Jose Antonio Caban v. United States

1 The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
2 The Honorable Warren K. Urbom, United States District Judge for the
District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1844
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Edward Mullis, *
*
Petitioner-Appellant *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
Roger Anderson, Superintendent, *
Hastings Correctional Center * [UNPUBLISHED]
*
Respondent-Appellee *
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Submitted: November 16, 2001
Filed: February 4, 2002
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Before BYE and BEAM, Circuit Judges, and GOLDBERG, 1 Judge.
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PER CURIAM.
Petitioner-appellant, Edward Mullis, appeals the district court’s 2 denial of his
petition for habeas corpus. On August 31, 1996, Deputy Jimmy R. James of the
Merrick County Sheriff’s Office, responding to a complaint of a “suspicious blue

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van” parked in a field, approached a vehicle fitting this description parked at the Ace
Motel. James discovered Mullis sitting inside the van and began to question him
about his recent whereabouts. During the questioning, James noticed a strong smell
of marijuana coming from Mullis, and asked Mullis if he had been smoking any
illegal drugs. Mullis responded in the affirmative and handed James a marijuana
joint. When a second officer arrived on the scene, Mullis indicated that there was
more marijuana in his motel room. The officers requested permission to enter the
room and Mullis consented, advising the officers where the marijuana could be found.
The officers’ search yielded, inter alia, several marijuana plants and property fitting
the description of items reported missing after a recent burglary in the area.
As a result of the search, Mullis was charged in Nebraska state court with five
felonies. When the parties appeared for a scheduled hearing on Mullis’s motion to
suppress the evidence obtained in the search, Mullis’s attorney informed the court that
Mullis had agreed to plead guilty to two reduced charges, attempted marijuana
harvesting and attempted burglary, in exchange for the State’s dismissal of the three
remaining charges. The court advised Mullis of the rights he would be waiving by
pleading guilty, including the right to have a hearing on whether the seizure of his
property inside the motel room was lawful. The court determined that Mullis waived
his rights freely, voluntarily, knowingly, and intelligently. Mullis was later sentenced
to two consecutive terms of three to five years in prison pursuant to his guilty plea.
Although Mullis did not directly appeal his conviction or sentence, he did raise
a post-conviction motion for ineffective assistance of counsel. After the Nebraska
Supreme Court affirmed the lower court’s denial of the motion, Mullis filed a petition
for writ of habeas corpus in federal district court. Mullis claimed that his counsel was
ineffective because his counsel did not pursue a suppression hearing, and that had
such a hearing occurred, Mullis would have prevailed on a number of Fourth
Amendment claims.

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The magistrate judge reviewed Mullis’s claims and recommended that his
petition be denied. The district court judge adopted the magistrate judge’s report and
recommendation, denied the petition, and entered judgment in favor of the
respondent-appellee.
The district court and magistrate judge made careful and complete findings of
fact. Having carefully reviewed the record and the applicable legal principles, we
find no error in the district court’s disposition of this matter. Accordingly, we affirm
the judgment of the district court. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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