Opinion
Civil No. 00-75284, Criminal No. 96-80779.
October 16, 2000.
OPINION AND ORDER
I. FACTUAL BACKGROUND
On May 24, 1996, petitioner Oscar Reese was found in possession of a .38 caliber revolver by Detroit Police Officers. He had three prior criminal convictions. On June 18, 1998, a federal grand jury indicted Reese for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He pleaded guilty to the indictment pursuant to a Rule 11 Plea Agreement on October 29, 1998. He was sentenced to 78 months imprisonment on March 30, 1999. He now brings suit seeking to vacate his sentence under 28 U.S.C. § 2255.
II. PETITIONER'S CLAIMS
Petitioner makes three claims in support of his motion. First he contends that his plea agreement was not knowingly or voluntarily made. Second, he claims ineffective assistance of counsel. Third, he claims the search which produced the handgun was unlawful.
III. DISCUSSION
The motion is dismissed on the merits.
Knowing and Voluntary Plea Agreement
Petitioner's plea agreement was knowingly and voluntarily made. He now alleges that because of mental illness, he was not competent to enter into a plea agreement.
At the time Reese's plea was admitted, he stated he was in good physical and mental health. (Tr. Plea Agreement at p. 5, ln. 8, October 29, 1998.) However, shortly after the plea was tendered, the defendant was housed at the Wayne County Jail and began to experience psychological difficulty. He was transferred to a local mental health facility, and then to the Federal Detention Center in Milan, Michigan. Because he exhibited unstable behavior so shortly after the plea was entered, I ordered that he undergo a psychological evaluation before sentencing. He was found competent. (Fed. Med. Ctr. Forensic Evaluation at 9, March 18, 1999.)
After entering into the plea agreement but before sentencing, he was ordered to undergo a mental health evaluation and was found mentally competent. "Oscar Reese does not presently suffer from a mental disease or defect rendering him unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." (Fed. Med. Ctr. Forensic Evaluation at 9, March 18, 1999.) He cannot credibly allege that his plea agreement was not knowingly or voluntarily made as he was legally competent.
Ineffective Assistance of Counsel
Petitioner received effective assistance of counsel. He did not at any time in the proceedings complain about his counsel, or request new counsel. He actually indicated to the Court that he was satisfied with his representation as a part of the guilty plea procedure. (Tr. Plea Agreement at p. 5, ln. 21, October 29, 1998.)
In addition, his counsel negotiated a generous plea agreement for him. The plea agreement limited Reese's maximum imprisonment to 120 months, and he could have received a 15 year (180 month) sentence. He was sentenced to only 78 months imprisonment. The plea agreement did not include charges for jumping bond, although he removed his electronic tether in violation of the conditions of his pretrial release and subsequently fled to Hawaii where he was apprehended. (Aff. William C. Muse, June 11, 1998.)
Under the totality of the circumstances, he received effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Unlawful Search
The basis of his unlawful search claim is that his attorney failed to diligently investigate the circumstances surrounding the search on the evening of May 24, 1996. As determined above, his representation was adequate under law.
In addition, he withdrew a motion to suppress the search on the day he entered into the plea agreement. He filed a motion to suppress on August 10, 1998, with hearing scheduled for October 29, 1998. The motion to suppress specifically challenged the search as unlawful.
On the date of the hearing, the motion was never heard but instead he entered into a plea agreement and conceded all points raised in his motion to suppress. (Tr. Plea Agreement at p. 3, ln. 16-19, October 29, 1998.) He should not now be allowed to challenge the legality of the search.
Further, the search was reasonable and proper as it was based upon valid consent. A search does not violate the Fourth Amendment when police obtain consent to search from one who possesses common authority over, or other sufficient relationship, to the premises. U.S. v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), U.S. v. Clutter, 914 F.2d 775, 777 (6th Cir. 1990). Police received a call on May 25, 1996 that Reese had threatened a relative with a .38 caliber loaded revolver and returned to his apartment. Police officers obtained consent to search by his brother and were admitted into the apartment. (Aff. Joseph J. Pianelli at ¶ 3, Sept. 12, 1996.) Based upon legitimate consent the search was valid under law.
IV. CONCLUSION
Petitioner raises the issue of equitable tolling because of his failure to timely bring a § 2255 motion within the one-year statute of limitations. I find it unnecessary to address this issue because his motion should be denied on the merits.
The motion is hereby denied.
IT IS SO ORDERED.
Date OCTOBER 16, 2001.
John Feikens United States District Judge