UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES of AMERICA,

v.

GUTHRIE WRIGHT

Defendant.

Criminal No. 13-cr-0094 (BAH)

Judge Beryl A. Howell

MEMORANDUM OPINION

The defendant Guthrie Wright filed this pro se motion, pursuant to 28 U.S.C. § 2255, to 

vacate on grounds of ineffective assistance of counsel: (1) his conviction on his plea of guilty, 

pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), to two felony narcotics and firearm 

offenses, for which he faced a combined advisory sentencing range under the U.S. Sentencing 

Guidelines of at least 262 months; and (2) his sentence to the agreed-upon 120-month prison 

term. See Def.’s Mot. Vacate, ECF No. 24; Def.’s Mem. Supp. Mot. Vacate (“Def.’s Mem.”) at 

1, ECF No. 27. For the reasons discussed below, the defendant’s motion is denied.

I. BACKGROUND

A. Traffic Stop and Search of Defendant’s Mother’s Apartment

The facts in this case are undisputed. The defendant confirmed at least four times that he 

had reviewed the facts presented in the Statement of Offense submitted by the government and 

agreed to the accuracy of that factual presentation. In addition, to acknowledging, at the end of 

the Statement of Offense itself, that he had “carefully reviewed every part of it” and “voluntarily 

agree[d] to it,” Statement of Offense (“Stmt. Offense”), at 4, ECF NO. 12, the defendant 

executed the Plea Agreement, in which he agreed that the “‘Statement of the Offense’ fairly and 

accurately describes [defendant’s] actions,” Plea Agreement ¶ 6, ECF No. 11. Then, at his plea 

hearing, the defendant stated, under oath that the Statement of Offense “fully and accurately set 
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forth what happened in [his] case.” Plea Hr’g Tr., July 19, 2013, at 14:9–13. The defendant 

confirmed a fourth time his adoption of these facts at his sentencing hearing: when questioned by 

the Court, he raised no objection to the Court’s adoption of the facts enumerated in Presentence 

Investigation Report (“PSR”), which repeated the facts set out in the Statement of Offense. 

Sentencing Hr’g Tr., Oct. 25, 2013, at 5:2–6:1; PSR ¶¶ 16- 22, ECF No. 16. Nor does the 

defendant now contest the verity of these underlying facts for his conviction and sentence. See 

generally Def.’s Mem. 

As set out in the Statement of Offense, the facts underlying the defendant’s conviction 

and sentence are as follows. On November 9, 2012, Metropolitan Police Department (“MPD”)

officers conducted a traffic stop of the defendant’s van. Stmt. Offense at 1. The defendant had 

“the odor of alcohol on his breath” and, when questioned by officers, admitted that “he had been 

drinking” and had “‘drinks’ in a cooler in his van.” Id. The defendant was placed under arrest 

after the officers found “open bottles of alcohol” in the backseat of the defendant’s vehicle. Id. 

The officers searched the defendant and found “in Defendant’s pants” ziplock bags containing 

3.9 grams of cocaine, 4.3 grams of marijuana, and 15 tablets of the drug Methylone. Id. The 

defendant was arrested, and “repeatedly voiced concerns that his mother and 13-year-old son 

would not know of his arrest . . . indicat[ing] that he lived with his mother and his son at his 

mother’s apartment.” Id. at 2. 

After transporting the defendant to the police station, police officers went to the

defendant’s mother’s apartment, where they obtained both “oral and written consent [from her] 

. . . to search areas of the apartment where Defendant usually slept, specifically in the living 

room and in his [13-year-old] son’s bedroom.” Id. The defendant’s mother, who is the legal 
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guardian of the defendant’s son, gave police a written statement attesting “that she had daily 

access to the bedroom, which Defendant shared with his minor son.” Id. Upon searching the 

bedroom, the officers found a backpack and an attaché bag “stacked on top of each other”

towards the front of an open closet. Id. The attaché bag contained mail in the defendant’s name 

including photos and identification cards, and a loaded “.40 caliber semi-automatic ‘GLOCK’

firearm” with several rounds of ammunition. Id. The backpack also contained mail addressed to 

the defendant, “a 9mm semi-automatic ‘SKYY Arms’ firearm,” which was also loaded, $1,180

in cash, 48.9 grams of cocaine, 68 Methylone tables, 4.1 grams of heroin, “hundreds of empty 

ziplock bags, a digital scale, measuring spoons,” and other “narcotics distribution paraphernalia.” 

Id. The defendant does not contest that the two bags belonged to him. Id. at 3. 

At the time the defendant was arrested, he was on parole for a prior conviction for

possession with intent to distribute heroin in District of Columbia Superior Court (“D.C. 

Superior Court”) case number 1999-FEL-009013. See PSR ¶¶ 46, 49. In addition to that felony 

narcotics conviction, the defendant had one other prior felony conviction for distribution of 

cocaine in D.C. Superior Court case number 1991-FEL-011533, both of which prior convictions 

qualified the defendant for classification as a “career offender” under the United States 

Sentencing Guideline (“U.S.S.G.”) § 4A1.1 and resulted in enhanced penalties. PSR ¶¶ 45, 51. 

In addition to these two prior felony narcotics offenses, the defendant had five previous 

convictions as an adult for: (1) possession with intent to distribute marijuana and possession of 

phencyclidine (“PCP”) in D.C. Superior Court case number 1986-FEL-004496; (2) attempted 

possession of cocaine in D.C. Superior Court case number 1987-CMD-001956; (3) attempted 

distribution of PCP in D.C. Superior Court case number 1987-FEL-007765; (4) distribution of 
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cocaine in D.C. Superior Court case number 1989-FEL-000135; and (5) simple assault in D.C. 

Superior Court case number 2007-CMD-29702. PSR ¶¶ 41-44, 47. Related to these offenses, 

the defendant had his parole revoked a total of seven times. Id.

B. Procedural History

At the defendant’s initial appearance following his arrest, Assistant Public Defender 

Jonathan Jeffress of the Federal Public Defender Service was appointed to represent him. See

Nov. 9, 2012 Minute Entry. Thereafter, the defendant consented three times to exclude time 

from the thirty-day deadline for filing an indictment pursuant to the Speedy Trial Act, 18 U.S.C. 

§ 3161, et seq., which usually indicates that the government and the defendant are contemplating 

or engaging in plea negotiations. See Nov. 30, 2012 Minute Entry for Status Hearing; Dec. 17, 

2012 Minute Entry for proceedings (noting that that the “[p]arties continue to discuss plea 

negotiations.”); Feb. 28, 2013 Minute Entry for Control/Status Hearing. Over four months after

the defendant’s arrest, the defendant was indicted by a grand jury on eight counts. See 

Indictment as to Guthrie Wright (“Indictment”), ECF No. 7. 

After the indictment, the defendant, represented by Mr. Jeffress, agreed to five exclusions

of time from the post-indictment deadline for bringing the defendant to trial under the Speedy 

Trial Act. See Apr. 11, 2013 Minute Entry (excluding fourteen days from the post-indictment 

calculation); Apr. 25, 2013 Minute Entry (excluding fifteen days); May 10, 2013 Minute Entry 

(excluding fourteen days); May 24, 2013 Minute Entry (excluding fourteen days); June 7, 2013

Minute Entry (excluding fourteen days). At the June 7, 2013 hearing, defense counsel Jeffress’ 

oral motion to withdraw from the case was granted and, that same day, Jenifer Wicks was 

appointed by the Court to substitute as defense counsel. See June 7, 2013 Minute Entry; Notice
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of Appearance, ECF No. 10; see also June 7, 2013 Attorney Update (terminating attorney 

Jeffress). The defendant, represented by Ms. Wicks, agreed to a sixth exclusion of time under 

the Speedy Trial Act amounting to twenty-eight days. June 21, 2013 Minute Entry. Almost four 

months after his indictment and eight months after his arrest, the defendant entered, on July 6, 

2013, a plea agreement with the government, pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C). See Plea Agreement ¶ 10. Pursuant to this written plea agreement, the defendant 

agreed to enter guilty pleas to Count One, for unlawful possession with intent to distribute 

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and Count Eight, for using, carrying, 

and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). 

See id. ¶ 1. The government agreed to dismiss the remaining counts, id. ¶ 5, and the parties

agreed “that 120 months (10 years) is the appropriate sentence of imprisonment for the offenses 

to which [the defendant] is pleading guilty,” id. ¶ 10. 

At his plea hearing, the Court did not “accept the term[s] of the plea agreement with the 

[] recommended term of imprisonment.” Plea Hearing Tr., July 19, 2013, at 9:13–15. Instead, 

the Court deferred decision on “whether or not 120 months is a reasonable time for” 

incarceration, “given [the defendant’s] background, [and his] criminal history,” until after the 

Court had reviewed the defendant’s Presentence Investigation Report prepared by the U.S. 

Probation Office. Id. at 9:13–10:03. When questioned by the Court at his plea hearing, the 

defendant affirmed that he was “completely satisfied with the services of [his] lawyer in this 

case” and had “had enough time to talk to [his] lawyer about the charges against [him], about the 

plea agreement and whether or not [he] should accept the plea agreement[.]” Id. at 5:07–15. The 

Court instructed the defendant that agreeing to accept the government’s plea agreement was “a 
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very important decision” and that he should “not hesitate to say, Judge, I need a moment to talk 

to my lawyer; I want to think about it[.]” Id. at 3:20–4:01. 

At the defendant’s sentencing hearing three months later, the Court accepted the agreedupon plea and sentenced the defendant to incarceration for 120 months, consistent with the 

agreed-upon sentence in the plea agreement. Judgment as to Guthrie Wright at 4, ECF No. 22; 

see also Sentencing Hearing Tr., at 12:21–13:1. During the sentencing colloquy, the Court asked 

the defendant the following:

The Court: Mr. Wright, are you fully satisfied with your lawyer in this case?

The Defendant: Yes, Your Honor.

The Court: And do you feel that you’ve had enough time to talk to [Ms.] Wicks 

about the plea agreement in the case, the sentencing memorandum, and the other 

documents filed in connection with your sentencing?

The Defendant: Yes, Your Honor.

The Court: All right . . . Hearing no objection from other—by either side to the 

presentence investigation report, I will accept it as my findings of fact at 

sentencing. . . .

. . . . 

The Court: Mr. Wright, this is your opportunity to speak to me directly if you 

wish. You may come forward to the podium.

The Defendant: Your Honor, I just want to say thank you for accepting the plea 

offer, and I just want to apologize to the Court and also my family. Thank you 

very much.

Sentencing Hearing Tr., at 5:14–6:01; 9:25–10:06. The Court then imposed the agreed-upon 

sentence of 120 months’ incarceration. Id. at 12:20–13:11.

The defendant, six months after his sentencing, now seeks to vacate his conviction and 

sentence pursuant to 28 U.S.C. § 2255 on the grounds of ineffective assistance of counsel due to 
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the failure of both of his attorneys to raise a Fourth Amendment challenge to the search of the 

defendant’s two bags in his mother’s apartment. The government, at the Court’s direction, see 

May 7, 2014 Order, ECF No. 25, filed an opposition, Gov’t’s Opp’n Def’s Mot. Vacate 

(“Gov’t’s Opp’n”), ECF No. 30. The motion is now ripe for review.

II. LEGAL STANDARD

A. 28 U.S.C. § 2255

Under 28 U.S.C. § 2255(a):

A prisoner in custody under sentence of a court established by Act of Congress claiming 

the right to be released upon the ground that the sentence was imposed in violation of the 

Constitution or laws of the United States, . . . may move the court which imposed the 

sentence to vacate, set aside or correct the sentence.

Id. “[A]fter sentencing, a plea may be set aside only on direct appeal or via a section 2255 

motion.” United States v. Farley, 72 F.3d 158, 162 (D.C. Cir. 1995) (emphasis in original) 

(citing FED. R. CRIM. P. 32(d)); see also Judd v. Gonzales, No. 13-1504, 2013 U.S. Dist. LEXIS 

148095, at *2 (D.D.C. Oct. 15, 2013) (“A challenge to the petitioner’s conviction or sentence 

must be made in the sentencing court under 28 U.S.C. § 2255.” (citing Pradelski v. Hawk–

Sawyer, 36 F. Supp. 2d 1, 1–2 (D.D.C. 1999))); see also FED. R. CRIM. P. 11(e) (“After the court 

imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the 

plea may be set aside only on direct appeal or collateral attack.”). “If the court finds that . . . 

there has been such a denial or infringement of the constitutional rights of the prisoner as to 

render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment 

aside and shall discharge the prisoner or resentence him or grant a new trial or correct the 

sentence as may appear appropriate.” 28 U.S.C. § 2255(b). 

A judgment “cannot be lightly set aside by collateral attack” and “[w]hen collaterally 
8

attacked, the judgment of a court carries with it a presumption of regularity.” Johnson v. Zerbst, 

304 U.S. 458, 468–69 (1938), overruled in part on other grounds by Edwards v. Arizona, 451 

U.S. 477 (1981). The burden of proof rests on the petitioner to establish a denial of 

constitutional rights by a preponderance of evidence. Id.; United States v. Simpson, 475 F.2d 

934, 935 (D.C. Cir. 1973) (concluding that, in § 2255 action to set aside plea of guilty, “the 

preponderance of evidence supports the judgment rejecting petitioner’s claim”); United States v. 

Stubblefield, 931 F. Supp. 2d 118, 126 (D.D.C. 2013) (“The petitioner bears the burden of proof 

under § 2255 and must demonstrate his right to relief by a preponderance of the evidence.”); 

United States v. Ashton, 961 F. Supp. 2d 7, 11 (D.D.C. 2013) (same); United States v. Baugham, 

941 F. Supp. 2d 109, 112 (D.D.C. 2013) (same).

B. Ineffective Assistance of Counsel

The defendant seeks to vacate his conviction and sentence on his guilty plea on the basis 

that his Sixth Amendment right to counsel under the U.S. Constitution was violated because he 

received ineffective assistance of counsel. See Def.’s Mem. at 1. The Sixth Amendment 

provides that “[d]uring plea negotiations defendants are entitled to the effective assistance of 

competent counsel.” Lafler v. Cooper, 132 S. Ct. 1376, 1384–85 (2012) (internal quotations 

omitted); Missouri v. Frye, 132 S. Ct. 1399, 1404 (2012). “It is well-established that the validity

of a guilty plea depends on ‘whether the plea represents a voluntary and intelligent choice,’ and 

that ‘the voluntariness of the plea depends on whether counsel’s advice’ satisfies the Sixth 

Amendment guarantee of effective assistance.” In re Sealed Case, 488 F.3d 1011, 1015 (D.C. 

Cir. 2007) (citing Hill v. Lockhart, 474 U.S. 52, 56 (1985)); see also United States v. McCoy, 

215 F.3d 102, 107 (D.C. Cir. 2000) (“A plea of guilty is constitutionally valid if and only if it
9

represents a voluntary and intelligent choice among the alternative courses of action open to the 

defendant.” (internal quotation marks omitted) (citing Hill, 474 U.S. at 56)). “A plea is not 

voluntary or intelligent, and therefore unconstitutional, if the advice given by defense counsel on 

which the defendant relied in entering the plea falls below the level of reasonable competence”

required by the Sixth Amendment. In re Sealed Case, 670 F.3d 1296, 1303 (D.C. Cir. 2011)

(internal quotation marks omitted) (citing United States v. Loughery, 908 F.2d 1014, 1018 (D.C. 

Cir. 1990)). 

Under the two-factor Strickland v. Washington, 466 U.S. 668 (1984), analysis for an 

ineffective assistance of counsel claim under the Sixth Amendment, the defendant must 

demonstrate: “that (1) his counsel’s performance ‘fell below an objective standard of 

reasonableness,’ and (2) ‘there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.’” Payne v. Stansberry, 11-5300, 

2014 WL 3715067, at *2 (D.C. Cir. July 29, 2014) (quoting Strickland, 466 U.S. at 687–88, 

694). “‘A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.’” United States v. Thompson, 721 F.3d 711, 713 (D.C. Cir. 2013) (quoting Strickland, 

466 U.S. at 694), cert. denied, 134 S. Ct. 629 (2013). The Strickland analysis applies to § 2255 

proceedings. United States v. Toms, 396 F.3d 427, 432 (D.C. Cir. 2005); see also United States 

v. Streater, 70 F.3d 1314, 1318 (D.C. Cir. 1995) (“Strickland v. Washington applies to a

collateral attack on the voluntary and intelligent nature of a guilty plea on Sixth Amendment 

grounds.” (citation omitted) (citing United States v. Horne, 987 F.2d 833, 835 (D.C. Cir.), cert. 

denied, 510 U.S. 852 (1993))). Consistent with the burden on the defendant to establish the right 

to relief under § 2255, “[t]he burden to ‘show that counsel’s performance was deficient’ rests 
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squarely on the defendant.” Burt v. Titlow, 134 S. Ct. 10, 17 (2013) (quoting Strickland, 466 

U.S. at 687). 

With respect to the first Strickland factor, the defendant “must show that counsel’s 

actions were not supported by a reasonable strategy[.]” Massaro v. United States, 538 U.S. 500, 

505 (2003); United States v. Brisbane, 729 F. Supp. 2d 99, 109 (D.D.C. 2010) (same). When 

engaging in this analysis, the Supreme Court has stated that “counsel should be ‘strongly 

presumed to have rendered adequate assistance and made all significant decisions in the exercise 

of reasonable professional judgment.’” Burt, 134 S. Ct. at 17 (quoting Strickland 466 U.S. at 

690); Payne, 2014 WL 3715067, at *2 (“‘[A] court must indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance.’” (quoting

Strickland, 466 U.S. at 689)); see also United States v. Mendez-Cruz, 329 F.3d 885, 891 (D.C. 

Cir. 2003) (“‘Judicial scrutiny of counsel’s performance must be highly deferential.’” (quoting 

Strickland, 466 U.S. at 689)). 

With respect to the second Strickland factor, “[i]n the context of pleas a defendant must 

show the outcome of the plea process would have been different with competent advice.” Lafler 

132 S. Ct. at 1384 (citing Frye, 132 S. Ct. at 1388-89, 1399). The defendant has the burden of 

proving “that there is a reasonable probability that, but for counsel’s errors, [the defendant] 

would not have pleaded guilty and would have insisted on going to trial.” Id. at 1384-85 

(alteration in original) (internal quotation marks omitted) (quoting Hill v. Lockhart, 474 U.S. 52, 

59 (1985)). Moreover, where, as here, “defense counsel’s failure to litigate a Fourth Amendment 

claim competently is the principal allegation of ineffectiveness, the defendant must also prove 

that his Fourth Amendment claim is meritorious . . . in order to demonstrate actual prejudice.” 
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Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (emphasis added); see also United States v. 

Wood, 879 F.2d 927, 934 (D.C. Cir. 1989) (same); Stubblefield, 931 F. Supp. 2d at 127 (“Finding 

merit in a petitioner’s Fourth Amendment claim does not constitute per se ineffective assistance 

of counsel[.]”).

III. DISCUSSION

A. Preliminary Procedural Issues

As a threshold matter, three procedural issues must be addressed before reaching the 

substance of the defendant’s instant motion. First, the government’s opposition construes the 

defendant’s motion as seeking to withdraw his guilty plea. See Gov’t’s Opp’n at 6 (“At bottom, 

defendant seeks to withdraw his guilty plea.”). Consequently, the government asks the Court to 

apply the standard in United States v. Jones, 642 F.3d 1151, 1156–57 (D.C. Cir. 2011), which 

looks to “(1) whether the defendant has asserted a viable claim of innocence; (2) whether the 

delay between the guilty plea and the motion to withdraw has substantially prejudiced the 

government’s ability to prosecute the case; and (3) whether the guilty plea was somehow 

tainted.” Id. (internal quotation marks omitted). Jones’ three-part test is applicable to a presentencing motion to withdraw a guilty plea. Id. at 1156. After sentencing, a defendant may not 

withdraw his guilty plea. See FED. R. CRIM. P. 11(e) (“After the court imposes sentence, the 

defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside 

only on direct appeal or collateral attack.”). Consequently, the Court applies the standard for 

adjudicating ineffective assistance of counsel claims made under § 2255. 

Second, although the government did not raise in its opposition the appeal waiver terms in 

the operative Plea Agreement, the Court notes that those terms are not dispositive of the 
12

defendant’s instant § 2255 motion. Specifically, the plea agreement states that the defendant 

“knowingly and willingly waive[d] his right to appeal the sentence,” subject to certain exceptions 

that are not applicable, and only “reserve[d] the right to make a collateral attack upon his 

sentence pursuant to 28 U.S.C. § 2255, if new and currently unavailable information becomes 

known to him.” Plea Agreement ¶ 18. The defendant argues “that his guilty plea was 

involuntary and was based on faulty legal advice . . . .” Def’s Mem. at 5. The D.C. Circuit has 

made clear that “a waiver should not be enforced insofar as the defendant makes a colorable 

claim he received ineffective assistance of counsel in agreeing to the waiver . . . .” United States 

v. Guillen, 561 F.3d 527, 530 (D.C. Cir. 2009); see also In re Sealed Case, 702 F.3d 59, 63 (D.C. 

Cir. 2012)(“A waiver of the right to appeal a sentence is presumptively valid and is enforceable 

if the defendant's decision to waive is knowing, intelligent, and voluntary.") (internal quotation 

and citations omitted); In re Sealed Case, 670 F.3d 1296, 1298 (D.C. Cir. 2011) (finding that 

defendant’s “waiver of his right to appeal a below-Guidelines sentence set forth in the plea 

agreement is valid” where defendant “fails to show he was denied effective assistance of counsel 

as would entitle him to reversal of his conviction”); United States v. Streater, 70 F.3d 1314, 1316

(D.C. Cir. 1995) (finding that where defendant was induced to plead guilty as a result of trial 

counsel’s “incorrect legal advice,” the “plea was neither voluntary nor intelligent,” and denial of 

a motion under 28 U.S.C. § 2255 to withdraw the guilty plea on the grounds of ineffective 

assistance of counsel is error). Consequently, the provision in the defendant’s Plea Agreement 

waiving the right to bring a § 2255 motion does not operate to bar consideration of the instant 

claim of ineffective assistance of counsel. 

Finally, the defendant has requested an evidentiary hearing in connection with his § 2255 
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motion. See Def.’s Mot. Vacate at 12, 14. A hearing on a § 2255 motion is not necessary when 

“the motion and the files and records of the case conclusively show that the prisoner is entitled to 

no relief.” 28 U.S.C. § 2255(b); United States v. Simmons, 951 F. Supp. 2d 137, 141 (D.D.C. 

2013). A hearing is similarly unwarranted where “the motion . . . fail[s] to allege sufficient facts 

or circumstances upon which the elements of constitutionally deficient performance might 

properly be found . . . [or] where the defendant has failed to present any affidavits or other 

evidentiary support for the naked assertions contained in his motion.” United States v. Taylor, 

139 F.3d 924, 933 (D.C. Cir. 1998) (internal quotation marks and citation omitted). In the 

instant case, this Court presided over the defendant’s plea and sentencing hearings, and the 

defendant’s motion, the government’s opposition, and the transcripts of the proceedings held 

before this Court conclusively show that the prisoner is not entitled to relief. Consequently, the 

defendant’s request for a hearing is denied.

B. The Defendant’s Claims

The defendant claims that he “requested Jonathan Jeffress and Jenifer Wicks, court appointed 

counsels [sic], to file a motion to suppress evidence obtained in violation of the movant’s Fourth 

Amendment Right[s],” as a result of the police officers’ search of the defendant’s backpack and 

attaché bag in his mother’s apartment. Def.’s Mem. at 1, 5–10. He attests that, upon making this 

request to his attorney, “counsel stated, ‘we don’t want to start filing motions or they may take 

the cop off the table,’1 and ‘cops perform searches like this all of the time.’” Id. at 5. The 

 1 The phrase “tak[ing] the cop off the table” is a reference to withdrawal of the plea agreement, as defendants who 

plead guilty pursuant to a plea agreement are said to have “copped a plea.” See Boyd v. Griffin, 11-CV-324 JFB, 

2014 WL 1797477, at *4 (E.D.N.Y. May 7, 2014) (recounting defendant’s statement that he “copped out that plea”); 

Workman v. Craig, 05-CV-00899, 2009 WL 2046015, at *3 n.3 (S.D.W. Va. July 8, 2009) (referencing defendant 

who “copped a plea”); Dabbs v. Tazewell Cnty., Ill., 05-CV-1148, 2006 WL 752804, at *2 (C.D. Ill. Mar. 20, 2006) 

(referencing attorney who “repeatedly pressured [plaintiff] to cop a plea bargain”); Logan v. Johnston, 28 F. Supp. 

98, 99 (N.D. Cal. 1939) (recounting defendant’s desire to “cop a plea”).
14

defendant adds that his counsel’s “tactic of NOT pursuing a 4th Amendment claim as requested 

by movant was unreasonable and rendered counsel’s assistance deficient” because the “4th

Amendment issues should have ‘jumped off of the page’ to counsel, had counsel familiarized 

herself/himself with the case.” Id. at 1–2 (emphasis in original). The defendant reasons that “his 

guilty plea was involuntary” and “unintelligently made” because it was “based on [this] faulty 

legal advice regarding elements of possible defense.” Id. at 5. He “argues that had he prevailed 

on [a] suppression [motion] he would have exercised his constitutional right to trial” and that 

“BUT FOR counsel’s failure to object to unconstitutional search, there is a reasonable 

probability of a different trial result.” Id. at 4–5 (emphasis in original). The defendant’s 

argument is unavailing because the defendant has not proven, by a preponderance of the 

evidence, either of the requisite Strickland factors, namely, that the performance of both of his 

attorneys was deficient or that he had a meritorious Fourth Amendment argument and thereby 

suffered prejudice by his counsel’s failure to raise a suppression motion. 

C. Counsel’s Performance Was Objectively Reasonable

With respect to the first Strickland factor, the Supreme Court recognized in Tollett v. 

Henderson that “[o]ften the interests of the accused are not advanced by challenges that would

only delay the inevitable date of prosecution, or by contesting all guilt. A prospect of plea 

bargaining, [or] the expectation or hope of a lesser sentence, . . . are considerations that might 

well suggest the advisability of a guilty plea . . . .” 411 U.S. 258, 267–68 (1973) (internal 

citations omitted). Indeed, as the D.C. Circuit has explained: 

Defense counsel is not required to file a motion to suppress in every case in which 

evidence obtained by a search is offered against a defendant. On the contrary, 

counsel must exercise his [or her] best professional judgment in deciding whether 

 
15

there are sufficient grounds for filing a motion. Were this not so counsel would 

be required to file a motion to suppress in every case, to protect himself [or 

herself] against a charge of incompetency. 

United States v. Brown, 663 F.2d 229, 231 (D.C. Cir. 1981) (citing United States v. Aulet, 618 

F.2d 182, 187–88 (2d Cir. 1980)). 

Thus, the decision not to challenge evidence uncovered during a search in order to obtain 

a more favorable plea agreement may well be “supported by a reasonable strategy.” Massaro v. 

United States, 538 U.S. 500, 505 (2003) (“A defendant claiming ineffective counsel must show 

that counsel’s actions were not supported by a reasonable strategy and that the error was 

prejudicial.”); see also Kimmelman, 477 U.S. at 381 (“[T]he defendant bears the burden of 

proving that counsel’s representation was unreasonable under prevailing professional norms and 

that the challenged action was not sound strategy.” (citation omitted)).

Both of the defendant’s attorneys pursued a strategy of obtaining a favorable plea 

agreement, and in light of all the facts in the record, this was a justifiable tactic for three reasons. 

First, the defendant’s plea agreement stipulated to a 120-month term of incarceration that is 

substantially below the applicable guidelines range for conviction of these offenses. See Plea 

Agreement ¶ 10. Based upon the amount of illegal narcotics recovered from both the 

defendant’s person and bags, as well as the firearms found in his bags, and his prior criminal 

history, with credit for acceptance of responsibility, the PSR recommended and the Court 

determined, under the applicable Sentencing Guidelines, that defendant’s Total Offense Level 

was 29 and his Criminal History Category was VI, resulting in an advisory guideline range on 

Count One, alone, of 151 to 188 months. PSR ¶¶ 26–38, 115. Count Eight required a 60-month 

mandatory minimum, consecutive period of incarceration, resulting in a combined advisory 
16

range of 211 to 248 months. PSR ¶ 115. Due to the defendant’s status as a career offender and 

his conviction for a violation of 18 U.S.C. § 924(c), under U.S.S.G. § 4B1.1(c)(3), his applicable 

advisory range was 262 to 327 months’ incarceration, or approximately 21–28 years in prison.

PSR ¶ 116. Hence, the minimum advisory guideline range the defendant faced is more than 

double the term of incarceration imposed pursuant to the terms he accepted in the Plea 

Agreement. In other words, counsel for the defendant negotiated a plea agreement that was, as 

this Court characterized it, “substantially below the otherwise applicable Guideline range.” 

Sentencing Hearing Tr., Oct. 25, 2013, at 10:16–18.

In addition, had the defendant been convicted at trial, his minimum guideline range

would have been higher, as he would have been ineligible for a three-level reduction for 

acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b), and, additionally, the defendant 

may have been convicted on the remaining six counts in the indictment, which the government 

dismissed pursuant to the plea agreement. See Plea Agreement ¶ 14; October 25, 2013 Minute 

Order (memorializing government’s oral motion to dismiss Counts 2–7 of the indictment); see 

also United States v. Pollard, 602 F. Supp. 2d 165, 170 (D.D.C. 2009) (“To measure the 

reasonable probability that [the defendant] would have proceeded to trial, all counts that she 

would have faced must be considered and not just the counts to which she pled guilty.”). These 

dismissed charges included unlawful possession with intent to distribute heroin, unlawful 

possession with intent to distribute marijuana, unlawful possession with intent to distribute 4-

MEC and Methylone, unlawful possession with intent to distribute 1-benzylpiperazine, and two 

counts of unlawful possession of a firearm and ammunition by a person convicted of a crime 

punishable by imprisonment for a term exceeding one year. See Indictment. Conviction on 
17

these additional counts would have been considered in determining whether to impose a sentence 

within or even above the applicable advisory range. In the face of the risk of a lengthy prison 

term, defense counsel was certainly not remiss in seeking a favorable plea agreement.

Second, even if a motion to suppress the guns and drugs found in the defendant’s bags 

were successful, the defendant’s conviction for the drugs found on his person at the traffic stop

was highly probable. The defendant makes no claim in his pending motion that the contraband 

found when he was searched upon his arrest—3.9 grams of cocaine, 4.3 grams of marijuana, and 

15 Methylone tablets—were subject to a suppression motion. Consequently, the defendant 

would still be facing imprisonment even if counsel had acceded to the request he claims to have

made to file a suppression motion for the contraband found during the consent search of the 

defendant’s mother’s apartment. Notably, if the defendant’s attorneys had made a suppression 

motion, as the defendant says he requested, but that motion had not been successful and the

government had withdrawn the plea offer to a 120-month agreed-upon sentence, the defendant 

would have faced a substantially longer period of incarceration and would, on this basis,

arguably have a stronger basis to claim ineffective assistance of counsel. In light of this 

possibility, counsel made a reasonable strategic decision. Kimmelman, 477 U.S. at 384; see also 

United States v. Calderon, 163 F.3d 644, 646 (D.C. Cir. 1999) (“[I]t is well within the realm of

valid strategic decisions of competent counsel not to seek adjustments to a client’s base offense 

level when the government is willing both to drop a charge . . . and to forego seeking 

adjustments that would increase a sentence.”).

Finally, even if, in hindsight review, counsel’s failure to raise a suppression motion was 

erroneous, as the defendant contends, his attorneys still acted as effective counsel because their 
18

decision to pursue a plea agreement was imminently reasonable. “If counsel makes such a 

judgment [not to file a suppression motion] and it falls within the range of competence 

demanded of attorneys in criminal cases, we may not find him ineffective because the perfect 

vision of hindsight indicates that his judgment may have been mistaken.” United States v. 

Brown, 663 F.2d 229, 231 (D.C. Cir. 1981). In Kimmelman v. Morrison, which the defendant 

cites for support, the Supreme Court found that counsel’s failure to file a motion to suppress was 

constitutionally deficient because it was “clear[]” that the defendant’s attorney “failed to file a 

timely suppression motion, not due to strategic considerations, but because . . . he was unaware 

of the search . . . .” 477 U.S. at 385. Counsel’s ignorance in Kimmelman was due to his 

“mistaken beliefs” that the government would turn over all inculpatory evidence, so he 

“conducted no pretrial discovery.” Id. This is markedly different from the case at hand, where, 

by the defendant’s account of the facts in his papers, both Mr. Jeffress and Ms. Wicks knew of 

the search and were allegedly made aware of the Fourth Amendment issues pertaining to that 

search by the defendant. See Def.’s Mem. at 5, 7. This does not demonstrate that counsel made 

an oversight, only that they disagreed with the defendant’s opinion on the best legal strategy. 

See United States v. Mathis, 503 F.3d 150, 153 (D.C. Cir. 2007) (finding that attorney’s 

assistance “was not constitutionally ineffective” where “[t]he attorney reviewed the record with 

care and decided that the [legal] issue was not worth pursuing . . . .”). 

The chronology of events culminating in the defendant’s sentencing further confirms that 

counsel made no mistake but rather strategically pursued a plea agreement. In anticipation of 

obtaining a favorable plea agreement, the defendant agreed to a total of nine exclusions of time 

under the Speedy Trial Act, three pre-indictment and six post-indictment, amounting to a total 
19

exclusion of 205 days, in order to pursue plea negotiations. From the defendant’s own account 

of the facts, defendant’s counsel did not raise a suppression motion when these plea negotiations 

were taking place, as the defendant claims he requested, as a tactic to avoid jeopardizing any plea 

agreement. See Def.’s Mem. at 5 (“[W]e don’t want to start filing motions or they may take the 

cop off the table[.]”). The defendant had over six months to alert the Court that he did not agree 

with his counsel’s decision to pursue plea negotiations in lieu of filing a suppression motion. He 

did not do so. Nor did he raise this point of contention with the Court at his plea hearing. 

Moreover, the defendant had an additional three months to withdraw his guilty plea between the 

plea hearing and the sentencing on the basis of dissatisfaction with counsel, yet, again, neglected 

to challenge his counsel’s strategy. 

The defendant, when questioned on two separate occasions, at both his plea and

sentencing hearings, indicated that he was satisfied with his counsel in the case and affirmed that 

he had had sufficient time with counsel to discuss the plea agreement and sentence. Indeed, at 

his sentencing, the defendant even thanked the Court for accepting the Rule 11(c)(1)(C) plea 

agreement, a decision the Court had reserved at the plea hearing. Plea Hearing Tr., July 19,

2013, at 9:13–18; Sentencing Hearing Tr., Oct. 25, 2013, at 5:14–6:01; 9:25–10:06. This belies 

the defendant’s instant claim that his counsel was ineffective. “[I]n challenging a guilty plea on 

the basis of ineffective assistance, the representations of the defendant at the plea hearing as to 

the adequacy of counsel and the knowing and voluntary nature of his plea, may ‘constitute a 

formidable barrier’ to his later refutations.” United States v. Taylor, 139 F.3d 924, 933 (D.C. 

Cir. 1998) (quoting Blackledge v. Allison, 431 U.S. 63 (1977));

2 see also United States v. Zaia, 

 2 This Circuit has held that although a defendant has represented that his counsel is satisfactory, such statements are 

“not invariably insurmountable and do[] not necessitate the summary denial of a motion to withdraw a guilty plea.” 
20

751 F. Supp. 2d 132, 139 (D.D.C. 2010) on reconsideration in part, 762 F. Supp. 2d 73 (D.D.C. 

2011) (“The representations of the defendant at a plea hearing, together with any findings made 

by the judge in accepting the plea, ‘constitute a formidable barrier in any subsequent collateral 

proceeding’ because the defendant’s ‘declarations in open court carry a strong presumption of 

verity.’” (quoting United States v. Farley, 72 F.3d 158, 164–65 (D.C. Cir. 1995))); Fears v. 

United States, No. 06-0086, 2006 WL 763080, at *8 (D.D.C. Mar. 24, 2006) (finding no merit to 

ineffective assistance of counsel claim and noting that the petitioner “stated that he was satisfied 

with Ms. Hashimoto’s services, had conferred with her thoroughly regarding the plea agreement, 

and fully understood the terms of the plea agreement”); United States v. Mack, No. 02-516, 2005 

WL 3273950, at *4 (D.D.C. Aug. 11, 2005) (denying ineffective assistance of counsel claim in

part because during plea hearing “defendant affirmed that she was satisfied with the legal 

services provided by her counsel in connection with the plea agreement, and that she had 

sufficient time to consult with her counsel about her case.”). 

In sum, counsel’s litigation strategy of declining to raise a suppression motion, even 

though the defendant claims in his papers that he requested such motion, was “within the range 

of competence demanded of attorneys in criminal cases.” Horne, 987 F.2d at 835. 

D. Defendant’s Fourth Amendment Claim is Not Meritorious

Even if counsel had been ineffective, the defendant nevertheless would not prevail 

because the defendant has not established under the second Strickland prong that he has a 

meritorious Fourth Amendment claim and that he was therefore prejudiced by the failure to file a 

suppression motion. Thus, if defense counsel had filed a motion to suppress the evidence 

 United States v. Taylor, 139 F.3d 924, 933 (D.C. Cir. 1998) (internal quotation marks and citation omitted).
21

uncovered in the consent search of the defendant’s mother’s apartment, this motion would have 

been unsuccessful. Under United States v. Matlock, “the voluntary consent of any joint occupant 

of a residence to search the premises jointly occupied is valid against the co-occupant, permitting 

evidence discovered in the search to be used against him at a criminal trial.” 415 U.S. 164, 169 

(1974). Hence, the constitutionality of warrantless searches authorized by the consent of a third 

party often turns on whether premises are considered jointly occupied and whether there is 

“common authority” over the “premises or effects sought to be inspected.” Id. at 171; United 

States v. Harrison, 679 F.2d 942, 947 (D.C. Cir. 1982). The defendant claims that “counsel’s 

ignorance” of “prevailing case law and the circuit precedent as it relates to 3d party consent 

searches” rendered counsel’s advice deficient. See Def.’s Mem. at 3–4.3

 The defendant points to 

United States v. Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991), as precedent supporting his 

Fourth Amendment claim that should have been raised by his attorneys. Def.’s Mem. at 2. In 

Whitfield, the D.C. Circuit addressed the constitutionality of the search of an apartment that was 

occupied jointly by the defendant, in that case, and his mother, who had given consent to the law 

enforcement search. 939 F.2d at 1075. The Circuit found that the officers’ search of the 

defendant’s bedroom was unreasonable, notwithstanding that the officers had obtained general

consent from the defendant’s mother to search the apartment. Id. The Whitfield Court found the 

search invalid because the officers did not obtain sufficient information “to support a reasonable 

belief” that the defendant’s mother had common authority over her son’s bedroom and it was 

 3 The defendant also apparently objects to the search on the basis that the arresting officers had no “individualized 

articulable suspicion” for conducting a search of the defendant’s home after his arrest. See Def.’s Mem. at 6–7. 

This argument is inapposite as the applicable standard is not whether the search was constitutional as a Terry stop. 

Terry v. Ohio, 392 U.S. 1 (1968). Rather, the appropriate standard is whether the search of the apartment where the 

defendant lived was constitutional on the basis of third party consent.
22

therefore unreasonable for them to believe she could consent to a search of that specific area. Id.

at 1075. The Circuit concluded that the search was unconstitutional because: the bedroom was 

not a common area; there was no indication that the defendant’s mother made use of the room 

“at any time for any purpose;” and the officers did not otherwise inquire whether or not her adult 

son had “exclusive use” of the bedroom. Id. at 1074–75. 

Contrary to the defendant’s view that Whitfield is analogous and controlling, salient facts 

distinguish Whitfield from the instant case. Here, the defendant indicated to the arresting officers 

that his mother was the primary possessor of the apartment. See Stmt. Offense at 2 (defendant 

told police officers “that he lived with his mother and his son at his mother’s apartment

(emphasis added)). His mother told the officers that the defendant slept in both the living room 

and the bedroom, which he shared with his son, indicating that the defendant had no exclusive

private space in the apartment. Id. The police officers conducting the search obtained both oral 

and written consent for the search from the defendant’s mother and confirmed that she had “daily 

access” to the bedroom they searched. Stmt. Offense at 2. Moreover, the bedroom was shared 

by the defendant and his minor son, and the mother was the son’s legal guardian. Id. The 

Whitfield Court specifically noted that “[w]hen a minor child’s room is involved, agents might 

reasonably assume that the child’s mother, in the performance of her parental duties, would not 

only be able to enter her child’s bedroom but also would regularly do so.” Whitfield, 939 F.2d at 

1075. Similarly here, the officers gained consent to search the room of a minor child by the 

child’s guardian, the defendant’s mother, who is presumed to have access to the room, and who 

affirmatively attested that she had “daily access” to the bedroom. The facts of the instant case 
23

are therefore clearly distinguishable from Whitfield.

4

 

The defendant also points to United States v. Peyton, 745 F.3d 546, 554 (D.C. Cir. 2014), 

where the D.C. Circuit recently ruled on the constitutionality of searching a shoebox in the living 

room of an apartment jointly occupied by the defendant in that case and his great-grandmother. 

745 F.3d at 554. The Peyton Court concluded that it was unreasonable for the officers to think 

the defendant’s great-grandmother could grant consent to search the shoebox because she 

expressly told the officers that the defendant kept his “personal property” in the area where the 

shoebox was found. Id. According to the Court, this “strongly suggested she did not use the 

shoebox or have permission to do so” and therefore she had no actual or apparent authority to 

consent to the search of the shoebox itself. Id. This opinion was published several months after 

the defendant was sentenced, was unavailable at the time the defendant was indicted, and 

consequently could not have been cited for support in a suppression motion. Even if Peyton had 

been available before the defendant had accepted the government’s plea agreement, Peyton is 

nevertheless factually distinguishable. In Peyton, the Circuit found that the “most critical[]” 

factor in determining whether the defendant’s relative could consent to a search of the shoebox 

was the fact that the officers were informed that the defendant “kept his ‘personal property’ in 

 4 The cases the defendant cites for support are similarly distinguishable from the instant facts. See Def.’s Mem. at 

2–3. In each of the cited cases the courts found counsel deficient on the basis of the attorneys’ failure to recognize 

clearly established, binding Fourth Amendment principles. See Gentry v. Sevier, 597 F.3d 838, 851–52 (7th Cir. 

2010) (finding that officer’s search of covered wheelbarrow pursuant to a Terry stop violated “fundamental 

principles of Fourth Amendment case law” and counsel’s failure to challenge the search was “beyond the pale of an 

objectively reasonable strategy.”); Joshua v. DeWitt, 341 F.3d 430, 439 (6th Cir. 2003) (finding counsel’s 

performance deficient where counsel did not consider and raise applicable Supreme Court precedent finding similar 

searches unconstitutional, and Court could not “discern any strategic reason” why counsel would not raise the issue). 

By contrast here, the record reflects a clear strategic reason for failing to raise a suppression motion, namely, to 

secure a favorable plea agreement for the defendant. Further, by the defendant’s own account of the facts in his 

papers, he alleges that they articulated this legal strategy to the defendant when he supposedly requested a 

suppression motion, indicating that his attorneys were aware of the constitutional implications of the search but, for 

tactical reasons, decided instead to pursue a plea agreement. 
24

the area . . . where the shoebox was found.” Id. The Circuit found this search unreasonable “in 

light of this clear statement that there was an area of the room that was not hers, [because] it was 

not reasonable for the police to believe that [the defendant] shared use of the closed shoebox.” 

Id. at 554. There is no similar affirmative statement by the defendant’s mother indicating that 

the backpack and attaché bag found in the bedroom were in an area exclusively used by the 

defendant. See Stmt. Offense. As the Peyton Court noted, absent the great-grandmother’s 

statement indicating an area of exclusive use, finding a closed container in plain sight in a 

common area “might suggest . . . that it was reasonable for the police to believe that [the cotenant’s] authority over the . . . room also encompasse[s] the” container. Peyton, 745 F.3d at 

554.5

 In fact, the defendant’s mother’s statement that the defendant slept in either the living 

room or the bedroom, which he shared with his son, indicates that there was no private space 

reserved for the defendant’s exclusive use in the apartment. The police could have reasonably 

concluded that the mother had access to the bags in her grandson’s room due to her “daily 

access” to the room, or by virtue of her legal guardianship of the defendant’s minor son, who 

also slept in the bedroom. Believing that the defendant’s mother could consent to a search of the 

 5 The defendant further contends that the situation the officers encountered was ambiguous and the officers should 

have made further inquiry before searching the bags. Def.’s Mem. at 8–9. This contention is incorrect. Illinois v. 

Rodriguez, on which the defendant relies for this proposition, does not support the defendant’s contention based on 

the facts in this case. 497 U.S. 177, 188 (1990). In that case, the Supreme Court ruled that a search of an apartment 

was unconstitutional where the third party granting consent did not have actual authority to so do so, because she 

was not technically a co-tenant or joint occupant, even though she told the officers conducting the search that she 

lived in the apartment. Id. The Supreme Court concluded that it was unreasonable for the officers to believe that the 

woman could grant consent because “the surrounding circumstances . . . [were] such that a reasonable person would 

doubt its truth and not act upon it without further inquiry.” Id. The Court held that consent by a third party was a 

“factual determination . . . [asking whether] the facts available to the officer at the moment . . . warrant a man of 

reasonable caution in the belief that the consenting party had authority over the premises[.]” Id. (citing Terry, 392 

U.S. at 21–22 (internal quotation marks omitted)). Consequently, Rodriguez stands for the unremarkable 

proposition that a “search is valid” if, objectively, the facts available at the time suggest that the consenting party has 

authority to consent to a search. Id. In the instant case, taking the facts as a whole, including the defendant’s 

statement that his mother owned the apartment, the officers’ belief that the defendant’s mother had authority over 

the premises sufficient to grant consent to a search was reasonable.
25

two bags is, therefore, reasonable. 

In sum, the defendant has failed to demonstrate that any suppression motion would have 

been successful because he has not demonstrated that the search of his bags was unconstitutional. 

Without a meritorious Fourth Amendment claim, the defendant is not entitled to relief because 

he cannot establish under Strickland that he was prejudiced by counsel’s failure to raise a 

suppression motion. See Kimmelman, 477 U.S. at 375; Stubblefield, 931 F. Supp. 2d at 127. 

IV.CONCLUSION

Accordingly, because the defendant has not proven under Strickland that his counsel’s 

performance was objectively unreasonable or that his Fourth Amendment claim is meritorious 

and that, therefore, counsel’s failure to raise such motion prejudiced the defendant, the 

defendant’s motion to vacate his sentence is denied. An appropriate Order accompanies this 

memorandum opinion. 

Date: August 12, 2014

__________________________

BERYL A. HOWELL

United States District Judge