United States District Court, N.D. Georgia, Rome Division
FINAL REPORT AND RECOMMENDATION
WALTER E. JOHNSON, Magistrate Judge.
This matter has been submitted to the undersigned Magistrate Judge for consideration of movant pro se Stephen Garrard House's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255  ("Motion to Vacate"), as amended  ("Amended Motion"), the government's Response , and Mr. House's Reply . For the reasons stated below, the undersigned RECOMMENDS that the Motion to Vacate, as amended, be DENIED, and that the Court DECLINE to issue a certificate of appealability.
I. PROCEDURAL HISTORY
A federal grand jury in the Northern District of Georgia returned a twelve-count superseding indictment against Mr. House, charging him in Counts One through Four, Six, Seven, Nine, and Eleven with violating the civil rights of a motorist by stopping and detaining the motorist without lawful authority, in violation of 18 U.S.C. § 242; and in Counts Five, Eight, Ten, and Twelve with making false statements in a matter within the jurisdiction of the Federal Protective Service ("FPS"), Department of Homeland Security, in violation of 18 U.S.C. § 1001. (Superseding Indict. .) Mr. House pleaded not guilty and proceeded to a jury trial in July of 2010 represented by court-appointed counsel Scott Forster. (Plea and Waiver of Appearance at Arraignment [23-1]; Trial Trs. Volumes I-IV [92-95].) The jury found Mr. House guilty on all counts. (Jury Verdict .) The Court imposed eighteen-month concurrent sentences for each count. (J. .)
Represented by new counsel Marcia Shein, Mr. House filed a direct appeal, arguing that: (1) there was insufficient evidence to support his convictions; (2) the trial court improperly interjected itself into the trial; (3) the trial court improperly excluded evidence; (4) the trial court erred in instructing the jury; (5) the government improperly commented on Mr. House's decision not to testify; and (6) the cumulative effect of these errors deprived Mr. House of a fair trial. Br. of Appellant, United States v. House, No. 10-15912, 2011 WL 1977740, at *19-63 (11th Cir. Mar. 22, 2011). The United States Court of Appeals for the Eleventh Circuit found that the Court had "erred in instructing the jury that a traffic stop is unreasonable under the Fourth Amendment whenever conducted by a law enforcement officer acting without jurisdiction or authority, " but concluded that this error was harmless as to Counts Four, Seven, Nine, and Eleven "because the jury discredited House's accounts of probable cause or reasonable suspicion when it convicted him [on Counts Five, Eight, Ten, and Twelve] of making false statements in four incident reports." United States v. House , 684 F.3d 1173, 1184, 1211 (11th Cir. 2012), cert. denied, 133 S.Ct. 1633 (2013). Accordingly, the Eleventh Circuit vacated Mr. House's convictions on Counts One, Two, Three, and Six and affirmed his convictions on the remaining counts. Id.
The Eleventh Circuit summarized the facts relevant to Counts Four and Five and Seven through Twelve as follows:
Beginning in 1999, Stephen G. House worked for the Federal Protective Service as a law enforcement officer and inspector. The Federal Protective Service is a law enforcement agency with jurisdiction over properties owned and operated by the General Services Administration. As a Federal Protective Service officer, House wore a uniform with a badge, patches on the uniform identifying him as a federal law enforcement officer, a name tag, and a utility belt in which he carried a handgun, a radio, and handcuffs. He also operated a motor vehicle with Federal Protective Service markings, sirens, emergency lights on the roof and in the grille, and a phone number listed on the rear.
In 2010, a federal grand jury returned a superseding indictment that charged House... [as follows.]... Count four charged an unlawful traffic stop of Anthony Rivas on July 25, 2007. Count five charged submission of an incident report containing materially false statements regarding the stop of Rivas.... Count seven charged an unlawful traffic stop of Davis Wibel on December 3, 2008. Count eight charged submission of an incident report containing materially false statements regarding the stop of Wibel. Count nine charged an unlawful attempted traffic stop of Daniel McFarland on January 9, 2009. Count ten charged submission of an incident report containing materially false statements regarding the stop of McFarland. Count eleven charged an unlawful traffic stop of Reginald Thompson on April 15, 2009. Count twelve charged submission of an incident report containing materially false statements regarding the stop of Thompson.
At trial, the government presented testimony from several current and former officers of the Federal Protective Service about the limitations imposed upon their authority by agency policy and about House's history of violating that policy. The officers testified that agency policy prohibited officers from conducting traffic stops for minor traffic violations outside of federal property in the State of Georgia. Agency policy likewise prohibited officers from activating the emergency lights on their vehicles outside of federal property, except in response to a life-threatening emergency, while in hot pursuit of a felon, or with prior approval from a Federal Protective Service Mega Center Operator or a supervisor.
Agency policy required officers who conducted a traffic stop or activated the emergency lights on their vehicles to submit an incident report on a numbered agency form, General Services Administration Form 3155. Dewayne Andrews, a Regional Director, testified that it was important for officers to be truthful in the reports, both because the Federal Protective Service used the reports in determining whether an officer's use of his emergency lights was permissible and because other law enforcement agencies used the reports in criminal prosecutions. Russell Dingman, a Senior Instructor and Program Manager at the Federal Law Enforcement Training Center, also testified that it was important that a report include truthful information regarding "all of the facts of the case, the who, what, when, where, and how of the case." Dingman explained that other agencies used the reports in deciding whether to initiate criminal prosecutions, and he testified that false statements in a report could ruin any case an agency attempted to pursue based upon events described in that report.
Three officers also testified that House had been reprimanded about violating agency policy regarding traffic stops on several occasions during his career with the Federal Protective Service. Andrews; John Curtis Glynn, Jr., a former District Director; and Shirley Reed, a Risk Management Branch Chief, each testified about personally explaining to House that his authority did not encompass stopping motorists for minor traffic violations outside federal property. Glynn testified that he had prepared a written reprimand of House for conducting a traffic stop without authority, but that he had not delivered the reprimand after meeting with House and warning him about agency policy regarding traffic stops. Glynn explained that his main concern had been that House understood the policy and recognized that violating that policy "could lead to a more severe action by [the Federal Protective Service]." Reed testified that, after she had received a report that House had conducted a traffic stop without authority, she spoke with House to ensure that he understood agency policy regarding traffic stops. Andrews testified that he received notice of an internal agency investigation of House premised upon allegations that House had conducted traffic stops without authority, and that House's right to drive his law enforcement vehicle home from work was temporarily suspended because of that investigation. Andrews stated that he had personally told House that "he had to stop" conducting traffic stops for minor traffic violations outside federal property and that he had specifically instructed House that, even in situations where House believed he was the target of road rage by other drivers, agency policy required him to allow local authorities to resolve the matter.
Lee Anthony Rivas testified that, on July 27, 2007, he was driving no more than 15 to 20 miles per hour in the lane immediately adjacent to the far left lane on Interstate 75 during heavy rush hour traffic. In anticipation of merging into the left lane, Rivas activated his turn signal and checked for traffic in his rearview and side mirrors; he noticed House in the left lane driving a black, unmarked vehicle, positioned far enough behind Rivas's vehicle that Rivas believed he could safely merge in front of House. Rivas merged into the left lane in front of House, at which point House accelerated toward Rivas's vehicle and then abruptly applied his brakes, flashed his headlights, and honked his horn. House then merged onto the left shoulder of the road, pulled up beside Rivas, rolled down his window, and accused Rivas of cutting him off. After Rivas denied House's accusation, House told Rivas to pull over, and House activated his emergency lights. Rivas pulled into the left lane behind House. Rivas was certain that he had not violated any traffic laws, but the fact that House had emergency lights on his vehicle led Rivas to believe he was legally obligated to stop.
After Rivas pulled over, House approached Rivas's car in uniform, his demeanor suggesting that he "wanted to punch [Rivas] in the face, " and told Rivas in a "very scary voice" that he was a federal agent and that he "was going to get [Rivas] for destruction of government property." Rivas testified that he never came close to striking House's vehicle with his own. Rivas called 911, and the operator told him that House had called local law enforcement officers. Rivas did not believe that he was free to leave. When the local law enforcement officers arrived, they told Rivas he was free to go; they neither arrested Rivas nor issued him a citation. Rivas had waited on the side of the road for 45 minutes.
During his direct examination of Rivas, the prosecutor submitted into evidence the incident report House had filed regarding House's encounter with Rivas. House stated in the report that Rivas had merged into the far left lane of Interstate 75 in front of House's vehicle and had "jammed on his brakes"; that Rivas had spun sideways in front of House and forced House to "brake  hard" and to veer into the emergency lane to avoid striking Rivas's vehicle; that House had activated his blue lights to prevent other traffic from striking him, at which point Rivas had pulled into the emergency lane; that House had remained on the highway, rolled down his window, and advised Rivas to drive more carefully; that Rivas had "continued driving in the emergency lane" and had swerved toward House's government vehicle twice, nearly striking the government vehicle; and that House had then activated his blue lights, pulled over, approached Rivas's vehicle and told Rivas that he had called local law enforcement. The prosecutor gave Rivas a copy of the report to reference while the prosecutor questioned him.
Rivas testified that House's report was false. Rivas testified that he had not "jam[med] on his brakes" immediately after moving into the left lane in front of House; that he had not lost control of his car or spun sideways in front of House; that his vehicle was never sideways in the lane; that he had pulled into the emergency lane only after House activated his blue lights to "pull [him] over"; that House had not remained on the highway after he activated his blue lights; and that he had not driven in the emergency lane, swerved toward House's vehicle, or nearly struck House's vehicle.
Davis Wibel testified that he turned left into the left lane of a four lane road around 5:30 a.m. on December 3, 2008. There was no traffic on the road when Wibel made the turn. As Wibel was accelerating up to the speed limit, House appeared behind him in a government vehicle and began "tailgating" his vehicle, although there was no traffic in the right lane. Wibel moved into the right lane to allow House to pass him, but House did not pass him. As the two vehicles traveled down the road, House retreated two to three car lengths behind Wibel, at which point Wibel merged into the left lane to pass a vehicle traveling in the right lane. House then sped up and "got in behind" Wibel, "right on [Wibel's] bumper." Wibel merged back into the right lane, but again House did not pass him. To avoid trouble, Wibel reduced his speed, and House then passed him. When House was two to three car lengths in front of Wibel, Wibel merged back into the left lane. House then slammed his brakes, forcing Wibel to merge back into the right lane to avoid hitting House's vehicle. Wibel had not followed House too closely or driven aggressively, and there was no other traffic on the road and no apparent reason for House to have applied his brakes. Wibel took House's conduct as "an act toward [him]"; he was scared and sped up in an attempt to "put distance between" himself and House, but he never got so far ahead of House that he lost sight of House behind him.
A short time later, a local law enforcement officer activated his emergency lights to stop Wibel, at which point House activated his emergency lights, and Wibel, the local officer, and House all stopped their vehicles on the side of the road. Wibel had not violated any traffic laws and was not driving aggressively. On direct examination, Wibel testified that he believed he was obligated to stop his vehicle because two law enforcement officers were pulling him over, but on cross examination, he testified that it was the local officer, not House, who caused him to stop. The local officer questioned House and Wibel, and Wibel testified that House gave the local officer a false account of the events that had transpired between them. The local officer arrested Wibel and charged him with aggressive driving. Wibel was released from jail several hours later. He pleaded nolo contendere to the aggressive driving charge because he was told it would cost more money to dispute it. John Beal, the local law enforcement officer who arrested Wibel, testified that House had been "insistent upon having [Wibel] arrested" and that House had led Beal to believe that House was a certified peace officer in the State of Georgia. In fact, although House had been certified as a peace officer in 1984, his certification was revoked in 1992 and was never renewed.
During his direct examination of Wibel, the prosecutor submitted into evidence the incident report House had filed regarding House's encounter with Wibel. House stated in the report that Wibel had accelerated to prevent House from passing him; that Wibel had driven so fast that House had lost sight of Wibel's vehicle; that, after his vehicle had retreated behind House's vehicle, Wibel had approached House's vehicle from the rear so quickly that House had "expected impact"; and that Wibel had passed House in the right lane and then cut back in front of House in the left lane, narrowly missing the bumper of House's vehicle. The prosecutor gave Wibel a copy of the report to reference while the prosecutor questioned him.
Wibel testified that House's report was false. Wibel testified that he had not accelerated to prevent House from passing him; that he had not driven out of sight of House's vehicle, that the only reason he had "c[o]me up on the rear of [House's] vehicle" was because House had hit the brakes, and that he had not cut in front of House's vehicle so that he narrowly missed the bumper of the vehicle. Wibel also testified that House had not disclosed in his report that Wibel had changed lanes to allow House to pass him, that House had tailgated Wibel, or that House had slammed his brakes after Wibel had merged into the left lane behind House.
Daniel McFarland, a police officer with the City of Atlanta Police Department, testified that he was driving faster than the speed limit on Interstate 75 around 6:15 a.m. on January 9, 2009, when he noticed House driving a law enforcement vehicle in the adjacent lane. McFarland was in his personal vehicle and was not in uniform. McFarland decreased his speed when he saw House's vehicle so that the two vehicles were traveling the same speed, with McFarland's vehicle roughly a car length behind House's vehicle. House then slowed until his vehicle was parallel with McFarland's vehicle, then slowed again and merged behind McFarland, then merged into the lane to the right of McFarland and accelerated until his vehicle was parallel with McFarland's vehicle, then accelerated again and merged in front of McFarland. House then decreased his speed to 35 or 40 miles an hour, even though the speed limit was 50 miles per hour and there was no traffic on the Interstate at the time. McFarland drove behind House for roughly a mile and then changed lanes, accelerated up to the speed limit, and passed House.
House then activated his emergency lights, and McFarland believed he was legally obligated to pull over. McFarland began to pull over to the right, and House followed him. As McFarland was slowing his vehicle to a stop on the right shoulder of the road, House turned off his emergency lights and continued driving. McFarland pulled back onto the interstate behind House. When McFarland caught up to House, House slammed his brakes for no apparent reason, forcing McFarland to slam his own brakes to avoid running into House's vehicle. McFarland then accelerated until he was parallel with House and motioned for House to pull over; McFarland wanted to ask House about the reasons for House's actions. Both drivers pulled off of the ...