United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC A. MELGREN, District Judge.
Petitioner Bruce A. Mabry ("Petitioner") brings this Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. Because review of Petitioner's motion and the accompanying court record conclusively shows that he is not entitled to relief, the Court denies the motion without an evidentiary hearing.
I. Factual and Procedural Background
The facts surrounding Petitioner's judgment of conviction are as follows. Petitioner was released from prison on June 11, 2010, and placed on parole, the conditions of which included, among other things, restrictions on: (1) interstate travel without the written permission of his parole officer, (2) associating with any person actively engaging in illegal activity, (3) possessing drugs or firearms, and (4) violating state or federal law. Petitioner, his property, and his residence were also subject to search by his parole or other law enforcement officer.
On March 8, 2011, Petitioner informed his parole officer of a change of address to his girlfriend's residence. Petitioner did not report any contact with law enforcement at that time. However, on March 16, 2011, it was discovered that, in February 2011, Petitioner was detained by Utah law enforcement after being stopped with another parolee in a vehicle that contained twenty-two (22) pounds of marijuana. An arrest and detain warrant was issued for Petitioner on the basis that he had violated his parole by traveling out of state. The "Order to Arrest and Detain" was given to Special Enforcement Officer Evans ("SEO Evans"), a special agent employed by the Kansas Parole Office who was also assigned to the U.S. Marshal's Task Force.
On March 17, 2011, SEO Evans and Wichita Police Department Officers Tiede and Norton served the arrest warrant on Petitioner at his recently updated address. SEO Evans and Officer Tiede approached the front door of the residence while Officer Norton went to the back of the house. SEO Evans knocked on the front door, which was opened by Averia Balderas ("Balderas"), who was later identified as Petitioner's girlfriend. SEO Evans advised Balderas as to who he was and requested to speak to Petitioner. Balderas allegedly stated that she did not want the officers to come into the house and attempted to close the door.
At that point, SEO Evans observed Petitioner, whom he identified from a photo, come from the back area of the house toward the front door. SEO Evans and Office Tiede then entered the residence and SEO Evans placed Petitioner under arrest. Simultaneous to Petitioner's arrest, the officers observed marijuana on a tray underneath the coffee table in the living room. The officers then conducted a protective sweep of the rest of the residence during which Officer Tiede observed a firearm in an open closet in the basement, which she brought upstairs. By this point, Officer Norton had also entered the residence.
On June 21, 2011, a grand jury indicted Petitioner on six counts: (1) being a felon in possession of a firearm, (2) being a felon in possession of ammunition (two counts), (3) being a user in possession of a firearm, (4) possession of an unregistered firearm, and (5) possession of marijuana. On August 18, 2011, the grand jury returned an eight-count superseding indictment charging Petitioner with: (1) being a felon in possession of a firearm, (2) being a felon in possession of ammunition (2 counts), (3) being a user in possession of a firearm, (4) possession of an unregistered firearm, (5) possession of marijuana, (6) attempted transportation with the intent to distribute marijuana, and (7) interstate travel in aid of racketeering enterprises. Petitioner initially entered a plea of not guilty.
The same day, Petitioner filed a motion to suppress any and all evidence seized during the alleged warrantless search of his home. Following oral argument, this Court determined that, based on a totality of the circumstances, the search of Petitioner's home was valid and therefore denied the motion to suppress. After this ruling, and pursuant to a plea agreement, Petitioner entered a conditional plea of guilty as to count five of the superseding indictment, possession of an unregistered firearm. The plea agreement specifically contained a provision that allowed Petitioner to seek an appeal of the Court's denial of his motion to suppress. The agreement also allowed Petitioner to seek an appeal of his judgment of conviction. On February 3, 2012, this Court sentenced Petitioner to a term of seventy (70) months incarceration. On February 6, 2012, Petitioner filed a Notice of Appeal with regard to his judgment of conviction.
On September 14, 2013, the Tenth Circuit affirmed this Court's denial of Petitioner's Motion to Suppress, holding that
the officers had a reasonable suspicion that Mr. Mabry had violated his parole. In light of Mr. Mabry's diminished expectation of privacy and the State's strong interest in monitoring Mr. Mabry's behavior and preventing his recidivism, this court affirms the district court's denial of Mr. Mabry's motion to suppress on the basis that it was a valid search under the totality of the circumstances.
On May 8, 2014, Petitioner filed a Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255 (Doc. 63). In his motion, Petitioner argues that his conviction was obtained: (1) due to an unconstitutional search and seizure, and (2) as a result of a guilty plea that was not made with the understanding of its consequences. He also claims ineffective assistance of counsel due to an alleged failure to raise and preserve issues for appeal. Based on a review of the record, the Court finds Petitioner's assignments of error to be without merit.
II. Legal ...