Winters v. USA
Filing
8
MEMORANDUM OPINION: Petitioner's original § 2255 motion 64 will be DENIED. AN APPROPRIATE JUDGMENT ORDER WILL ENTER. Signed by District Judge Harry S Mattice, Jr on 4/10/19. (aws, ) Mailed to Patrick Winters.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
PATRICK J. WINTERS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Nos.
1:12-CR-102-HSM-SKL-1
1:16-CV-400-HSM
MEMORANDUM OPINION
This case is before the Court upon a pro se motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 [Doc. 64] filed by Patrick J. Winters (“Petitioner”). The United
States of America (the “government”) filed a response in opposition [Doc. 67]. This matter is now
ripe. For the reasons that follow, the Court finds an evidentiary hearing on the 2255 Motion is not
necessary, and the 2255 Motion shall be DENIED.
I.
BACKGROUND
Petitioner was indicted for possessing with intent to distribute one kilogram or more of a
mixture and substance containing a detectable amount of heroin, in violation of 21 U.S.C. §
841(a)(1), (b)(1)(A) [Doc. 15]. After he entered a conditional guilty plea [Doc. 37], he received a
sentence of 121 months’ imprisonment [Doc. 48],1 and then filed an appeal of the denial of his
motion to suppress. As succinctly set forth by the Sixth Circuit Court of Appeals,
1
His sentence was later reduced to 120 months pursuant to 18 U.S.C. 3582(c)(2) [Doc. 70].
Defendant–Appellant Patrick J. Winters appeals from the
district court’s denial of his motion to suppress drug evidence
discovered by the police following a traffic stop and dog sniff. In
August 2012, a Chattanooga, Tennessee police officer stopped a
rental car, in which Winters was the passenger, for speeding. During
the stop, the occupants’ nervous behavior, inconsistent and
implausible travel plans, and suspicious rental arrangement led the
officer to believe that the occupants may have been trafficking
contraband. After he had completed issuing a warning ticket for
speeding, the officer extended the traffic stop for four minutes to
retrieve his drug-detection dog from his cruiser. Twenty-four
minutes after the stop was initiated, the officer deployed his dog
around the rental car, and the dog alerted to the presence of
narcotics. Upon searching the vehicle, the officer discovered a onekilogram package of heroin in Winters’s bag on the back seat.
Winters was arrested and charged with possession with intent to
distribute heroin. He later moved unsuccessfully to suppress the
drug evidence and entered a conditional guilty plea that reserved his
right to appeal the denial of his suppression motion.
On appeal, Winters asserts that the officer unreasonably
extended the traffic stop of the rental car in order to conduct a dog
sniff, in violation of the Fourth Amendment. In addition, Winters
argues that the Supreme Court’s decision in Florida v. Jardines,
[569 U.S. 1], 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), establishes
that a dog sniff of an automobile must be justified by probable cause,
and not mere reasonable suspicion.
We hold that, under the totality of the circumstances, the
officer had reasonable, articulable suspicion of criminal activity that
justified extending the stop for a few minutes to conduct a dog sniff
using a drug-detection dog that was already on the scene.
Furthermore, the Supreme Court’s decision in Jardines is premised
on a trespass rationale involving the special protection accorded to
the home and, therefore, it does not alter the analysis for traffic
stops. In any event, the officer was entitled to reasonably rely in
good faith on the binding precedent existing at the time of the traffic
stop, which established that the use of a drug-detection dog during
a lawful traffic stop does not require probable cause. As a result, we
affirm the denial of Winters’s motion to suppress.
2
United States v. Winters, 782 F.3d 289, 292 (6th Cir. 2015). Rather than repeat the detailed facts
and law that supports the decision of this Court to deny the motion to suppress, as upheld on appeal,
the Court adopts the Sixth Circuit’s explanation as if fully repeated herein.
The Supreme Court denied certiorari on October 6, 2015 [Doc. 60] and Petitioner timely
filed his 2255 Motion.
II.
STANDARD of REVIEW
A.
Threshold Standard
Under 28 U.S.C. § 2255(a), a federal prisoner may make a motion to vacate, set aside, or
correct his or her judgment of conviction and sentence, if he claims that the sentence was imposed
in violation of the Constitution or laws of the United States; that the court lacked jurisdiction to
impose the sentence; or that the sentence is in excess of the maximum authorized by law, or is
otherwise subject to collateral attack. As a threshold standard, to obtain post-conviction relief
under § 2255 a motion must allege: (1) an error of constitutional magnitude; (2) a sentence imposed
outside the federal statutory limits; or (3) an error of fact or law so fundamental as to render the
entire criminal proceeding invalid. Mallett v. United States, 334 F.3d 491, 496–97 (6th Cir. 2003);
Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003).
A petitioner bears the burden of demonstrating an error of constitutional magnitude which
had a substantial and injurious effect or influence on the criminal proceedings. Reed v. Farley,
512 U.S. 339, 353-54 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993). 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, 166 (1982).
Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District
Courts requires a district court to summarily dismiss a § 2255 motion if “it plainly appears from
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[the face of] the motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief.” See also Pettigrew v. United States, 480 F.2d 681, 684 (6th Cir.
1973) (“A motion to vacate sentence under § 2255 can be denied for the reason that it states ‘only
bald legal conclusions with no supporting factual allegations.’”) (quoting Sanders v. United States,
373 U.S. 1, 19 (1963)). If the motion is not summarily dismissed under Rule 4(b), Rule 8(a)
requires the court to determine, after a review of the answer and the records of the case, whether
an evidentiary hearing is required. If a petitioner presents a factual dispute, then “the habeas court
must hold an evidentiary hearing to determine the truth of the petitioner’s claims.” Huff v. United
States, 734 F.3d 600, 607 (6th Cir. 2013) (quoting Valentine v. United States, 488 F.3d 325, 333
(6th Cir. 2007)). An evidentiary hearing is not required “if the petitioner’s allegations cannot be
accepted as true because they are contradicted by the record, inherently incredible, or conclusions
rather than statements of fact.” Valentine, 488 F.3d at 333 (quoting Arredondo v. United States,
178 F.3d 778, 782 (6th Cir. 1999)).
B.
Standard for Ineffective Assistance of Counsel
Petitioner raises ineffective assistance of counsel issues. Ineffective assistance of counsel
is a recognized constitutional violation that, when adequately shown, warrants relief under § 2255.
The two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), governs claims
of ineffective assistance of counsel raised pursuant to 28 U.S.C. § 2255. Huff, 734 F.3d at 606.
That test provides that, to demonstrate a violation of the Sixth Amendment right to effective
assistance of counsel, “a defendant must establish that his attorney’s performance was deficient
and that the deficient performance prejudiced the defense.” Id. (citing Strickland, 466 U.S. at 687).
The first prong requires a petitioner to show his or her attorney’s performance was deficient
by demonstrating that counsel’s “representation fell below an objective standard of
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reasonableness.” Strickland, 466 U.S. at 688. Stated another way, the petitioner must show “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687. The Supreme Court has “declined to articulate
specific guidelines for appropriate attorney conduct and instead [has] emphasized that the proper
measure of attorney performance remains simply reasonableness under prevailing professional
norms.” Huff, 734 F.3d at 606 (alterations in original) (quoting Wiggins v. Smith, 539 U.S. 510,
521 (2003)). A reviewing court must be “highly deferential” to counsel’s performance, because
[a] fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at the time.
Because of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the
circumstances, the challenged action “might be considered sound
trial strategy.”
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Even if a petitioner is successful in overcoming that presumption, he or she must still satisfy
the second prong of the Strickland test, i.e., prejudice. Thus, a petitioner must show not only that
counsel’s representation was objectively unreasonable, but also that the petitioner was prejudiced
by counsel’s deficiency because there exists “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” McPhearson v.
United States, 675 F.3d 553, 563 (6th Cir. 2012) (quoting Strickland, 466 U.S. at 694).
Although the Strickland Court emphasized that both prongs must be established in order
for the petitioner to meet this burden, it held there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order or even to address both components of
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the inquiry. Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will often be so, that course should be
followed.” Id.
III.
ANALYSIS
As more fully explained in his supporting memorandum, Petitioner’s 2255 Motion asserts
he is entitled to §2255 relief on the grounds that (1) there was “no basis for reasonable suspicion,”
(2) the “length of [the] traffic stop was excessive,” and (3) “ineffective counsel and reliability and
credibility of the drug dog.” [Doc. 64 at Page ID # 397-400]. Expounding on these grounds,
Petitioner explains as to the first ground, “Nervousness, inconsistent statements and driving a thirdparty rental was not a basis of the reasonable suspicion required by the fourth Amendment to
justify detaining a motorist for a dog sniff.” [Id. at Page ID # 397]. As to the second ground,
Petitioner asserts, “The traffic stop should be no longer than what is necessary to effectuate the
purpose of the stop. Officer Duggan acted in such a way that implies he purposely delayed the
stop, violating [P]etitioner’s fourth Amendment.” [Id. at Page ID # 398]. Finally, as to the third
ground, Petitioner claims, “The dog sniff was unreliable due to the physical ailments of the drug
dog. Counsel was ineffective for failing to request an expert to analyze the ailments of the dog to
question the reliability of the sniff.” [Doc. 64 at Page ID # 400. See also Doc. 64-1 at Page ID #
409].
In short, Defendant now seeks § 2255 relief by mainly (and again) arguing that his
suppression motion, which alleged Fourth Amendment violations in connection with the stop and
subsequent search of his vehicle after a drug-detection dog alert, was wrongfully denied.
Defendant also asserts his counsel was ineffective for failing to request an expert to analyze the
drug-detection dog’s reliability in connection with the motion to suppress.
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A. Fourth Amendment Claims
Petitioner’s plea agreement provides his “guilty plea to the Indictment is conditioned upon
[Petitioner] reserving the right to challenge on appeal the ruling on the motion to suppress evidence
seized as a result of a search of [his] vehicle on August 9, 2012.” Petitioner acknowledges he
appealed his first ground for relief in his direct appeal [Doc. 64 at Page ID # 397]. However, he
appears to claim he did not file a direct appeal of the remaining Fourth Amendment claims
(grounds two and three), because the “[d]irect appeal was limited by the plea agreement, to only
challenge the legality of the traffic stop.” [Id. at Page ID # 399]. This claim is clearly contradicted
by the plea agreement, which allowed him to appeal all aspects of the denied motion to suppress.
Moreover, the record on direct appeal indicates all the issues raised in Petitioner’s first and second
ground and some of the issues raised in the third ground were addressed both in this Court and
again on direct appeal.
Most of the claims asserted in the 2255 Motion are barred. When the government seeks to
admit evidence collected pursuant to an illegal search or seizure, the exclusionary rule at times
suppresses that evidence and makes it unavailable at trial in order to deter Fourth Amendment
violations. Herring v. United States, 555 U.S. 135, 139 (2009). Despite its connection to the
Fourth Amendment, however, there is no constitutional right to have the evidentiary fruits of an
illegal search or seizure suppressed at trial. Davis v. United States, 564 U.S. 229, 236 (2011).
“Because questions regarding the admissibility of otherwise relevant evidence seldom touch upon
the “basic justice” of a conviction, the Supreme Court bars Fourth Amendment claims from habeas
review.” Northrop v. Trippett, 265 F.3d 372, 378 (6th Cir. 2001). Accordingly, “free-standing
Fourth Amendment claims cannot be raised in collateral proceedings under . . . § 2255.” See Ray
v. United States, 721 F.3d 758, 762 (6th Cir. 2013).
7
Even if Petitioner’s Fourth Amendment claims had not been raised on direct appeal, it is
well-established that a § 2255 motion “is not a substitute for a direct appeal.” Regalado v. United
States, 334 F.3d 520, 528 (6th Cir. 2003) (citing Frady, 456 U.S. at 167-68 (1982)). Accordingly,
claims that could have been raised on direct appeal, but were not, will not be entertained via a
motion under § 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his
failure to raise the claims previously; or (2) that he is “actually innocent” of the crime. Ray, 721
F.3d at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). The hurdle a petitioner
faces to excuse procedural default is “intentionally high[,] . . . for respect for the finality of
judgments demands that collateral attack generally not be allowed to do service for an appeal.”
Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000). Moreover, “whether an investigation
violated the Fourth Amendment has no bearing on whether the defendant is guilty.” Good v.
Berghuis, 729 F.3d 636, 637 (6th Cir. 2013). Petitioner has not even attempted to shows cause
and actual prejudice to excuse his failure to raise any claims previously or that he is actually
innocent of the crime to the extent he is now claiming some aspect of his Fourth Amendment
claims was not previously raised.
Moreover, Petitioner previously and unsuccessfully appealed the denial of his motion to
suppress. That motion to suppress basically raised the same Fourth Amendment challenges
Petitioner seeks to relitigate in the 2255 Motion, with the exception of the drug-detection dog’s
reliability. Petitioner’s Fourth Amendment arguments were rejected by the Sixth Circuit due to
its conclusion that “Officer Duggan had reasonable suspicion to detain [Petitioner] for the dog
sniff based on . . . nervousness, inconsistent and implausible travel plans, and odd rental
arrangement, considered in the aggregate.” Winters, 782 F.3d at 302. The Sixth Circuit also held
“an alert by a properly trained and reliable drug-detection dog is sufficient to establish probable
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cause for the presence of a controlled substance.” Id. at 304 (quoting United States v. Stubblefield,
682 F.3d 502, 507 (6th Cir. 2012)). As held by this Court and affirmed on direct appeal, Officer
Duggan, the dog handler, had probable cause for the search after Red, the drug-detection dog,
alerted him to the presence of a controlled substance in Defendant’s vehicle. Id.; See also United
States v. Sharp, 689 F.3d 616, 620 (6th Cir. 2012). The Fourth Amendment claims asserted by
Petitioner in his 2255 Motion are properly denied because he had an opportunity for full and fair
litigation of this claim at trial and on direct appeal. See Ray, 721 F.3d at 762; Stone v. Powell, 428
U.S. 465, 494, (1976) (holding a prisoner may not be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.).
Accordingly, this Court need not address Petitioner’s Fourth Amendment arguments yet
again as it is well established that a § 2255 motion may not be used “to relitigate an issue that was
raised and considered on direct appeal absent highly exceptional circumstances, such as an
intervening change in the law.” United States v. DeGroat, 102 F. App’x 956, 959 (6th Cir. 2004)
(quoting Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999)). Petitioner has not shown or
even alleged exceptional circumstances. Moreover, to the extent Petitioner claims the drugdetection dog’s health concerns were not raised on direct appeal, “claims not raised on direct
appeal,” are procedurally defaulted and “may not be raised on collateral review unless the
petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003) (citing
cases); see also, e.g., Jones v. Bell, 801 F.3d 556, 562 (6th Cir. 2015) (quoting Wainwright v.
Sykes, 433 U.S. 72, 84 (1977)).
True enough, ineffective assistance of counsel can constitute cause excusing procedural
default. However, where a petitioner claims that a procedural default occurred due to ineffective
assistance of counsel, “relief under § 2255 [is] available subject to the standard of [Strickland].”
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Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996); see also Bell, 801 F.3d at 562. Ineffective
assistance of counsel, under the Strickland standard, can also serve as an independent ground for
§ 2255 relief. See, e.g., Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012), which will
be addressed below.
B. Ineffective Assistance Claims
Although Petitioner’s “free-standing Fourth Amendment claims cannot be raised in
collateral proceedings under . . . § 2255, the merits of a Fourth Amendment claim still must be
assessed when a claim of ineffective assistance of counsel is founded on incompetent
representation with respect to a Fourth Amendment issue.” Ray, 721 F.3d at 762. “Where defense
counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of
ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious
and that there is a reasonable probability that the verdict would have been different absent the
excludable evidence in order to demonstrate actual prejudice.” Id. (quoting Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986)).
Petitioner raises only one issue of ineffective counsel—that is, his attorney’s failure to
obtain the services of an expert to argue that Red’s health affected Red’s reliability. Petitioner
seems to suggest his suppression motion would have been granted had his attorney sought the
services of a drug-detection dog expert. As Petitioner’s “ineffective-assistance-of-trial-counsel
claim is based on a motion to suppress, [the Court’s] prejudice analysis ‘turn[s] on the viability’
of that motion.” Carter v. Parris, 910 F.3d 835, 839 (6th Cir. 2018) (quoting Arvelo v. Sec’y, Fla.
Dep’t of Corr., 788 F.3d 1345, 1348 (11th Cir. 2015) and citing Grumbley v. Burt, 591 F. App’x
488, 500-01 (6th Cir. 2015)). As in Carter, Petitioner here cannot show prejudice because the
motion to suppress would have been denied regardless of his attorney’s arguments. Id. (citing
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Kimmelman, 477 U.S. at 375 (“Where defense counsel’s failure to litigate a Fourth Amendment
claim competently is the principal allegation of ineffectiveness, the defendant must also prove that
his Fourth Amendment claim is meritorious ....”)).
To show prejudice under Strickland, Petitioner must show that there was a reasonable
probability that, but for his counsel’s purported errors, the result would have been different.
Strickland, 466 U.S. at 694, 697. The uncontradicted proof in this case demonstrated that Red was
properly trained and certified by a bona fide organization. [Doc. 30 at Page ID # 100 (finding
Officer Duggan was certified to work with two drug-detection dogs including Red, a drugdetection dog and they “were trained and certified to work as a team. Officer Duggan, who has
been employed by the [police department] for seven years, worked with Red from May 2008 until
shortly after the incident at issue. Red is a single-purpose, active alert drug-detection dog. Red
and Officer Duggan were certified annually by the United States Police Canine Association, with
their last certification on March 28, 2012)]. Thus, Red’s positive alert to the odor of narcotics
provided probable cause for the search. See Winters, 782 F.3d at 304. See also Fla. v. Harris, 568
U.S. 237, 246-47 (2013) (“If a bona fide organization has certified a dog after testing his reliability
in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the
dog’s alert provides probable cause to search. The same is true, even in the absence of formal
certification, if the dog has recently and successfully completed a training program that evaluated
his proficiency in locating drugs. After all, law enforcement units have their own strong incentive
to use effective training and certification programs, because only accurate drug-detection dogs
enable officers to locate contraband without incurring unnecessary risks or wasting limited time
and resources.”).
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Petitioner now questions why his counsel did not obtain expert services to address whether
Red’s medical condition affected Red’s reliability after it came out in the suppression hearing that
Red experienced seizures, vomiting, heart worms and tumors. “[A]n indigent defendant may
obtain authorization for investigative, expert, or other services under 18 U.S.C. § 3006A(e)(1)
upon a demonstration that (1) such services are necessary to mount a plausible defense, and (2)
without such authorization, the defendant’s case would be prejudiced.” United States v. Howard,
621 F.3d 433, 447 (6th Cir. 2010), cert. denied, 131 S. Ct. 1623 (2011) (internal quotation marks
omitted) (affirming decision to deny request for dog sniff expert where no showing of necessity).
Services requested under 18 U.S.C. § 3006A(e) in the context of a criminal prosecution are
“necessary” if a defendant can demonstrate (1) such services are necessary to mount a plausible
defense, and (2) without them, the defendant’s case would be prejudiced. United States v. Gilmore,
282 F.3d 398, 406 (6th Cir. 2002). Under this standard, “[a] district court need not grant an
indigent’s motion under § 3006A on the off chance that the requested services might turn up
something.’ Id. (quotation omitted). “An indigent criminal defendant may not use § 3006A(e)(1)
to fund a speculative ‘fishing expedition.’” Howard, 621 F.3d at 447 (citing United States v. Clark,
385 F.3d 609, 618 (6th Cir. 2004) (affirming decision to deny a request for a psychological expert
where the need for such expert was based entirely on speculation)).
Petitioner has failed to demonstrate how a drug-dog expert would be helpful in assessing
the credibility of the testifying officer, Officer Duggan. And because Petitioner has not otherwise
shown that the drug detection dog’s training and performance records contained irregularities that
required expert analysis, he has failed to establish that he needed expert assistance in order to
challenge Red’s medical condition and his counsel was not deficient for failing to seek such
assistances. Nor has he shown this Court would have authorized funds to hire such an expert and
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thus he has shown no prejudice. See Howard, 621 F.3d at 449-50 (affirming this Court’s refusal
to authorize expert assistance to demonstrate a drug detection dog’s alert on a vehicle was
unreliable and therefore insufficient to establish probable cause to search the vehicle in connection
with a motion to suppress).
Additionally, Petitioner’s 2255 Motion sets forth no credible information indicating that
Red’s health would have any impact on his olfactory abilities. The drug dog’s ability “to
accurately identify particular scents” is not even the primary issue in determining the credibility
of a dog’s alert. Howard, 621 F.3d at 449. Instead, it is the communication between the handler
and the dog and, because the handler is the only witness, it is the handler’s credibility that is at
issue. Id. Here, in connection with the motion to suppress, this Court discussed Red’s health at
length and found that Duggan’s testimony that Red’s health did not lessen the dog’s ability to
detect drug odors was entirely credible [Doc. 30 at Page ID # 101; Doc. 35 at Page ID # 290]. In
spite of Red’s health issues, the testimony at the suppression hearing established, and the Court
found, Red was properly trained, reliable, and fully qualified to accurately alert to the presence of
the odor of controlled substances in spite of his health conditions. Petitioner did not appeal this
decision.
Petitioner’s counsel conducted a thorough cross-examination of the handler regarding
Red’s health, prior testing, and training schedule, and argued Red was not reliable given his health
condition [Doc. 34 at Page ID # 199-202, 251-260, 274-78]. Counsel’s decision to rely on crossexamination of Officer Duggan without presenting an expert was a reasonable decision. While
problems with a drug-detection dog’s health may give rise to the need for an expert in some cases,
Petitioner must do more than speculate about the dog’s health problems to merit funding for an
expert opinion and testimony. See Howard, 621 F.3d at 448. Moreover, the testimony of a drug
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dog expert who has “not observed the alerting dog in question—and that dog’s interactions with
its handler—is not particularly helpful to dispute the dog’s reliability. And such testimony
certainly is not necessary for that purpose.” Id. at 449 (emphasis in original); see also United
States v. Diaz, 25 F.3d 392, 395 (6th Cir. 1994) (a “drug-dog expert’s” testimony to undermine
the reliability of the dog’s alert was unpersuasive in a suppression hearing.). As a result, Petitioner
cannot show prejudice based on his counsel’s decision not to seek funds for an expert.
Moreover, in addition to the finding of probable cause based on Red’s alert, the Court also
found that,
even if Red’s alert did not constitute probable cause due to alleged
health concerns, Officer Duggan had independent probable cause
before he searched the vehicle based on Defendant’s admission he
threw marijuana from his person into the grass while Officer
Duggan deployed Red. This admission and the discovery of
marijuana took place before Officer Duggan’s search and he
credibly testified it was part of his probable cause for the search.
[Doc. 30 at Page ID # 119-20]. Petitioner did not object to (or appeal) this alternate finding of
probable cause [Doc. 35 at Page ID # 290]. Similarly, Petitioner failed to address this alternative
finding in his 2255 Motion or reply to the government’s argument regarding same. As a result,
counsel’s decision not to seek an expert clearly resulted in absolutely no prejudice and Petitioner’s
ineffective assistance claim fails. The reliability argument that Petitioner contends his attorney
should have made regarding Red with the assistance of an expert simply would not have changed
the result. See Carter, 910 F.3d at 839.
Here, upon review of the motions, memoranda, responses and the record, the Court finds
that an evidentiary hearing is not required because the record conclusively shows that Petitioner is
not entitled to relief as a matter of law. See Bryan v. United States, 721 F.2d 572, 577 (6th Cir.
1983) (evidentiary hearing on motion to vacate sentence is not required to resolve purely legal
14
issues). Petitioner’s bald assertions and conclusory allegations do not provide sufficient ground
to require an evidentiary hearing. Thomas v. United States, 849 F.3d 669, 681 (6th Cir. 2017).
See also Wogenstahl v. Mitchell, 668 F.3d 307, 335 (6th Cir. 2012) (“Merely conclusory
allegations of ineffective assistance . . . are insufficient to state a constitutional claim.”); Amr v.
United States, 280 F. App’x 480, 485 (6th Cir. 2008) (holding that “the court is not required to
hold an evidentiary hearing if the petitioner’s allegations cannot be accepted as true because they
are contradicted by the record.”). For the reasons articulated above, the Court finds that Petitioner
is not entitled to an evidentiary hearing. See, e.g., 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,” much less relief).
IV.
CERTIFICATE OF APPEALABILITY
Finally, the Court must consider whether to issue a certificate of appealability (“COA”)
should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c)(1), a petitioner may
appeal a final order in a § 2255 case only if he is issued a COA, and a COA will be issued only
where the applicant has made a substantial showing of the denial of a constitutional right. See 28
U.S.C. § 2253(c)(2). Where a claim has been dismissed on the merits, a petitioner must show that
reasonable jurists would find the assessment of the constitutional claim debatable or wrong. Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
Here, Petitioner has failed to make a substantial showing of the denial of a constitutional
right, as jurists of reason would not debate the Court’s findings as to any of Petitioner’s claims.
Because Petitioner has failed to make a substantial showing of the denial of a constitutional right,
a COA SHALL NOT ISSUE.
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V.
CONCLUSION
For the reasons set forth herein, Petitioner’s original § 2255 motion [Doc. 64] will be
DENIED.
AN APPROPRIATE JUDGMENT ORDER WILL ENTER.
/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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