United States District Court, W.D. Virginia, Abingdon Division
GLEN E. CONRAD, District Judge.
James Edward Goff, a federal inmate proceeding pro se, has moved to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255. The government has filed a motion to dismiss, and Goff has responded, making this matter ripe for consideration. Upon review of the record, the court concludes that Goff has not stated any claim for relief under § 2255 and that the government's motion to dismiss must be granted.
On July 7, 2011, a federal grand jury sitting in Abingdon, Virginia charged Goff in a two-count indictment with possessing explosives after having been convicted of a felony, in violation of 18 U.S.C. § 842(i)(1), and improperly storing explosives, in violation of 18 U.S.C. § 842(j). On November 7, 2011, following a one-day trial, a jury found Goff guilty on both counts. The evidence at trial was that on October 17, 2010, Goff, a convicted felon, arrived at a storage shed located on property owned by his mother, Erma Goff. (Trial Tr. at 23-26, ECF No. 90.) Goff unloaded three boxes from his vehicle and cautiously carried them into the storage shed. (Id. at 27.) William Cole, who lived on property adjacent to the storage shed, observed Goff carrying the boxes and noticed that one of the boxes had wires the size of an "ink pen filler" stringing out the top. (Id.) The following day, Cole, believing that the boxes contained blasting caps, looked through the window of the storage shed and observed three boxes of blasting caps. (Id. at 30.) Cole called 911, and a deputy from the Tazewell County Sheriff's Office responded. (Id. at 53.) The deputy looked through the window of the storage shed and observed the boxes of blasting caps. (Id. at 54.) The deputy testified that he could tell by "the markings on the boxes, the size, shape" that the boxes were the type that contained blasting caps. (Id. at 55.) Thereafter, the deputy spoke with the owner of the property, Erma Goff, and obtained permission to search the storage shed. (Id. at 56.) Upon entering the storage shed, the deputy opened the boxes and confirmed that the boxes contained blasting caps. (Id. at 57.)
At the sentencing hearing on February 6, 2012, the court adopted the presentence investigation report ("PSR"). The PSR found that Goff had a total offense level of 20 and a criminal history category of V. The advisory guideline range for imprisonment was 63-78 months. U.S. Sentencing Guidelines Manual, Chapter 5, Part A. The court sentenced Goff to 36-months imprisonment. (ECF No. 67.) The court also imposed a 30-month term of supervised release. The United States Court of Appeals for the Fourth Circuit affirmed Goff's convictions.
In his § 2255 motion, Goff claims that counsel provided ineffective assistance by failing to (1) move to suppress evidence that resulted from an unlawful search; (2) conduct adequate pretrial investigation; and (3) adequately preserve for appeal objections related to the government's cross-examination of defense witness Lewis Lester.
Criminal defendants have a Sixth Amendment right to "reasonably effective" legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a claim of ineffective assistance of counsel, petitioner must satisfy the two-pronged test set forth in Strickland. The first prong of Strickland requires a petitioner to show "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment, " meaning that counsel's representation fell below an objective standard of reasonableness. Id. at 687-88. Courts apply a strong presumption that counsel's performance was within the range of reasonable professional assistance. Id. at 689; see also Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992); Hutchins v. Garrison, 724 F.2d 1425, 1430-31 (4th Cir. 1983).
The second prong of Strickland requires a petitioner to show that counsel's deficient performance prejudiced him by demonstrating a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 at 694. Goff's claims of ineffective assistance of counsel do not show both the deficient performance and resulting prejudice required by Strickland,
A. Motion to Suppress
Goff claims that counsel provided ineffective assistance by failing to file a motion to suppress evidence that resulted from a deputy's search of the storage shed where the explosives were located. In support, Goff states that the deputy's "initial viewing of the shed's interior was conducted outside the bounds of the Fourth Amendment." (Mot. to Vacate at 7, ECF No. 94.) In the initial viewing, the deputy looked into the storage shed's windows and observed boxes containing the blasting caps. Goff also argues that, "even if [his mother or sister] voluntarily gave [the deputy] permission to search the interior of the shed, their consent to search an area to which they had mutual access with the petitioner" was not effective consent to search the closed boxes, which the deputy knew belonged to Goff. (Reply to Mot. to Dismiss at 3, ECF No. 101.)
To show ineffective assistance of counsel based on a failure to file a motion to suppress evidence, Goff must show actual prejudice by demonstrating that a motion to suppress would have been meritorious. See Ford v. United States, No. RDB-12-2848, 2013 U.S. Dist. LEXIS 85871 at *10, 2013 WL 3155447, at *4 (D. Md. 2013) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)); see also United States v. Madewell, 917 F.2d 301, 304 (7th Cir. 1990) (holding that there was no ineffective assistance of counsel because any motion to suppress was unlikely to prevail). Goff fails to demonstrate that a motion to suppress would have been meritorious because he has not established any legitimate expectation of privacy in the storage shed. "It is axiomatic that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.'" United States v. Gray, 491 F.3d 138, 144 (4th Cir. 2007) (quoting Alderman v. United States, 394 U.S. 165, 171-72 (1969)); see also Rakas v. Illinois, 439 U.S. 128, 143 (1978) ("[C]apacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.") (citation omitted). "To be legitimate, an expectation of privacy must be objectively reasonable: it must flow from a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" Gray, 491 F.3d at 145 (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998)).
"A person may have a legitimate expectation of privacy in a place or object he does not own." United States v. Castellanos, 716 F.3d 828, 846 (4th Cir. 2013) (quoting United States v. Perez, 689 F.2d 1336, 1338 (9th Cir. 1982) (citation omitted)). In Castellanos the United States Court of Appeals for the Fourth Circuit noted, "[I]n determining whether a person has a reasonable expectation of privacy ...