McCoy v. USA
Filing
10
MEMORANDUM DECISION AND ORDER denying 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Ted Stewart on 9/13/2016. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL
CUSTODY
HICKORY WESLEY McCOY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Civil Case No. 2:16-CV-487 TS
Criminal Case No. 2:12-CR-218 TS
Respondent.
District Judge Ted Stewart
This matter is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below,
the Court will deny the Motion and dismiss this case.
I. BACKGROUND
On April 25, 2012, Petitioner was charged in a three-count Indictment with possession of
marijuana with intent to distribute, possession of a firearm in furtherance of a drug trafficking
crime, and felon in possession of a firearm and ammunition. The charges against Petitioner
stemmed from a traffic stop conducted on January 24, 2012. On that date, Trooper Randy
Riches of the Utah Highway Patrol stopped Petitioner’s vehicle for a perceived left lane
violation. Upon stopping the vehicle, Trooper Riches detected a faint odor of marijuana and
requested a drug-sniffing dog. The dog indicated at the odor of narcotics and Trooper Riches
searched the vehicle. A search of the vehicle revealed marijuana, drug paraphernalia, a handgun,
and ammunition.
1
Prior to trial, Petitioner challenged the legality of the stop. Counsel for Petitioner
asserted, inter alia, that Trooper Riches did not have reasonable suspicion that a traffic violation
was occurring or had occurred. After conducting an evidentiary hearing, the Court denied
Petitioner’s motion to suppress. The Court concluded that Trooper Riches had a reasonable
suspicion that Petitioner had committed a traffic violation.
Petitioner proceeded to trial where he was found guilty on all counts. Petitioner was
sentenced to a term of imprisonment of 200 months. Petitioner appealed his conviction,
challenging the Court’s ruling on the motion to suppress and the correctness of the aiding-andabetting jury instruction. The Tenth Circuit Court of Appeals affirmed the Court’s decision to
deny the motion to suppress and found that Petitioner had waived his objection to the jury
instruction. Petitioner timely filed the instant Motion.
II. DISCUSSION
Petitioner raises four arguments in his Motion: (1) his counsel was ineffective for failing
to raise specific arguments in relation to his motion to suppress; (2) his counsel was ineffective
for not retaining expert services in relation to his motion to suppress; (3) the ruling on the motion
to suppress was erroneous; and (4) counsel on appeal was ineffective for raising the suppression
issue as a mistake of law.
Petitioner’s first and second arguments relate to his counsel’s performance in relation to
the motion to suppress. Petitioner argues that his counsel was ineffective because he failed to
adequately argue that Trooper Riches lacked reasonable suspicion. In particular, Petitioner
2
argues that his counsel was ineffective for failing to argue that Petitioner did not impede traffic. 1
Petitioner further argues that his counsel was ineffective for failing to retain an expert to testify
that the stop was unconstitutional.
The Supreme Court has set forth a two-pronged test to guide the Court in making a
determination of ineffective assistance of counsel. “To determine ineffectiveness of counsel,
[Petitioner] must generally show that counsel’s performance fell below an objective standard of
reasonableness, and that counsel’s deficient performance was prejudicial.” 2 To establish
prejudice, Petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” 3
A court is to review Petitioner’s ineffective-assistance-of-counsel claim from the
perspective of his counsel at the time he or she rendered the legal services, not in hindsight. 4 In
addition, in evaluating counsel’s performance, the focus is not on what is prudent or appropriate,
but only what is constitutionally compelled. 5 Finally, there is “a strong presumption that counsel
provided effective assistance, and a section 2255 defendant has the burden of proof to overcome
that presumption.” 6
1
The government misconstrues Petitioner’s impediment argument. The government
argues that counsel did argue that Trooper Riches impeded Petitioner’s ability to move into the
right lane. This misses the point. Petitioner is not arguing here that Trooper Riches impeded his
ability to move into the right lane. Instead, Petitioner is arguing that his conduct did not impede
traffic in the left lane, which is required for a violation of Utah Code Ann. § 41-6a-704.
2
United States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (citing Strickland v.
Washington, 466 U.S. 668, 687, 690 (1984)).
3
Strickland, 466 U.S. at 694.
4
Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998).
5
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984).
6
United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000).
3
Petitioner first argues that counsel was ineffective because he did not adequately argue
that Trooper Riches lacked reasonable suspicion for the stop and, instead, focused on the
officer’s subjective motivation for stopping Petitioner’s vehicle. This argument misconstrues the
record. Counsel did argue that Trooper Riches lacked reasonable suspicion for the stop.
Petitioner contends that his counsel was ineffective for failing to adequately address a specific
argument—that the left lane was not impeded. While counsel certainly could have done a better
job in making this argument, the Court cannot conclude that his performance was defective.
Counsel argued that the officer lacked reasonable suspicion. By doing so, counsel necessarily
argued that no violation had been committed.
Further, even if counsel’s performance was deficient, Petitioner has failed to demonstrate
prejudice. The Court specifically found that there was reasonable suspicion that Petitioner had
committed a left-lane violation in violation of Utah Code Ann. § 41-6a-704. This conclusion
necessarily included the finding that Petitioner impeded traffic. Though not explicitly stated,
that finding is implied in the Court’s denial of the motion. Thus, counsel’s failure to raise this
specific argument did not alter the suppression proceedings.
Petitioner next argues that counsel was defective for failing to retain an expert to testify
that the stop was unconstitutional. Petitioner’s counsel had attempted to retain an expert witness
on police procedure. In this Motion, Petitioner alleges that the expert would have testified that
the stop was unconstitutional. 7 However, Petitioner did not have sufficient funds to retain the
7
Because the expert was never retained and did not testify, the Court is unsure whether
this would have been his conclusion. However, the Court will accept Petitioner’s representation
for the purposes of this Motion.
4
expert and counsel’s request for CJA funding was denied without prejudice. Ultimately, counsel
determined that an expert witness was not necessary.
The Court cannot conclude that counsel’s performance in this regard was deficient. The
decision of whether to retain an expert witness is the type of tactical strategy that is left to the
discretion of counsel. Further, even if counsel was ineffective, Petitioner cannot demonstrate
prejudice. The issue of whether probable cause exists is a legal determination for the Court to
make. Expert testimony that encroaches on this duty is not permitted. 8 Thus, even if counsel
had obtained an expert to testify at the suppression hearing, the expert would not have been
permitted to testify as to whether the stop was constitutional.
Petitioner’s third claim attacks the correctness of the suppression order. Petitioner
challenged the Court’s decision to deny the motion to suppress on direct appeal. Under § 2255,
Petitioner may not raise issues that have been previously considered and disposed of on direct
appeal. 9 “Absent an intervening change in the law of a circuit, issues disposed of on direct
appeal generally will not be considered on a collateral attack by a motion pursuant to § 2255.” 10
Petitioner points to no intervening change in the law. Therefore, this claim is procedurally
barred.
Petitioner’s final argument is that counsel on appeal was ineffective for challenging the
suppression order using a mistake of law argument. Petitioner argues that he never made a
mistake of law argument before this Court and, thus, it was waived on appeal. Petitioner again
misconstrues counsel’s arguments on appeal. Counsel made various arguments on appeal in
8
Specht v. Jensen, 853 F.2d 805, 806–08 (10th Cir. 1988).
9
United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994).
10
United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989).
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addition to the mistake of law argument. In particular, appellate counsel made the very argument
that is at the heart of Petitioner’s § 2255 Motion, that Petitioner was not impeding traffic. Thus,
the Court cannot find that appellate counsel was ineffective. Further, even after finding that the
mistake of law argument was waived, the Tenth Circuit considered it and concluded that it would
necessarily fail to the extent that it relied on precedent at odds with the Supreme Court’s decision
in Heien v. North Carolina. 11 Therefore, Petitioner was not prejudiced by counsel’s decision to
frame the argument as a mistake of law.
III. CONCLUSION
It is therefore
ORDERED that Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Docket No. 1 in Case No. 2:16-CV-487 TS) is
DENIED. It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an
evidentiary hearing is not required. It is further
ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court
DENIES Petitioner a certificate of appealability.
The Clerk of Court is directed to close Case No. 2:16-CV-487 TS forthwith.
11
United States v. McCoy, 614 F. App’x 964, 967 n.4 (10th Cir. 2015).
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DATED this 13th day of September, 2016.
BY THE COURT:
Ted Stewart
United States District Judge
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