Hill v. USA - 2255
Filing
2
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/20/2020. (c/m 3/2020 heps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ANTONIO HILL
Petitioner
:
v.
:
Criminal No. DKC 12-375
Civil Action No. DKC 16-104
:
UNITED STATES OF AMERICA
Respondent
:
MEMORANDUM OPINION
Presently
Petitioner’s
§ 2255.1
pending
amended
and
motion
(ECF No. 303).
now
to
ready
vacate
for
pursuant
resolution
to
28
is
U.S.C.
An evidentiary hearing was held February
25, 2019, supplemental memoranda have been filed, and no further
hearing is necessary.
For the following reasons, the motion will
be denied and a certificate of appealability will not issue.
Petitioner raises a single issue in his motion, ineffective
assistance of counsel, based on the purported failure of his trial
counsel, Mr. Steven R. Kiersh, to call a critical witness at the
suppression hearing.
The background of Petitioner’s case was
recounted in an earlier opinion, (ECF No. 345), and will not be
repeated in full here.
To prevail on an ineffective assistance of counsel claim, a
petitioner
objectively
1
must
first
unreasonable
show
when
that
“counsel’s
measured
efforts
against
All ECF references are to Criminal No. 12-375.
were
prevailing
professional norms.”
(4th Cir. 2005).
Frazer v. South Carolina, 430 F.3d 696, 703
In evaluating objective unreasonableness, “a
court must indulge a strong presumption that counsel’s conduct
falls
within
the
wide
range
of
reasonable
professional
assistance[.]” Strickland v. Washington, 466 U.S. 668, 689 (1984).
Counsel’s “strategic choices made after thorough investigation of
law
and
facts
relevant
to
plausible
options
are
virtually
unchallengeable[,]” id. at 690, but counsel also “has a duty to
make reasonable investigations or to make a reasonable decision
that [] particular investigations [are] unnecessary,” id. at 691.
In addition, a petitioner must show prejudice, meaning that “there
is a reasonable probability that, but for counsel’s unprofessional
errors, the results of the proceeding would have been different.”
Id. at 694.
The issue in this case stems from the suppression hearing
held on May 20, 2013.
The police officer who conducted the search
testified that after they obtained keys from Petitioner’s brother,
Mr. Dominique Hill (“Dominique”), his partner first attempted a
“key turn” using a key.
After determining that the key fit, the
officer knocked on the door, and Mr. E’Rico Hill (“E’Rico”),
Petitioner’s brother and co-defendant, opened the door “all the
way” which allowed the officer to see drugs and a small child in
the apartment.
The officer testified that after E’Rico opened the
2
door, E’Rico became belligerent, so the officer detained him.
The
officer then conducted a protective sweep of the apartment and
applied for and obtained a search warrant.
(ECF No. 283, at 35-
39).
In his habeas motion, Petitioner claims that, prior to filing
the motion to suppress, Petitioner and Mr. Kiersh “had conferred
with [E’Rico] . . . with respect to having [him] testify” about
the search.
(ECF No. 303, at 2).
E’Rico “indicated to both
Petitioner and counsel that he [was] willing to testify” that
police opened the door to search the apartment and that he never
opened the door.
(Id.).
the facts are as follows:
In his motion, Petitioner contends that
On June 24, 2011, using a key obtained
from one of Petitioner’s co-defendants, local police opened the
door to an apartment in Maryland.
E’Rico and his young son were
asleep inside the residence at the time.
Police closed the door,
then reopened the door and ordered E’Rico to exit the apartment.
Police placed E’Rico in handcuffs, brought him back inside the
apartment, and then conducted a search finding marijuana and other
evidence of drug trafficking.
(Id., at 4-5).
Petitioner claimed that he requested that Mr. Kiersh call
E’Rico to testify, but Mr. Kiersh refused.
(ECF No. 303, at 2).
Mr. Kiersh did not call any other witnesses to testify about the
search, and, thus, the undisputed evidence was that “somebody
3
open[ed] the door all the way and right in front of [the police
was] contraband.”
(ECF No. 283, at 67).
The Government supplied an affidavit from Mr. Kiersh who
denied knowledge of E’Rico’s willingness to testify.
Because the
facts were in dispute, counsel was appointed for Petitioner and an
evidentiary hearing held.
At the evidentiary hearing, the court and counsel agreed that,
for Petitioner to prevail, he had to prove both that E’Rico had
been willing to testify at the suppression hearing that the police,
and not he, had physically opened the door to the apartment, and
that Mr. Kiersh explicitly had been told that in advance of the
suppression hearing.
(ECF No. 372, at 12-13).
E’Rico was not
available to testify at the evidentiary hearing, although he
supplied a declaration.
According to the undisputed facts at the
evidentiary hearing, E’Rico was not in any position to tell Mr.
Kiersh himself about his available testimony, because he was
detained and represented by counsel.
Rather, if Mr. Kiersh had
been so advised, it had to have been by Petitioner or someone else
who had that information.
As will be discussed, the court finds
that Petitioner has failed to establish that anyone told Mr. Kiersh
that E’Rico was willing to testify that he did not physically open
the door to the apartment.
4
In a post hearing supplement, Petitioner now no longer relies
on E’Rico’s declaration, and no longer intends to call him as a
witness in support of the deficient performance prong of his
ineffective assistance claim.2
(ECF No. 375, at 5). Instead, he
pivots and now claims that (1) the arguments raised in the motion
to suppress lacked merit, and (2) counsel failed to investigate.
He still contends that Mr. Kiersh erred by not calling E’Rico as
a witness because he was the only eyewitness to the event.
claims are unavailing.
Those
The conduct of Mr. Kiersh with respect to
the filing and litigation of the motion to suppress fell within
the wide range of conduct expected of competent counsel.
Petitioner
and
his
two
brothers
were
involved
in
the
circumstances addressed at the suppression hearing, each at a
different time.
Dominique, who had been observed engaging in what
law enforcement thought was criminal conduct, was accosted outside
the apartment and his key came into possession of the police.
It
is correct that the suppression motion focused on the use of
Dominique’s keys to determine which apartment he was seen in.
And
the motion challenges any thought that Dominique could have given
valid consent to search the apartment.
There did not appear to be
any dispute at the suppression hearing that Dominique voluntarily
2
Mr. Hill reserves the right to call E’Rico as a witness if
the court reaches the prejudice prong.
5
turned
over
the
keys.
The
potential
issue
was
whether
the
Government would contend that he also gave consent to a search of
the apartment. Dominique was present in order to be able to refute
any such contention, but his testimony became unnecessary when the
Government disavowed any such contention.
Ultimately, the United
States Court of Appeals for the Fourth Circuit affirmed Judge
Williams’ conclusion that the use of the key to identify the
apartment (by putting the key in the lock, determining it worked,
and removing it) did not constitute a search.
Hill, 606 F.App’x 715, 717 (4th Cir. 2015).
United States v.
Thus, how the police
came to have the key appears to be immaterial.
Beyond that, Mr. Kiersh wisely concluded that Petitioner
might have to establish standing to contest the later search of
the apartment and thus brought Petitioner’s aunt to the hearing.
Judge Williams concluded that enough had been shown to allow
Petitioner to contest the later search.
E’Rico was involved in the later search of the apartment.
The motion to suppress did not even mention the knock and announce
tactic, but did assert that there were no exigent circumstances to
justify the warrantless intrusion.
hearing,
it
was
reasonable
for
In advance of the suppression
counsel
to
surmise
that
the
Government might contend that E’Rico had consented to the search,
but that did not eventuate either.
6
Rather, the focus was on
whether, once the door was opened and contraband smelled and seen,
the police were justified in coming in, performing a sweep, and
maintaining the status quo while seeking and obtaining a search
warrant.
Petitioner has not shown that Mr. Kiersh’s conduct before and
at the suppression hearing was deficient.
Petitioner nevertheless
contends that he should have done more to investigate the socalled knock and announce tactic and E’Rico’s potential testimony.
Why, however, is it deficient performance to fail to discuss
anything with E’Rico’s attorney when Mr. Kiersh had no information
that the entry into the apartment occurred other than as stated in
the police report?
Indeed, it is difficult to see how Petitioner
can even make this argument when he says he no longer relies on
E’Rico’s declaration.
Without that declaration, there is no
evidence that the police, and not E’Rico, physically opened that
door.
As pointed out by the Government, Petitioner testified at
the evidentiary hearing that he learned from E’Rico when E’Rico
was released on bail and in response to the question of what
happened at the door:
“E’Rico told him [Petitioner] that the
police walked into the house and that [E’Rico] never let them in.”
(ECF No. 372, at 34).
This is not inconsistent with the police
report, or the Government’s position that the actual entry was
justified by exigent circumstances.
7
Consent to enter and search
was not the issue.
Petitioner simply has not established that he
told Mr. Kiersh that E’Rico did not physically open the door. More
importantly, he has not established that there was any reason to
investigate, or inquire, of E’Rico (even through his counsel)
whether the police report was correct.
Long after the events of the suppression hearing, and guilty
plea, Petitioner attempts to put forth a version of events that
simply makes little sense.
He was actively involved with counsel
in advance of the suppression hearing.
Had he believed that the
police opened the door, he would have made sure that assertion was
made.
Even Ms. Piner, Petitioner’s mother, agreed that there were
many meetings and conversations among the brothers and their
attorneys.
Certainly, if E’Rico contended that the police opened
the door, it would have been communicated.
Mr. Kiersh had no
reason to suspect the police report was incorrect.
Petitioner has not established deficient performance, and it
is unnecessary to go further in the analysis of ineffective
representation by counsel.
The motion to vacate will be denied.
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. § 2255, the court is also required to issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.
“jurisdictional
A certificate of appealability is a
prerequisite”
to
8
an
appeal
from
the
court’s
earlier order.
Cir. 2007).
United States v. Hadden, 475 F.3d 652, 659 (4th
A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
Where the court
denies petitioner’s motion on its merits, a petitioner satisfies
this standard by demonstrating that reasonable jurists would find
the court’s assessment of the claim debatable or wrong.
Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell,
537 U.S. 322, 336–38 (2003).
Upon review of the record, the court
finds
not
that
Petitioner
has
satisfied
the
above
standard.
Accordingly, a certificate of appealability will not issue.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
9
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