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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ANTONIO M. ATCHLEY, 

 CASE NO. 2:13-CV-01276 

 Petitioner, CRIM. NO. 2:11-CR-262 

 JUDGE EDMUND A. SARGUS, JR. 

 v. Magistrate Judge Elizabeth P. Deavers 

UNITED STATES OF AMERICA, 

 Respondent. 

ORDER and 

REPORT AND RECOMMENDATION 

 Petitioner Antonio M. Atchley files the instant Motion to Vacate under 28 U.S.C. § 2255 

and Memorandum of Law Supporting § 2255 Motion (“Memorandum in Support”). This matter 

is before the Court on the Motion to Vacate and Memorandum in Support, Respondent’s 

Response, Petitioner’s Reply, and the exhibits of the parties. For the reasons that follow, the 

Magistrate Judge RECOMMENDS that this action be DISMISSED. 

 Petitioner’s request for an evidentiary hearing is DENIED. 

Facts and Procedural History 

On July 12, 2012, pursuant to the terms of his Plea Agreement, Petitioner pleaded guilty 

to possession of a firearm in furtherance of a drug trafficking crime, in violation of 21 U.S.C. §§ 

841(a) (1); 924(c) (1) (A) (i). Plea Agreement (ECF No. 23.) On January 25, 2013, the Court 

imposed a sentence of 60 months of incarceration. Judgment (ECF No. 35.) Thereafter, 

Petitioner filed the instant Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 45). He asserts 

that he was denied the effective assistance of counsel because his attorney failed to file a motion 

to suppress evidence. It is the position of the Respondent that this claim lacks merit. 

 

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Standard of Review 

To obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of a 

substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair 

procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 

627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal 

sentence was imposed in violation of the Constitution or laws of the United States or the trial 

court was without jurisdiction or the sentence is in excess of the maximum sentence allowed by 

law, or is “otherwise subject to collateral attack.” United States v. Jalili, 925 F.2d 889, 893 (6th 

Cir. 1991). Apart from constitutional error, the question is “whether the claimed error was a 

‘fundamental defect which inherently results in a complete miscarriage of justice,’ ” Davis v. 

United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428–429 

(1962); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). Claims of a nonconstitutional dimension not raised at trial or on direct appeal are waived for collateral review 

except where the errors amount to something akin to a denial of due process. Mistakes in the 

application of the sentencing guidelines will rarely, if ever, warrant relief from the consequences 

of waiver. Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). 

It is well-established that a § 2255 motion “is not a substitute for a direct appeal.” Ray v. 

United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 

520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167–68 (1982)). 

Accordingly, claims that could have been raised on direct appeal, but were not, will not be 

entertained via a motion under § 2255 unless the petitioner shows: (1) cause and actual prejudice 

to excuse his failure to raise the claims on direct appeal or (2) that he is “actually innocent” of 

the crime. Ray, 721 F.3d at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998) 

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(internal citations omitted). “To obtain collateral relief a prisoner must clear a significantly 

higher hurdle than would exist on direct appeal.” Frady, 456 U.S. at 166. 

Ineffective Assistance of Counsel 

 “In all criminal prosecutions,” the Sixth Amendment affords “the accused . . . the right . . 

. to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective 

assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011) 

(citation omitted). 

 The United States Supreme Court set forth the legal principals governing claims of 

ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984). Strickland

requires a petitioner claiming ineffective assistance of counsel to demonstrate that his counsel’s 

performance was deficient and that he suffered prejudice as a result. 466 U.S. at 687; Hale v. 

Davis, 512 F. App’x 516, 520 (6th Cir. 2013). A petitioner “show[s] deficient performance by 

counsel by demonstrating ‘that counsel’s representation fell below and objective standard of 

reasonableness.’” Poole v. MacLaren, No. 12-1705, --- F. App’x ----, 2013 WL 6284355, at *5 

(6th Cir. Dec. 5, 2013) (quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal 

quotation marks omitted) and citing Strickland, 466 U.S. at 687). To make such a showing, a 

petitioner “must overcome the ‘strong [] presum[ption]’ that his counsel” rendered adequate 

assistance and made all significant decisions in the exercise of reasonable professional 

judgment.’” Poole, 2013 WL 6284355 at *5 (quoting Strickland, 466 U.S. at 687). “To avoid 

the warping effects of hindsight, [courts must] ‘indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance.’” Bigelow v. 

Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 689). 

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To satisfy the second Strickland prong, prejudice, a petitioner “must ‘show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.’” Hale, 512 F. App’x at 520 (quoting Strickland, 466 U.S. at 694). 

“This means [a petitioner] must show a ‘substantial, not just a conceivable, likelihood of a 

different result.’” Id. (quoting Pinholster, 131 S.Ct. at 1403 (internal quotation marks and 

citation omitted)). Petitioner has failed to meet that burden here. 

Petitioner asserts the denial of the effective assistance of counsel based on his attorney’s 

failure to file a motion to suppress regarding the evidence seized during an inventory search of 

his truck. He has attached a police report in support of his Motion. The report indicates that on 

November 5, 2007, at 2:26 a.m., police stopped Petitioner for failing to signal while changing 

lanes. (ECF No. 46, PageID# 152.) Police placed Petitioner under arrest for driving with a 

suspended license. Upon a search incident to arrest, police found $541.00 in his pocket. Police 

removed the passenger from the truck and conducted an inventory search for impoundment. 

Inside the vehicle, police found $816.00 in “numerous compartments” and in an open bag on the 

front seat, and a 9 mm. loaded handgun, two bags of marijuana, two bags of cocaine, a digital 

scale, and a box of sandwich bags inside of the center console. PageID# 152-53. 

Petitioner argues that his attorney improperly urged him to accept a guilty plea without 

filing a motion to suppress evidence. He maintains that the search of his truck without a warrant 

was per se invalid. Petitioner contends that the police unreasonably refused to permit his 

girlfriend, who had a valid driver’s license, to take custody of the truck. He argues that a police 

policy that refuses to permit the release of a vehicle to a licensed passenger in lieu of 

impoundment is constitutionally invalid. Memorandum in Support (ECF No. 46.) 

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 “It is settled law that the police may conduct an inventory search of an automobile that is 

being impounded without running afoul of the Fourth Amendment.” United States v. Jackson,

682 F.3d 448, 455 (6th Cir. 2012) (citing United States v. Smith, 510 F.3d 641, 650 (6th Cir. 

2007)). “Vehicle inventory searches are an exception to the Fourth Amendment’s probable 

cause requirement and are valid if conducted in accordance with standard police procedures.” 

United States v. Ballard, 432 F. App’x 553, 556 (6th Cir. 2011) (citing Colorado v. Bertine, 479 

U.S. at at 371–72; United States v. Harvey, 16 F.3d 109, 112 (6th Cir. 1994)). Inventory 

searches “‘serve to protect an owner’s property while it is in the custody of the police, to insure 

against claims of lost, stolen, or vandalized property, and to guard the police from danger.’” 

United States v. Smith, 510 F.3d 641, 650–51 (6th Cir. 2007) (quoting United States v. Lumpkin, 

159 F.3d 983, 987 (6th Cir. 1998). “An inventory search must proceed pursuant to 

‘standardized criteria’ or ‘established routine’ in order to protect against the use of inventory 

searches as ‘a ruse for a general rummaging in order to discover incriminating evidence.’ ” 

United States v. Thompson-Bey, No. 3:09-cr-64, 2010 WL 2711105, at *9 (E.D. Tenn. Jan. 12, 

2010) (citing Florida v. Wells, 495 U.S. 1, 4 (1990)). The “procedures may be written, but 

established unwritten procedures are also sufficient.” United States v. Agofsky, 20 F.3d 866, 873 

(8th Cir. 1994) (citing United States v. Lowe, 9 F.3d 43, 46 (1993)). An officer’s suspicion of 

contraband will not defeat an otherwise proper inventory search. United States v. Smith, 510 

F.3d at 651 (6th Cir. 2007); Lumpkin, 159 F.3d at 987. Police may exercise their discretion so 

long as it is exercised according to standard criteria and not on suspicion of evidence of criminal 

activity. Hockenberry, 730 F.3d at 658 (citing Jackson, 682 F.3d at 454 (citations omitted) 

(internal quotation marks omitted); United States v. Kimes, 246 F.3d 800, 805 (6th Cir. 2001). 

Moreover, police do not have to offer a motorist an alternative means of removing a vehicle that 

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will avoid the need to tow it and conduct an inventory search. Colorado v. Bertine, 479 U.S. 

367, 371–72 (1987). “[A]n impoundment decision will not be impermissible simply because 

alternatives to impoundment might exist.” Hockenberry, at 658-59 (citations omitted). 

For example, in United States v. Kimes, 246 F.3d 800 (6th Cir. 2001), the United States 

Court of Appeals for the Sixth Circuit rejected the argument that police had a duty to call the 

arrestee’s wife and ask her to get the vehicle rather than conduct an inventory search, even 

though police sometimes permitted friends or relatives to take custody of a vehicle. Id. at 805. In 

United States v. Ballard, 432 F. App’x 553, 556 (6th Cir. 2011), the Sixth Circuit upheld a police 

inventory search where policy required impoundment of all vehicles being operated by a driver 

whose license had been suspended for failure to provide proof of financial responsibility and law 

officials prohibited removal of that vehicle by a third party. 

In United States v. Duguay, 93 F.3d 346, 381 (7th Cir. 1996), referred to by Petitioner, 

the Seventh Circuit Court of Appeals excluded evidence obtained from an inventory search 

where police had no standardized policy and failed to articulate a legitimate rational to justify 

impoundment. The Seventh Circuit stated, “impoundment based solely on an arrestee’s status as 

a driver, owner, or passenger is irrational and inconsistent with ‘caretaking’ functions” of police 

and was constitutionally invalid. Id. 

In Schroeder v. City of Brynes Mill, No. 4:07CV1661 SNLJ, 2009 WL 1176295 (E.D. 

Mo. May 1, 2009), the court denied the defendant’s motion for summary judgment on a Fourth 

Amendment claim involving the seizure of an arrestee’s vehicle where her nephew, a licensed 

driver, was present and was willing to take custody of the vehicle, discussing the issue as 

follows: 

This Court has found no case that directly addressed a situation 

like that in this case where the car was located on the shoulder of a 

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public roadway and there was an alternative driver present. Still, 

relevant cases mention the presence of another driver as a factor in 

determining the reasonableness of an impoundment. See U.S. v. 

Duguay, 93 F.3d 346 (7th Cir.1996) (impoundment unreasonable 

where vehicle was parked in a lot, plaintiff was not the driver, and 

plaintiff had already exited the vehicle and was heading toward an 

apartment when arrested); U.S. v. Pappas, 735 F.2d 1232, 1234 

(10th Cir.1984) (impoundment held unreasonable where vehicle 

was parked on private property and there was another licensed 

driver present); cf U.S. v. Skillern, 947 F.2d 1268 (5th Cir. 1991) 

(holding that the Fourth Amendment does not require the police to 

offer defendants the opportunity to call someone to pick up the 

vehicle as an alternative to impoundment). The plaintiff also cites 

U.S. v. Petty, 367 F.3d 1009 (8th Cir. 2004), for the proposition 

that the caretaking function of police can be satisfied if the vehicle 

can be left in the custody of another driver. As defendants note, in 

Petty the Eighth Circuit held the impoundment reasonable but, 

unlike the case at hand, the Court noted there was no one present 

who was willing to take custody of the vehicle. Id. 

Despite the fact that, under Bertine, the police need not choose the 

least intrusive means, the police still must act in a manner that is 

reasonable under the circumstances. Byrnes Mill’s Police 

Department had a policy that all vehicles be towed after an arrest 

where an owner of the vehicle is not present and able to take 

responsibility for the vehicle. This may be a reasonable course of 

action in most situations, but the defendants have failed to show 

that it was reasonable in this situation in which plaintiff requested 

that her nephew, a licensed driver present at the time of arrest, take 

responsibility for the car. This Court is unconvinced that Chief 

Locke’s actions were reasonable under the circumstances and, as 

such, summary judgment cannot be granted on plaintiff’s Fourth 

Amendment claim for the seizure of her vehicle. 

Id. at *3. 

Here, the Court is unable to determine from the record the police policy in regard to the 

impoundment of vehicles, or the basis underlying police impoundment of Petitioner’s vehicle in 

lieu of permitting the passenger to take custody of the truck as an alternative to impoundment. 

However, Petitioner does not argue, and the record does not reflect, that police unconstitutionally 

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placed him under arrest. In view of his lawful arrest, the search of the vehicle and seizure of 

items found therein nonetheless passes constitutional muster. 

Prior to the United States Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332 

(2009), under the “automobile exception” to the Fourth Amendment’s Warrant Clause, the Sixth 

Circuit recognized as lawful searches of vehicles conducted incident to an arrest even where the 

arrestee did not have access to the passenger compartment of his car. United States v. Lopez, No. 

6:06-120-DCR, 2009 WL 3112127, at *2 (E.D. Ky. Sept. 23, 2009) (citations omitted); see 

United States v. Woodruff, 830 F. Supp. 2d 390, 399 (6th Cir. 2011) (“Before Gant, “[t]he Sixth 

Circuit was among the legion of courts” that allowed “a vehicle search incident to the arrest of a 

recent occupant even if there was no possibility that the arrestee could gain access to the vehicle 

at the time of the search.”) (citing United States v. Buford, 632 F.3d 264, 274 (6th Cir. 2011) 

(internal quotations omitted)). In Gant, however, the Supreme Court held that police may 

conduct a warrantless search of an automobile incident to arrest only where ‘the arrestee is 

within reaching distance of the passenger compartment at the time of the search or it is 

reasonable to believe the vehicle contains evidence of the offense of arrest.’” United States v. 

Buford, 632 F.3d 264, 267 (6th Cir. 2001) (citing Gant).1 However, a “good faith” exception to 

exclusion of evidence applies to police searches of vehicles incident to arrest that were lawful 

prior to the Supreme Court’s decision in Gant. See United States v. Schuttpelz, 467 F. App’x. 

349, 353 (6th Cir. 2012) (“Both this Court in Buford and the Supreme Court in Davis [v. United 

States, -- U.S. --, 131 S.Ct. 2419 (2011)] have determined that evidence cannot be excluded 

under Gant where the Government’s search was undertaken with reasonable reliance on existing 

                                                            

1 Gant did not limit or eliminate the exception for a warrantless inventory searches. United 

States v. Buchanan, No. 3:14-00062, 2015 WL 247876, at *7 (M.D. Tenn. Jan. 20, 2015) (citing 

Bryant v. DaSilva, 582 F. App’x 56, 57 (2nd Cir. 2014)). 

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law at the time. See also United States v. Sain, 421 F. App’x. 591, 593 (6th Cir. May 3, 2011) 

(same) (citations omitted)). 

Thus, regardless of whether the police improperly impounded Petitioner’s vehicle or 

conducted an inventory search on that basis, police constitutionally searched the vehicle incident 

to his arrest under the law of this Circuit at that time. Acting in good faith reliance on the law 

prior to Gant, the firearm and drugs seized from Petitioner’s car upon his lawful arrest would not 

have been excluded from evidence. Therefore, Petitioner has failed to establish the denial of the 

effective assistance of counsel based on his attorney’s failure to file a motion to suppress 

evidence. 

Recommended Disposition 

 WHEREUPON, the Magistrate Judge RECOMMENDS that this action be 

DISMISSED. 

Procedure on Objections 

 If any party objects to this Report and Recommendation, that party may, within fourteen 

days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in 

part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b) (1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

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and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 

106 S.Ct. 466 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

s/ Elizabeth A. Preston Deavers________ 

ELIZABETH A. PRESTON DEAVERS 

UNITED STATES MAGISTRATE JUDGE 

 

 

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