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Capps v. United States

United States District Court, E.D. Missouri, Southeastern Division

March 15, 2018




         This matter is before the Court on Petitioner Dennis Ray Capps's motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On May 30, 2012, a jury convicted Petitioner of one count of possession with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Pursuant to an Information filed under 21 U.S.C. § 851, this Court sentenced Petitioner, as a person with two prior felony drug convictions, to the mandatory term of life in prison plus ten years supervised release. On June 11, 2013, the Eighth Circuit Court of Appeals affirmed the conviction and sentence.

         Petitioner now moves to set aside his conviction and sentence, asserting that defense counsel provided ineffective assistance in (1) failing to convey plea offers to Petitioner; and (2) failing to handle effectively a pretrial motion to suppress evidence and statements. The Court appointed counsel to represent Petitioner, and on November 23, 2015, held an evidentiary hearing on Petitioner's claim of ineffective assistance of counsel. Based on the entire record, and having had an opportunity to observe the demeanor of the witnesses at the hearing, Petitioner's motion shall be denied.


         Criminal Proceedings

         On July 28, 2011, a Missouri State Highway Patrol officer stopped Petitioner's car, having recognized the driver as Petitioner and knowing that Petitioner's license was suspended and that there was an active felony warrant for his arrest. Petitioner's wife was a passenger in the car. Following a discussion regarding consent to search, at which time the officer asserts Petitioner gave consent to search the car, the car was searched. A black bag with 165 grams of material containing 138 grams of actual methamphetamine was found under the hood of the vehicle. Both Petitioner and his wife were arrested and taken into custody. At the scene, both before and after being read his Miranda rights, Petitioner stated that the drugs were his and not his wife's. Petitioner reiterated this statement in a later interview. Petitioner's wife was not held. On October 20, 2011, Petitioner was indicted on one count of possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and punishable under 21 U.S.C. § 841(b)(1)(A)(iii). United States v. Capps, No. 1:11CR108 (“U.S. v. Capps”).

         On November 8, 2011, an experienced Assistant Federal Public Defender, Michael Skrien, entered his appearance on behalf of Petitioner. At 10:00 a.m. on that day, Petitioner pled not guilty to the charged crime.

         Documents produced in connection with the habeas hearing show that at 4:03 p.m. that day, the government emailed Skrien a proposed plea agreement, with a cover email stating, “This is going to be hard for Mr. Capps to swallow, however it appears that he is eligible for a mandatory life sentence.” (ECF No. 18-1 at 1.) Skrien responded by email three minutes later, stating, “I was hoping to negotiate not filing enhancement, making him mandatory 20. Let me take a look at this and get back to you. I will definitely look into the mand life possibility.” Id.

         The draft plea stipulation forwarded by the prosecutor proposed that Petitioner would plead guilty to the offense as charged in exchange for the government not charging him with any additional crimes arising out of the facts underlying the charge. With respect to the Sentencing Guidelines, it recommended a base offense level of 34 (based on the amount of drugs involved) less three levels for Petitioner timely accepting responsibility. The offer stated that Petitioner's criminal history category would be determined in the presentence investigation report (“PSR”), and that the statutory maximum penalty Petitioner would face was life (plus ten years supervised release), with a statutory mandatory minimum of 20 years. Id. at 2-16. Petitioner had two prior felony drug convictions (based on guilty pleas on the same day more than ten years prior to the current offense). Under 21 U.S.C. § 841(b)(1)(A)(viii), the mandatory minimum sentence for the crime with which Petitioner was charged was ten years for a person with no prior felony convictions; 20 years for a person with one prior felony drug conviction; and life for a person with two or more prior felony drug convictions. Thus, by agreeing to stipulate to a mandatory minimum of 20 years, the government was agreeing that if Petitioner pled guilty, the government would file one, but not two, of his prior felony drug convictions for sentencing enhancement under § 841(b)(1)(A)(viii).

         No plea agreement was reached, and on December 2, 2011, Petitioner filed a motion to suppress the evidence seized from the vehicle and incriminating statements Petitioner made. He contended that the officer did not have probable cause to stop his vehicle, and that the search of the vehicle was conducted without consent. An evidentiary hearing on the motion to suppress was held before a magistrate judge on December 28, 2011. The officer who stopped Petitioner's car testified that when he saw Petitioner's car drive by, he recognized Petitioner, whom he had arrested before, as the driver and knew that Petitioner's license had been suspended and that there was an active warrant out on him. Upon stopping the vehicle and “running the plates, ” the officer learned that the plates were from a different vehicle. Petitioner told the officer that he had the correct license plates in his trunk, and invited him to look in the trunk. The officer testified that although Petitioner initially agreed only to a search of the trunk, after some discussion, Petitioner gave consent for the search of the entire vehicle. During the search, the officers found the methamphetamine that formed the basis of the crime of conviction, in a sock inside a cosmetic bag that was under the hood of the car. The officer advised Petitioner what he had found, and Petitioner responded that the drugs were his, and not his wife's. Petitioner was then advised of his Miranda rights, after which Petitioner reiterated the same statement about the drugs.

         Skrien cross-examined the officer on how he was able to identify Petitioner as the driver of the vehicle, in that the windows of the vehicle were tinted. The officer testified that he first saw Petitioner through the untinted front windshield. Skien also cross-examined the officer based on a videotape of the encounter that reflected that Petitioner did not initially consent to a search of anywhere other than the trunk. Petitioner did not testify at the suppression hearing.

         On February 24, 2012, the magistrate judge filed a Report and Recommendation (“R&R), recommending denial of the motion to suppress. The magistrate judge found that Petitioner had voluntarily consented to a search of the entire vehicle. He also found that, even if Petitioner had not consented, there was no Fourth Amendment violation because state troopers inevitably would have discovered the methamphetamine as part of an inventory search. Lastly, the magistrate judge found that Petitioner's initial statement about the drugs was volunteered, and not the result of interrogation, and that his later admissions were voluntarily made after the administration of Miranda warnings.

         Documents produced in connection with the habeas evidentiary hearing include an email exchange dated March 1, 2012, between Skrien and the prosecutor in which the prosecutor proposed a deal for 200 months along with a waiver of “all . . . rights.” Skrien responded that he was thinking along the lines of 180 months. (Govt. Ex. A, ECF No. 29-4.)

         On March 9, 2012, Skrien filed summary objections to the R&R for the reasons set out within his previously filed motion to suppress. (U.S. v. Capps, ECF No. 39.)

         On March 15, 2012, Skrien filed a motion to withdraw as counsel, stating as follows:

Counsel has had great difficulty communicating with Defendant, and believes Defendant does not trust counsel whatsoever. This distrust has grown and become a complete barrier to adequate representation and the attorney ...

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