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Rasberry v. United States

United States District Court, D. Maine

April 11, 2019

TODD RASBERRY, Petitioner,


          John C. Nivison U.S. Magistrate Judge.

         In this 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 (2018).

         Petitioner 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.)

         Following 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 Petitioner's motion.

         I. Factual Background and Procedural History

         On July 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.)

         Agents 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 2-3.)

         On July 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.)[1] 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.)

         On June 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.

         On July 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.

         On 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.)

         II. Discussion

         A. Legal Standards

         A 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 ...

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