United States District Court, District of Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Mark A. Skoda (Skoda) filed a timely motion under 28 U.S.C. § 2255. I have conducted an initial review of the motion. It plainly appears from the motion, any attached exhibits, and the record of prior proceedings that he is not entitled to relief.
After a jury trial, Skoda was convicted of conspiring to manufacture 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. The evidence was overwhelming against Skoda. I sentenced him to 292 months in prison. United States v. Skoda, 705 F.3d 834 (8th Cir. 2013) (affirming conviction and sentence and holding that: (1) the defendant had no legitimate expectation of privacy in property owned by his father and in remote location; (2) officers had probable cause to search defendant’s vehicle; and (3) evidence was sufficient to support conviction).
Initially, Skoda was represented by John Vanderslice, a very experienced and zealous Assistant Federal Public Defender. Vanderslice withdrew upon learning of a conflict. Stuart J. Dornan was then appointed under the Criminal Justice Act. Like Vanderslice, Dornan is one of the most experienced criminal defense lawyers in the State of Nebraska, and he too is zealous. Skoda’s complaints deal with Dornan.
The primary, but not the only, issue raised by Skoda’s section 2255 motion relates to a suppression motion. Magistrate Judge Zwart conducted an evidentiary hearing on Skoda’s motion to suppress. I independently reviewed her findings of fact at the time, and I have again reviewed them in light of Skoda’s section 2255 motion. Her findings of fact are correct in every material respect. Nothing Skoda has alleged or attached as exhibits to his motion materially rebut or contradict the judge’s factual findings. The judge found the following:
Deputy Sheriff Guthard is a patrol officer for the Lancaster County Sheriff’s Department. He has both training and experience in recognizing the components of a methamphetamine laboratory, and has a basic knowledge of how those components are used to manufacture methamphetamine.
During the early morning hours of February 22, 2011, Deputy Sheriff Guthard was performing his patrol duties east of Lincoln, Nebraska. O Street is an east/west road. In the area of 139th and O Street, there is a northbound driveway or access road off of O Street which leads to a commercial use area and one residence; the commercial area to the west of the access road/driveway and the residence straight ahead and in the northeastern corner of the developed area at the site.
The developed area includes strip mall (which includes a bar) fronting O Street, a storage unit facility behind the strip mall, and the residential area (which has a circular drive and includes a house, a metal Morton Building, and a lean-to pole shed).
Until about the first week of February, 2011, Deputy Sheriff Guthard’s typical rounds through the 139th and O site included driving past the bar area, then circling through the roadways of the storage unit area. Upon completing his strip mall and storage unit rounds, he would return to the access road/driveway, turn right, and return to O Street.
During his rounds through the storage unit area in late January, 2011, Deputy Sheriff Guthard saw a red van parked in front of storage unit four at about 2:00 a.m. The officer noticed an extension cord was being used to run electric power from outside the storage unit building to storage unit four. It was a very cold night. The officer knocked on the door of storage unit four, and Steven Bargen responded by opening the door. The storage unit was full of equipment, and the power cord was plugged into an electric heater which was heating a small living area within the unit. The officer asked if he could check serial numbers on some of the equipment within the unit. Bargen became hostile and told the officer to leave. The officer left.
Between Deputy Sheriff Guthard’s late January encounter and February 22, 2011, other officers conducting rounds through the storage unit area also observed the red van in front of storage unit four. One officer noticed the van was equipped with a camera that would permit Bargen to see who was approaching the storage unit. Bargen was unwilling to open the storage unit door or speak with the officers when contacted by law enforcement during the first three weeks of February.
About a week and a half before February 22, 2011, Deputy Sheriff Guthard noticed several trucks pulled up to the back of the house at the 139th and O site, and he saw people loading furniture and household goods into the trucks. During his rounds following these events, the officer noted the house appeared completely dark, and there were no longer vehicles parked in front of the home. Based on these observations, the officer concluded the residents of the property had moved and the home was now vacant. He therefore extended his normal rounds through the 139th and O site to include driving north on the access road/driveway, around the circle drive in front of the residence, and then exiting the area by returning to O Street.
At approximately 1:45 a.m. on February 22, 2011, Deputy Sheriff Guthard drove his cruiser throughout strip mall/storage unit area of the 139th and O site, and upon returning to the access road/driveway, turned left to check the vacant residential area. While circling through, he saw a red van at the bottom of a hill and adjacent to the pole shed. He drove toward the vehicle to investigate and called dispatch to report his activity.
As he drove toward vehicle, Deputy Sheriff Guthard recognized the vehicle. It was Steve Bargen’s red van and it was running. The red van was parked directly behind a blue vehicle and ...