Lurry v. United States of America

Filing 18

ORDER denying 1 Motion Under 28 U.S.C. sec. 2255, granting 12 request for relief based on Johnson v. United States, and finding as moot 15 Request to Supplement. Signed by Judge Samuel H. Mays, Jr on 07/20/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LANDREO LURRY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 13-cv-02580-SHM
No. 09-cr-20312-SHM

ORDER

Before the Court is Landreo Lurry’s Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (the “§ 2255 Motion”).

(ECF No. 1; see also

Mem. of Fact and Law in Supp. of Mot. Filed Under [28 U.S.C.
§ 2255], ECF No. 1-1 (“Mem. ISO § 2255 Mot.”).)

The United

States (the “Government”) responded on August 6, 2014.

(Resp.

of the United States to Mot. to Vacate, Set Aside, or Correct
Sentence
Resp.”).)

Pursuant

to

28

U.S.C.

§

2255,

ECF

No.

7

(Ҥ

2255

Lurry filed a reply in support of the § 2255 Motion

on September 5, 2014.

(Reply of Pet’r to United States Resp. to

Mot. to Vacate, Set Aside, or Correct Sentence Pursuant to 28
U.S.C. § 2255, ECF No. 8 (“§ 2255 Reply”).)

On July 8, 2016,

Lurry notified the Court that he also sought relief based on

Johnson v. United States, 135 S. Ct. 2551 (2015).

(Notice of

Request for Review, ECF No. 12 (“Johnson Notice”).)
For the following reasons, the § 2255 Motion is DENIED.
Lurry’s request for relief under Johnson is GRANTED.
I.

BACKGROUND
On January 11, 2011, Lurry pled guilty to one count of vio-

lating 18 U.S.C. § 922(g) by being a felon in possession of a
firearm.

(Order on Change of Plea, ECF No. 75 in 09-20312; 1 see

also Indictment 1, ECF No. 5 in 09-20312.)

At Lurry’s sentenc-

ing, the Court determined that Lurry was an armed career criminal

under

the

Armed

Career

Criminal

Act

(“ACCA”),

18

U.S.C.

§ 924(e), because Lurry had three prior convictions for aggravated burglary under Tennessee law.

(See, e.g., Hr’g Tr. 31,

ECF No. 90 in 09-20312 (“Sentencing Tr.”); see also Presentence
Investigation Report ¶¶ 22, 28–29 in 09-20312.)

The Court sen-

tenced Lurry to 180 months in prison followed by three years of
supervised release.

(Sentencing Tr. 34–35; J. in a Criminal

Case 2–3, ECF No. 84 in 09-20312.)

Had the Court determined

that Lurry was not an armed career criminal, he would have been
subject to a statutory maximum sentence of 120 months in prison.
18 U.S.C. § 924(a)(2).

1

References to “09-20312” are to filings in Lurry’s criminal
case, United States v. Lurry, Case No. 2:09-cr-20312 (W.D.
Tenn.).
2

After an appeal, Lurry filed the § 2255 Motion on July 29,
2013.

It has three grounds. 2

First, Lurry argues that he re-

ceived ineffective assistance of counsel at sentencing because
his counsel did not argue that Lurry’s aggravated-burglary convictions were not violent felonies under § 924(e). 3
5–6; Mem. ISO § 2255 Mot. 7–10.)

(§ 2255 Mot.

Second, Lurry argues that he

received ineffective assistance of counsel on appeal because his
counsel failed to argue that the traffic stop leading to Lurry’s
arrest was unconstitutional.
Mot. 10–12.)

(§ 2255 Mot. 6–7; Mem. ISO § 2255

Third, Lurry argues that his guilty plea “was not

entered with the advice of competent counsel.”

(§ 2255 Mot. 8.)

The gravamen of the third argument is that Lurry’s counsel did
not adequately inform him of possible § 924(e) penalties.

(Id.;

see also Mem. ISO § 2255 Mot. 12–13.)
On June 24, 2016, the Court appointed counsel for Lurry, to
review his case in light of Johnson.

(Order Appointing Counsel

Pursuant to the Criminal Justice Act, ECF No. 99 in 09-20312.)
On July 8, 2016, Lurry sought relief under Johnson.

(Johnson

Notice.)

2

The § 2255 Motion contains a Ground Four, but it is titled “An
Evidentiary Hearing Is Required” and does not present a substantive ground for relief.
(§ 2255 Mot. 9; see also Mem. ISO
§ 2255 Mot. 13–14.)
3

The ACCA’s violent-felony framework is discussed below.
Section II.B infra.)
3

(See

On September 21, 2016, the Court entered an order administratively closing this case pending the en banc decision of the
U.S. Court of Appeals for the Sixth Circuit in United States v.
Stitt.

(Order, ECF No. 14.)

On June 27, 2017, the Sixth Cir-

cuit held that aggravated burglary under Tennessee law no longer
qualifies as a violent felony for purposes of § 924(e).

United

States v. Stitt, No. 14-6158, 2017 WL 2766326, at *1, *7 (6th
Cir. June 27, 2017).
On July 7, 2017, the U.S. Probation Office for the Western
District of Tennessee circulated a memorandum addressing Lurry’s
sentence (the “Probation Memorandum”).

The Probation Memorandum

concludes that Lurry is entitled to relief under Johnson.
bation Mem. 1–2.)

(Pro-

The Probation Memorandum also recalculates

Lurry’s guideline imprisonment range.

(Id. at 2–3.)

It deter-

mines that his total offense level is 20 and that his criminalhistory category is IV.

(Id.)

The resulting guideline impris-

onment range is 51 to 63 months.

(Id. at 3.)

Lurry has served

approximately 95 months of his original sentence.

(Id.)

The

Probation Memorandum concludes that, “should the court vacate
Mr. Lurry’s sentence [pursuant to Johnson], it appears that any
sentence the Court should impose within the guideline range as
recalculated would result in a [time served] sentence.”

(Id.)

On July 10, 2017, the Court ordered the Government to respond

to

the

Probation

Memorandum.
4

(Order

Directing

United

States to Respond, ECF No. 16.)
ly 11, 2017.

The Government responded on Ju-

(Resp. of the United States to U.S. Probation Of-

fice’s Mem. Review of Movant’s Mot. Under 28 U.S.C. § 2255 ––
Request for Johnson Review, ECF No. 17 (“Johnson Resp.”).)

The

Government states that it “agrees that under circuit case law,
[Lurry] is entitled to relief from his sentence.”
see also id. at 2–3.)

(Id. at 1;

The Government also states that, “[i]f

the Court agrees . . . , it should vacate [Lurry’s] sentence and
resentence him to time served, with a three-year period of supervised release.”
II.

(Id. at 1; see also id. at 4.)

LEGAL STANDARDS
A.

Section 2255 Motions

Lurry seeks relief under 28 U.S.C. § 2255.

(§ 2255 Mot.)

Under § 2255(a),
[a] prisoner in custody under sentence of a
court established by Act of Congress claiming the right to be released upon the ground
that the sentence was imposed in violation
of the Constitution or laws of the United
States . . . or that the sentence was in excess of the maximum authorized by law . . .
may move the court which imposed the sentence to vacate, set aside or correct the
sentence.
28 U.S.C. § 2255(a).
“To succeed on a § 2255 motion, a prisoner in custody must
show ‘(1) an error of constitutional magnitude; (2) a sentence
imposed outside the statutory limits; or (3) an error of fact or

5

law that was so fundamental as to render the entire proceeding
invalid.’”

McPhearson v. United States, 675 F.3d 553, 558–59

(6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d 491,
496–97 (6th Cir. 2003)).
A prisoner must file his § 2255 motion within one year of
the latest of:
(1)

the date on which the judgment of conviction becomes final;

(2)

the date on which the impediment to
making a motion created by governmental
action in violation of the Constitution
or laws of the United States is removed, if the movant was prevented from
making a motion by such governmental
action;

(3)

the date on which the right asserted
was initially recognized by the Supreme
Court, if that right has been newly
recognized by the Supreme Court and
made retroactively applicable to cases
on collateral review; or

(4)

the date on which the facts supporting
the claim or claims presented could
have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).
Ineffective assistance of counsel can serve as a ground for
§ 2255 relief.

See, e.g., Campbell v. United States, 686 F.3d

353, 357 (6th Cir. 2012).
tance

is

provided

by

The standard for ineffective assis-

Strickland

v.

Washington,

466

U.S.

668

(1984).

To establish ineffective assistance, “[f]irst, the de-

fendant

must

show

that

counsel’s
6

performance

was

defi-

cient. . . .

Second, the defendant must show that the deficient

performance prejudiced the defense.”

Id. at 687.

“Unless a de-

fendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process
that renders the result unreliable.”
To
show

demonstrate

that

deficient

“counsel’s

Id.

performance,

representation

standard of reasonableness.”

fell

Id. at 688.

a

petitioner

below

an

must

objective

In considering an in-

effective-assistance claim, a court “must apply a ‘strong presumption’

that

counsel’s

representation

was

within

range’ of reasonable professional assistance. . . .

the

‘wide

The chal-

lenger’s burden is to show ‘that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.’”

Harrington v. Richter, 562

U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687, 689).
To demonstrate prejudice, a petitioner must establish “a
reasonable

probability

that,

but

for

counsel’s

unprofessional

errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

“A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”
Id.

“In assessing prejudice under Strickland, the question is

not whether a court can be certain counsel’s performance had no
effect on the outcome or whether it is possible a reasonable
doubt might have been established if counsel acted different7

ly. . . .

The likelihood of a different result must be substan-

tial, not just conceivable.”

Richter, 562 U.S. at 111–12 (cit-

ing Wong v. Belmontes, 558 U.S. 15, 27 (2009); Strickland, 466
U.S. at 693).
“[A] court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”
466 U.S. at 697.

Strickland,

If a reviewing court finds a lack of preju-

dice, it need not determine whether, in fact, counsel’s performance was deficient.

Id.

“Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (citing Strickland, 466 U.S. at 689, 693).
An ineffective-assistance claim can function
as a way to escape rules of waiver and forfeiture and raise issues not presented at
trial, and so the Strickland standard must
be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the
right to counsel is meant to serve.
Even
under de novo review, the standard for judging counsel’s representation is a most deferential one.
Unlike a later reviewing
court, the attorney observed the relevant
proceedings, knew of materials outside the
record, and interacted with the client, with
opposing counsel, and with the judge. It is
“all too tempting” to “second-guess counsel’s assistance after conviction or adverse
sentence.”
The question is whether an attorney’s representation amounted to incompetence under “prevailing professional norms,”

8

not whether it deviated from best practices
or most common custom.
Richter, 562 U.S. at 105 (citations omitted).
be

unconstitutionally

meritless arguments.”

ineffective

for

“Counsel [cannot]

failing

to

raise . . .

Mapes v. Coyle, 171 F.3d 408, 427 (6th

Cir. 1999).
After a petitioner files a § 2255 motion, the court reviews
it and, “[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the motion . . . .”

Rules Governing Section 2255 Proceedings for the

U.S. District Courts (“§ 2255 Rules”) at Rule 4(b).

“If the mo-

tion is not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within a
fixed time, or to take other action the judge may order.”

Id.

The § 2255 movant is entitled to reply to the government’s response.
§ 2255

Id. at Rule 5(d).
motion

also

handled

Where the court considering the
the

earlier

proceedings

at

issue

(e.g., the change of plea and the sentencing hearing), the court
may rely on its recollection of the proceedings.

See, e.g.,

James v. United States, No. 3:13-01191, 2017 WL 57825, at *1
(M.D. Tenn. Jan. 4, 2017) (quoting Arredondo v. United States,
178 F.3d 778, 782 (6th Cir. 1999)).

9

B.

ACCA’s “Violent-Felony” Framework

Lurry challenges the Court’s finding that he was an armed
career criminal under the ACCA.

Under the ACCA, a defendant

convicted under 18 U.S.C. § 922(g) who has three prior convictions for violent felonies or serious drug offenses is subject
to a mandatory minimum sentence of 180 months in prison.
U.S.C. § 924(e)(1).

18

Without the prior qualifying convictions, a

defendant convicted under § 922(g) is subject to a statutory
maximum sentence of 120 months.

Id. § 924(a)(2).

The ACCA defines “violent felony” as “any crime punishable
by imprisonment for a term exceeding one year” that (a) “has as
an element the use, attempted use, or threatened use of physical
force

against

the

person

of

another”

(the

“use-of-force

clause”); (b) “is burglary, arson, or extortion, [or] involves
use

of

explosives”

(the

“enumerated-offenses

clause”);

or

(c) “otherwise involves conduct that presents a serious potential

risk

clause”).

of

physical

injury

to

another”

(the

“residual

Id. § 924(e)(2)(B).

In Johnson v. United States, the Supreme Court held that a
sentence imposed under the residual clause of the ACCA violates
due process.

135 S. Ct. at 2563.

In Welch v. United States,

the Supreme Court applied its holding in Johnson retroactively
to ACCA cases on collateral review.

10

136 S. Ct. 1257, 1268

(2016); see also In re Watkins, 810 F.3d 375, 383–84 (6th Cir.
2015).
III. ANALYSIS
A.

Timeliness

Lurry was sentenced on May 5, 2011.
in 09-20312.)

He appealed.

No. 86 in 09-20312.)

(Minutes, ECF No. 83

(See, e.g., Notice of Appeal, ECF

The U.S. Court of Appeals for the Sixth

Circuit entered its order affirming Lurry’s conviction on June
20, 2012.

United States v. Lurry, 483 F. App’x 252 (6th Cir.

2012).
Lurry did not seek a writ of certiorari in the U.S. Supreme
Court.

For purposes of § 2255(f)(1), “[w]here a defendant pur-

sues direct review but does not seek a writ of certiorari, the
conviction becomes final at expiration of the time for seeking
such a writ.”

Story v. United States, Nos. 2:13-CR-55-JRG-MCLC-

1, 2:16-CV-282-JRG, 2016 WL 7077616, at *2 (E.D. Tenn. Dec. 2,
2016) (citing Clay v. United States, 537 U.S. 522, 525 (2003);
U.S. Sup. Ct. R. 13(3)).

The deadline for seeking a writ of

certiorari from the U.S. Supreme Court is 90 days “from the date
of entry of the judgment or order sought to be reviewed.”

U.S.

Sup. Ct. R. 13(3).

Lur-

That deadline was September 18, 2012.

ry’s conviction became final that day.
Motion within a year of that date.

11

Lurry filed the § 2255

The § 2255 Motion is timely.

Lurry’s request for relief under Johnson was not part of
the § 2255 Motion.
July 8, 2016.

The request was communicated to the Court on

(Johnson Notice.)

The request supplements the

§ 2255 Motion.
Proposed amendments and supplements to a § 2255 motion must
be

filed

within

§ 2255(f)’s

one-year

statute

of

limitations.

See, e.g., Berry v. United States, No. 2:14-CV-02070-STA-CGC,
2017 WL 401269, at *10 (W.D. Tenn. Jan. 30, 2017).

Lurry’s re-

quest for Johnson relief does not meet the § 2255(f) deadline.
Under § 2255(f)(3), a petitioner must bring a § 2255-related argument within one year of “the date on which the right asserted
was initially recognized by the Supreme Court . . . .”
son was decided on June 26, 2015.

John-

Lurry’s request for Johnson

relief was not filed within one year of that decision.
The § 2255(f) statute of limitations is not jurisdictional,
however, and the Government can waive it.

See, e.g., Pittman v.

United States, No. 3:10-CR-1542-TAV-HBG, 2016 WL 3129198, at *2
(E.D. Tenn. June 2, 2016); United States v. Miller, No. 6:137324-DCR, 2014 WL 4693689, at *6 (E.D. Ky. Aug. 28, 2014).
Government’s Johnson Response does not raise § 2255(f).
generally Johnson Resp.)

The
(See

Indeed, the Government agrees that

“[i]f this Court grants [Lurry’s] § 2255 motion, it should vacate his sentence and impose a sentence of time served . . . .”

12

(Id. at 4.)

The Government has waived the § 2255(f) statute of

limitations as to Lurry’s Johnson argument.
B.

Challenges to Sentence

In the § 2255 Motion and his Johnson challenge, Lurry raises

four

arguments.

Two

challenge his conviction.

challenge

Lurry’s

sentence,

and

two

As discussed below, one of Lurry’s

sentencing challenges –– his Johnson challenge –– is successful.
Lurry’s arguments challenging his conviction request relief beyond correction of his sentence.

The Court, therefore, must

consider Lurry’s conviction challenges even though his Johnson
argument succeeds.
1.

Johnson Challenge

The Government does not dispute the merits of Lurry’s Johnson argument.

In response to the Probation Memorandum, the Gov-

ernment agrees that, following Stitt, the Court should vacate
Lurry’s sentence and sentence him to time served.

(See general-

ly Johnson Resp.)
The Court agrees with the Probation Memorandum’s analysis.
After Johnson and Stitt, 4 convictions for Tennessee aggravated

4

The Stitt court has not yet issued a mandate. The Government
contends that “Stitt was wrongly decided” and that “it is quite
possible the Supreme Court will review the matter ‘soon.’” (Id.
at 3 (quoting Stitt, 2017 WL 2766326, at *11 (Boggs, J., concurring).) Although the Government may seek a stay of the issuance
of the mandate so that it may file a petition for writ of certiorari in the U.S. Supreme Court, this Court should not defer
ruling on Lurry’s § 2255 request. “A decision from which an ap13

burglary no longer qualify as violent felonies under the ACCA.
Lurry no longer qualifies as an armed career criminal.
entitled to relief under Johnson.

He is

The judgment in Criminal Case

No. 09-20312 is VACATED.
The Court in its discretion may correct a sentence without
requiring the production of the prisoner.

28 U.S.C. § 2255(c).

Lurry has already served more than the high end of his recalculated guideline imprisonment range, and the Government agrees
that a time-served sentence is appropriate.

Lurry is sentenced

to time served, to be followed by a three-year period of supervised release.

All other terms and conditions the Court imposed

in its Judgment in Criminal Case No. 09-20312 are reimposed.
This order shall take effect 10 days from entry.
2.

Ground One of the § 2255 Motion

Ground One of the § 2255 Motion argues that Lurry received
ineffective assistance of counsel at his sentencing because his
counsel did not argue that his aggravated-burglary convictions
were not violent felonies for purposes of § 924(e).
Mot. 5–6; Mem. ISO § 2255 Mot. 7–10.)

(§ 2255

The relief sought in

Ground One of the § 2255 Motion is the relief this Court has al-

peal is pending in a higher court should be followed, on the
principle of stare decisis, until it is reversed.”
Bryan A.
Garner et al., The Law of Judicial Precedent 258 (2016).
For
now, Stitt is binding on this Court.
14

ready granted because of Lurry’s Johnson challenge.

Ground One

of the § 2255 Motion is DENIED as moot. 5
C.

Challenges to Conviction
1.

Ground Two of the § 2255 Motion

Ground Two of the § 2255 Motion argues that Lurry received
ineffective assistance of counsel on appeal.
Mem. ISO § 2255 Mot. 10–12.)

(§ 2255 Mot. 6–7;

Lurry argues that his appellate

counsel should have argued that the traffic stop that led to
Lurry’s arrest was unconstitutional because it was triggered by
output from an automatic license-plate reader (“ALPR”).

The

Government argues, as to the ALPR argument, that “there was contrary authority to [Lurry’s] position,” and so “it was not unreasonable for [Lurry’s counsel] not to raise the issue on appeal.”

(§ 2255 Resp. 8.)

Assessing Lurry’s argument requires brief review of his arrest, his motion to suppress, and his direct appeal.

Lurry was

arrested following a traffic stop on August 12, 2009.

(R. & R.

on Def.’s Mot. to Suppress 2–3, ECF No. 42 in 09-20312 (“R&R”).)
ALPR technology led to that stop.

(Id. at 3–4.)

ALPR technolo-

gy allows officers to capture images of vehicles’ license plates
and check the plate numbers against various databases.

5

(Id. at

This Order also moots certain motions filed in Lurry’s civil
and criminal cases that challenge only his sentence. Those motions are at ECF No. 15 in Case No. 13-2580 and ECF Nos. 96 and
97 in Case No. 09-20312. They are DENIED as moot.
15

3.)

Officers initiated Lurry’s stop after the vehicle Lurry was

driving triggered a match in the ALPR system indicating that the
vehicle’s driver might have a warrant. 6

(Id. at 3–4.)

During

the stop, one of the arresting officers observed a “Kroger-type
grocery bag filled with shotgun shells lying on the back seat”
of the vehicle.

(Id. at 5.)

After observing the shells, the

officer searched Lurry’s vehicle and found a shotgun under the
front passenger seat.

(Id.)

Possession of that shotgun was the

crime to which Lurry pled guilty.

(See, e.g., Indictment.)

Lurry filed a motion to suppress, arguing that the Court
should suppress any evidence obtained “as a direct or indirect
result” of the traffic stop leading to Lurry’s arrest.

(Mot. to

Suppress 2, ECF No. 25 in 09-20312 (“Mot. to Suppress”).)

In

relevant part, the Motion to Suppress argued that (1) the traffic stop was done without reasonable suspicion and without probable cause; (2) the vehicle search performed during the stop was
not a search incident to arrest; and (3) the vehicle search was
not an inventory search.

(Id. at 6–8.)

After briefing and a hearing, Magistrate Judge Diane Vescovo issued a report and recommendations on the Motion to Suppress.

(See generally R&R.)

deny the Motion to Suppress.

The R&R recommended that the Court
(R&R 16.)

6

Specifically, it recom-

It was later determined that the vehicle belonged to Lurry’s
girlfriend, Jennifer Barker, and that the warrant noted by the
ALPR technology was for Barker’s brother, not Lurry. (R&R 4.)
16

mended that the Court find, inter alia, that (1) the initial
stop

of

Lurry

was

reasonable;

(2)

Lurry’s

Fourth

Amendment

rights were not violated when the officers observed the shotgun
shells, because the shells were in plain view; and (3) observing
the shells gave the officers probable cause to search Lurry’s
vehicle.

(Id. at 12–15.)

After briefing on Lurry’s objections to the Report, the
Court issued an order denying the Motion to Suppress.
Adopting

in

Part

and

Rejecting

in

Part

Magistrate

(Order
Judge’s

R. & R. and Denying Def.’s Mot. to Suppress, ECF No. 61 in 0920312 (“Motion-to-Suppress Order”).)

The Motion-to-Suppress Or-

der sustained some of Lurry’s factual objections, but adopted
the R&R’s conclusions that the stop of Lurry was reasonable,
that the shotgun shells were in plain view, and that there was
probable cause to search Lurry’s vehicle.

(Id. at 11–13.)

After the Court denied the Motion to Suppress, Lurry filed
a Reservation of Right to Appeal Denial of Motion to Suppress
Evidence.

(ECF No. 72 in 09-20312.)

Lurry pled guilty to vio-

lating § 922(g), but “reserve[d] his right to appeal the denial
of” the Motion to Suppress.

(Id. at 1.)

On appeal, Lurry made one argument: that “the [district]
court erroneously concluded that the plain view doctrine was a
valid

and

applicable

Fourth Amendment.”

exception

to

the

warrant

clause

of

the

(Br. of Def./Appellant 11, United States v.
17

Lurry, Case No. 11-5604 (6th Cir. Sept. 1, 2011); see generally
id. at 14–29 (discussion of plain-view doctrine).)

The Sixth

Circuit agreed with Lurry that the plain-view doctrine did not
apply.

Lurry, 483 F. App’x at 253. 7

The Sixth Circuit neverthe-

less affirmed on the ground that the vehicle search was “a permissible protective search” under Michigan v. Long, 463 U.S.
1032 (1983). 8

Id.

Judge Karen Nelson Moore concurred, raising “a concern over
the propriety of the initial traffic stop . . . , an argument
that Lurry does not make.”

Id. at 255 (Moore, J., concurring).

Lurry was stopped solely because an automatic license-plate reader indicated that the
address on the female owner’s vehicle registration matched the address on a black
male’s outstanding arrest warrant for driving on a suspended license.
I do not see
how that information even remotely suggests
that a warrant existed for a current “occupant” of the pursued vehicle because that
information suggests nothing about who is
7

The basis for the Sixth Circuit’s conclusion was that the doctrine only applies when a seized object’s “‘incriminating character is immediately apparent.’”
Lurry, 483 F. App’x at 253
(quoting Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)).
That condition did not apply to the shells because “Lurry’s possession of them was illegal only due to his status as a felon,”
a status of which the officers conducting the stop were unaware.
Id. (internal quotation marks omitted).
8

Under Long, officers may “search an automobile’s passenger compartment for weapons if the officers have a reasonable belief ––
based on specific and articulable facts –– that the suspect is
dangerous and may gain immediate control of weapons.”
Id. at
254 (quoting Long, 463 U.S. at 1049 (internal quotation marks
omitted)); see also id. at 254–55 (discussion of circumstances
of search).
18

currently occupying the vehicle.
Just because a black male with a warrant at one
point lived at an address where a female’s
vehicle is now registered is no reason to
think that the present driver of the female’s vehicle, who happens to be a black
male, is likely that same individual.
This
case offers yet another example of why automatic license-plate readers warrant further
attention under the Fourth Amendment, a position I raised in greater detail in my dissent in United States v. Ellison, 462 F.3d
557, 566–71 (6th Cir. [2006]) (Moore, J.,
dissenting), cert. denied, [552 U.S. 947
(2007)].
Id. at 255–56.
Ground Two of the § 2255 Motion argues that Lurry’s appellate counsel provided ineffective assistance because she did not
make the argument raised in Judge Moore’s concurrence.

Inter-

preting the Strickland standard, the Sixth Circuit has held that
“[c]ounsel’s failure to raise an issue on appeal amounts to ineffective

assistance

only

if

a

reasonable

probability

exists

that inclusion of the issue would have changed the result of the
appeal.” Henness v. Bagley, 644 F.3d 308, 317 (6th Cir. 2011)
(citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008)).
There is no reasonable probability that including the ALPR
argument in Lurry’s appeal would have changed the result.
Moore herself raised the issue in a concurrence.

Judge

The excerpt

quoted above shows that Judge Moore had raised the issue in a
prior case (Ellison) in a dissent.

The failure of Lurry’s coun-

sel to raise an argument that the Sixth Circuit had previously
19

rejected –– and rejected on Lurry’s own appeal –– does not constitute ineffective assistance. 9
Ground Two of the § 2255 Motion is DENIED.
2.

Ground Three of the § 2255 Motion

Ground Three of the § 2255 Motion argues that Lurry entered
his guilty plea without “advice of competent counsel.”
Mot. 8; see also Mem. ISO § 2255 Mot. 12–13.)
makes two related points.
counsel

told

him

(and

(§ 2255

Ground Three

First, Lurry contends that his trial

Lurry’s

family)

that

(1)

if

he

pled

guilty, he would receive a sentence of 70 to 87 months; and
(2) if he went to trial and lost, he would receive a higher sentence.
guilty.

(Mem. ISO § 2255 Mot. 13.)
(Id.)

Thus pressured, Lurry pled

Second, Lurry contends that his counsel never

told him “that he could be treated as [an armed career criminal]
and be subjected to significantly increased penalties.”

(Id.)

The Court understands Lurry to argue that he received ineffective assistance of counsel as to his guilty plea.

9

Lurry also suggests, as part of Ground Two, that his trial
counsel should have made the ALPR argument in the Motion to Suppress. (Mem. ISO § 2255 Mot. 12.) That argument fails. Lurry’s counsel did not make the ALPR argument in the Motion to
Suppress.
(See generally Mot. to Suppress.)
The Magistrate
Judge, nevertheless, considered the argument sua sponte, Lurry’s
counsel made it in her objections to the R&R (relying on Judge
Moore’s dissent in Ellison), and the Court addressed it while
resolving Lurry’s objections.
(See, e.g., R&R 12–13; Objs. to
R. & R. on Def.’s Mot. to Suppress 8–19, ECF No. 51 in 09-20312;
Motion-to-Suppress Order 12 n.6.)
20

In response, the Government argues that Lurry’s attorney
“provided

[him]

with

a

‘rough

calculation’

of

his

guideline

range including the possibility of him being classified as an
Armed Career Criminal.”

(§ 2255 Resp. 8 (emphasis added); see

also Letter from April R. Goode to Landreo Lurry 2 (Nov. 26,
2010), ECF No. 7-2 (“Goode Letter”).)

The Government states

that, “where the petitioner is advised of the maximum sentence
applicable to the offense charged under the guidelines, he is
deemed fully aware of the consequences of his plea.”
Resp. 9 (citing cases).)

(§ 2255

The Government also observes that,

during his plea colloquy, Lurry stated that he understood “that
the maximum imprisonment for the offense charged was 10 years in
prison, but that if he had three prior convictions for violent
felonies or serious drug offenses, then the minimum sentence he
could receive was 15 years in prison.”

(Id. at 10 (citing Sen-

tencing Tr. 15).)
The Strickland test applies to claims that a petitioner entered into his guilty plea as a result of ineffective assistance
of

counsel.

(1985).

See,

e.g.,

Hill

v.

Lockhart,

474

U.S.

52,

58

To satisfy the “prejudice” prong of the Strickland test

in the context of a guilty plea, the petitioner “must show that
there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.”

Id. at 59.
21

Lurry’s second Ground Three argument fails because, contrary to his representations, he has not shown any attorney error:
his counsel did warn him about the possibility of being sentenced as an armed career criminal.

In a letter to Lurry dated

November 26, 2010 –– well before Lurry pled guilty –– Lurry’s
counsel estimated that Lurry’s sentence could be between 92 and
115 months, and that if he received a three-point acceptance-ofresponsibility reduction, the range could be between 70 and 87
months.

(Goode Letter 1–2.)

Lurry’s counsel immediately quali-

fied those statements, stating that they were a “rough calculation” and that she “did not know, at this time, if [Lurry] would
qualify for any enhancements which could raise the sentence.”
(Id. at 2.)

She then stated, “The other consideration in your

case is whether you qualify as an Armed Career Criminal,” and
noted that Lurry’s prior convictions could qualify him as an
armed career criminal.

(Id.)

“As you probably know,” she con-

tinued, “an Armed Career Criminal faces a minimum of 15 years
(180 months).

This is compelled by the statute if your prior

convictions qualify you.”

(Id.)

In the reply in support of his § 2255 Motion, Lurry does
not respond to this.

(See generally § 2255 Reply.)

On this

record, there is no dispute that Lurry’s counsel warned Lurry,
before he pled guilty, that he could be sentenced as an armed
career criminal.
22

To the extent Lurry’s first Ground Three argument rests on
his counsel’s having provided a faulty sentencing estimate of 70
to 87 months, Lurry’s argument fails for the reasons discussed
above.

The record is clear that Lurry’s counsel warned him of

the potential for a significantly higher sentence. 10
To the extent Lurry argues that his counsel coerced him into pleading guilty by suggesting that he would receive a higher
sentence if he went to trial and lost, his argument also fails.
At the change-of-plea hearing, Lurry specifically denied that
anyone had “threatened [him] or tried to force [him] in anyway
to plead guilty.”

(Change-of-Plea Tr. 16.)

“Petitioner’s bare

claim that he was coerced into pleading guilty is insufficient
to overcome the presumption of verity which attaches to petitioner’s statements during the plea colloquy, in which he denied
that any threats or coercion had been used to get him to enter
his plea.”

Kue v. Birkett, No. 2:10-CV-11925, 2013 WL 2155527,

at *5 (E.D. Mich. May 17, 2013) (citing Shanks v. Wolfenbarger,
387 F. Supp. 2d 740, 750–51 (E.D. Mich. 2005)); see also Shanks,
387 F. Supp. 2d at 750–51 (citing cases).
Ground Three of the § 2255 Motion is DENIED.

10

The Court also repeatedly warned Lurry of his potential sentence at the change-of-plea hearing.
(Hr’g Tr. 15, 21–22, ECF
No. 88 in 09-20312 (“Change-of-Plea Tr.”).)
23

IV. CONCLUSION
Ground One of the § 2255 Motion is DENIED as moot.

Grounds

Two and Three of the § 2255 Motion are DENIED.
Lurry’s request for relief under Johnson is GRANTED.
judgment in Criminal Case No. 09-20312 is VACATED.

The

Lurry is

sentenced to time served, to be followed by a three-year period
of supervised release.

All other terms and conditions the Court

imposed in its Judgment in Criminal Case No. 09-20312 are reimposed.

This order shall take effect 10 days from entry.

So ordered this 20th day of July, 2017.

/s/_Samuel H. Mays, Jr.
__
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

24