FINDINGS & RECOMMENDATIONS
Movant is a federal prisoner proceeding through counsel with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. On August 12, 2005, movant pleaded guilty to being a felon in possession of ammunition with a previous conviction for a misdemeanor crime of domestic violence in violation of 18 U.S.C. 922(g)(1) and (g)(9). On December 12, 2005, movant was sentenced to a term of 92 months imprisonment followed by a 36-month term of supervised release.*fn1 In the instant motion, movant raises a single claim for relief from the conviction and sentence. Respondent contends that movant's claim lacks merit.
On November 1, 2004, a complaint was filed against movant charging him with being a felon in possession of ammunition with a previous conviction for domestic violence, a violation of 18 U.S.C. 922(g)(1) and (g)(9).*fn2 On November 17, 2004, a federal grand jury indicted movant, formally charging him with violating 18 U.S.C. 922(g)(1) and (g)(9). Traverse, Ex. 1.
On January 21, 2005, movant filed a Motion to Suppress Evidence and Statements and a request for an evidentiary hearing. See Traverse, Ex. 2. On February 18, 2005, respondent filed an opposition. On March 9, 2005, movant filed a reply. On March 10, 2005, respondent filed a surreply. On March 11, 2005, a hearing was held in the distract court. The request for an evidentiary hearing and the motion to supress were both denied.
On March 16, 2005, movant filed a motion for reconsideration. On April 4, 2005, respondent filed an opposition. On April 15, 2005 the motion for reconsideration was denied.
On August 12, 2005, movant entered into a plea agreement. On December 12, 2005, movant was sentenced to 92 months imprisonment followed by a 36-month probationary period.
Movant appealed to the Ninth Circuit Court of Appeals on December 12, 2005. Traverse, Ex. 19. On May 9, 2007, the appellate court affirmed the decision of the district court. Id., Exs. 21-22.
On April 8, 2008, movant filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. Movant contends that trial counsel was ineffective for failing to file affidavits contemporaneously with the motion to suppress, resulting in denial of movant's motion to supress.
On August 13, 2008 a response was filed, and, on March 10, 2010 newly appointed counsel filed a traverse.
RELEVANT FACTUAL BACKGROUND
On January 21, 2005, movant, through trial counsel, filed a Motion to Suppress Evidence and Statements. See Traverse, Ex. 2. Movant's motion, filed without accompanying affidavits or other evidence in support, set forth the following factual allegations: On October 13, 2004, movant and a companion, Monica Chavez ("Chavez"), were riding bicycles near movant's apartment in Sacramento during the early evening hours. While riding their bicycles, two unmarked cars carrying four police officers blocked the movement of the two cyclists by driving up on a sidewalk, causing Chavez to ride into a bush. The officers exited the vehicles and interrogated and searched movant, finding a knife on his person. Both movant and Chavez were arrested and taken to movant's apartment where movant was ordered to allow entry into the apartment. Once inside, the officers searched the apartment, finding ammunition and a handgun in movant's dresser drawer. Movant was taken to county jail and booked.
In the motion to suppress, movant argued that (1) the initial stop of movant and Chavez was illegal because it was without suspicion of criminal activity and that all evidence seized as a result of that stop should be suppressed, Traverse, Ex. 2 at 4-5; (2) if the initial stop was deemed proper, the subsequent arrest and search were improper because they were without probable cause, id. at 5-9; (3) the search of movant's person was illegal as the officers did not have a reasonable belief that their safety was in danger, id. at 9-11; (4) pursuant to Miranda v. Arizona, 384 U.S. 436, 476 (1965), movant's statements made after his arrest should be excluded, id. at 12-13; and, finally, (5) the warrantless entry into movant's home was illegal, id. at 13-15.
In opposition, respondent argued that all evidence was obtained legally and set forth the following factual allegations supported by a copy of the police report and the declarations of two of the four officers present at the scene: On the evening of October 13, 2004, the four officers received information that there was a white male engaging in narcotics trafficking at an apartment in Sacramento. See Traverse, Ex. 4. That evening, these officers saw movant, who is a white male, and Chavez leave that apartment, mount bikes and proceed along a street in the opposite direction of traffic. From the car, one officer was able to see that movant was carrying a knife in his front pant pocket. The four officers stopped the two individuals for violating California Vehicle Code § 21650.1.*fn3 Upon questioning movant and Chavez, the officers determined that Chavez had five warrants for her arrest. Chavez was taken into custody. When movant was asked by one of the police officers if they could go into his apartment to talk, movant readily agreed and unlocked the door to his apartment. Once inside, one officer informed movant that there were reports of narcotics trafficking in the apartment. Movant adamantly denied the reports and agreed to a search of his apartment. Movant also admitted that he was in possession of a firearm. When the police officers located a gun in movant's bedroom, they arrested movant. Upon his arrest and after compliance with Miranda, movant again admitted that he possessed the gun.
In his March 9, 2005 reply, which was tardily filed, movant submitted the declaration of the Chief Investigator for the Office of the Federal Defender, who asserted that he interviewed two individuals who would attest to movant's version of events, including that an officer opened the door to movant's apartment, not movant. Traverse, Ex. 6.
In the March 10, 2005 surreply, respondent requested dismissal of the reply as untimely, contested the presentation of new facts in a reply brief (namely, the investigator's declaration and the allegations set forth therein), and urged the court to dismiss the investigator's declaration as inadmissible hearsay. Traverse, Ex. 7.
At the March 11, 2005 hearing on movant's motion to suppress, the trial court was troubled not only by movant's failure to support his factual allegations with any evidence, but also by his introduction of new evidence in a reply brief. See Traverse, Ex. 8 at 1-2. Further, the trial court characterized the factual allegations set forth in the motion to suppress as "conclusory arguments" or "arguments of counsel" that were unsupported "by any type of sworn averments." Id. at 3:9-13.
Counsel for movant argued that she read Federal Rule of Criminal Procedure 47 to allow, not require, a party to submit an affidavit contemporaneously with a motion to suppress. Traverse, Ex. 8 at 4. Trial counsel explained that, based on her understanding of Rule 47, she was required only to set forth that there was no warrant for the search and arrest; upon this showing, the government must show that an exception applies justifying the warrantless search; and finally, the movant files a reply challenging respondent's opposition. See id. at 7. The court found issue with this procedure: "I don't think the system is designed like that. . . . I think when you file something in the Ninth Circuit you make a showing of entitlement to something, and I don't think you add new material." Id. at 13. Further, counsel for movant admitted that the reply was tardily filed, see Traverse, Ex. 8 at 5, and asserted that she did not submit declarations of the two percipient witnesses "just as a matter of efficiency . . . , to save a day of investigatory work out in the field," id. at 11-12.
The court founds these arguments unpersuasive and denied movant's request for an evidentiary hearing:
The Court: [Movant] moves to suppress all evidence and statements obtained as a result of his detention on October 13, 2004 and the subsequent search of his home. His motion is based solely on arguments of his counsel and his attorney's conclusory allegations and assertions of illegality. A ...