                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 13a0202p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                 X
                                                  -
 RONNIE TRAVIS RAY,
                                                  -
                              Petitioner-Appellant,
                                                  -
                                                  -
                                                      No. 11-6436
           v.
                                                  ,
                                                   >
                                                  -
                         Respondent-Appellee. -
 UNITED STATES OF AMERICA,
                                                 N
                    Appeal from the United States District Court
                 for the Western District of Tennessee at Memphis.
  Nos. 2:04-cr-20019-1; 2:09-cv-2326—Jon Phipps McCalla, Chief District Judge.
                            Decided and Filed: August 1, 2013
  Before: BATCHELDER, Chief Judge; COOK and O’MALLEY, Circuit Judges.*

                                      _________________

                                           COUNSEL
ON BRIEF: C. Mark Pickrell, THE PICKRELL LAW GROUP, P.C., Nashville,
Tennessee, for Appellant. Dan L. Newsom, UNITED STATES ATTORNEY’S
OFFICE, Memphis, Tennessee, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        O’MALLEY, Circuit Judge. Petitioner-Appellant Ronnie Travis Ray (“Ray”),
through counsel, appeals from the district court’s order denying his motion to vacate his
sentence filed pursuant to 28 U.S.C. § 2255. Although Ray requested oral argument, this
panel unanimously agrees that argument is not necessary in this case. Fed. R. App. P.
34(a). Because the district court properly dismissed Ray’s Fourth and Sixth Amendment



        *
         The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of Appeals for
the Federal Circuit, sitting by designation.


                                                 1
No. 11-6436           Ray v. United States                                                      Page 2


claims, and did not abuse its discretion in entering judgment without an evidentiary
hearing, we AFFIRM.

                                         I. BACKGROUND

         In January 2004, Ray was indicted on five counts of conduct involving child
pornography in violation of 18 U.S.C. §§ 2251(a), 2252(a)(1), and 2252(a)(4)(B). A jury
convicted Ray on all counts on October 14, 2004, and he was sentenced to concurrent
prison terms of 180 months on Count 1, 300 months on Count 2, and 600 months on
Counts 3, 4, and 5. On appeal, this Court affirmed the convictions on all five counts, but
vacated the sentence and remanded, finding that the district court failed to explain
adequately its upward departure from the recommended sentencing guideline range.
United States v. Ray, 189 F. App’x 436, 449-50 (6th Cir. 2006). In that decision, we
noted that the evidence of Ray’s guilt was “overwhelming.” Id. at 444 (“Here, there was
overwhelming evidence that Ray induced minors into engaging in sexually explicit
conduct, that he took photographs of the minors in question, and that he transported
those photographs across state lines via e-mail.”). On remand, Ray was sentenced to
concurrent terms of 180 months on Count 1, 300 months on Count 2, and 360 months
on Counts 3, 4, and 5. This Court affirmed that sentence. United States v. Ray, No. 07-
5673 (6th Cir. June 6, 2008).

         In his pro se motion to vacate his sentence, Ray argued, among other things, that:
(1) there was an illegal search and seizure in violation of the Fourth Amendment; and
(2) trial counsel rendered ineffective assistance in violation of the Sixth Amendment.1
In his Fourth Amendment claim—which was raised for the first time in his § 2255
motion—Ray asserts that the person who consented to the search of his home, Deborah
Moore, lacked authority to do so.

         The district court denied Ray’s § 2255 motion on November 2, 2011 without a
hearing, finding no grounds upon which to grant him a certificate of appealability. In


         1
          Ray also argued that: (1) witnesses at trial committed perjury; and (2) the government engaged
in prosecutorial misconduct. Neither claim is raised in this appeal.
No. 11-6436         Ray v. United States                                             Page 3


relevant part, the district court found that: (1) Fourth Amendment issues ordinarily are
not cognizable in a § 2255 motion; (2) the evidence adduced at trial revealed that Moore
had, at a minimum, apparent authority to consent to the search; and (3) Ray failed to
show that his counsel was ineffective. On October 11, 2012, this Court granted Ray a
certificate of appealability on all issues presented in Ray’s motion to vacate and
appointed counsel to represent him.

                                     II. DISCUSSION

        On appeal, Ray identifies three issues for review: (1) whether the district court
erred by failing to grant an evidentiary hearing on the Fourth and Sixth Amendment
issues raised in his § 2255 petition; (2) whether the search of his home was “objectively
unreasonable” under the Fourth Amendment; and (3) whether defense counsel was
ineffective. Although he identifies three issues, Ray’s argument focuses solely on the
question of whether the district court abused its discretion in dismissing his § 2255
motion without conducting an evidentiary hearing. According to Ray, a hearing is
necessary to determine: (1) whether Moore had authority to consent to the search of his
home; and (2) whether defense counsel should have moved to suppress the evidence
gathered during the searches of his home.

        We review the district court’s denial of an evidentiary hearing for an abuse of
discretion. Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007). “A district
court abuses its discretion when it relies on clearly erroneous findings of fact, when it
improperly applies the law, or when it uses an erroneous legal standard.” Kuhn v. Sulzer
Orthopedics, Inc., 498 F.3d 365, 368-69 (6th Cir. 2007).

        When a factual dispute arises in a § 2255 proceeding, an evidentiary hearing is
required “‘to determine the truth of the petitioner’s claims.’” Valentine, 488 F.3d at 333
(quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). A hearing is not
necessary, however, when a petitioner’s claims “‘cannot be accepted as true because
they are contradicted by the record, inherently incredible, or [are] conclusions rather than
statements of fact.’” Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th
Cir. 1999)). Where, as here, the judge considering the § 2255 motion also presided over
No. 11-6436        Ray v. United States                                              Page 4


the trial, the judge may rely on her recollections of the trial. Blanton v. United States,
94 F.3d 227, 235 (6th Cir. 1996).

       It is well-established that a § 2255 motion “is not a substitute for a direct appeal.”
Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v.
Frady, 456 U.S. 152, 167-68 (1982)). Accordingly, claims that could have been raised
on direct appeal, but were not, will not be entertained via a motion under § 2255 unless
the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the
claims previously; or (2) that he is “actually innocent” of the crime. Bousley v. United
States, 523 U.S. 614, 622 (1998) (internal citations omitted). On appeal, Ray does not
assert that he is actually innocent of the crimes for which he was convicted, but argues
that his counsel’s ineffectiveness excuses his failure to assert his Fourth Amendment
claim before these proceedings.

       In rejecting Ray’s Fourth Amendment claim, the district court cited Stone v.
Powell, 428 U.S. 465 (1976) for the proposition that Fourth Amendment issues are
typically not cognizable under § 2255 because they can be raised at trial and on direct
appeal. Some courts have found that Stone—which dealt with the ability of state
prisoners to raise Fourth Amendment issues in § 2254 habeas proceedings—does not
apply to § 2255 proceedings. See Baranski v. United States, 515 F.3d 857, 860 (8th Cir.
2008) (“We conclude that Stone does not bar our consideration of the issue certified by
the district court, that is whether Groh v. Ramirez would entitle Baranski to prevail on
his § 2255 motion.”). Other courts have found that it does. See Brock v. United States,
573 F.3d 497, 500 (7th Cir. 2009) (“This Court has determined that the principles of
Stone apply equally to § 2255 motions.”); United States v. Cook, 997 F.2d 1312, 1317
(10th Cir. 1993) (“Today, we join the Ninth Circuit and hold that Fourth Amendment
violations are not reviewable in a 2255 motion when the federal prisoner has had a full
and fair opportunity to litigate the Fourth Amendment claim at trial and present issues
on direct appeal.”).

       In two unpublished decisions, this Court has found that Stone applies when
federal prisoners seek to raise Fourth Amendment claims by way of motions filed under
No. 11-6436        Ray v. United States                                            Page 5


§ 2255. See Boone v. United States, No. 96-1398, 1996 U.S. App. LEXIS 28325, at *7
(6th Cir. Oct. 29, 1996) (citing Stone and concluding that “Boone’s Fourth Amendment
claim is not cognizable on collateral review”); Richardson v. United States, No. 93-6193,
1994 U.S. App. LEXIS 11560, at *4 (6th Cir. May 16, 1994) (“Richardson may not
challenge the search warrant in a § 2255 motion because such a challenge could have
been addressed in a direct appeal.”). We agree.

       As the Supreme Court has explained, the Fourth Amendment exclusionary rule
“is a judicially created remedy rather than a personal constitutional right” whose purpose
is “to safeguard Fourth Amendment rights generally through its deterrent effect.”
Kimmelman v. Morrison, 477 U.S. 365, 376 (1986) (citations and quotations omitted).
It is, thus, a structural remedy designed to exclude evidence so as to deter police
misconduct, not to “redress the injury to the privacy of the victim of the search or
seizure.” Stone, 428 U.S. at 486 (citation omitted). Given its character, the Supreme
Court has concluded that consideration of the exclusionary rule has “minimal utility . . .
when sought to be applied to Fourth Amendment claims in a habeas corpus proceeding.”
Id. at 495 n.37. For these reasons, the Court in Stone concluded “that a federal court
need not apply the exclusionary rule on habeas review of a Fourth Amendment claim
absent a showing that the state prisoner was denied an opportunity for a full and fair
litigation of that claim at trial and on direct review.” Id. We see no reasoned basis to
distinguish between § 2254 and § 2255 when applying the Supreme Court’s holding in
Stone. Accordingly, Ray’s Fourth Amendment claim was properly denied under Stone
because he had an opportunity for full and fair litigation of this claim at trial and on
direct appeal.

       Though free-standing Fourth Amendment claims cannot be raised in collateral
proceedings under either § 2254 or § 2255, the merits of a Fourth Amendment claim still
must be assessed when a claim of ineffective assistance of counsel is founded on
incompetent representation with respect to a Fourth Amendment issue. See Kimmelman,
477 U.S. at 382-83 (“[W]e reject petitioners’ argument that Stone’s restriction on federal
habeas review of Fourth Amendment claims should be extended to Sixth Amendment
No. 11-6436        Ray v. United States                                            Page 6


ineffective-assistance-of-counsel claims which are founded primarily on incompetent
representation with respect to a Fourth Amendment issue.”). In such instances, Stone
neither bars consideration of, nor justifies a failure to consider, the merits of a
petitioner’s Fourth Amendment claim. Because Ray argues that his counsel rendered
ineffective assistance by not filing a motion to suppress evidence gathered from his
home during the warrantless search, Stone does not end the analysis on Ray’s petition.

       To prevail on an ineffective assistance of counsel claim, a defendant must show
that: (1) “counsel’s performance was deficient”; and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Where
defense counsel’s “failure to litigate a Fourth Amendment claim competently is the
principal allegation of ineffectiveness, the defendant must also prove that his Fourth
Amendment claim is meritorious and that there is a reasonable probability that the
verdict would have been different absent the excludable evidence in order to demonstrate
actual prejudice.” Kimmelman, 477 U.S. at 375.

       Despite its initial reliance on the rule in Stone, the district court did carefully
consider the merits of Ray’s Fourth Amendment claim. First, the court detailed the
undisputed evidence of record showing that Moore had authority to consent to the search
of Ray’s apartment. At trial, Moore testified that she moved into Ray’s apartment in
September 2003 to help take care of Ray’s two minor children. She further testified that
she stayed in the apartment while Ray took his kids to Colorado in December 2003, and
when Ray took a second trip to Colorado around January 8, 2004. On January 11, 2004,
while she was at Ray’s apartment, Moore received a visit from Memphis police officers
who told her they had reason to believe there was child pornography present. The
officers sought and obtained Moore’s consent to search the apartment. A few days later,
while Moore was at her parents’ home in Brighton, Tennessee, the FBI asked her to
come to Ray’s apartment so they could search it. Moore testified that she cooperated
with the FBI agents and again voluntarily consented to the search.

       Given this testimony, the district court concluded that, if Moore was living at
Ray’s apartment on January 11, 2004, she had actual authority to consent to the search.
No. 11-6436            Ray v. United States                                                       Page 7


United States v. Matlock, 415 U.S. 164, 170 (1974) (noting that “the consent of one who
possesses common authority over premises or effects is valid as against the absent,
nonconsenting person with whom that authority is shared”). The court further found
that, even if Moore lacked common authority over Ray’s apartment, a police officer
could reasonably believe that she had such authority. United States v. Penney, 576 F.3d
297, 307 (6th Cir. 2009) (“Even if a co-occupant in fact lacks common authority over
the premises, a search conducted pursuant to his or her consent will not violate Fourth
Amendment guarantees if the police reasonably believed that the co-occupant had such
authority.”).

         The evidence of record, including Ray’s own testimony that Moore did not need
to vacate his apartment until January 27 or 28, 2004—which was after the January 11
and January 15 consent searches took place—supports the district court’s conclusion that
Moore had, at a minimum, apparent authority to consent to the search. As the district
court noted, moreover, Ray has not identified any specific evidence his attorney failed
to present that would have been reasonably likely to lead the court to grant a motion to
suppress. Because Ray has not demonstrated that his Fourth Amendment claim has
merit, his underlying ineffective assistance of counsel claim fails. See Kimmelman,
477 U.S. at 375.2

         Upon review, we find that the district court’s detailed recitation of the evidence
in its decision denying Ray’s § 2255 motion supports the conclusion that the record was
sufficient to resolve this issue without the need for additional evidence. Importantly, the
same district court judge considering Ray’s § 2255 motion presided over his criminal
trial. The judge observed the testimony of all witnesses, including Moore and Ray, and
could rely on her own recollections of the proceedings. Because the record contained
sufficient evidence to contradict Ray’s claims and conclusively shows that Ray was not




         2
           Because we find nothing to indicate that a motion to suppress would have been granted if filed,
we need not address the prejudice prong of Ray’s Sixth Amendment claim. We note, however, that this
Court’s earlier characterization of the evidence against Ray as “overwhelming” makes a finding of
sufficient prejudice questionable. See Ray, 189 F. App’x at 444.
No. 11-6436         Ray v. United States                                              Page 8


entitled to relief, the district court did not abuse its discretion in deciding not to conduct
an evidentiary hearing.

                                     III. CONCLUSION

        For the foregoing reasons, we AFFIRM the district court’s denial of Ray’s
§ 2255 motion to vacate.
