Pettit v. USA

Filing 2

MEMORANDUM DECISION ADDRESSING 28 U.S.C 2255 MOTION- For the reasons stated in the Memorandum Decision, Mr. Pettits motion to vacate, set aside or correct hissentence pursuant to 28 U.S.C. 2255 is denied. Signed by Judge David Sam on 2/27/17. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
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Michael E. Pettit,
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Case No. 2:16CV01019 DS
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Movant,
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vs.
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MEMORANDUM DECISION
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ADDRESSING 28 U.S.C. § 2255 MOTION
UNTIED STATES OF AMERICA,
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Respondent.
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I. INTRODUCTION
Michael E. Pettit moves the Court to vacate, set aside or correct his sentence pursuant to
28 U.S. C. § 2255. Mr. Pettit was convicted after a jury trial of possession with intent to
distribute five-hundred grams or more of cocaine in violation of 21 U.S.C. § 841(a)(B)(1)(b). He
was sentenced to a term of 120 months. His conviction and sentence were affirmed on appeal.
By his present motion, Mr. Pettit claims that his counsel was constitutionally ineffective.
II. FACTUAL BACKGROUND
On April 17, 2013, Trooper Thomas Simpson of the Utah Highway Patrol stopped a
Toyota Camry motor vehicle at milepost 150 on eastbound Interstate 80 in Summit County for
traveling across the fog line on three occasions while traveling at the rate of 45 mph in the 65
mph zone. Mr. Pettit was the driver and sole occupant of the vehicle and he consented to a
search of the vehicle which revealed 2.8 kilograms of a substance that tested positive for cocaine.
Pettit was then placed under arrest.

III. DISCUSSION
Mr. Pettit asserts that his trial counsel was ineffective in the following respects: (1)
failing to challenge the purpose of the initial detention; (2) failing to challenge the factual
findings relating to the prolonged stop; (3) failing to investigate and present mitigating factors
associated with the factual findings; and (5) failing to challenge the constitutionality of the
change in manner of the detention.
To establish an ineffective assistance of counsel claim, a party must establish two things:
(1) that counsel’s performance was deficient and (2) that the deficiency prejudiced petitioner’s
defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Counsel’s performance is
deficient if it “falls below an objective standard of reasonableness.” Id. at 690. “‘To be
deficient, the performance must be outside the wide range of professionally competent assistance.
In other words, it must have been completely unreasonable, not merely wrong.’” Byrd v.
Workman, 645 F.3d 1159,1168 (10th Cir.)(citations omitted), cert. denied, 132 S. Ct. 763 (2011).
“[R]eview of counsel’s performance under the first prong of Strickland is a ‘highly deferential’
one.” Id. (citation omitted). Accordingly, “case law makes clear that ‘[c]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment,’... and that a petitioner ‘bears a heavy burden’ when it
comes to overcoming that presumption”. Id. (citations omitted).
A defendant is prejudiced if it is shown “that there is 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. Failure to establish either of the two Strickland prongs is
dispositive. Byrd, 645 F.3d at 1168 (citing Strickland, 466 U.S. at 697).
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A. Initial Detention
Mr. Pettit first asserts that his counsel was ineffective for failing to make challenges
during the suppression hearing and on direct appeal to the purpose of the initial detention. He
contends that counsel failed to present the potential causes of Pettit’s lane movements; that
counsel failed to argue that he merely touched the fog line, rather than crossed it; that counsel
failed to argue that Utah § 41-6-61 (1) was ambiguous and that the statute cannot form the basis
for probable cause; and that counsel was ineffective for failing to argue § 41-6-61 (1) was void
for vagueness and could not form the basis for stop.
“[C]ounsel is not ineffective for failing to make a motion that would not succeed.”
Delozier v. Simmons, 531 F.3d 1306, 1323 (10th Cir. 2008), cert. denied, 129 S. Ct. 2058 (2009).
Officer Simpson testified that he observed Mr. Pettit drive across the fog line multiple times.
Although Pettit had just passed through a “snow burst” on mountainous terrain, the snow had
subsided, and the roads were dry. On appeal the Tenth Circuit concluded that the initial stop was
lawful1. The court finds that Pettit’s arguments that counsel was ineffective for failing to raise
issues incident to the initial detention are without merit and are not sufficiently deficient to meet
the first prong of the Strickland test. Therefore, Mr. Pettit’s counsel was not constitutionally
deficient for failing to challenge the purpose of the initial detention.
B. Prolonged Detention
Mr. Pettit next asserts that his right to effective assistance of counsel was violated by his
attorney’s failure to challenge the factual findings related to the prolonged stop; his failure to

1

See United States v. Pettit, 785 F.3d 1374, 1380 (10th Cir 2015), cert. denied, 136 S. Ct. 282

(2015).
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investigate and present mitigating factors associated with the factual findings; and his failure to
challenge the constitutionality of the change in manner of the detention. Mr. Pettit raised similar
arguments on direct appeal and the Tenth Circuit determined after looking at the factors,
including Pettit’s apparent nervousness and the multiple suspended driver’s licenses, that “taken
as a whole, [these factors] establish reasonable suspicion supporting Mr. Pettit’s extended
detention.”2 The issues surrounding the manner and time of detention were already argued and
decided on direct appeal and this Court finds that Mr. Pettit’s counsel was not constitutionally
deficient for failing to challenge the factors associated with the manner or time of Pettit’s
detention.

2

See id. at 1383.
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IV CONCLUSION
Mr. Pettit has failed to establish an ineffective assistance of counsel claim. Pettit does
not show that his counsel’s performance was so deficient as to fall below an objective standard of
reasonableness. For the reasons stated, Mr. Pettit’s motion to vacate, set aside or correct his
sentence pursuant to 28 U.S. C. § 2255 is denied.
IT IS SO ORDERED.
DATED this 27th day of February, 2017.
BY THE COURT:

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DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT

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