United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge.
Green, 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,
arguing Green has not raised any issues entitling him to
relief. Green has responded, making this matter ripe for
consideration. Upon review of the record, the court concludes
that the government's motion to dismiss must be granted.
August 4, 2011, a grand jury returned an indictment, charging
Green with possession with intent to distribute 500 grams or
more of a mixture and substance containing a detectable
amount of cocaine, in violation of 21 U.S.C. § 841(a)(1)
and 841(b)(1)(B). This indictment stemmed from a traffic stop
in which officers pulled over the car Green was driving.
(Mot. to Supp. at 1, ECF No. 17.) A canine unit was brought
to the scene and alerted on Green's vehicle; officers
then searched his car. (Id.) A camera on the
officers' vehicle recorded the traffic stop. (Supp. Mot.
to Supp. at 1, ECF No. 22.)
retained counsel. On November 4, 2011, Green, through
counsel, filed a motion to suppress, arguing that the traffic
stop violated his constitutional rights because of its scope
and duration. (Mot. to Supp. at 2, ECF No. 17.) The
government responded that the stop was permissible and the
approximately 15-minute duration was not excessive.
(Gov't Resp. at 12, ECF No. 20.) Green, through counsel,
filed a supplemental motion to suppress, arguing that he had
been questioned after requesting a lawyer. (Supp. Mot. to
Supp. at 2, ECF No. 22.) The government responded that Green
did not invoke his right to counsel. (Gov't Supp. Resp.
at 3, ECF No. 23.)
December 5, 2011, the court held a hearing on the suppression
motions. The officer who initiated the traffic stop testified
regarding the stop. In addition, the video of the stop, which
had been produced to the defense as part of discovery, was
played in open court. Following the hearing, the court issued
an opinion, concluding that Green was lawfully seized for the
traffic violations and that the stop was reasonable. (Mem.
Op. at 13, ECF No. 29.)
April 9, 2012, retained counsel filed a motion to withdraw
his representation, which the court granted, and appointed
the Federal Public Defender to begin representing Green.
(Order at 1, ECF No. 37.) On April 30, Green, through
counsel, filed his second motion to suppress, arguing that
the canine alert on Green's car was not a reliable source
of probable cause and did not justify the warrant less search
of his car. (2d Mot. to Supp. at 5, ECF No. 42.) The
government responded that the dog was trained and certified,
and his alert provided probable cause. (2d Mem. Op. at 6-7,
ECF No. 44.)
5, 2012, the court held a second suppression hearing. At the
hearing, Green filed his first pro se motion to suppress
evidence, in which he argued that the video of the traffic
stop was incomplete and missing footage. (Pro Se
Mot. to Supp. at 2, ECF No. 48.) The court denied both the
second motion to suppress filed by counsel and the pro se
motion to suppress, concluding that canine was reliably
sufficient to establish probable cause and that there was no
evidence that the video recording had been altered. (Mem. Op.
at 9, 10, ECF No. 52.)
5, 2012, Green filed a second pro se motion to suppress,
arguing that the arresting officer did not follow protocol
with regard to the canine alert. (2d Pro Se Mot. to Supp. at
2, ECF No. 54.) On July 13, 2012, Green filed a third pro se
motion to suppress, arguing that the video recording of the
traffic stop was redacted in two spots, one for approximately
30 seconds, resulting in two "time gaps." (3d Pro
Se Mot. to Supp. at 4, ECF No 55.) Green also filed an
addendum to his prior motions. (Addendum, ECF No. 59.)
August 8, 2012, Green signed a written plea agreement in
which he agreed to plead guilty to the count in the
indictment. Under the plea agreement, Green waived his right
to appeal his judgment and sentence, except for the
court's rulings on his various suppression motions. He
also waived his right to bring a § 2255 motion, except
for claims of ineffective assistance of counsel. (Plea Agree,
at 7, ECF No. 65.) At his guilty plea hearing, the court
informed Green that it could not accept his guilty plea as
long as there were pending motions to suppress. (Plea
Hr'g Tr. at 11, ECF No. 81.) Green then withdrew his pro
se motions. (Id. at 24.) Green affirmed that he had
had an adequate opportunity to read and discuss the plea
agreement with counsel, that he understood the plea
agreement, and that no one had forced him or made any
promises to cause him to plead guilty, (hi at 5, 15, 17.)
Green further affirmed that he was "satisfied with all
of the components of [counsel's] services on [his]
behalf." (hi at 55.) He stated that he was guilty.
(Id. at 57.) The court accepted Green's plea
after concluding that he was competent and capable of making
an informed plea and that his plea was knowing and voluntary.
(II at 57-58.)
November 5, 2012, the court adopted the Presentence
Investigation Report and sentenced Green to 200 months'
imprisonment, after concluding that he was a career offender.
(Sent. Hr'g Tr. at 18, ECF No. 84.) The next day, counsel
filed a notice of appeal with the United States Court of
Appeals for the Fourth Circuit. (Notice at 1, ECF No. 72.)
Green filed a pro se motion requesting the Fourth
Circuit to remove his court-appointed counsel. The Fourth
Circuit denied the motion and refused to allow Green to
proceed pro se as "there is no constitutional right to
self-representation on appeal, " but granted him leave
to file a pro se supplemental brief. (4th Cir. Order at 1-2,
ECF No. 51, Appeal: 12-4879.) Both counsel and Green
submitted briefs, although Green's briefs did not comply
with the filing requirements and were ultimately struck. The
Fourth Circuit affirmed the denial of Green's motions to
suppress, concluding that the traffic stop was reasonable and
supported by reasonable cause. United States v.
Green, 740 F.3d 275, 277 (4th Cir. 2014). Green filed a
petition for writ of certiorari with the United States
Supreme Court, which was denied.
October 9, 2015, Green filed this § 2255 motion, arguing
that he received ineffective assistance because: (1) retained
counsel failed to show him the video recording of the traffic
stop prior to the suppression hearing; (2) neither retained
nor appointed counsel challenged the authenticity of the
video; (3) neither retained nor appointed counsel hired
experts to investigate the video's authenticity; and (4)
appointed counsel failed to file a notice of appeal. In
addition, he argues that he was denied a full and fair
opportunity to litigate the suppression issues. Pursuant to
Standing Order 2015-5, the court appointed counsel to
represent Green and provide supplemental briefing, if
necessary, in light of the Supreme Court decision in
Johnson v. United States, 135 S.Ct. 2551, 2563
(2015). Subsequently, counsel declined to file additional
pleadings and filed a motion to withdraw as counsel, which
the court granted. (Order at 1, ECF No. 109.)
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his sentence was
"imposed in violation of the Constitution or laws of the
United States;" (2) that "the court was without
jurisdiction to impose such a sentence;" or (3) that
"the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). Green bears the burden of proving
grounds for a collateral ...