In an order dated May 12, 2010, the district court set trial to commence on
June 28, 2010 and informed the parties that pleas would not be accepted after the date of the pretrial
conference—June 8, 2011.
The record indicates that on May 26, 2010, the district court cancelled the suppression
hearing scheduled for the following day. R. 32 (Dist. Ct. Order, 5/16/2010). Thereafter, on June 8,
2010, Foster entered a guilty plea. On August 31, 2010, Foster was sentenced to ninety-six months

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of imprisonment to be followed by three years of supervised release. Foster filed a timely notice of
appeal on September 7, 2010.
II. ANALYSIS
Foster contends that he was denied effective assistance of counsel in violation of the Sixth
Amendment. He argues that counsel’s decision to abandon the motion to suppress constituted
deficient performance and that, as a result, Foster was convicted and sentenced to ninety-six months
of imprisonment.
“We ordinarily will not rule on ineffective assistance of counsel claims raised on direct
appeal because the record has not been sufficiently developed to review such claims.” United States
v. Jones, 489 F.3d 243, 255 (6th Cir. 2007). We will make an exception, however, if the factual
record is sufficiently developed such that proper assessment of the merits of the claim is possible.
United States v. Franklin, 415 F.3d 537, 555-56 (6th Cir. 2005).
The record here is insufficient to decide the merits of Foster’s claim. We have no
information or insight as to the circumstances surrounding the cancellation of the suppression
hearing or as to Foster’s entry of a guilty plea less than two weeks later. See United States v. Allen,
254 F. App’x 475, 478 (6th Cir. 2007) (unpublished opinion). While the warrantless search of
Foster’s residence was explored tangentially in a detention hearing, the transcript clearly indicates
that the district court limited the scope of testimony to that relevant to detention. R. 17 (Detention
Hr’g Tr. at 35:6-8) (“[Objection] [s]ustained. We’re here regarding detention, sir, we’re not here to
discuss or to conduct a suppression hearing. This is about detention.”). Consequently, this court is

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ill-equipped to decide whether counsel’s performance was deficient and prejudicial, and we decline
to resolve Foster’s claim of ineffective assistance of counsel.
Accordingly, we affirm Foster’s conviction without prejudice to Foster’s right to bring a
claim of ineffective assistance of counsel in a timely proceeding pursuant to 28 U.S.C. § 2255.

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