United States District Court, S.D. Indiana, Terre Haute Division
THOMAS H. HURLOW, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ENTRY DISCUSSING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY
WILLIAM T. LAWRENCE, District Judge.
For the reasons explained in this Entry, the motion of Thomas H. Hurlow for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the court finds that a certificate of appealability should not issue.
I. The § 2255 Motion
A. Background Drug and gun charges against Hurlow in No. 2:09-cr-10-WTL-CMM-01 were resolved through the submission and acceptance of his plea agreement with the United States. In addition, the plea agreement provided that Hurlow waived his right to appeal his conviction and sentence and expressly agreed not to contest, or seek to modify, his sentence or the manner in which it was determined in any collateral attack, including, but not limited to, an action brought under 28 U.S.C. § 2255.
The court accepted Hurlow's plea, finding that it complied with the requisites of Rule 11 of the Federal Rules of Criminal Procedure. In doing so, the court found that Hurlow was entering his plea of guilty knowingly and voluntarily, and understood the consequences of his plea. On September 10, 2010, the court sentenced Hurlow. No direct appeal was filed.
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). Hurlow has filed such a motion on September 9, 2010, asserting that he was denied the effective assistance of counsel in connection with his guilty plea and the failure to file a motion to suppress evidence seized during a search of his residence on December 16, 2008.
The court's first encounter with Hurlow's 28 U.S.C. § 2255 motion resulted in the denial of the motion based on the waiver provision in the plea agreement. The Court's denial of the § 2255 motion was reversed by the Seventh Circuit, and the case was remanded for a hearing on Hurlow's Sixth Amendment claim. See Hurlow v. United States, 726 F.3d 958 (7th Cir. 2013). The premise of the reversal was that "appellate and collateral review waivers cannot be invoked against claims that counsel was ineffective in the negotiation of the plea agreement." Id., 726 F.3d at 964.
Hurlow indeed seeks to overcome the waiver provision in his plea agreement based on ineffective assistance of counsel. He does so, as noted above, by contending that the consent given to police for a search resulted from a coercive police threat and that he objected to the search prior to the consent being given.
B. The Hearing
A hearing was held on April 18, 2014. Hurlow was present with his counsel of record. The Court heard testimony from Hurlow, Hurlow's wife Tina (Funk) Hurlow, Hulow's prior counsel John A. Kesler, II, Detective Paul Hartzler, and former Deputy-Sheriff Jim Palmer. The Court now makes the following findings with respect to the evidence at that hearing: On December 15, 2008, Indiana Child Protective Services ("CPS"), specifically, Jackie Hofmann, received a complaint that Hurlow was dealing methamphetamine from a residence located at 2427 North 27th Street in Terre Haute, Indiana. At the time, Hurlow was residing at that address with his then-girlfriend, Tina Funk, and with certain minors. Hoffmann requested that Detective Paul Hartzler assist her with a welfare check on the home and its residents. Hartzler agreed to the request, and on the afternoon of December 16, 2008, Hoffmann, Hartzler, and then-Deputy Sheriff Jim Palmer went to Hurlow's residence. Hurlow and Funk were co-tenants of that residence.
When Hoffmann, Hartzler and Palmer arrived at the rear of the residence, Hurlow and Funk were in their bedroom at the front of the house. Hurlow's teenage stepson, Dustin Balder, notified Hurlow and Funk that there were police at the back door. Hurlow, not wearing any clothes, got up from the bed, noticed police officers also at the front door, removed some drugs from the pocket of his pants, which were on the floor, then started moving toward the back of the house. Funk had gone to the kitchen where the police had already entered the house.
Hurlow, who was naked, was moving through the small house. Placing the drugs behind his back, he told one of the police officers that he would return to his bedroom to get dressed. Hurlow then hid the drugs in the bedroom of one of the children and went back to his bedroom to put clothes on.
Police then spoke to Funk in the kitchen but kept Hurlow toward the front of the house. The police did not have a warrant to search the house. The police in the kitchen asked Funk to consent to a search. According to the police, she did so without any reservations. Funk, however, told a different story. She testified that the police threatened to remove her children from the home if she did not consent to a search. The Court, however, finds that there were no coercive measures taken or statements made to secure Funk's consent to a search of the residence.
Upon searching the residence, police found the drugs Hurlow had hidden in the child's bedroom. The police also found a gun in the residence. To protect Funk and his stepson, Hurlow admitted to the officers that the narcotics and weapon belonged to him, whereupon he was arrested and taken to the police station. At the police station, Hurlow again confessed to possession of the items which police had seized during the search of the residence. Although Hurlow did not give consent to the search on December 16, ...