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Evans v. United States

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

June 15, 2018

MARIO EVANS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Mario Evans, a person in federal custody. On December 4, 2014, Evans was found guilty of the offense of Felon in Possession of a Firearm and, on April 7, 2015, this Court sentenced Evans to the Bureau of Prisons for a term of 221 months, a sentence within the sentencing guideline range. Evans' § 2255 action, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.

         I. STATEMENT OF THE CASE

         A. Preliminary proceedings

         On October 17, 2013, Movant Mario Evans (“Evans”) was indicted by a federal grand jury in the Southeastern Division of the Eastern District of Missouri for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(e).[1] Doc. 1 (Case No. 1:13-CR00090 SNLJ). Evans made his initial appearance before Magistrate Judge Lewis Blanton on November 27, 2013. Doc. 5. Judge Blanton appointed attorney Jason Tilley to represent Evans in the case at that time. Doc. 7. On January 26, 2014, Mr. Tilley filed a waiver of the right to file pretrial motions on Evans' behalf. Doc. 21. On February 4, 2014, Evans appeared before Judge Blanton with Mr. Tilley for the purpose of making a record of Evans' decision to waive pretrial motions. During the proceeding, Evans informed Judge Blanton that he did not want to waive pretrial motions and that he wanted a new attorney. Doc. 23. After determining that irreconcilable differences had developed between Evans and Mr. Tilley, Judge Blanton appointed attorney Stephen C. Wilson to represent Evans from that point forward. Docs. 24-26.

         Mr. Wilson subsequently filed a motion to suppress on Evans' behalf, alleging Fourth Amendment violations related to the seizure of a firearm from Evans' vehicle. Doc. 29. After the motion was filed, Judge Blanton retired and the case was referred to Magistrate Judge Abbie Crites-Leoni.

         B. Motion to Suppress Hearing

         The suppression hearing was held on April 8, 2014. Before the hearing, Mr. Wilson asked to address a preliminary matter concerning Evans' request to have Judge Crites-Leoni recuse herself from the case. (Transcript of Evidentiary Hearing, “EH Tr., ” Doc. 39, p. 5). Mr. Wilson stated that he had a discussion with Evans, who expressed concern about Judge Crites-Leoni presiding over his case because she was recently appointed to the bench after serving a number of years with the United States Attorney's Office (USAO). Mr. Wilson also noted that, while employed with the USAO, Judge Crites- Leoni was supervised by Assistant United States Attorney Larry Ferrell, who was representing the government in Evans' case. EH Tr., p. 5. Mr. Wilson then stated, “On his behalf, I am going to raise that point at this time that he thinks he may not get a fair shake.” EH Tr., p. 5. Mr. Wilson further stated that Evans was “concerned about that and wished to make an objection.” EH Tr., p. 5.

         The government responded that Judge Crites-Leoni had properly disqualified herself in cases in which she participated or had knowledge during her tenure with the USAO. The government expressed its understanding that this was the policy and practice that had been followed in the district with previous magistrate judges and was the appropriate procedure to follow. EH Tr., p. 6-7. The government further stated that, as an AUSA, Judge Crites-Leoni did not participate in the investigation or have any involvement, participation or knowledge of Evans' case during its existence in the USAO. EH Tr., p. 6 Accordingly, the government took the position that disqualification was not necessary. EH Tr., p. 6.

         Judge Crites-Leoni then explained her relationship to the parties and her obligation to judge the matter impartially:

Mr. Evans, I can't blame you for having the concern that you have. I want you to know that there are very special rules regulating how cases are assigned in this district, as they are across the country. My last day in the office was January 31st of this year in the U.S. Attorney's office.
It may be interesting for you to know that I've actually had a relationship with your attorney Mr. Wilson for longer than I've had with the U.S. Attorney's office. Mr. Wilson was one of the first defense attorneys that I practiced with in this area. So I would say it's fair to say I have a relationship with both of the attorneys in this case.
There is nothing about those relationships that will influence me as far as whether or not I listen to all the evidence in the case and consider that in making any decision with regard to the motion that you filed.
In part of the selection process for this job there were a lot of questions about whether or not I would be fair in addressing cases where both the U.S. Attorney's office and the Defendant had issues. And in the examination of that question I think it was very clear that I have a new role now.
I did work at the U.S. Attorney's office. I do have a prior working relationship with Mr. Wilson in many state cases as well as federal cases, but my role here is to listen to all the evidence from both sides, and I promise you that's what I'm going to do.

         EH Tr., p. 7-8.

         At the end of the explanation, Judge Crites-Leoni asked, “Do you feel better, Mr. Evans, about how I'm going to treat your case?” Evans responded, “Yes, ma'am.” EH Tr., p. 8. The court concluded by stating, “That's how I intend to treat everyone in this court, so that's my promise to you. That's my promise to these men here representing both the Government and you.” EH Tr., p. 8-9. After these assurances, Evans expressed no further concern about Judge Crites-Leoni's ability to be impartial.

         Judge Crites-Leoni then heard testimony relevant to Evans' motion to suppress the firearm and other items recovered from his vehicle. The government called Brent Douglas, a police officer for the Charleston, Missouri Police Department. Officer Douglas testified that the City of Charleston has a population of approximately 5, 000 people and has a very high crime rate. Crimes ranging from murders, drug dealings, and shootings occur on a frequent basis. EH Tr., p. 57. The highest crime area in this town is a six-block area, which includes a vacant carwash where Evans' vehicle was parked on the night in question. EH Tr., p. 56-59.

         Officer Douglas testified that on August 2, 2013, at approximately 11:45 p.m., he noticed a vehicle parked behind the vacant carwash without its lights on. EH Tr., p. 59- 61. Officer Douglas was familiar with the carwash and that it was in the process of condemnation. EH Tr., p. 60. Burglaries in the area were common at the time, so Officer Douglas turned into the first driveway right behind the building. EH Tr., p. 61-62. Officer Douglas pulled in behind the parked car, stopped, and got out. EH Tr., p. 63.

         Officer Douglas then noticed another car parked in an open bay of the vacant carwash. EH Tr., p. 63-64. Using his flashlight to illuminate the vehicle, Officer Douglas observed Evans standing on the driver's side of the vehicle. Officer Douglas had been proceeding toward the car in front of him when Evans came from behind the driver's side of the vehicle parked in the open bay. EH Tr., p. 64-65. Evans met Officer Douglas ten to fifteen feet before Officer Douglas could get to the parked vehicle in front of him. EH Tr., p. 65.

         With the use of his flashlight, Officer Douglas recognized the subject as Evans. EH Tr., p. 66. Officer Douglas knew Evans from previous arrests and was familiar with his arrest record, which included arrests for violent crimes such as assault and armed criminal action. EH Tr., p. 62, 66-68, 122-124). Officer Douglas and Evans met between the patrol car and the car that Officer Douglas first observed parked on the parking lot. Officer Douglas positioned himself where he could watch both the vehicle parked on the lot and the vehicle that was parked in the open bay until a backup officer arrived. EH Tr., p. 69. Officer Douglas considered himself to be in a dangerous situation. EH Tr., p. 69-70.

         Officer Wesley McDermott arrived a short time later. Officer Douglas then went over to the vehicle that was parked in the open bay to verify that no other individuals were hiding in it. EH Tr., p. 70. From where he stood, Officer Douglas could not tell if there was anyone in the vehicle. EH Tr., p. 70. Officer Douglas proceeded to shine his flashlight into the open bay area where the car was located. As he approached the bay, Officer Douglas stepped to the right side of the parked vehicle and used his flashlight to illuminate the interior. EH Tr., p. 70-71. Officer Douglas observed a large amount of marijuana in the front passenger seat and a silver handgun. EH Tr., p. 70-73. When Officer Douglas saw the items located in the car, he placed Evans under arrest. EH Tr., p. 74. The handgun and marijuana were later seized and placed in evidence at the police station.

         During a search incident to arrest, officers found a digital scale and a set of car keys in Evans' pockets. EH Tr., p. 76. The car keys were later confirmed to operate the vehicle in the carwash bay where the firearm was located in the front seat. EH Tr., p. 82. During the booking procedure at the police station, Evans inquired about the nature of his charges. After being advised he was arrested for being a felon in possession of a firearm, Evans stated: “How are you going to charge me with a gun, it doesn't even work, I just got it yesterday.” EH Tr., p. 83-84.

         During the suppression hearing, the court also heard extensive testimony that the vacant carwash grounds were open for public use and exposed to public view. EH Tr., p. 27-50, 85-95.

         At the conclusion of the hearing, Judge Crites-Leoni took the matter under advisement. After extensive briefing by the parties, Judge Crites-Leoni filed a twenty-two page Report and Recommendation concluding that Evans' Motion to Suppress should be denied. See Doc. 54. Evans subsequently filed objections to the Report and Recommendation, claiming Judge Crites-Leoni erred in denying his motion to suppress. Doc. 55. Evans also renewed his objection to Judge Crites-Leoni's failure to recuse herself. Id. On August 18, 2014, this Court reviewed and overruled defendant's objections to the Report and Recommendation. Doc. 56.

         C. Jury Trial

         Evans elected to proceed to trial on the charge of being a previously convicted felon in possession of a firearm, which took place on December 4, 2014. Following voir dire, the parties were given an opportunity to challenge jurors for cause, at which time Mr. Wilson asked the district court to strike the panel and declare a mistrial because there were no African Americans on the jury panel. Jury Trial Transcript (“JT Tr.”), Doc. 109, p. 87. After hearing arguments from the parties, the district court denied the request.

         The case then proceeded to trial. The government's evidence primarily consisted of the testimony of Officer Douglas and Officer McDermott, who described the events of the night of August 2, 2013 ultimately resulting in the recovery of the firearm from Evans' vehicle. JT Tr., p. 122-216. At the conclusion of the government's case, this Court ensured that Evans understood his rights with respect to the decision whether to testify on his own behalf. The following discussion occurred outside the presence of the jury:

THE COURT: Mr. Evans, I need to ask you a number of questions and advise you of your rights to testify or not to testify. *** Mr. Evans, you have a right to testify in this case, as you know. And if you decide to do that, the Government lawyers will be allowed to cross-examine you. You know that, don't you?
EVANS: Yes, sir.
THE COURT: But the point is you do have the opportunity at this time to testify and tell your side of the story. On the other hand, you have the right not to testify. And if you decided not to testify, the jury will not be allowed to hold it against you ...

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