MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
On November 5, 2008, a grand jury charged Darron L. Eskridge with one count of possessing a firearm after having been convicted of three or more violent felonies, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e)(1). On August 27, 2009, a jury found defendant guilty. On December 1, 2009, the Court sentenced defendant to 327 months in prison. Defendant appealed. On April 13, 2011, the Tenth Circuit affirmed his conviction and sentence. See Order And Judgment (Doc. #133). This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #134) filed April 16, 2012. For reasons set forth below, the Court overrules defendant's motion.
Based on testimony and exhibits received at the hearing on defendant's motion to suppress, the Court summarized the relevant facts as follows:
On September 23, 2008 at approximately 10:00 a.m., Captain William Howard, Jr. of the Police Department of Kansas City, Kansas ("KCKPD") was driving northbound on Hutton Road in a relatively unpopulated area of Wyandotte County, Kansas. Captain Howard was in full uniform and was driving an unmarked Crown Victoria, a model commonly used as a police cruiser. The cruiser had police lights mounted in the grill and a spotlight mounted on the side.
Hutton Road is a two-lane paved road with a speed limit of 40 miles per hour. As Officer Howard came around a slight bend at the crest of a hill, he observed a black Mercury Mountaineer approximately one-half mile ahead. The Mountaineer had pulled off the roadway in the ditch, facing northbound on the east side of Hutton Road. The vehicle was approximately 30 yards north of a driveway which emptied onto the east side of Hutton Road. Howard has traveled this portion of Hutton Road almost daily for 12 years and he has never seen a vehicle stopped in this location. He initially thought that someone might be urinating on the roadside.
As he got closer to the Mountaineer, Captain Howard saw a man standing outside the car but leaning into the rear passenger compartment and "working feverishly" with his arms. Captain Howard had a "dozen fleeting thoughts" about what might be occurring. For example, he thought that the man might be assaulting someone, restraining someone or perhaps spanking a child in the back seat. Officer Howard tapped on his brakes and slowed as he neared the vehicle. When the man saw Captain Howard looking at him, he stood up straight and looked back at Captain Howard with what Howard described as a "deer in the headlights" look. The man did not flag Captain Howard down or wave at him, which Captain Howard testified would have eased his concern. At that point, Captain Howard decided to stop and investigate the situation. Because of traffic, however, he did not immediately pull over; rather, he decided to turn around at the next intersection. In his rearview mirror, as he drove past the Mountaineer, Captain Howard saw the man walk around the vehicle and get into the driver's seat.
Captain Howard continued northbound on Hutton Road about one quarter of a mile to the nearest intersection, where he turned around and headed south on Hutton Road. After he turned around and headed south, however, he could not see the Mountaineer. As Captain Howard approached the spot where the Mountaineer had been parked, he saw that it had backed into the driveway south of where it had been pulled off the road. The Mountaineer was slowly nosing out of the driveway and the driver appeared indecisive, as if he wanted to turn right (north), but then started to turn left and waited for Captain Howard's car to pass. Captain Howard slowed and stopped his vehicle near the entrance of the driveway and motioned to the driver to go ahead of him. The Mountaineer turned left (southbound) onto Hutton Road. Captain Howard testified that he then activated his emergency lights and stopped the vehicle because he suspected that an assault or something had just occurred and that he needed to investigate.
After he stopped the vehicle, Captain Howard approached the driver's side, looked in and saw the driver (later identified as Eskridge) and a passenger (later identified as Roland) in the front. Captain Howard asked Eskridge if anything was wrong and Eskridge replied that he had pulled over to wipe some crumbs out of the back seat. Captain Howard saw electronic equipment under Roland's feet and in the back seat. Captain Howard asked Eskridge where he was going and he replied that he had been at a friend's house on 22nd Street in Kansas City, Kansas and was lost. Captain Howard knew that 22nd Street was nearly ten miles from where he had stopped the Mountaineer.
Captain Howard asked Eskridge for his license, then returned to his patrol car. When Captain Howard ran Eskridge's name through the computer system it showed that Eskridge had prior felony convictions for burglary. He called dispatch for backup and within a short time, two KCKPD police officers arrived. One of them looked in the Mountaineer and reported to Captain Howard that there was a handgun on the driver's side floorboard. At that point the officers handcuffed Eskridge. Eskridge told the officers that it was a pellet gun and that the pellets were in the back seat. Captain Howard asked Eskridge if he could verify that by searching the vehicle and Eskridge consented.
Captain Howard found pellets in the back seat and noticed a large wooden box with the name "Kyle" carved into it. Captain Howard asked Eskridge who "Kyle" was, and Eskridge seemed unfamiliar with the name. Captain Howard found a document in the Mountaineer that identified Kyle McMeans, 4847 N. 93th, Kansas City, Kansas. Captain Howard asked the dispatcher to have an officer check that address, and within a relatively short time, a KCKPD officer advised Captain Howard that he had arrived at the residence and observed signs of forced entry. Not long after that, the homeowners arrived at the residence and determined that someone had taken a number of items from the residence, including electronics and several firearms.
Officers searched the roadside where Captain Howard had first observed the Mountaineer and found personal items from the McMeans' residence, including a purse, documents and identification. A full search of the vehicle revealed all of the stolen items except for some missing firearms. Captain Howard later returned to the driveway area and found a.22 mag Liberty Scout revolver, serial number 550588 and a 12 gauge Jing An shotgun, Model PH 12-1, serial number 9602504, both of which he confirmed to be stolen from the McMeans' residence.
Memorandum And Order (Doc. #37) at 1-4 (footnotes included in text).
As noted, Roland pled guilty to possessing a firearm after having been convicted of a felony. Eskridge proceeded to trial and a jury ultimately found him guilty of possessing a firearm after having been convicted of a felony. The Court sentenced defendant to 327 months in prison. Defendant ...