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Lowery v. United States

March 25, 2009

WILLIAM LOWERY, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Tucker, J.

MEMORANDUM AND ORDER

Presently before this Court is Petitioner William Lowery's Habeas Corpus Petition to Vacate/Set Aside/Correct Sentence Pursuant to 28 U.S.C. § 2255, and the Government's Memorandum in Opposition. For the reasons set forth below, this Court will deny Petitioner's Motion.

BACKGROUND

In May of 2004, parole agents and police officers searched the residence of William Lowery, Petitioner. The search uncovered a firearm. At the time of the search, Petitioner was a state parolee with several prior convictions for violent crimes. As a parolee, Petitioner could not lawfully possess a firearm. Furthermore, as a parolee, Petitioner agreed, by signing a consent agreement, that the Pennsylvania Board of Probation and Parole could search and seize items from his person, property, and residence without a warrant.

In September of 2004, a grand jury in the Eastern District of Pennsylvania indicted Petitioner, charging him with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

After the grand jury indicted Petitioner, Assistant Federal Public Defender Edson Bostic ("prior counsel") was appointed to represent him. Then, prior to trial, Petitioner hired Joel Slomsky ("trial counsel") to represent him.

Trial counsel presented several pre-trial motions for the defense, including a motion to suppress the firearm. This court denied the motion to suppress the firearm, but this Court granted other motions, including a motion to exclude evidence of narcotics recovered with the firearm.

Following a two-day trial, on August 18, 2005, a jury found Petitioner guilty of the sole count charged in the indictment.

Trial counsel then presented several post-trial motions, but this Court denied each of the motions. Then, on September 27, 2006, this Court sentenced Petitioner to seventy-two months imprisonment.

After the sentencing, trial counsel litigated an appeal. On appeal, trial counsel attacked the sufficiency of the evidence, the Court's jury instructions, and the Sentencing Guidelines calculation. However, the Third Circuit affirmed Petitioner's conviction on February 20, 2008.

Petitioner filed a pro se motion claiming newly discovered evidence, pursuant to Federal Rule of Criminal Procedure 33. As part of the motion, Petitioner claimed that the prosecution's witnesses engaged in perjury. On June 4, 2008, this Court denied the motion. The Third Circuit affirmed this Court's decision on October 1, 2008.

Finally, Petitioner filed this pro se petition pursuant to 28 U.S.C. § 2255 on July 30, 2008, and filed a pro se motion to amend the petition on January 8, 2009.

LEGAL STANDARD

28 U.S.C.§ 2255 provides that a prisoner in custody under sentence of the Court, who believes that the sentence was imposed in violation of the Constitution or laws of the United States, or believes that the sentence is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence. Relief for a habeas corpus petition is proper where judgment was made without jurisdiction, the sentence was not authorized by law, or the prisoner has suffered an infringement of constitutional rights.

DISCUSSION

Petitioner raises the following claims in his original and amended § 2255 motions: (1) a violation of Fourth Amendment rights; (2) a violation of ex post facto and contracts principles; (3) the admission of perjured testimony; (4) ineffective assistance of counsel; and (5) a Brady violation.

Under 28 U.S.C. § 2255, claims may be barred because they are either substantively or procedurally inadequate. As such, this Court will deny Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, as all of Petitioner's claims are substantively without merit and fail to entitle him to relief.

Claim 1: Violation of Fourth Amendment Rights

Petitioner claims that the search of the residence, specifically the search that led to the discovery and seizure of the unlawful firearm, violated his Fourth Amendment rights. Initially, Petitioner acknowledged that he signed a parole search agreement form prior to his release from prison, allowing parole agents to search his property. Yet, Petitioner claims that the presence and participation of police offers, in addition to the parole agents, made the search and seizure unconstitutional. However, Petitioner's reasoning is incorrect.

The United States Court of Appeals for the Third Circuit has held that no more than a reasonable suspicion is required to justify the search of a parolee. United States v. Williams, 417 F.3d 373, 376 (3d Cir. 2005). When a parolee has signed a consent agreement, like the agreement that Petitioner signed, "the parolee's reasonable expectation of privacy is decreased and the government's reasonable need to monitor behavior is increased. To decide whether reasonable suspicion exists, we consider the totality of the circumstances to determine whether the officer has a particularized and objective basis for suspecting legal wrongdoing." Id. (internal quotations omitted).

This Court twice found the search of the residence and subsequent seizure of the firearm to be constitutional. Under the totality of the circumstances, there was sufficient reasonable suspicion for the search of the premises. The parole officer knew that Petitioner had been arrested for robbery while under the influence of drugs. Then, while on parole, Petitioner admitted that he was having financial problems, submitted stolen urine samples, and was in possession of a large amount of money. ...


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