Levesque v . USA CV-98-389-M 07/01/98 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Jonathan S . Levesque, Plaintiff
v. Civil N o . 98-389-M
United States of America, Respondent
O R D E R
Based upon his guilty plea, plaintiff was convicted of
conspiracy to possess with intent to distribute marihuana, in
violation of 21 U.S.C. § 846. He was subsequently sentenced t o ,
among other things, a term of imprisonment of 188 months.
Following his conviction, plaintiff appealed the denial of his
motion to suppress, which challenged the legality of searches and
seizures arising out of a routine motor vehicle stop on
Interstate 70 in Kansas. The Court of Appeals affirmed this
court’s denial of plaintiff’s motion to suppress. United States
v . Levesque, 111 F.3d 122 (1997). Plaintiff is currently
incarcerated at the federal correctional facility in Ray Brook, New York.
Plaintiff now moves the court to vacate or reduce his
sentence under 28 U.S.C. § 2255, which provides in relevant part:
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 court was without jurisdiction to imposed such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
In support of his position, plaintiff raises five grounds for relief: (1) that the court erred in denying his motion to suppress; (2) that he received constitutionally deficient assistance of counsel during the suppression hearing; (3) that the court improperly enhanced his sentence; (4) that the court erroneously concluded that plaintiff was a career offender; and (5) that the court erred in calculating his sentence. Having reviewed plaintiff’s claims and the record of proceedings surrounding the suppression hearings and his guilty plea, the court finds that the record conclusively reveals that plaintiff is entitled to no relief.
I. Improper Denial of Suppression Motion.
In Stone v . Powell, 428 U.S. 465 (1976), the Supreme Court
considered whether, in the context of a proceeding under 28
U.S.C. § 2254, a state prisoner could raise a Fourth Amendment challenge to evidence introduced against him at trial. The Court
concluded that he could not, holding that:
where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.
2 Id., at 482. Although the Court of Appeals for the First Circuit
has yet to decide whether the rule articulated in Stone v . Powell
applies with equal force in the context of proceedings under 28
U.S.C. § 2255, see United States v . Razo-Granado, 1996 WL 256580
at *1 n.2 (1st Cir. May 1 6 , 1996), other circuit courts of appeal
have done s o . See, e.g., United States v . Cook, 997 F.2d 1312,
1317 (10th Cir. 1993) (citing United States v . Johnson, 457 U.S.
537, 562 n.20 (1982)); Tisnado v . United States, 547 F.2d 4 5 2 ,
456 (9th Cir. 1976). Consistent with the reasoning expressed in
those cases, as well as the Supreme Court’s opinion in Stone v .
Powell, the court concludes that a federal prisoner may not, in
the context of a § 2255 proceeding, collaterally attack the
validity of a search and seizure when he has had a full and fair
opportunity to litigate that claim at trial and on appeal.
Here, plaintiff had such an opportunity and, in fact,
vigorously litigated (before both this court and the court of
appeals) the constitutionality of the search and seizure which
lead to his arrest. Consequently, the court concludes that he
may not attempt to relitigate that issue in the context of his § 2255 motion. However, even if the court were to address the
substance of plaintiff’s claim, it would deny his petition. Each
of the issues raised was previously considered in detail, see
United States v . Levesque, N o . 94-120-01-M (D.N.H. July 1 1 ,
1995). Plaintiff has presented nothing new or different that
would call into question previous rulings.
3 II. Ineffective Assistance of Counsel. Plaintiff’s ineffective assistance of counsel claim is
merely an alternate means by which he challenges the search and
seizure. In essence, he claims that if his attorney had more
vigorously challenged the constitutionality of that search and
seizure, the evidence against him would have been suppressed, and
he would not have pled guilty. At its core, plaintiff’s
ineffective assistance claim rests upon his assertion that trial
counsel failed t o : (1) call plaintiff’s co-defendant and a third
defendant (who pled guilty to charges arising out of related
conduct) to the stand in an effort to rebut the testimony of the
arresting police officers and undercut the credibility of their
claim to have had an articulable suspicion that drugs were
located in the U-Haul van; and (2) call an expert witness to
rebut the officers’ assertion that the drug dog “alerted” when
officers exposed it to the drug-laden U-Haul van.
The court will assume, for purposes of this discussion, that
despite the fact that plaintiff pled guilty to the charges
against him and had a full and fair opportunity to raise his constitutional challenges to the search and seizure, he may still
collaterally attack that search and seizure in the guise of an
ineffective assistance claim. Nevertheless, even crediting
plaintiff’s allegations as true, he cannot show that his trial
counsel’s conduct was constitutionally deficient or ran afoul of
the requirements described in Strickland v . Washington, 466 U.S.
4 668, 687 (1984). To show ineffective assistance of counsel,
plaintiff must demonstrate that his attorney’s representation was
constitutionally deficient and so prejudiced his defense that,
but for counsel’s deficient representation, there is a reasonable
probability that the result would have been different. Id., at
594.
Even if plaintiff’s counsel had introduced evidence of the
sort described by plaintiff, the government still would have
easily demonstrated that the road-side Terry stop and subsequent
exposure of the U-Haul van to a drug dog were entirely
appropriate and properly supported by an articulable suspicion
that the U-Haul van contained contraband.1 Plaintiff does not
challenge this initial traffic stop, which was supported by
probable cause: the driver of the U-Haul van committed a traffic
violation. See Whren v . United States, 517 U.S. 806 (1996). The
officers’ exposure of that van to the drug dog (and the minimal
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Levesque v . USA CV-98-389-M 07/01/98 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Jonathan S . Levesque, Plaintiff
v. Civil N o . 98-389-M
United States of America, Respondent
O R D E R
Based upon his guilty plea, plaintiff was convicted of
conspiracy to possess with intent to distribute marihuana, in
violation of 21 U.S.C. § 846. He was subsequently sentenced t o ,
among other things, a term of imprisonment of 188 months.
Following his conviction, plaintiff appealed the denial of his
motion to suppress, which challenged the legality of searches and
seizures arising out of a routine motor vehicle stop on
Interstate 70 in Kansas. The Court of Appeals affirmed this
court’s denial of plaintiff’s motion to suppress. United States
v . Levesque, 111 F.3d 122 (1997). Plaintiff is currently
incarcerated at the federal correctional facility in Ray Brook, New York.
Plaintiff now moves the court to vacate or reduce his
sentence under 28 U.S.C. § 2255, which provides in relevant part:
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 court was without jurisdiction to imposed such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
In support of his position, plaintiff raises five grounds for relief: (1) that the court erred in denying his motion to suppress; (2) that he received constitutionally deficient assistance of counsel during the suppression hearing; (3) that the court improperly enhanced his sentence; (4) that the court erroneously concluded that plaintiff was a career offender; and (5) that the court erred in calculating his sentence. Having reviewed plaintiff’s claims and the record of proceedings surrounding the suppression hearings and his guilty plea, the court finds that the record conclusively reveals that plaintiff is entitled to no relief.
I. Improper Denial of Suppression Motion.
In Stone v . Powell, 428 U.S. 465 (1976), the Supreme Court
considered whether, in the context of a proceeding under 28
U.S.C. § 2254, a state prisoner could raise a Fourth Amendment challenge to evidence introduced against him at trial. The Court
concluded that he could not, holding that:
where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.
2 Id., at 482. Although the Court of Appeals for the First Circuit
has yet to decide whether the rule articulated in Stone v . Powell
applies with equal force in the context of proceedings under 28
U.S.C. § 2255, see United States v . Razo-Granado, 1996 WL 256580
at *1 n.2 (1st Cir. May 1 6 , 1996), other circuit courts of appeal
have done s o . See, e.g., United States v . Cook, 997 F.2d 1312,
1317 (10th Cir. 1993) (citing United States v . Johnson, 457 U.S.
537, 562 n.20 (1982)); Tisnado v . United States, 547 F.2d 4 5 2 ,
456 (9th Cir. 1976). Consistent with the reasoning expressed in
those cases, as well as the Supreme Court’s opinion in Stone v .
Powell, the court concludes that a federal prisoner may not, in
the context of a § 2255 proceeding, collaterally attack the
validity of a search and seizure when he has had a full and fair
opportunity to litigate that claim at trial and on appeal.
Here, plaintiff had such an opportunity and, in fact,
vigorously litigated (before both this court and the court of
appeals) the constitutionality of the search and seizure which
lead to his arrest. Consequently, the court concludes that he
may not attempt to relitigate that issue in the context of his § 2255 motion. However, even if the court were to address the
substance of plaintiff’s claim, it would deny his petition. Each
of the issues raised was previously considered in detail, see
United States v . Levesque, N o . 94-120-01-M (D.N.H. July 1 1 ,
1995). Plaintiff has presented nothing new or different that
would call into question previous rulings.
3 II. Ineffective Assistance of Counsel. Plaintiff’s ineffective assistance of counsel claim is
merely an alternate means by which he challenges the search and
seizure. In essence, he claims that if his attorney had more
vigorously challenged the constitutionality of that search and
seizure, the evidence against him would have been suppressed, and
he would not have pled guilty. At its core, plaintiff’s
ineffective assistance claim rests upon his assertion that trial
counsel failed t o : (1) call plaintiff’s co-defendant and a third
defendant (who pled guilty to charges arising out of related
conduct) to the stand in an effort to rebut the testimony of the
arresting police officers and undercut the credibility of their
claim to have had an articulable suspicion that drugs were
located in the U-Haul van; and (2) call an expert witness to
rebut the officers’ assertion that the drug dog “alerted” when
officers exposed it to the drug-laden U-Haul van.
The court will assume, for purposes of this discussion, that
despite the fact that plaintiff pled guilty to the charges
against him and had a full and fair opportunity to raise his constitutional challenges to the search and seizure, he may still
collaterally attack that search and seizure in the guise of an
ineffective assistance claim. Nevertheless, even crediting
plaintiff’s allegations as true, he cannot show that his trial
counsel’s conduct was constitutionally deficient or ran afoul of
the requirements described in Strickland v . Washington, 466 U.S.
4 668, 687 (1984). To show ineffective assistance of counsel,
plaintiff must demonstrate that his attorney’s representation was
constitutionally deficient and so prejudiced his defense that,
but for counsel’s deficient representation, there is a reasonable
probability that the result would have been different. Id., at
594.
Even if plaintiff’s counsel had introduced evidence of the
sort described by plaintiff, the government still would have
easily demonstrated that the road-side Terry stop and subsequent
exposure of the U-Haul van to a drug dog were entirely
appropriate and properly supported by an articulable suspicion
that the U-Haul van contained contraband.1 Plaintiff does not
challenge this initial traffic stop, which was supported by
probable cause: the driver of the U-Haul van committed a traffic
violation. See Whren v . United States, 517 U.S. 806 (1996). The
officers’ exposure of that van to the drug dog (and the minimal
intrusion upon the driver’s personal security) was amply
supported by the officers’ justifiable suspicions. See United
States v . Levesque, N o . 94-120-01-M, slip o p . at 13-15 (D.N.H. July 1 1 , 1995) (discussing in detail the many factors supporting
use of the drug d o g ) . And, finally, notwithstanding plaintiff’s
assertions to the contrary, the drug dog plainly “alerted.”
1 Again, the court has assumed, without deciding, that plaintiff actually has standing to challenge the road-side search and seizure of the U-Haul van and pickup truck (all of which took place in Kansas, while plaintiff was in New Hampshire).
5 Among other evidence which supports that conclusion is the fact
that the video tape recording of the stop (taken from the dash-
mounted video camera in one of the officer’s cruisers) reveals
that: (1) the drug dog became excited when exposed to the back of
the vehicle; and (2) his handler confidently and without
hesitation declared to the other officers that drugs were
certainly present in the van. Additionally, the dog’s handler
credibly testified that based upon his years of experience and
prior work with the dog, he had no doubt that the dog had in fact
detected the odor of a sizeable quantity of marijuana,
subsequently discovered in the van.
The testimony of a so-called drug dog expert, who would have been unfamiliar with the particular dog used in this incident, would have added little, if any, weight to plaintiff’s assertion that the dog failed to alert. At a minimum, counsel’s strategic decision not to call such an expert (which decision was shared by counsel for plaintiff’s co-defendant, who also challenged the validity of the search and seizure) cannot be deemed to have been constitutionally deficient.2 While it is conceivable that plaintiff’s counsel might have adopted a different strategy at the suppression hearing and perhaps could have called different or additional witnesses, his failure to do so did not, as a
2 Parenthetically, the court notes that counsel for plaintiff as well as counsel for his co-defendant both explored the possibility of retaining a “drug dog expert,” see Transcript of suppression hearing (July 7 , 1995) at 52-53, but after inquiry into the matter decided to abandon that option.
6 matter of law, amount to constitutionally deficient
representation of plaintiff.
III. Plaintiff’s Status as a Career Offender.
Relying upon precedent from the Fifth Circuit, plaintiff
claims that his prior convictions for conspiracy with intent to
distribute controlled substances cannot act as “career offender”
predicate felonies because those specific offenses are not listed
in 28 U.S.C. § 994(h). See United States v . Bellazerius, 24 F.3d
698, 700-02 (5th Cir. 1994). The Court of Appeals for the First
Circuit has, however, rejected the reasoning advanced by
plaintiff (and adopted by the Bellazerius court), and aligned
itself with the view espoused by the majority of the circuit
courts of appeals. Among other things, the court concluded that
“the legislative history makes plain that section 994(h) is ‘not
necessarily intended to be an exhaustive list of types of cases
in which the guidelines should specify a substantial term of
imprisonment, nor of types of cases in which terms at or close to
authorized maxima should be specified.’” United States v . Piper,
35 F.3d 6 1 1 , 618 (1st Cir. 1994). See also United States v . Kennedy, 32 F.3d 876 (4th Cir. 1994); United States v .
Damerville, 27 F.3d 254 (7th Cir. 1994); United States v .
Hightower, 25 F.3d 182 (3d Cir. 1994); United States v . Allen, 24
F.3d 1180 (10th Cir. 1994); United States v . Heim, 15 F.3d 830
(9th Cir. 1994). There being binding circuit precedent to the
7 contrary, plaintiff’s challenge to the finding that he was a career offender is of course without legal merit.3
IV. Calculation of Plaintiff’s Sentence.
Plaintiff also argues that his criminal history category was
improperly calculated, pursuant to U.S.S.G. § 4A1.1, because
three convictions used in calculating his criminal history
category were “related cases” and, therefore, plaintiff’s
sentences for those crimes should have been treated as a single
conviction for purposes of § 4A1.1. See U.S.S.G. § 4A1.2(a)(2)
(defining “prior sentences”); Application Note 3 (defining
“related cases”). He also asserts that his prior state court
drug convictions were improperly considered in determining his
federal sentence.
The sentencing issues raised by plaintiff were, however, fully and adequately litigated before this court in the context of calculating his sentence under the Sentencing Guidelines. Plaintiff has identified no new legal theories, recent and retroactive changes in pertinent law, or any other bases which might support the conclusion that his sentence was unjust or unlawful. As noted in the addendum to plaintiff’s presentence
3 Consistent with the First Circuit’s view of the proper interpretation of the career offender sentencing guidelines, the Sentencing Commission amended the Background Commentary to § 4B1.1, effective November 1 , 1995. See U.S.S.G., Appendix C , amendment 528. That amendment included drug conspiracies in the category of crimes which trigger classification as a career offender.
8 report at paragraph 1 0 , each offense identified by plaintiff as
“related” was separated by an intervening arrest and there was no
order for consolidation at the time of trial or sentencing for
any of the offenses. See U.S.S.G. § 4A1.2, Application Note 3
(“Prior sentences are not considered related if they were for
offenses that were separated by an intervening arrest.”). See
also Transcript of Sentencing Hearing (July 1 7 , 1996), at 25-26
(noting that, at a minimum, plaintiff’s convictions set forth at
paragraphs 45 and 46 of the PSR are prior qualifying drug
felonies which were separated by an intervening arrest).
Plaintiff’s final argument – that his prior state court drug
convictions cannot be used in the determination of whether he is
a career offender – has been addressed and rejected by the Court
of Appeals for the First Circuit. United States v . Beasley, 12
F.3d 2 8 0 , 282-48 (1st Cir. 1993).
Conclusion
Because plaintiff’s motion and the files and records of the
case conclusively show that plaintiff is entitled to no relief, his motion to vacate his sentence (document n o . 1 ) is necessarily
denied.
9 SO ORDERED
Steven J. McAuliffe United States District Judge July 1 , 1998
cc: Jonathan S . Levesque Paul M . Gagnon, Esq.