Opinion
4:99CV3221
March 7, 2001.
MEMORANDUM AND ORDERON PETITION FOR WRIT OF HABEAS CORPUS
This matter is before me on Edward A. Mullis' Petition for Writ of Habeas Corpus, filing 1. The respondent has filed an answer and the state court records, briefs, and opinions that he deems relevant to the claims raised by the petitioner, filing 31. After reviewing the materials submitted by the parties, I find that the petitioner is not entitled to federal habeas relief.
I. Background
The background as set forth in this order is taken primarily from Mullis' Petition for Writ of Habeas Corpus, filing 1, his Index of Exhibits in support of his petition, filing 4, and the state court records submitted by the respondent, filing 31.
On August 31, 1996, the Merrick County Sheriff's Office received a complaint of a "suspicious blue van" parked in a field at 10th Avenue and 20th Street, in Central City, Nebraska. Upon responding to this call, Deputy Jimmy R. James found nothing suspicious at the reported address, but, while driving down 10th Avenue, he did observe a blue van parked at the Ace Motel. As he approached this vehicle, Deputy James saw the petitioner, who was sitting in the driver's seat, and questioned the petitioner regarding his recent whereabouts. During this discussion, Deputy James noticed a "strong smell of marijuana" coming from the petitioner and asked the petitioner if he had been smoking any illegal drugs. The petitioner responded in the affirmative and handed Deputy James a marijuana joint. Around this time, Officer Gary Wagner of the Central City Police Department arrived at the scene, and the petitioner indicated that he had more marijuana in his motel room. The officers requested permission to enter his room, and the petitioner allegedly consented, advising the officers where the marijuana could be found. The petitioner, who was by this time handcuffed, was then directed to sit on his bed while Deputy James entered the motel room.
Although the officers' statements indicate that the petitioner granted them permission to enter his motel room, the petitioner denies that he consented to the initial search.
Deputy James entered the room, found the marijuana, advised the petitioner that he was under arrest, and read him his Miranda rights. While in the room, the officers also noticed a lap top computer, a coffee maker, and at least one bag filled with rolls of coins. The officers questioned the petitioner about these items, as similar items had apparently been the subject of a recent burglary in the area. The sheriff arrived on the scene a short time thereafter and discovered several marijuana plants in the petitioner's bathroom, next to the shower area. The officers then secured the room until a search warrant could be obtained and transported the petitioner to the county jail.
The petitioner was charged with possession of less than one pound of marijuana, harvesting marijuana, and three counts of burglary. He waived his preliminary hearing, tendered a plea of not guilty as to all five counts at his November 18, 1996, arraignment, and "insisted" that his counsel request a suppression hearing. On the day of the scheduled hearing, the petitioner's appointed counsel, James A. Wagoner, encouraged the petitioner to abandon the suppression hearing, telling him that "`[t]here was little hope of succeeding in a challenge against the officer's assertions that consent was voluntarily given.'" Petition for Writ of Habeas Corpus at 5, ¶ 4, filing 1 [hereinafter Petition]. According to the petitioner, his counsel "`would not' attempt to challenge the legality of the arrest." Id. (emphasis in original). Counsel then advised the petitioner to accept the State's offer to drop the possession count and two burglary counts in exchange for the petitioner's guilty plea as to one count of attempted harvesting and one count of attempted burglary. After unsuccessfully urging his counsel to pursue suppression on the ground that the petitioner was illegally detained, the petitioner "reluctantly agreed" to plead to the reduced charges. Id. at 6, ¶ 9.
On December 2, 1996, the petitioner pleaded guilty to attempted harvesting of marijuana and attempted burglary before the Merrick County District Court in Central City, Nebraska. He was subsequently sentenced to two consecutive terms of three to five years in prison. Although the petitioner did not directly appeal his conviction or sentence, he did file a motion for post-conviction relief in Merrick County District Court on June 26, 1997. In this motion, the petitioner alleged that his counsel provided ineffective assistance by advising him to abandon the scheduled suppression hearing and to plead guilty to the reduced charges. Claiming that he would not have pleaded guilty but for his counsel's advice, the petitioner asserted that a suppression hearing would have revealed, inter alia, the following: (1) the police conducted an illegal investigative detention without a reasonable suspicion that the petitioner was engaged in criminal activity; (2) the police conducted an illegal detention as a pretextual ruse to facilitate an unconstitutional search for any possible evidence of crime; (3) a warrant was issued in the absence of probable cause; (4) the police executed a facially-invalid and unconstitutional general warrant to search the petitioner's possessions; (5) the police grossly exceeded the terms of the general warrant and indiscriminately seized property on a "mere hunch and whim" that the property could be connected to some crime; and (6) the police violated state law in serving the warrant at night and in failing to ensure that the inventory was properly witnessed. According to the petitioner, a favorable ruling on suppression would have resulted in insufficient evidence to support his conviction. Thus, the petitioner concluded, his counsel was constitutionally ineffective in failing to pursue and investigate readily-available facts that supported viable suppression claims.
The petitioner was appointed counsel to represent him in the state post-conviction action. After five months, however, his counsel apparently withdrew from this representation. See Petition at 9, ¶ 18.
In support of his ineffective assistance claim, the petitioner also alleged the following: (1) the Merrick County District Court lacked jurisdiction to convict and sentence him pursuant to his guilty plea; (2) his guilty plea was the product of coercion in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments; and (3) the State's failure to return his personal property constituted "larceny under color of authority" in violation of the Fourth, Fifth, Eighth, and Fourteenth Amendments.
In an order dated June 15, 1998, the Merrick County District Court summarily dismissed the petitioner's post-conviction motion without a hearing. On appeal to Nebraska Court of Appeals, the petitioner argued that the district court erred as follows: (1) in dismissing the petitioner's motion without first determining whether the petitioner would have obtained a favorable ruling on suppression; and (2) in concluding that the records and files in the case affirmatively established that the petitioner was entitled to no relief. In support of his appeal, the petitioner relied on a number of documents that apparently were not in the Bill of Exceptions, including police statements regarding his alleged detention and arrest, the warrant application, the search warrant, and the return and inventory list. The State of Nebraska, arguing that a bill of exceptions is the only vehicle for bringing evidence before an appellate court, moved to strike these documents, as well as all references to these documents, from both the record and the petitioner's brief. The State also moved for summary affirmance or summary dismissal, asserting, inter alia, that dismissal was appropriate for lack of jurisdiction. The Nebraska Court of Appeals sustained the State's motions to strike and for summary affirmance, but specifically denied its motion for summary dismissal.
The petitioner then filed a Petition for Further Review with the Nebraska Supreme Court. According to the petitioner, the district court clearly erred in dismissing the petitioner's post-conviction motion without an evidentiary hearing, and the court of appeals clearly erred in failing to remand his case to the district court for such a hearing. In an order dated June 30, 1999, the Nebraska Supreme Court overruled the petition for review.
The petitioner filed the present Petition for Writ of Habeas Corpus, filing 1, on August 5, 1999, alleging five grounds for relief. Four of these grounds are based on the petitioner's claim that he was denied effective assistance of counsel, as demonstrated by (1) counsel's urging petitioner to abandon the suppression motion on the day of the hearing; (2) counsel's urging petitioner to plead guilty to two charges in exchange for dismissal of three other charges; (3) counsel's "blatant refus[al]" to argue for suppression on the basis that the police illegally detained him; and (4) petitioner's "reluctant agree[ment]" to plead guilty to reduced charges. Petition at 5-6 (Ground One). Recognizing that his ineffective-assistance claim hinges on a meritorious suppression issue that his counsel should have pursued, the petitioner also alleges several Fourth Amendment violations and state law violations connected to his alleged detention, his arrest, the search of his motel room, and the seizure of his belongings. Petition at 6-7 (Grounds Two, Three, and Four). Finally, in his fifth ground for relief, the petitioner asserts that he was denied due process of law throughout his state post-conviction proceedings. Petition at 7-9.
Upon initial review, the magistrate judge concluded that the petitioner's claims were barred by the United States Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976), and recommended that the petition be denied. Filing 6. In a November 15, 1999, order, I adopted the recommendation, denied the petition, and entered judgment in favor of the respondent. Filing 8. The petitioner then filed a notice of appeal on December 9, 1999. Filing 9. In an order dated January 5, 2000, the Eighth Circuit Court of Appeals remanded the case for consideration in light of Tiedeman v. Benson, 122 F.3d 518 (8th Cir. 1997), with directions that, if granted, the certificate of appealability specify the issue or issues to be considered on appeal. Filing 11.
The honorable Kathleen A. Jaudzemis, United States Magistrate Judge for the District of Nebraska.
Concluding that the remand was "for all purposes and not limited to the matter of a certificate of appealability," I vacated my prior order adopting the magistrate judge's Report and Recommendation and referred the matter to the magistrate judge for further proceedings. Filing 12. The magistrate judge, after tentatively determining that the petitioner had exhausted his state remedies, appointed counsel to represent the petitioner and directed the respondent to file a responsive pleading. Filing 16. The respondent objected to the magistrate judge's order, arguing that the order went beyond the scope of the remand and that the magistrate judge erred in finding that the petitioner had properly presented his claims to the Nebraska courts. Filing 17. I denied these objections, and the respondent filed an answer on June 29, 2000. Filings 29, 31. In his answer, the respondent asserted that the petitioner had procedurally defaulted his claims. Filing 31 at 6.
Subsequent to the filing of this objection, the Eighth Circuit entered a judgment dismissing the appeal of this case without prejudice to the right of either party to appeal any final order that is entered at the conclusion of the present proceedings. Filing 21.
The petitioner, now proceeding pro se, filed a Motion to Expand the Record to include, inter alia, verified copies of statements from those officers who allegedly detained him, the search warrant for his motel room, the affidavit and application for the search warrant, and the return and inventory form listing the property seized from his motel room. Filing 33. The magistrate judge denied the petitioner's motion, noting that the documents the petitioner referred to were included in his Index of Exhibits, filing 4, and were therefore already part of the court file. Filing 34. The parties then submitted briefs in support of their respective positions, and the Petition for Writ of Habeas Corpus, filing 1, is now at issue.
Appointed counsel moved to withdraw, stating that the petitioner desired to represent himself pro se during the pleading stages of his case. Filing 28. The Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska, granted this motion. Filing 30.
II. Analysis
As an initial matter, I find that the petitioner's due process claim must be dismissed. In his fifth ground for relief, the petitioner claims that he was denied due process throughout his state post-conviction proceedings, as demonstrated by (1) the district court's failure to conduct an evidentiary hearing to establish if there were facts to support the suppression issue; (2) the court of appeals' refusal to review documents that were a part of the petitioner's brief and its refusal to remand the petitioner's motion for an evidentiary hearing; and (3) the supreme court's denial of further review "based upon a `totally silent' record." Petition at 8-9. The Eighth Circuit, however, has repeatedly recognized that "[b]ecause there is no federal constitutional requirement that states provide a means of post-conviction review of state convictions, an infirmity in a state post-conviction proceeding does not raise a constitutional issue cognizable in a federal habeas petition." Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990), cert. denied, 495 U.S. 936 (1990) (citing Williams v. State of Missouri, 640 F.2d 140, 143 (8th Cir. 1981), cert. denied, 451 U.S. 990 (1981)); see Gee v. Groose, 110 F.3d 1346, 1351-52 (8th Cir. 1997); Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir. 1994), cert. denied, 513 U.S. 983 (1994); Smith v. Lockhart, 882 F.2d 331, 334-35 (8th Cir. 1989), cert. denied, 493 U.S. 1028 (1990); Noble v. Sigler, 351 F.2d 673, 678 (8th Cir. 1965), cert. denied, 385 U.S. 853 (1966). Here, the petitioner's due process claim represents an attack on a proceeding collateral to his conviction and detention, not on the detention itself, and is therefore not cognizable in a § 2254 petition. Accordingly, the petitioner's fifth ground for relief must fail.
The petitioner's remaining grounds for relief all relate to his ineffective-assistance-of-counsel claim. Before reaching the merits of this claim, I will first examine the related habeas doctrines of exhaustion and procedural default.
A. Exhaustion and Procedural Default
Before a federal court may grant a state prisoner's petitioner for habeas relief, the prisoner must first exhaust his remedies in state court. 28 U.S.C.A. § 2254(b)(1) (West Supp. 2000); see O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion requirement, a petitioner must show that he either "made a fair presentation of his claims to the state courts or that he has no other presently available state remedies to pursue." Gentry v. Lansdown, 175 F.3d 1082, 1083 (8th Cir. 1999) (citations omitted); see also O'Sullivan, 526 U.S. at 845 (determining that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by involving one complete round of the State's established appellate review process"); Gray v. Netherland, 518 U.S. 152, 163 (1996) (noting that "`the substance of a federal habeas corpus claim must first be presented to the state courts'" (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)). A claim has been "fairly presented" to the state courts if "the same factual grounds and legal theories asserted in the prisoner's federal habeas petition have been properly raised in the prisoner's state court proceedings." Forest v. Delo, 52 F.3d 716, 719 (8th Cir. 1995) (citations omitted); see also Gentry, 175 F.3d at 1083 ("A petitioner meets the fair presentation requirement if the state court rules on the merits of his claims, or if he presents his claims in a manner that entitles him to a ruling on the merits." (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)).
In addition, federal courts should not review a question of federal law decided by a state court "if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991) (citations omitted). The "adequate and independent" state law ground may be either substantive or procedural in nature. Id. In the context of federal habeas proceedings, this principle bars review "when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. at 729-30. This principle also bars review when the petitioner bypasses the state courts, raises his federal claim(s) for the first time in a motion for relief pursuant to § 2254, and clearly no longer has a remedy available to him under state law. Gray, 518 U.S. at 161. In such cases, "the state judgment rests on independent and adequate state procedural grounds," and the petitioner is said to have procedurally defaulted his federal claims. Coleman, 501 U.S. at 729-30, 750; see also Gray, 518 U.S. at 161. The United States Supreme Court has recognized that the "adequate and independent state law" doctrine is a necessary corollary to the exhaustion requirement, explaining as follows:
A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer "available" to him. In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.Id. at 732 (internal citations omitted); see Gray, 518 U.S. at 161-62 ("Because `[t]his [exhaustion] requirement . . . refers only to remedies still available at the time of the federal petition,' . . . it is satisfied `if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law." . . . However, the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim. . . ." (internal citations omitted)).
A petitioner who has procedurally defaulted his claims may, however, overcome the presumption against federal habeas review. The petitioner's procedural default will be excused if the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
In this case, the respondent contends that this court is barred from hearing the petitioner's ineffective-assistance claim. In support of his contention, the respondent notes that Nebraska law does not permit motions for post-conviction relief to serve as substitutes for direct appeals. See State v. Pratt, 398 N.W.2d 721, 721 (Neb. 1987). Accordingly, "[a] motion for postconviction relief cannot be used to secure review of issues which were, or could have been litigated on direct appeal. . . ." State v. Kern, 442 N.W.2d 381, 382 (Neb. 1989). Relying on the above authority, the respondent argues that because the petitioner did not pursue a direct appeal of his conviction and sentence in the state courts, he has procedurally defaulted his ineffective-assistance claim.
The respondent also seems to suggest that the petitioner has procedurally defaulted his due process claim. As noted above, however, the due process claim attacks a proceeding collateral to the petitioner's conviction and detention, as opposed to the detention itself, and is therefore not cognizable in a § 2254 petition. See Williams-Bey, 894 F.2d at 317.
In response, the petitioner contends that the authority cited by the respondent is inapplicable to the facts of this case because his ineffective-assistance claim "`could not' have been litigated on direct appeal," since "`[a]ppellate courts in Nebraska are limited to considering errors which appear on the record from the trial court and may not consider errors not found in the record.'" Petition for Writ of Habeas Corpus, Brief of the Petitioner at 22-23, Mullis v. Hopkins, No. 4:99cv03221 (D.Neb.) [hereinafter Petitioner's Brief] (quoting State v. Moore, 458 N.W.2d 232, 235 (Neb. 1990)); (citing State v. Matthews, 590 N.W.2d 402, 412 (Neb.Ct.App. 1999) (refusing to address defendant's claim where "[t]he issue of ineffective assistance of counsel was not raised before the trial court, and the record before [the] court on appeal is insufficient to adequately review the question of effectiveness of [the defendant's] trial counsel")). Here, the petitioner notes, the ineffective-assistance claim is based on his counsel's failure to pursue meritorious suppression issues. However, since his counsel did not attempt to argue for suppression, there was no hearing held to develop any facts relating to the petitioner's alleged detention, the search of his motel room, or the seizure of his belongings. Thus, the petitioner concludes, an appellate court, on direct review, could not have considered his ineffective-assistance claim because the record was devoid of any facts regarding his underlying allegations.
After carefully reviewing the state court records, as well as the arguments of both parties, I find that the petitioner has not procedurally defaulted his ineffective-assistance claim. In the order dismissing the petitioner's Verified Motion to Vacate and Set Aside Conviction, the district court judge did not rest his decision on the petitioner's failure to pursue a direct appeal. Instead, he stated the following:
The Court has reviewed its file and specifically the Bill of Exceptions prepared pursuant to the Court's Order. An evidentiary hearing may be denied when the records and files in the case affirmatively establish that the defendant is entitled to no relief. The defendant has alleged no facts which, if proven, would constitute an infringement of his constitutional rights. Conclusions, not substantiated by allegations of facts with some probability of verity, are not sufficient to warrant a hearing. After reviewing the files and records, it is clear to the Court that the defendant's newly-appointed counsel simply could not prepare pleadings which would constitute factual issues.
Order, State v. Mullis, No. 1093 (Merrick County. Dist. Ct. June 15, 1998), Attach. 2.c. (emphasis supplied). Thus, despite the respondent's suggestions to the contrary, there is no indication that the district court's decision rested on a state procedural bar.
As noted above, the respondent attached to his answer the state court records, opinions, and briefs that he deems relevant to the claims raised by the petitioner. See filing 31. "Attach. __" refers to these attachments.
Furthermore, the Nebraska Court of Appeals' order appears to support the conclusion that the state courts did not view the petitioner's claims as procedurally barred. While before the appellate court, the State moved for summary affirmance or summary dismissal pursuant to the court's rules. In its brief to the appellate court, the respondent argued that summary dismissal was appropriate pursuant to Rule 7.B(1) for lack of jurisdiction. See Neb. S.Ct. Ct. App. Rule 7.B(1) (providing that "[a] motion to dismiss for lack of jurisdiction may be filed at any time after an appeal has been docketed"). According to the State, the district court did not have "subject jurisdiction" over the petitioner's post-conviction action because he failed to pursue his claims on direct appeal. Thus, the State argued, the appellate court lacked the power to review the petitioner's appeal on its merits, and summary dismissal was therefore appropriate. On review, the court of appeals entered an order granting summary affirmance pursuant to Rule 7.B(2). See Neb. S.Ct. Ct. App. Rule 7.B(2) (stating that "[a] motion to affirm on the ground that the questions presented for review are so unsubstantial as not to require argument may be filed after the appellant's brief has been filed or the time for filing has expired"). In doing so, however, the court specifically denied the State's motion for summary dismissal, leading me to the conclusion that the appellate court did not consider the petitioner's ineffective-assistance claim to be procedurally barred.
The respondent also argues that the petitioner did not "fairly present" his ineffective-assistance claim to either the Nebraska Court of Appeals or to the Nebraska Supreme Court, and that this claim is therefore procedurally barred because he no longer has any available state court remedies. See Gentry, 175 F.3d at 1083; Gray, 518 U.S. at 161. Noting that Nebraska appellate courts will consider only those errors assigned and argued in the briefs, the respondent directs my attention to the petitioner's briefs to these courts. See Neb. S.Ct. Ct. App. Rule 9.D(1)(e) (directing parties to "bear in mind that consideration of the case will be limited to errors assigned and discussed"). In his brief to the Nebraska Court of Appeals, the petitioner assigned the following errors:
(I) It was error, for the District Court to dismiss appellants [sic] postconviction motion without first determining the facts and ruling on the issue of, whether there would have been a favorable ruling on suppression, had it been properly pursued by the defense counsel.
(II) The District Court erroneously determined that, [h]istorical facts affirmatively establish [that] the appellant is entitled to no relief.
Brief of the Appellant at 2, State v. Mullis, No. A-98-0703 (Neb.Ct.App.), Attach. 3. The petitioner asserted similar errors in support of his petition for further review to the Nebraska Supreme Court:
The District Court committed clear error through ordering that appellant's [p]ostconviction motion be dismissed, "without conducting an evidentiary hearing"; [a]nd the Court of Appeal's [sic] committed clear error through failing to remand the case to the District Court with directions to conduct a hearing and make specific factual findings, and conclusions of law with respect to the [p]ostconviction claims.
Petition for Further Review and Memorandum Brief in Support at 1, State v. Mullis, No. A-98-0703 (Neb.), Attach. 8. Relying on the above passages, the respondent suggests that because the petitioner did not specifically refer to his ineffective-assistance claim in his assignment of errors, and because he no longer has any available state court remedies, he has procedurally defaulted the claim.
I find that the respondent's argument is without merit. A review of petitioner's briefs to both the Nebraska Court of Appeals and Nebraska Supreme Court reveals that the petitioner extensively discussed his ineffective-assistance allegation, along with the facts underlying this allegation, in support of his assignment of errors. See Brief of the Appellant at 11-29, State v. Mullis, No. A-98-0703 (Neb.Ct.App.), Attach. 3; Petition for Further Review and Memorandum Brief in Support at 2-9, State v. Mullis, No. A-98-0703 (Neb.), Attach. 8. I am therefore convinced that the petitioner's ineffective-assistance claim was "fairly presented to the state courts." Picard v. Connor, 404 U.S. at 275. Accordingly, as to this claim, I find that (1) the petitioner has exhausted his state remedies, and (2) the respondent's procedural default arguments must fail.
B. Ineffective-Assistance-of-Counsel Claim
In his first four grounds for relief, the petitioner alleges that his trial counsel was ineffective for failing to pursue meritorious suppression issues before advising the petitioner to plead guilty. According to the petitioner, a suppression hearing would have revealed the following:
that his conviction was obtained by use of evidence gained pursuant to an unconstitutional seizure of his person without reasonable suspicion of criminal conduct, as evidenced by the petitioner's detention in his vehicle, legally parked at his motel residence, when the police had no articulable facts to cause reasonable suspicion of criminal activity and no articulable facts to create a reasonable belief that the petitioner may have been connected to suspicious activity that reportedly occurred ½ mile from the motel;
that his conviction was obtained following an illegal investigative detention as a pretextual ruse to conduct an otherwise illegal search when the police, although they had no articulable facts to suspect that the petitioner was connected to any form of criminal or suspicious activity, conducted an illegal investigative detention solely to gain illegal access to the petitioner's motel residence to verify a hunch that the petitioner could be connected to burglary offenses in the county; and
that his conviction was obtained by use of evidence obtained through an unconstitutionally issued and executed general warrant when (a) the police sought a warrant without probable cause; (b) the issuing judge "rubber stamped" the application for a "general" warrant; (c) the police, in searching the petitioner's motel room, grossly exceeded the scope of this general warrant; and (d) the police violated state law in serving the warrant at night and in failing to ensure that the inventory was properly witnessed.
Petition at 6-7 (Grounds two, three, and four). The petitioner contends that but for his counsel's deficient performance, he would not have pleaded guilty. Thus, the petitioner argues, his counsel's ineffective assistance rendered his plea involuntary, and, therefore, constitutionally infirm. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) ("Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" (citation omitted)).
1. Standard of Review
My review of the petitioner's claims is limited by the provisions of 28 U.S.C.A. § 2254. In enacting the Antiterrorism and Effective Death Penalty Act of 1996, which amended § 2254, Congress placed new constraints on the power of federal courts to grant writs of habeas corpus to state prisoners on claims "adjudicated on the merits in State court proceedings." 28 U.S.C.A. § 2254(d) (West 1994 Supp. 2000); see Williams v. Taylor, 529 U.S. 362, 412 (2000) (opinion of the Court per O'Connor, J.). Pursuant to § 2254(d)(1), the writ may issue only if the state court adjudication "resulted in a decision that 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.A. § 2254(d)(1).
According to the Supreme Court, a federal habeas court may grant the writ under § 2254(d)'s "contrary to" clause in two situations: first, "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law," and second, "if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. By contrast, under the "unreasonable application" clause, the writ may be granted "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. In making the reasonableness inquiry, federal habeas courts are directed to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also Copeland v. Washington, 232 F.3d 969, 974 (8th Cir. 2000) ("As we have stated, "[t]o the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness . . . of the state court's treatment of the contested issue." (citing Long v. Humphrey, 184 F.3d 758, 761 (8th Cir. 1999))) Federal habeas courts are also reminded that with respect to the reasonableness inquiry, "the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410 (emphasis in original). Thus, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly[;] [r]ather, that application must also be unreasonable." Id. at 411.
In analyzing habeas petitions in accordance with the standards outlined above, the first step is to ascertain whether there has been a state court "adjudication on the merits." See 28 U.S.C.A. § 2254. Here, the district court denied the petitioner's motion for post-conviction relief, concluding that "[t]he defendant has alleged no facts which, if proven, would constitute an infringement of his constitutional rights." Order at 1, State v. Mullis, No. 1093 (Merrick County Dist. Ct. June 15, 1998), Attach. 2.c. The Nebraska Court of Appeals summarily affirmed the district court's decision, and the Nebraska Supreme Court overruled Mullis' petition for further review. As discussed above, both the district court's order, albeit brief, and the appellate court's order convince me that dismissal was based not on procedural grounds, but on the merits. See Part II.A. I therefore conclude that for purposes of § 2254(d), the petitioner has been afforded a state court adjudication on the merits. See, e.g., James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999), cert. denied, 528 U.S. 1143 (2000) (noting that "[t]he summary nature of the [the state appellate court's] opinion does not affect this standard of review" (citing Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir. 1998); Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997), cert. denied, 522 U.S. 819 (1997))).
With the above standards in mind, I now turn to the "clearly established Federal law" governing the petitioner's claim that his Sixth Amendment right to effective assistance of counsel was violated by his counsel's failure to pursue a suppression hearing before advising the petitioner to plead guilty, thus rendering the petitioner's plea involuntary.
The merits of the petitioner's claim are squarely governed by the case of Strickland v. Washington, 466 U.S. 668 (1984), in which the Supreme Court delineated the standards governing a criminal defendant's Sixth Amendment right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984); U.S. Const. amend. VI. To prevail on an ineffective-assistance claim, a petitioner must establish that (1) his counsel's performance was deficient; and (2) that he was prejudiced by the deficient performance. Id. at 687. Counsel's performance was deficient if it "fell below an objective standard of reasonableness." Id. at 688. Counsel's performance is prejudicial if "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 one "sufficient to undermine confidence in the outcome." Id. This two-prong inquiry outlined above need not be undertaken in any particular order, and if the petitioner makes an insufficient showing as to one of the prongs, the court is not required to address the other prong. Id. at 697.
The Supreme Court has also determined that Strickland's two-prong test applies to ineffective-assistance-of-counsel claims arising out of the plea process. Hill, 474 U.S. at 57. While the first prong of the Strickland analysis in the context of guilty pleas "is nothing more than a restatement of the standard of attorney competence," the prejudice requirement specifically focuses "on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Id. at 58-59. Thus, the prejudice inquiry hinges on the petitioner's ability to establish "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. Elaborating on this inquiry, the Supreme Court has stated the following:
In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of the trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the "idiosyncrasies of the particular decisionmaker."Id. at 59-60 (internal citations omitted). Finally, the Supreme Court has also recognized that when counsel's failure to litigate a Fourth Amendment claim underlies a petitioner's ineffectiveness allegations, the petitioner "must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
2. Petitioner's Fourth Amendment and State Law Claims
Here, the petitioner's ineffective-assistance claim is based primarily on his assertions that the police repeatedly violated his Fourth Amendment rights in detaining him and in searching and seizing his belongings. In accordance with the standards outlined above, the petitioner's entitlement to relief on his ineffective-assistance claim hinges, in part, on his ability to show that his Fourth Amendment rights were violated. See Kimmelman, 477 U.S. at 375. Each of the petitioner's Fourth Amendment allegations will therefore be discussed below. The petitioner's allegations regarding the failure of the police to comply with state law will then be addressed.
a . Challenge to the Initial Detention
In his second ground for relief, the petitioner claims that he was illegally detained by the police without reasonable suspicion. According to the petitioner, Deputy James, acting upon an "anonymous" tip, went looking for a "suspicious blue van" in a field at 10th Avenue and 20th Street. Although Deputy James did not see this van upon arriving at the field, he continued to drive down 10th Avenue, where he saw a blue van parked in the Ace Motel parking lot. The petitioner contends that Deputy James then "turned in to [sic] the Motel's parking lot, parked his cruiser in front of the van, which was legally parked where the van had every legal right to be parked, and accosted the petitioner, . . . demanded identification, and began to question him regarding his recent whereabouts and activities." Petitioner's Brief at 29. Thus, the petitioner concludes, Deputy James, acting merely upon an "anonymous" tip of a "suspicious blue van," did not have reasonable suspicion to justify the detention, and the evidence obtained as result of that illegal detention ( i.e., the evidence obtained pursuant to the warrant) would have been inadmissible under the "fruit of the poisonous tree" doctrine. See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). The respondent, however, disputes the petitioner's characterization of the initial contact between Deputy James and the petitioner. According to the respondent, this encounter did not rise to the level of a "seizure," and was therefore outside the scope of the Fourth Amendment. In the alternative, the respondent also seems to suggest that (1) Deputy James did, indeed, have reasonable suspicion to detain the petitioner, and (2) even if the petitioner was illegally detained, his subsequent consent to the initial search of his motel room broke the chain of illegality.
After reviewing the record before me, I see no reason to reach the issue of whether the petitioner was illegally detained. Even if the petitioner's initial encounter with the police violated the Fourth Amendment, the evidence discovered in the room thereafter would nevertheless be admissible if the petitioner's "consent to the search was `sufficiently an act of free will to purge the primary taint.'" United States v. Palacios-Suarez, 149 F.3d 770, 772 (8th Cir. 1998) (citations omitted); see United States v. Beason, 220 F.3d 964, 967 (8th Cir. 2000); United States v. Beatty, 170 F.3d 811, 813 (8th Cir. 1999). In other words, the petitioner's consent, if it was voluntary, would have broken the chain of illegality stemming from the alleged detention. United States v. Kreisel, 210 F.3d 868, 869 (8th Cir. 2000) ("Even if a consent to search is the result, in a "but for" sense, of a fourth amendment violation, we will uphold a subsequent search if the consent was sufficiently an act of free will to purge the original taint." (citing United States v. McGill, 125 F.3d 642, 644 (8th Cir. 1997), cert. denied, 522 U.S. 1141, (1998)). Here, the petitioner admits that his counsel did not abandon a tactic of seeking suppression for lack of voluntary consent although his counsel had little hope of succeeding in the face of the officer's assertions "that consent was voluntarily given." See Petition at 5, ¶ 4 and Petitioner's Brief at 12, ¶¶ 17, 19 (admitting that counsel was willing to argue for suppression "on the basis that the police had lied when they claimed the petitioner had given consent to entry of his room. . . ."); see also Palacios-Suarez, 149 F.3d at 772 (noting that in determining whether an individual's consent was voluntary, courts should "examine the totality of circumstances under which it was given"). Had his counsel successfully pursued such an argument, all of the evidence subsequently seized pursuant to the search warrant, which was obtained primarily on the basis of the officers' "plain view" observations upon initially entering the petitioner's motel room, would have presumably been excluded under the "fruit of the poisonous tree" doctrine. See Wong Sun, 371 U.S. at 487-88. Thus, it appears to me that the petitioner's counsel acted within the bounds of reasonableness in wanting to press the consent issue, as opposed to focusing on the illegal-detention issue. I therefore find that regardless of whether the petitioner was illegally detained, his second ground for relief must fail. Likewise, the petitioner's first ground for relief must also fail, insofar as it is based on allegations regarding his allegedly illegal detention.
b. Challenge to the Initial Search
In his third ground for relief, the petitioner alleges that his conviction was obtained following an illegal investigative detention as a pretextual ruse to conduct an otherwise illegal search. Specifically, the petitioner asserts the following:
The police utilized an innocuous, non-criminal complaint as a pretextual ruse to provide a quasi legal justification to investigatively [sic] detain [the] petitioner because they suspected he may have been involved in several burglaries, and wished to gain entry to his room to see if they could locate anything possibly incriminating that might confirm their suspicions.
Petitioner's Brief at 32. In support of his contention, the petitioner notes that even if Deputy James had reasonable suspicion to detain him based on the "suspicious blue van" complaint, "[i]t would logically follow therefrom to presume that some evidence of the possible crime would likely be found in the van." Id. Thus, the petitioner concludes, the officer's "immediate request for permission to enter the room raises the clear indication that the sole purpose for the `investigative detention' was . . . to seek cause or permission to enter the room." Id. at 33. In addition, the petitioner asserts that several other factors suggest "that [the] police used the `complaint' as a pretextual ruse," including (1) the officers' "immediate step of calling superior officers to the scene" upon seeing the laptop computer, coffee maker, and coin money in the petitioner's room, (2) the officers' "immediate step of interrogating the petitioner" regarding his possession of these items; and (3) the sheriff's subsequent request for a "general" search warrant, in the absence of probable cause. Id. at 33-34.
I find several problems with the petitioner's rationale. First, Deputy James apparently did not seek consent to enter the petitioner's room until after the petitioner had admitted that an additional bag of marijuana could be found there. See Statement of Deputy Jimmy R. James at 1 , Petitioner's Ex. 1, filing 4. It therefore appears to me that Deputy James' request to enter the petitioner's room was a reasonable response to the petitioner's admission, and not evidence of some "pretextual ruse" on the part of law enforcement. Likewise, the officers also appear to have been acting reasonably when, after noticing the laptop computer and coffee maker, they called their superior officers to the scene and questioned the petitioner regarding these items. Despite the petitioner's assertion that "mere possession of commonly owned items cannot possibly give cause to suspect that the items are possessed illegally," the petitioner's possession of these items, combined with the fact that similar items had been the subject of recent area burglaries, certainly gave the officers reason to believe that additional investigation was warranted. See Petitioner's Brief at 33. Thus, the officers' conduct does not, as the petitioner claims, "raise the inference that the police had the intent to look for the presence of such items once they gained entry of the room." Id. Finally, the petitioner's allegations regarding the inferences to be drawn from the sheriff's subsequent request for a "general" search warrant, in the absence of probable cause, are also without merit. See infra Part II.B.2.c.1-2 (concluding that (1) the officers had probable cause to seek the warrant, and (2) only one clause of the warrant failed to satisfy the particularity requirement). Accordingly, for the reasons outlined above, the petitioner's claim regarding an alleged "pretextual ruse" on the part of the law enforcement must fail.
c. Challenges to the Warrant and Subsequent Search
In his fourth ground for relief, the petitioner alleges that his conviction was obtained by use of evidence pursuant to an unconstitutionally sought, issued, and executed general warrant. According to the petitioner, his rights were violated when (1) the Merrick County sheriff sought a warrant in the absence of probable cause; (2) the issuing magistrate "rubber stamped" the sheriff's request for a "general" search warrant; (3) the police conducted a random and indiscriminate search and seizure of the petitioner's possessions, grossly exceeding even the overbroad generic terms of the issued warrant, and (4) the police served the warrant after dark and failed to ensure that the subsequent inventory was properly witnessed. After reviewing the relevant authority, I find that petitioner's allegations do not support his ineffective-assistance claim.
1. Probable Cause Requirement "Good-Faith" Exception
The Fourth Amendment requires that "no warrants shall issue, but upon probable cause. . . ." U.S. Const. amend. IV. Thus, to be valid, a search warrant must be based upon a finding, by a neutral and detached judicial officer, of probable cause to believe that "evidence, instrumentalities or fruits of a crime, contraband, or a person for whose arrest there is probable cause may be found in the place to be searched." Walden v. Carmack, 156 F.3d 861, 870 (8th Cir. 1998) (citing Warden v. Hayden, 387 U.S. 294 (1967); Johnson v. United States, 333 U.S. 10 (1948)). The standard governing probable cause requires issuing judges to ask whether, given the totality of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). In making this determination, issuing judges are directed to examine search warrant applications and affidavits "`with common sense and not in a grudging, hypertechnical fashion.'" United States v. Goodson, 165 F.3d 610, 613 (8th Cir. 1999), cert. denied, 527 U.S. 1030 (1999) (citing Walden, 156 F.3d at 870); see Gates, 462 U.S. at 231 ("Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a `practical, nontechnical conception.'" (citation omitted)). Once a judicial officer has issued a warrant upon a finding of probable cause, that finding is entitled to "great deference" by reviewing courts. Walden, 156 F.3d at 870 (citing Gates, 462 U.S. at 236).
According to the petitioner, the warrant affidavit prepared by Sheriff Richard Miller was insufficient to establish probable cause. In this affidavit, Sheriff Miller stated that approximately one week earlier, several local businesses had been burglarized. See Affidavit and Application for Search Warrant at 1, Petitioner's Ex. 3, filing 4. Many items were reported missing, including coin money, stamps, keys, an Ascentia lap top computer, and a Mr. Coffee coffee maker. Id. Sheriff Miller related that upon entering the petitioner's room, he immediately observed an Ascentia lap top computer, a Mr. Coffee coffee maker, at least one bag with coin money in it, and approximately three fully grown marijuana plants. Id. at 2. These facts, Sheriff Miller stated, gave him "reason to believe . . . that the property observed in [the petitioner's motel room] is stolen properly from seven burglaries that occurred in Merrick Count, Nebraska," and "reason to believe . . . that [the petitioner's motel room] has marijuana and controlled substances within." Id.
The petitioner contends that the above facts do not support a finding of probable cause. I disagree. Upon entering the motel room of an individual who had just admitted to both consuming and possessing an illegal substance, the officers observed the lap top computer, Mr. Coffee coffee maker, and bag of coin money. Such observations, combined with the knowledge that similar items had been stolen from local businesses during recent burglaries, would lead a reasonable officer to question whether the items were, indeed, stolen property. In light of such circumstances, it seems "fairly probable" that evidence relating to the burglaries would be found in the petitioner's room. See Gates, 462 U.S. at 238. I am therefore convinced that the issuing judge had a "`substantial basis for conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39 ("[T]he duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis for . . . conclud[ing]' that probable cause existed." (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
Nevertheless, even if the judge erred in issuing the warrant, the officers' "good-faith" reliance on the judge's probable-cause determination would render the illegally-seized evidence admissible. Recognizing its "preference for warrants," the United States Supreme Court has held that evidence obtained "in objectively reasonably reliance on a subsequently invalidated search warrant" need not be suppressed. United States v. Leon, 468 U.S. 897, 914, 922 (1984). In those cases, however, where the police have "no reasonable grounds for believing the warrant was properly issued," the good-faith exception will not apply. Id. at 922-23. Thus, according to the Supreme Court, suppression is an appropriate remedy in the following situations: (1) where the police are dishonest or reckless in preparing the warrant affidavit, and therefore mislead the issuing judge; (2) where the issuing judge "wholly abandons his judicial role" and/or serves "merely as a rubber stamp for the police"; (3) where the police rely on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; and (4) where the warrant is so facially deficient "that the executing officers cannot reasonably presume it to be valid." Id. at 923, 914-15 (citations omitted); see also id. at 926 (noting that "[i]n the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause").
In this case, the officers who executed the warrant acted objectively reasonably in relying on the issuing judge's probable-cause determination. There is simply no indication that Sheriff Miller deliberately or recklessly misled the issuing judge or that the judge "abandoned his detached and neutral role." Id. at 923, 926. Nor is this a case involving a "bare bones," conclusory affidavit. Id. at 915. Instead, by relating the prior burglaries and the petitioner's possession of items similar in character to the stolen items, Sheriff Miller provided sufficient information as to why he believed the police may find incriminating information in the petitioner's motel room. Thus, the affidavit certainly cannot be characterized as one "`so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" Id. at 923 (citation omitted). For the same reasons, I am convinced that the issuing judge did not simply "rubber stamp" Sheriff Miller's warrant application. See id. at 914-15 (noting that "`[s]ufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.'" (citing Gates, 462 U.S. at 239)). Finally, despite the petitioner's assertions to the contrary, it does not appear that the warrant was so facially invalid as to preclude reasonable reliance. Id. at 923. Thus, even if the issuing judge erred in finding probable cause, the officers' good-faith reliance on the warrant renders the subsequent search and seizure constitutionally valid.
The petitioner contends that the warrant was "facially invalid because it did not contain any judicial signature on its face." Petitioner's Brief at 37. I do not find the petitioner's argument persuasive. The warrant extended beyond one page and apparently included a second page with a judicial signature. The petitioner has cited no authority, and I have found none, suggesting that such a warrant is facially invalid.
Accordingly, for the reasons outlined above, the petitioner's ineffective-assistance claim must fail, insofar as it is based on his allegations that (1) the search warrant was issued in the absence of probable cause, and (2) the issuing judge merely "rubber stamped" Sheriff Miller's warrant affidavit and application.
2. Particularity Requirement
The petitioner also alleges that the warrant issued in this case permitted an unconstitutional "general search" of his motel room. See Petitioner's Brief at 34 (noting that the "[p]olice sought judicial authority to rummage among [the] petitioner's belongings in a general search for any possible evidence which might be indicative of multiple criminal offenses . . ."). The Fourth Amendment prohibits general searches and requires that a warrant describe with particularity the items to be seized. See Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir. 1987) (citing Andresen v. Maryland, 427 U.S. 463, 480 (1976); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)); U.S. Const. amend. IV ("[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."). The purpose of the prohibition of general warrants is to "`ensure that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches that the Framers intended to prohibit.'" United States v. Caves, 890 F.2d 87, 92 (8th Cir. 1989) (quoting Maryland v. Garrison, 480 U.S. 79 (1987)); see also United States v. Hibbard, 963 F.2d 1100, 1102 (8th Cir. 1992) ("The purpose of the particularity requirement is to prevent a general exploratory rummaging through a person's belongings."). Thus, the language of the warrant "must be sufficiently definite to enable the searcher to reasonably ascertain and identify the things authorized to be seized." United States v. Saunders, 957 F.2d 1488, 1491 (8th Cir. 1992), cert. denied, 506 U.S. 889 (1992), and cert. denied, 506 U.S. 1058 (1993) (citing Steele v. United States, 267 U.S. 498, 503-04 (1925)); see also United States v. Gruber, 994 F. Supp. 1026, 1036 (N.D.Iowa 1998), aff'd, 189 F.3d 769 (8th Cir. 1999) ("As a result, courts have demanded that the executing officers be able to identify the things to be seized with reasonable certainty and that the warrant description must be as particular as circumstances permit." (citation omitted)). As with the probable cause inquiry, "[w]hether a warrant satisfies the particularity requirement is examined under a `standard of "practical accuracy" rather than a hypertechnical one.'" United States v. Mosby, 101 F.3d 1278, 1281 (8th Cir. 1996), cert. denied, 516 U.S. 1125 (1996) (citing United States v. Peters, 92 F.3d 768, 769-70 (8th Cir. 1996)).
The warrant at issue in this case describes the items to be seized as follows:
Marijuana as well as other controlled substances, as well as but not limited to drug paraphefnalia [sic], such as but not limited to, packaging material, scales, syringes and other items used in the possession or manufacturing [of] controlled substances. As well as but not limited to an Ascentia lap top computer with serial number 524V20002310, a Mr. Coffee coffee maker, pop machine keys, U[.]S[.] currancy [sic] and burglary tools. As well as but not limited to the documentary evidence relating but not limited to the possession, manufacturing and selling [of] a controlled substance. As well as documentary evidence relating to burglary including but not limited to possible suspect information, such as but not limited to pawn slips and other identification. . . .
Search Warrant, Petitioner's Ex. 4, filing 4. It appears to me that, for the most part, the above language was sufficiently descriptive to satisfy the particularity requirement. The first two clauses specifically list certain items to be seized. The third clause adequately limits any records ( i.e., "documentary evidence") to be seized by referring to "the specific illegal activit[ies] that the records allegedly document." See United States v. LeBron, 729 F.2d 533, 538 (8th Cir. 1984) ("Records of narcotic sales [and] manufacturing and distribution of drugs . . . provide a particularized description and inherent guidelines. . . ."). The final clause, however, presents some difficulty. In United States v. LeBron, the Eighth Circuit concluded that the clause "any records which would document illegal transactions involving stolen property" was fatally overbroad. See id. at 535, 539. According to the court, the above language did not provide sufficient guidance to an executing officer, as there was no means of distinguishing between stolen property and other property. Id. at 539. Thus, the generic term "records" combined with the unidentifiable category of "stolen property" led the court to strike down the warrant, which would have allowed the seizure of essentially anything in writing. Id. Here, the search for "documentary evidence relating to burglary" presents a similar problem, as there does not appear to be any method by which the officers "were to distinguish such records from any documents relating to legal transactions." Id. at 539; see id. at 538 (explaining that "[h]ad the warrant limited the records to be seized to those documenting transactions regarding the items specifically described in the warrant, we would not be presented with the present difficulty"). It therefore appears to me that the petitioner may have a meritorious Fourth Amendment claim with respect to the particularity of the warrant.
Nevertheless, even if the final clause fails to satisfy the particularity requirement, this factor does not render the entire search invalid. The Eighth Circuit has recognized that "[a] court can sever deficient portions of a search warrant without invalidating the entire warrant." United States v. Pitts, 173 F.3d 677, 681 (8th Cir. 1999) (citation omitted). Thus, only those items "not described in the sufficiently particular portions of the warrant" may be subject to suppression. See United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983), cert. denied, 466 U.S. 950 (1984) (recognizing that such items may still be admissible if (1) the police found item in place where one would reasonably have expected them to look in process of searching for objects described in sufficiently particular portions of warrant, (2) police found item before they found all objects described in sufficiently particular portions, or (3) the other requirements of the "plain view" rule are met).
After reviewing the return and inventory list, it appears to me that even if those items seized pursuant to the invalid clause were suppressed, there was sufficient evidence to connect the petitioner to one of the burglaries. See Return and Inventory to Search Warrant , Petitioner's Ex. 5, filing 4 (indicating that a lap top computer, Mr. Coffee coffee maker, and lock blade knife were seized). There was also sufficient evidence to support the drug-related charges against the petitioner. See id. (stating that rolling paper, a safety pin with controlled-substance residue, a syringe, plastic baggies with marijuana residue, bags with suspected marijuana or marijuana residue, and six marijuana plants were seized). Thus, the petitioner has not convinced me that "but for [his] counsel's [failure to pursue suppression on particularity grounds], [the petitioner] would not have pleaded guilty [to the reduced charges] and would have insisted on going to trial. See Hill, 474 U.S. at 59. Nor has the petitioner convinced me that a favorable suppression ruling on particularity grounds would have "led counsel to change his recommendation as to the plea." See id. Thus, in the absence of a "reasonable probability" that his counsel's error affected the outcome of the plea process, the petitioner's ineffective-assistance claim must fail. Id. Accordingly, his ineffective-assistance claim will be dismissed, insofar as it is based on allegations that the warrant permitted an unconstitutional "general search" of his motel room.
During proceedings before the Merrick County District Court, the prosecutor stated that the United States Department of Agriculture's ASCS office in Central City had been burglarized on the night of August 24, 1996, or during the early morning hours of August 25, 1996. Bill of Exceptions at 30:1-13, Rearraignment of December 2, 1996, State v. Mullis, No. 1093-E-241 (Merrick County Dist. Ct.), Attach. 1. The ASCS office reported that an Ascentia lap top computer and a Mr. Coffee coffee maker had been stolen. Id.
It also appears to me that the petitioner's counsel acted objectively reasonably in favoring to press the consent issue, rather than seeking suppression on particularity grounds. See Strickland, 466 U.S. at 687-88 (stating that counsel's performance was deficient if it "fell below an objective standard of reasonableness"). For an extended discussion regarding the petitioner's failure to satisfy Strickland's "deficient performance" prong, see infra Part II.B.2.c.4.
3. Scope of the Search
According to the petitioner, the police "grossly exceeded the terms of the warrant and seized properly indiscriminately without any regard to whether the property was contraband or evidence of a crime. . . ." Petitioner's Brief at 39. Generally, police may seize only those items "described in the search warrant, absent an exception to the warrant requirement." United States v. Robbins, 21 F.3d 297, 300 (8th Cir. 1994) (citation omitted). After reviewing the return and inventory list, it appears to me that the petitioner is correct in asserting that the police seized several items that were not described in the warrant. An unlawful seizure beyond the scope of an otherwise valid search warrant does not, however, automatically render the entire search invalid. Rickert, 813 F.2d at 909 (citation omitted); see United States v. Beck, 122 F.3d 676, 680 (8th Cir. 1997). Provided that the police did not "flagrantly disregard" the limitations of the search warrant, lawfully-seized evidence need not be suppressed. See United States v. Decker, 956 F.2d 773, 779 (8th Cir. 1992); United States v. Rosenberger, 872 F.2d 240, 242 (8th Cir. 1989); see also Marvin v. United States, 732 F.2d 669, 674-75 (8th Cir. 1984) ("A flagrant disregard for the limitations of a search warrant might make an otherwise valid search an impermissible general search and thus require the suppression or return of all the evidence seized during the search." (citations omitted)).
The petitioner lists the following items as improperly seized:
[W]riting paper, flashlights, a pocket knife, rubber bands, Fort Randall token, a flattened dime, an ashtray, scissors, necklaces, pens, protractor, batteries, [P]olaroid camera, air pressure gauge, newspaper, shaving kit, radio, film, computer discs, gloves, shoes, Game boy, cassette tapes, nuts and bolts, road atlases, ledger book, box of sugar, a can of coffee, photographs, fair magazines, 2 ton floor jack, tire repair equipment, dust masks, and a diary.
Petitioner's Brief at 39. I agree with the petitioner that, with the exception of the pocket knife, the seizure of these items exceeded the scope of the warrant. It seems to me that the pocket knife could be fairly characterized as a "burglary tool." See Search Warrant, Petitioner's Ex. 4, filing 4 (permitting the seizure of burglary tools); Affidavit and Application for Search Warrant at 1, Petitioner's Ex. 3, filing 4 (indicating that with respect to the prior burglaries, "entry was made by prying doors or windows with a ½ inch pry device, or by using a sharp pointed instrument").
I am not convinced that the officers' conduct rose to the level of "flagrant disregard" for the limitations of a valid search warrant when they seized several items that were not described in the warrant. See Decker, 956 F.2d at 779 ("The [United States] Supreme Court, however, has expressly dictated that the flagrant disregard standard applies only where the government exceeds the scope of the authorized search in terms of the places searched, and not to cases in which the government indulges in excessive seizures." (citing Waller v. Georgia, 467 U.S. 39, 43 n. 3 (1984). As a result, those items sufficiently described in the warrant were not subject to suppression. Such items would include the lap top computer, rolling paper, syringe, safety pin with controlled-substance residue, lock blade knife, small bag of suspected marijuana, coin money, Crown Royal bags with marijuana residue, plastic baggies with marijuana residue, Mr. Coffee coffee maker, six marijuana plants, and screw drivers. These items certainly supported the drug-related charges against the petitioner and also connected the petitioner to one of the burglaries. See supra note 11. Thus, despite the petitioner's assertion to the contrary, I am not convinced that "but for [his] counsel's [failure to pursue suppression on the ground that the police seized items not described in the warrant], [the petitioner] would not have pleaded guilty [to the reduced charges] and would have insisted on going to trial. See Hill, 474 U.S. at 59. Nor am I convinced that a favorable suppression ruling on this ground would have "led counsel to change his recommendation as to the plea." See id. Accordingly, in the absence of a "reasonable probability" that this counsel's failure to pursue suppression "affected the outcome of the plea process," the petitioner's ineffective-assistance claim must fail, insofar as it is based on allegations that the police seized evidence outside the scope of the warrant.
It also appears to me that the petitioner's counsel acted objectively reasonably in agreeing to challenge the voluntariness of the petitioner's consent, rather than seeking suppression on the ground that the police seized items outside the scope of the warrant. See Strickland, 466 U.S. at 687-88 (stating that counsel's performance was deficient if it "fell below an objective standard of reasonableness"). For an extended discussion regarding the petitioner's failure to satisfy Strickland's "deficient performance" prong, see infra Part II.B.2.c.4.
4. Daytime Requirement/ State Law Requirements
Finally, the petitioner asserts that his counsel was ineffective in failing to pursue suppression on state law grounds. See Petitioner's Brief at 37-38 (citing Jones v. Stotts, 59 F.3d 143, 145 n. 2 (10th Cir. 1995) ("[T]he errors raised to support a claim of ineffective assistance may assert either federal law or state law violations." (citations omitted))). First, the petitioner claims that he was subjected to an unlawful nighttime search in violation of state law. In support of his claim, the petitioner directs me to § 29-814.04 of the Nebraska Code, which provides as follows:
The warrant shall direct that it be served in the daytime unless the magistrate or judge is satisfied that the public interest requires that it should not be so restricted, in which case the warrant may direct that it may be served at any time. . . . For purposes of this section, daytime shall mean the hours from 7 a.m. to 8 p.m. according to local time.
Neb. Rev. Stat. Ann. § 29-814.04 (Michie 1995). While recognizing that the warrant in this case permitted service "at anytime," because "night is no[w] upon us," the petitioner nevertheless argues that the 8:45 p.m. service of the warrant was improper. See Search Warrant, Petitioner's Ex. 4, filing 4 ("Further, as night is no[w] upon us, this warrant may be served at anytime."); Return and Inventory to Search Warrant, Petitioner's Ex. 5, filing 4 (indicating that the warrant was executed at 8:45 p.m. on August 31, 1996). According to the petitioner, "[n]o State court has ruled that a warrant may be authorized for night-time service only because the officer waited until after dark to seek authority to conduct the search." Petitioner's Brief at 38.
The petitioner's claim appears to have merit. The Nebraska Supreme Court has stated that, "the affidavit in support of a search warrant must contain facts which show the reviewing judicial officer that the public interest requires nighttime service." State v. Fitch, 582 N.W.2d 342, 347 (Neb. 1998) (citing State v. Paul, 405 N.W.2d 608, 610 (Neb. 1987)). Accordingly, "`[i]f the affidavit, read in a common sense manner and as a whole reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service, provision for such service in the warrant is proper.'" Paul, 405 N.W.2d at 435 (quoting People v. Mardian, 47 Cal.App.3d 16, 35 (1975)). A review of Sheriff Miller's warrant affidavit, however, reveals no facts showing how the public interest required nighttime service. See, e.g., id. at 436 (concluding that an affidavit indicating that the investigator smelled burnt marijuana emanating from home at 10:15 p.m. stated facts sufficient to justify nighttime search, as the odor of burnt marijuana supports inference that marijuana was being consumed, and it is clearly in the public interest to prevent the destruction of contraband evincing criminal activity). In the absence of such facts, it appears that the issuing judge improperly authorized service at "anytime." Accordingly, evidence seized pursuant to the warrant would likely have been suppressed, had the petitioner's counsel sought suppression on this ground. See Fitch, 582 N.W.2d at 348-49 (concluding that suppression was appropriate where warrant permitting service "at any time" was improperly issued and the officers serving the warrant lacked a good-faith belief that the warrant affidavit stated facts sufficient to justify a nighttime search). However, before the petitioner is entitled to relief, he must also show that (1) his counsel acted objectively unreasonably in failing to pursue suppression on these grounds, and that (2) he was prejudiced by his counsel's error. See Strickland, 466 U.S. at 687. After reviewing the record, I find that he has not met this burden.
Initially, I note that whether the petitioner voluntarily consented to the initial search of his motel room is the key issue underlying the following analysis. As discussed above, the petitioner admitted that his counsel was willing to pursue suppression on the ground that the petitioner did not voluntarily consent to the search. See Petition at 5, ¶ 4; Petitioner's Brief at 12, ¶ 17. I concluded that if his counsel had successfully pursued such an argument, all of the evidence subsequently seized pursuant to the search warrant would have presumably been excluded under the "fruit of the poisonous tree" doctrine. See Wong Sun, 371 U.S. at 487-88, and that the petitioner's counsel acted within the bounds of reasonableness in focusing on the consent issue.
Assuming, arguendo, that the petitioner's counsel had abandoned the consent argument and had instead successfully argued for suppression on the ground that the warrant was served at night in violation of state law, there is a substantial likelihood that several items seized pursuant to the warrant would have nevertheless been admissible against the petitioner. Provided that the officers were lawfully in the petitioner's motel room based on his consent, they could permissibly seize any contraband or evidence of crime that fell within their "plain view." See Horton v. California, 496 U.S. 128, 136-37 (noting that plain view seizures are permissible when the officer is lawfully located in a place from which the object can be plainly seen, the officer has a lawful right of access to the object itself, and the incriminating character of the object is "immediately apparent"). Here, it would not be unreasonable to conclude that the following objects were within the officers' plain view upon entering the petitioner's motel room: the Ascentia lap top computer, Mr. Coffee coffee maker, at least one bag filled with rolls of coin money, at least two bags containing a leafy green substance believed to be marijuana, and several fully grown marijuana plants. See Statement of Deputy Jimmy R. James at 2, Petitioner's Ex. 1, filing 4; Statement of Officer Gary Wagner at 1, Petitioner's Ex. 2, filing 4; Affidavit and Application for Search Warrant, Petitioner's Ex. 3, filing 4. At the very least, the incriminating nature of the bags of marijuana and the marijuana plants was "immediately apparent." See Horton, 496 U.S. at 136. Thus, these items were likely to be admitted against the petitioner at trial, and such items appear sufficient to support a conviction as to the two drug-related charges, i.e., possession of more than one ounce and less than one pound of marijuana, and harvesting marijuana. See Bill of Exceptions at 5:1-8, Attach. 1.
Under Nebraska law, the petitioner was subject to a maximum sentence of seven days in jail and a $500 fine as to the possession charge. See id. at 6:22-7:3. With respect to the harvesting charge, he was subject to a minimum of one year and a maximum of twenty years in prison, and/or a $25,000 fine. See id. at 7:4-10. By pleading guilty, however, the petitioner faced a maximum of five years imprisonment and/or a $10,000 fine as to each reduced charge. See id. at 21:17-22:1. The petitioner admits that his counsel fully informed him of these facts before recommending that the petitioner plead guilty. See Petitioner's Brief at 13, ¶ 24.
In light of the compelling "plain view" evidence against the petitioner on the drug-related charges, combined with the harsh penalties associated with the harvesting charge, it is difficult to conclude that the petitioner's counsel acted objectively unreasonably in being willing to press the consent issue, rather than seeking suppression on the ground that the warrant improperly authorized a nighttime search. As noted above, all of the evidence seized from the petitioner's motel room would have presumably been excluded under the "fruit of the poisonous tree" doctrine, had the petitioner's counsel successfully challenged the voluntariness of the petitioner's consent. Granted, it may have been prudent for petitioner's counsel to consider additional grounds for suppression, including those now suggested by the petitioner. Nevertheless, I am convinced that the petitioner's counsel met his obligation to provide "professionally competent assistance" regarding what appears to have been the lynchpin argument in the petitioner's case, i.e., that he did not consent to the initial search. See Strickland, 466 U.S. at 690; see also id. at 689 ("[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . ."). Furthermore, the petitioner has not established that his counsel acted objectively unreasonably in encouraging him to plead guilty to the reduced charges. In short, the petitioner has simply offered no evidence or argument to contradict his counsel's alleged assertion that "`[t]here was little hope of succeeding in a challenge against the officer's [sic] assertions that consent was voluntarily given.'" Petition at 5, ¶ 4. Thus, for the reasons outlined above, I find that the petitioner has failed to show how his counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." Id. at 687. Accordingly, the petitioner's ineffective-assistance claim must fail, insofar as it is based on his allegation that he was subject to an unlawful nighttime search in violation of state law.
Given the compelling plain view evidence and the likelihood of conviction on the drug-related charges, it is also difficult to conclude that the petitioner was prejudiced by accepting the State's plea offer. See Hill, 474 U.S. at 59 (noting that Strickland's prejudice inquiry focuses on "whether counsel's constitutionally ineffective performance affected the outcome of the plea process"). It seems to me that a reasonable person would plead guilty to the reduced charges rather than face trial and the risk of a twenty-year prison term and/or a substantial fine on the harvesting charge. See id. (providing that in order to satisfy the prejudice prong, the petitioner must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" (emphasis supplied) (noted omitted)).
Finally, the petitioner also asserts that Sheriff Miller violated state law when he "sought the warrant, conducted the search, seized property at his unfettered discretion, and listed the property seized on the return and inventory, acting alone and unwitnessed." Petitioner's Brief at 38. In support of his claim, the petitioner directs me to § 29-815 of the Nebraska Code, which provides that "[t]he inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken if they are present, or in the presence of at least one credible witness. . . ." Neb. Rev. Stat. § 29-815 (Michie 1995). The return and inventory list in this case suggests that the inventory was not witnessed by either the petitioner or "at least one credible witness." See Return and Inventory to Search Warrant, Petitioner's Ex. 5, filing 4 (stating that "[t]his inventory was made in the presence of the undersigned and a copy of the warrant and a receipt for the property was given to Edward Mullis"). The petitioner, without reference to any authority, is apparently arguing that because the inventory was not witnessed as required by § 29-815, the items seized pursuant to the warrant would have been suppressed. I disagree.
My independent review of Nebraska law reveals no cases indicating that the failure to comply with the witnessing requirements of § 29-815 results in a per se exclusion of all items seized pursuant to a valid search warrant. In the absence of such authority, I am hesitant to conclude that Nebraska courts would automatically impose the harsh sanction of suppression for the failure to follow this procedural requirement. See, e.g., State v. Groves, 477 N.W.2d 789, 801-02 (Neb. 1991) (Shanahan, J., concurring) (stating that "[s]ection 29-815 sets forth a ministerial procedure for return of an executed search warrant" (citing Commonwealth v. Cromer, 313 N.E.2d 557, 559 n. 3 (Mass. 1974) ("The `overwhelming weight of authority,' however, is to the effect that required warrant return procedures are ministerial, and failure to comply therewith is not ground for voiding an otherwise valid search."); United States v. Kennedy, 457 F.2d 63 (10th Cir. 1972); People v. Schmidt, 473 P.2d 698 (Colo. 1970); State v. Hunt, 454 S.W.2d 555 (Mo. 1970); United States v. Haskins, 345 F.2d 111 (6th Cir. 1965)). Furthermore, even if I were to conclude that Nebraska law did, indeed, require suppression, the petitioner would not be able to satisfy Strickland's "deficient performance" prong for the reasons outlined above. Accordingly, the petitioner's ineffective-assistance-of-counsel claim must fail, to the extent that it is based on his allegation that the inventory was not properly witnessed.
In conclusion, for the reasons outlined above, I am not convinced that the Nebraska state courts' dismissal of the petitioner's ineffective-assistance-of-counsel claim was "contrary to" or "an unreasonable application of" clearly established federal law. His first four grounds for relief must therefore fail. The petitioner's due process claim arising from his state post-conviction proceedings must also fail, as such a claim is not cogizable in a § 2254 action. Accordingly, his petition for habeas relief will be denied.
IT IS ORDERED that the petitioner's Petition for Writ of Habeas Corpus, filing 1, is denied.