Opinion
Case No. 03-3029-GTV.
July 28, 2004
MEMORANDUM AND ORDER
Petitioner Robert Marks has filed a petition for writ of habeas corpus (Doc. 1). Although Petitioner is now released from custody, he filed for federal habeas relief prior to being released, satisfying the custody requirement for federal habeas purposes. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). Petitioner was convicted of possession of cocaine with intent to sell in state court, and seeks a writ pursuant to 28 U.S.C. § 2254 based on ineffective assistance of counsel. For the following reasons, the court denies the petition.
I. Procedural History
On May 6, 1998, Petitioner was charged with one count of possession of cocaine with intent to sell in the District Court of Sedgwick County, Kansas. On October 6, 1998, the district court heard Petitioner's motions to suppress. That same day, the case was submitted to the court as a bench trial. On November 12, 1998, the court sentenced Petitioner to thirty-seven months in the Kansas Department of Corrections. On direct appeal, the Kansas Court of Appeals affirmed the conviction. Petitioner then filed a petition pursuant to Kan. Stat. Ann. § 60-1507 in the Sedgwick County District Court on August 9, 2000, alleging ineffective assistance of counsel, denial of due process, equal protection violations, newly discovered evidence, and erroneous application of Kan. Stat. Ann. § 21-4608. The district court denied Petitioner's request, and the Court of Appeals affirmed the decision on April 5, 2002. Before the Kansas Court of Appeals, Petitioner raised only one claim: that counsel was ineffective for failing to move to suppress the evidence of the inventory search. The Kansas Supreme Court denied review of the § 60-1507 decision on July 11, 2002. On January 16, 2003, Petitioner filed the instant request for federal habeas relief pursuant to 28 U.S.C. § 2254.
Petitioner initially asserted that he was denied his Sixth Amendment right to effective counsel for three reasons: (1) his attorney failed to argue that the inventory search was illegal; (2) his attorney failed to move to suppress evidence found during the search incident to arrest; and (3) his attorney failed to advise him of his right to a jury trial. Petitioner has since notified the court that he voluntarily dismisses the latter two of the claims. Before the court is the sole issue of whether his attorney violated his Sixth Amendment right to effective counsel when he failed to argue that the inventory search was illegal.
II. Standard of Review
Because Petitioner's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, the court's review of Petitioner's claims is governed by the provisions of the Act. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999). Under the Act, a court may only grant a writ when one of two circumstances is present: (1) the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1); or (2) the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," Id. § 2254(d)(2). The court presumes state court factual findings to be correct absent clear and convincing evidence to the contrary. Id. § 2254(e)(1).
A state court decision is contrary to clearly established law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. The test is whether the state court's application of the law was objectively unreasonable. Id. at 409; see also Lockyer v. Andrade, 538 U.S. 63, 75-6 (2003) (observing that "objectively unreasonable" standard of review is more deferential than "clear error" standard"). But it is unnecessary for the petitioner to show that "all reasonable jurists" would disagree with the state court's decision. Williams, 529 U.S. at 409-10.
III. Factual Background
On February 7, 1998, Officer Michael Weber of the Wichita Police Department pulled over a pickup truck driven by Petitioner. Officer Weber had witnessed Petitioner make an improper left turn and saw that the truck did not have a license tag light.
The dispatcher notified Officer Weber that Petitioner had a suspended driver's license, and Officer Weber placed Petitioner under arrest for that violation. Darryl Payne was a passenger in Petitioner's vehicle, but he told Officer Weber that Petitioner was merely giving him a ride home, and Officer Weber released him.
Officer Weber performed a search incident to arrest of Petitioner's person, and discovered $4,300 in Petitioner's front pocket. Officer Weber handcuffed Petitioner and began a search of his truck, justifying it as either an inventory search or a search incident to arrest. He found a pink container containing white residue under the driver's seat, and a dirty napkin with cocaine rocks between the driver's seat and the door.
Officer Weber called a tow service to impound Petitioner's truck. Officer Weber did not ask Petitioner whether he wanted the vehicle to be towed, released to Mr. Payne, or left parked on the side of the road.
After finding the cocaine and advising Petitioner of hisMiranda rights, Officer Weber asked Petitioner about the cocaine. Petitioner confessed that it was his and that he intended to sell it.
IV. Petitioner's Grounds for Relief
Petitioner asserts that he is entitled to habeas relief because his counsel failed to argue that the inventory search was illegal, an omission that falls outside the range of professionally competent assistance. Petitioner argues that Officer Weber improperly impounded Petitioner's truck to justify doing an inventory search, without asking Petitioner if he wanted to take care of the truck in another manner. According to Petitioner, his counsel was incompetent when he failed to present this argument to the trial court. The court disagrees.
Strickland v. Washington, 466 U.S. 668 (1984), sets forth the standard the court should use to evaluate whether a prisoner's Sixth Amendment right to effective assistance of counsel has been violated. The court employs a two-pronged inquiry. First, the court asks whether the prisoner demonstrated that his counsel's performance "fell below an objective standard of reasonableness."Strickland, 466 U.S. at 688. "In applying this test, [the court] give[s] considerable deference to an attorney's strategic decisions and `recognize[s] that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'"Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002) (quoting Strickland, 466 U.S. at 690). Second, the court asks whether the prisoner demonstrated prejudice. Strickland, 466 U.S. at 687. The prisoner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the [prisoner] makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697.
Under habeas corpus law, the relevant inquiry is whether the Kansas Court of Appeals applied the Strickland standards in an objectively reasonable manner. See Williams, 529 U.S. at 409. The court concludes that it did.
The Kansas Court of Appeals evaluated only the firstStrickland prong. It noted that Petitioner's counsel filed motions to suppress challenging the legality of the original stop and the admissibility of his statements made to Officer Weber. Counsel may have strategically elected to challenge those actions rather than the inventory search. "When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect."Yarborough v. Gentry, 124 S.Ct. 1, 5 (2003) (citingStrickland, 466 U.S. at 690). "The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." Id. at 6 (citations omitted).
The court notes that in closing argument on the motions to suppress, counsel argued that "the search of the discovery of a napkin [sic] in a seat and the ultimate retrieval and examination of that was beyond the scope of an inventory search. And as the officer in his own words said, It was a matter of curiosity [sic]. And that a search, therefore, was improper, and the fruits of that search should be suppressed." Arguably, counsel's statement refutes Petitioner's claim that his counsel did not address the inventory search. It appears that counsel did at least touch on the alleged illegality of the inventory search, although it was not the focus of the motions to suppress.
To evaluate counsel's performance, the Court of Appeals then addressed the merits of the illegal inventory search argument — whether, under state law, Officer Weber had an obligation to ask Petitioner about the disposition of his truck or let the Mr. Payne take possession of the truck. Citing State v. Fortune, 689 P.2d 1196 (Kan. 1984), the court held:
The passenger stated that he was just getting a ride from Marks and was released after a short questioning. There was no evidence that the passenger was a co-owner of the vehicle or a relative of Marks. Furthermore, there is no evidence that Marks'[s] truck was parked legally so that it could be left unattended. Neither was there any indication that Marks indicated at the time that he desired some other person to take possession of the truck.
Therefore, we find there is no showing that the defense attorney was ineffective for not pursuing an argument which appeared to be contrary to the law of search and seizure as it applied to the facts of the case he was defending. An attorney is not required to file motions that have no reasonable chance for success.
The court concludes that the Kansas Court of Appeals reasonably applied the Strickland standards to Petitioner's claim. Any argument that the inventory search was illegal was futile under Kansas law. See State v. Bornholdt, 932 P.2d 964, 975 (Kan. 1997) (holding impoundment legal where car was obstructing traffic and owner did not attempt to make a disposition of the vehicle); Fortune, 689 P.2d at 1203 (stating that an owner may make a determination as to the disposition of a vehicle, but upholding inventory search when owner passed out before directing officers); State v. Shelton, No. 89,610, 2003 WL 22831556, at *2-3 (Kan.Ct.App. Nov. 26, 2003) (holding that officer was not required to consult owner of car about the disposition of the vehicle when it was obstructing traffic). But see State v. Teeter, 819 P.2d 651, 655 (Kan. 1991) (holding that where car was parked in private area and driver was not arrested before impoundment, police should have asked driver about disposition of car). If an argument omitted by counsel lacks merit, then its omission does not constitute deficient performance. United States v. Dixon, 1 F.3d 1080, 1083 n. 5 (10th Cir. 1993) (abrogated on other grounds); see also Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (citations omitted) (discussing the standards for evaluating the performance of appellate counsel).
Petitioner argues that the Kansas Court of Appeals improperly placed the burden on Petitioner to show that the car was parked illegally. Even if the car were parked legally, Officer Weber could have towed the car as an "abandoned" car, since he was arresting Petitioner. See United States v. Boese, No. 02-40152-01-JAR, 2004 WL 303207, at *3, *4 (D. Kan. Feb. 10, 2004) (citations omitted). The only evidence in the case regarding the location of the car, however, indicates that it was on the roadway because "you can't leave the roadway there on Grove [the street where Petitioner was stopped]." Testimony of Officer Weber, October 6, 1998, Hearing on Motions to Suppress.
The court also notes that had Petitioner's counsel raised the inventory search issue and won, the search could have been justified as a search incident to arrest. See Thorton v. United States, 124 U.S. 2127 (2004);New York v. Belton, 453 U.S. 454 (1981). Under the secondStrickland prong, Petitioner's claim would have failed as "there is [not] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694.
In sum, the court denies habeas relief on the basis of ineffective assistance of counsel. "The issue counsel omitted [was] not so clearly more persuasive than those he discussed that [its] omission can only be attributed to a professional error of constitutional magnitude." Yarborough, 124 S.Ct. at 6.
IT IS, THEREFORE, BY THE COURT ORDERED that the petition for writ of habeas corpus (Doc. 1) is denied.
The case is closed.
Copies or notice of this order shall be transmitted to counsel of record.