United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge.
action, Petitioner moves, pursuant to 28 U.S.C. § 2255,
to vacate, set aside or correct his sentence. (Motion, ECF
No. 170.) Following a conditional guilty plea, Petitioner was
convicted of possession with intent to distribute heroin; the
Court sentenced Petitioner to 138 months in prison.
(Judgment, ECF No. 114.) The First Circuit upheld the
sentence on appeal. United States v. Rasberry, 882
F.3d 241 (1st Cir. 2018), cert denied, 139 S.Ct. 591
alleges his counsel was ineffective because his trial and
appellate attorneys failed to challenge the legality of the
entry into the motel room where law enforcement officers
detained him and found drugs on his person. (Motion at 1-2.)
The Government has moved for dismissal of the motion.
(Response, ECF No. 173.)
a review of the record, Petitioner's motion, and the
Government's request for dismissal, I recommend that the
Court grant the Government's request and dismiss
Factual Background and Procedural History
15, 2015, in the area of a hotel in Portland, federal agents
located a woman believed to be engaged in drug deliveries for
Petitioner. (Order on Motion to Suppress at 1, ECF No. 45.)
The woman told the agents that she rented a specific room in
a specific motel in Scarborough, that she worked for
Petitioner, and that Petitioner was currently in the motel
room in Scarborough. (Id. at 1-2.) The woman
consented in writing to the search of the motel room and gave
the agents a key card to the room. (Id. at 2.)
and local law enforcement arrived at the motel and tried
unsuccessfully to open the door with the key card.
(Id.) An agent knocked on the door and Petitioner
opened it. (Id.) Agents and officers entered the
room, handcuffed Petitioner and informed him that they had
written consent to search the room and that Petitioner was
being detained. (Id.) An officer briefly patted down
around the area of Petitioner's back where his cuffed
hands could reach. (Id.) After approximately twenty
minutes, an agent told Petitioner that he was going to remove
the handcuffs after the agent patted Petitioner down for
weapons. (Id.) After the agent felt an object in
Petitioner's shorts that appeared to be controlled
substances, the agent arrested Petitioner. (Id. at
21, 2015, a grand jury indicted Petitioner for one count of
possession with intent to distribute cocaine and one count of
possession with intent to distribute heroin. (Indictment, ECF
No. 10.) On July 23, 2015, Petitioner filed a
motion to suppress the evidence police collected as a result
of his detention in the motel room. (Motion to Suppress, ECF
No. 17.) Petitioner argued that the detention could not be
justified under Terry v. Ohio, 392 U.S. 1 (1968),
because Petitioner claimed the second pat down sought
evidence of drugs, not concealed weapons, and because the use
of handcuffs and the display of firearms exceeded a
Terry stop and amounted to an arrest without
probable cause. (Id. at 3-5.) After an evidentiary
hearing, the Court denied the motion to suppress. (Order on
Motion to Suppress, ECF No. 45.)
15, 2016, Petitioner entered a conditional guilty plea as to
Count Two, possession with intent to distribute heroin,
reserving his right to appeal from the Court's order on
the motion to suppress. (Conditional Plea, ECF No. 87; Minute
Entry, ECF No. 88.) On December 12, 2016, the Court sentenced
Petitioner to 138 months of imprisonment. (Judgment, ECF No.
114.) Petitioner appealed from the judgment; on February 14,
2018, the First Circuit Court of Appeals rejected
Petitioner's arguments concerning the permissible scope
of a Terry stop and the propriety of the second
pat-down. Rasberry, 882 F.3d at 247 - 251.
11, 2018, Petitioner filed a petition for a writ of
certiorari to the United States Supreme Court.
Rasberry, No. 18-5296, 139 S.Ct. 591 (2018).
Petitioner sought review of the following question:
“May the government circumvent a home occupant's
consent by invoking Terry v. Ohio to search home and
person without a warrant?” Id. On December 3,
2018, the Supreme Court denied Petitioner's request for a
writ of certiorari. Id.
December 19, 2018, Petitioner filed the motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
(Motion, ECF No. 170.)
person may move to vacate his or her sentence on one of four
different grounds: (1) “that the sentence was imposed
in violation of the Constitution or laws of the United
States”; (2) “that the court was without
jurisdiction” to impose its sentence; (3) “that
the sentence was in excess of the maximum authorized by
law”; or (4) that the sentence “is otherwise
subject to ...