United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER OVERRULING PETITIONER'S OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
HALIL SULEYMAN OZERDEN, District Judge.
This matter is before the Court on Petitioner Tyronne Wade's Objections  to the Report and Recommendation  of United States Magistrate Judge John M. Roper. After thoroughly reviewing the findings in the Report and Recommendation, the record, the position of Petitioner advanced in his Objections, and relevant law, the Court finds that Petitioner's Objections  should be overruled and that the Magistrate's Report and Recommendation  should be adopted as the finding of the Court, along with the additional findings made herein. Tyronne Wade's 28 U.S.C. § 2254 Petition  for Writ of Habeas Corpus should be denied and this case dismissed with prejudice.
On May 29, 2008, after a bench trial in the Circuit Court of Harrison County, Mississippi, Petitioner was found guilty of possession of more than one kilogram of marijuana with the intent to transfer or distribute. R. [8-4] at 55-59. Petitioner was sentenced to twenty years in the custody of the Mississippi Department of Corrections with ten years to serve followed by ten years of postconviction supervision. Id. at 55-56. Petitioner's conviction was affirmed on direct appeal, and the Mississippi Supreme Court denied two Applications by Petitioner requesting leave to seek postconviction relief in the trial court. R. [8-5] at 2, 29. Now before the Court is Petitioner's 28 U.S.C. § 2254 Petition  for Writ of Habeas Corpus. Petitioner contends that he is in state custody in violation of the Constitution of the United States. Petitioner advances three claims: (1) unreasonable search and seizure in violation of the Fourth Amendment; (2) ineffective assistance of counsel in violation of the Sixth Amendment; and (3) denial of due process in violation of the Fifth and Fourteenth Amendments.
B. Factual Background
On the morning of November 13, 2006, Petitioner was pulled over by a Harrison County, Mississippi, Sheriff's deputy. Wade v. State of Mississippi, 33 So.3d 498, 502 (Miss. Ct. App. 2009). Petitioner was driving a rental car, a Dodge Magnum station wagon, and the car had no mounted license tag. Id. at 500. The deputy who initiated the stop testified that he pulled Petitioner over because the car did not appear to have a license tag. Id. As the deputy approached the car, he observed a paper temporary Alabama license tag displayed behind the car's rear window. Id. The deputy had not seen the tag before because it was obstructed by heavy tint and dirt on the car's rear window. Id.
The deputy asked Petitioner for his driver's license and proof of insurance. Id. Petitioner advised that the rental agreement covered the car's insurance. Id. According to the deputy, Petitioner's hands shook as he retrieved and provided a North Carolina driver's license and the rental car agreement. Id. The deputy asked Petitioner about his travels, and Petitioner indicated that he had just come from Beaumont, Texas, where he had visited his dying uncle. Id.
The deputy detected a strong odor of air freshener coming from Petitioner's car. R. [8-2] at 11. The deputy was suspicious that the air freshener was intended to mask the smell of narcotics. R. [8-2] at 15-17. He saw rosary beads and military dog tags hanging from the car's rearview window and a Bible in the center console. R. [8-2] at 11. The deputy was suspicious that these items were being used as a deception technique to convey the impression that Petitioner was a "good guy." R. [8-2] at 15-17.
The deputy explained to Petitioner that he had been stopped because his tag was obstructed from view, a traffic offense under Mississippi Code Section 27-19-323. R. [8-2] at 11-12; Wade, 33 So.3d at 504. The deputy asked Petitioner to join him in his patrol car while he wrote Petitioner a warning citation for an improperly displayed tag. Id. at 501; R. [8-2] at 11-12. Petitioner and the deputy moved to the patrol car. At some point, the deputy called a dispatcher and requested a driver's license check and criminal history check on Petitioner. Wade, 33 So.3d at 501; R. [8-2] at 12.
While sitting in the patrol car, the deputy engaged Petitioner in conversation. R. [8-2] at 12. He again asked Petitioner about his travels, and Petitioner responded, "where did I tell you I was coming from?" R. [8-2] at 12. The deputy asked Petitioner how his uncle was doing, and Petitioner, who before indicated that his uncle was dying, stated, "Oh, he is fine. I just went out there to visit him." R. [8-2] at 12. The deputy observed that Petitioner's breathing was heavy and that he was fidgeting. R. [8-2] at 12-13. The deputy reviewed Petitioner's rental car agreement, and it revealed that the rental car had been obtained in Harlingen, Texas, a Mexican border town over four hundred miles southwest of Beaumont, where Petitioner represented that he had been. R. [8-2] at 13. When the deputy received the results of Petitioner's criminal background check, they indicated that Petitioner had several prior drug-related arrests, one in Louisiana just six months earlier. R. [8-2] at 14.
The deputy testified:
At that point based on the criminal history, the story, the differences in the story he was telling me where he was coming from and all of this, and the items that I saw displayed in the vehicle, with the air freshener - with the overwhelming odor of air freshener, that's when I asked for consent to search the vehicle by filling out a consent to search form.
R. [8-2] at 14.
Petitioner refused consent. Wade, 33 So.3d at 501. The deputy then radioed for a K-9 unit. Id. Within approximately three minutes, a deputy and drugdetecting dog responded. Id. The K-9 unit arrived approximately seventeen minutes after the traffic stop began. R. [8-2] at 20. Petitioner vocally protested as the dog walked around the rental car, and the dog soon alerted at the right and left rear quarter panels of the rental car. Wade, 33 So.3d at 501. The deputies then searched the rental car and found sixty-six pounds of marijuana in three suitcases, two in the back cargo area and one on the passenger side of the back seat. Id. Petitioner was arrested at the scene. Id. He was indicted and charged with possession of more than one kilogram of marijuana with the intent to transfer or distribute. Id. Petitioner pleaded not guilty. Id. at 501-02.
The criminal case against Petitioner proceeded in the Circuit Court of Harrison County. On March 26, 2008, Petitioner's counsel filed a motion to suppress the evidence seized at the traffic stop and to dismiss the indictment against Petitioner. Id. at 501; R. [8-4] at 34. Petitioner alleged that the traffic stop was unlawful, and that even if the stop was lawful, it became unlawful after the reason for the stop had concluded. R. [8-2] at 56; Wade, 33 So.3d at 501-02. Petitioner contended that he should have been allowed to leave after the deputy issued the warning citation but was instead detained until a drug-detecting dog arrived. R. [8-3] at 32. Petitioner maintained that his detention after the warning citation was issued was an unreasonable detention under the Fourth Amendment, requiring the suppression of the marijuana and other ...