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United States v. Green

United States District Court, W.D. Virginia, Roanoke Division

February 7, 2017

UNITED STATES OF AMERICA
v.
HERBERT GREEN, Defendant. Civil Action Nos. 7:15CV80857

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge.

         Herbert 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.

         I.

         On 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.)

         Green 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.)

         On 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.)

         On 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.)

         On June 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.)

         On My 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.)

         On 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.)

         On 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.

         On 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.)

         II.

         To 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 ...


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