United States District Court, D. Connecticut
RULING AND ORDER
N. Chatigny United States District Judge.
Raouf, a federal inmate, brings this action pursuant to 28
U.S.C. § 2255 challenging his conviction and sentence.
In the underlying criminal case, he pleaded guilty to count
two of the indictment, charging him with attempt to
distribute, and possess with intent to distribute, one
kilogram or more of heroin, and was sentenced to a mandatory
minimum term of 120 months' imprisonment. See United
States v. Raouf, No. 3:12-cr-177 (RNC). He asserts two
claims: (1) the government used a Global Positioning System
(GPS) device to track his vehicle's location in violation
of the Fourth Amendment; and (2) his counsel failed to move
to suppress evidence obtained as a result of the allegedly
unlawful use of the GPS device in violation of the Sixth
Amendment. The first claim is precluded by Raouf's
unconditional guilty plea, as the Court of Appeals held on
direct appeal. See United States v. Compres, 614
Fed.Appx. 36, 38 (2d Cir. 2015). To prevail on the second
claim, Raouf must satisfy the two-prong test of
Strickland v. Washington, 466 U.S. 668, 694 (1984),
which requires him to show that (1) his counsel's failure
to file a suppression motion was objectively unreasonable and
(2) his counsel's deficient performance prejudiced him,
resulting in an unreliable or fundamentally unfair outcome.
See id. at 687, 691-92; Kovacs v. United
States, 744 F.3d 44, 52 (2d Cir. 2014). Because neither
showing has been made, the petition must be dismissed.
Drug Enforcement Administration (DEA) used a GPS device to
track Raouf's vehicle from May 25 until June 17, 2012,
pursuant to a warrant issued by a magistrate judge. On June
18, 2012, Raouf met with an undercover agent who was posing
as a large scale heroin trafficker. During this meeting,
which was recorded, Raouf committed to buying a total of six
kilograms of heroin. On July 31, 2012, after a series of
telephone calls between Raouf and the undercover agent, Raouf
and two associates met the agent to conduct an initial
three-kilogram heroin transaction. Raouf was arrested as he
tried to complete the transaction using $120, 000 in cash he
had concealed in his girlfriend's car.
one year later, Raouf pleaded guilty to attempting to
distribute, and possess with intent to distribute, one
kilogram or more heroin, in violation of 21 U.S.C.
§§ 846, 841(a)(1) and 841(b)(1)(A)(I). In his plea
agreement, he waived his right to appeal or collaterally
attack his conviction. After the mandatory minimum penalty of
120 months in prison was imposed, he appealed on the ground
that the sentence was substantively unreasonable. The Court
of Appeals rejected that argument. In a pro se supplemental
brief, he argued that his conviction was invalid because it
was obtained with evidence procured in violation of the
Fourth Amendment. As mentioned above, the Court of Appeals
determined that this argument had been waived.
Raouf's Fourth Amendment claim has been waived, his Sixth
Amendment claim is cognizable under § 2255. When a
habeas petitioner asserts that he received ineffective
assistance of counsel in pleading guilty unconditionally, the
issue is whether the guilty plea was made intelligently and
voluntarily with the advice of competent counsel. United
States v. Coffin, 7676 F.3d 494, 497-98 (2d Cir. 1996).
“The two-part standard set forth in Strickland
. . . for evaluating ineffective assistance of counsel claims
applies in the context of guilty pleas.” Id.
at 498. Raouf must first show that his lawyer's
“representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at
687-88. He must also show that “there is a reasonable
probability that, but for [his] counsel's errors, [he]
would not have pleaded guilty and would have insisted on
going to trial, ” Hill v. Lockhart, 474 U.S.
52, 59 (1985), or could have negotiated a more favorable
plea. Kovacs, 744 F.3d at 52-53.
regard to the first prong of Strickland, Raouf
argues that his lawyer should have moved to suppress the
heroin and cash as fruit of an unlawful search conducted by
means of the GPS tracking device. He states that his lawyer
told him there was no basis for such a motion, even though
the lawyer believed, erroneously as it turned out, that no
warrant had been obtained. Raouf argues that it was
objectively unreasonable for his lawyer to fail to file a
motion to suppress, despite the issuance of the warrant,
because there were problems with the manner in which the
warrant was obtained and executed. Had the problems with the
warrant for the GPS tracking device been brought to the
attention of the Court, Raouf argues, the heroin and cash
likely would have been suppressed as fruit of the poisonous
tree because the GPS data enabled the government to
orchestrate the initial meeting between Raouf and the
undercover agent, which led to Raouf's eventual arrest.
Raouf's factual allegations are true, his lawyer's
failure to file a suppression motion was not objectively
unreasonable as required by the first prong of
Strickland. None of the problems Raouf identifies
with regard to the way the warrant was obtained and executed
would have provided a basis for suppression.
regard to the manner in which the warrant was executed, Raouf
asserts that the GPS device was used to track his vehicle for
more than 45 days without authorization by the magistrate
judge in violation of Fed. R. Crim. P. 41(e)(2)(C), which
governs a warrant for a tracking device. A violation of Rule
41 does not support exclusion of evidence unless the
defendant shows that the search might not have occurred had
the rule been followed or the record reflects an intentional
violation of the rule. United States v. Burke, 517
F.2d 377, 386-87 (2d Cir. 1975).
Raouf cannot show prejudice from the alleged violation of
Rule 41(e)(2)(C) because his initial meeting with the
undercover agent occurred on June 18, before the 45-day limit
expired. Moreover, the record does not reflect a deliberate
violation. To the contrary, the executing officer certified
that the device was used only from May 25 until June 17.
See ECF No. 8-1 at 4 (warrant). The record provides
no basis to doubt the validity of the certification.
regard to the manner in which the warrant was obtained, Raouf
argues that the affidavit used to obtain the warrant failed
to establish probable cause. In assessing the sufficiency of
the affidavit, the magistrate judge was required to consider
its contents in a common sense manner. See Illinois v.
Gates, 462 U.S. 213, 238 (1983). A magistrate
judge's decision to issue a warrant is given great
deference and will be sustained if the magistrate had a
“substantial basis” for concluding that probable
cause existed for the search. Id. at 238-39.
substantial basis test is satisfied here. The affidavit
presented to the magistrate judge relied on detailed
information provided by three informants concerning
Raouf's heroin-trafficking activities. See ECF
No. 8-1 at 6-7 (warrant affidavit). Much of the information
was corroborated, including by physical surveillance.
Id. In addition, the affidavit contained information
from a cooperating source showing that Raouf had conducted a
heroin transaction out of his car. Id. at 7-9. More
is not required to establish probable cause. See United
States v. Rijo, 502 Fed.Appx. 103, 105 (2d Cir. 2012)
(detailed information from confidential informant, who had
previously been reliable, provided probable cause when
information was corroborated in part by surveillance);
United States v. Singh, 390 F.3d 168, 182 (2d Cir.
2004)(nexus between alleged criminal activities and place to
be searched was supported by reasonable
assuming Raouf could show that it was objectively
unreasonable for his lawyer to fail to file a motion to
suppress, he cannot show prejudice as required by the second
prong of Strickland. A motion to suppress the heroin
and cash on the basis that probable cause was lacking would
have foundered on the good faith exception to the
exclusionary rule. See United States v. Leon, 468
U.S. 897, 905 (1984). This exception applies when officers
reasonably rely on a magistrate judge's determination
that a search ...