United States District Court, D. Kansas, Kansas City Division.
MEMORANDUM AND ORDER
CARLOS MURGUIA UNITED STATES DISTRICT JUDGE
This case is before the court on defendant Abasi S. Baker’s Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 184). Defendant was charged with twenty-one robbery and firearm counts related to seven armed robberies of various businesses around Kansas City, Kansas. After a nine day trial, a jury convicted defendant on all counts. On January 18, 2012, the court sentenced defendant to a total term of 164 years in prison. Defendant filed a direct appeal and sought reversal of his convictions, claiming that the government: (1) obtained evidence against him by illegally placing a GPS tracking device on a vehicle he drove while committing his seventh robbery on March 3, 2011, and (2) failed to prove that he used or possessed the specific firearm referenced in each of the firearms counts. On May 22, 2013, the Tenth Circuit denied relief on both issues of defendant’s appeal. United States v. Baker, 713 F.3d 558 (10th Cir. 2013). Defendant now makes two claims of ineffective assistance of counsel. The government argues defendant’s claims are without merit.
The Tenth Circuit outlined the facts of the case:
A series of seven armed robberies of retail stores and check-cashing businesses was carried out in the Kansas City, Kansas, area between January and March 2011. During investigation of some of the earlier robberies, surveillance-camera footage led police to believe that the robbers were using a car owned by Defendant’s girlfriend. Officers placed a GPS tracking device on the car, then monitored its movements. On March 3, 2011, the GPS surveillance allowed police to link the car to a just-completed robbery in Overland Park, Kansas. Defendant was pulled over and arrested along with an accomplice. Cash from the robbery and a loaded .40 caliber Glock semi-automatic handgun, serial number EHN890, were taken from the car.
Id. at 560 (quotation and citation to the record omitted). For purposes of this opinion, the following timeline is helpful:
• August 6, 2010: the D.C. Circuit Court decided United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), creating a three to one circuit split.
• March 1, 2011: Authorities obtained for a search warrant for the GPS tracking of defendant’s cell phone.
• March 2, 2011: Special Agent John Hauger placed a GPS tracking device on the car defendant had been driving, which technically belonged to his girlfriend’s mother.
• June 27, 2011: The Supreme Court granted certiorari in United States v. Jones, 132 S.Ct. 945 (2012), which is the case involving the circuit split created by Maynard.
• September 2011: Defendant’s trial.
• January 23, 2012: The Supreme Court decided Jones and defendant filed his notice of appeal with the Tenth Circuit.
II. Legal Standard
The court applies the standard identified in Strickland v. Washington, 466 U.S. 668 (1984). See Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002). Under Strickland, a petitioner bears the burden of satisfying a two-pronged test in order to prevail. First, he must show that his attorney’s “performance was deficient” and “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88. Second, a habeas petitioner must demonstrate prejudice, which requires a showing that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the ...