640 F.2d 970 (9th Cir. 1981), 79-1809, United States v. Wilcox

Docket Nº:79-1809.
Citation:640 F.2d 970
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Melvin Thomas WILCOX, aka Duke Taylor, Alfred Cameron, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Alfred Lewis CAMERON, Defendant-Appellee.
Case Date:February 23, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 970

640 F.2d 970 (9th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellant,

v.

Melvin Thomas WILCOX, aka Duke Taylor, Alfred Cameron,

Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellant,

v.

Alfred Lewis CAMERON, Defendant-Appellee.

No. 79-1809.

United States Court of Appeals, Ninth Circuit

February 23, 1981

Argued and Submitted Aug. 12, 1980.

Page 971

Sara Criscitelli, Washington, D. C., for plaintiff-appellant.

Brent Adams, Asst. Federal Public Defender, Las Vegas, Nev., on brief; Martin H. Wiener, Reno, Nev., argued, for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.

Before WRIGHT and ANDERSON, Circuit Judges, and BELLONI, [*] District Judge.

J. BLAINE ANDERSON, Circuit Judge:

The government appeals the order of the district court granting the appellees' motions for relief under 28 U.S.C. § 2255, 1 and vacating their sentences for convictions on bank robbery and firearms charges. We reverse the court's order, and remand for further findings.

I. BACKGROUND

On January 21, 1977, Alfred Lewis Cameron was sentenced by the United States District Court for the District of Nevada to 15 years in prison following his conviction for armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). This court affirmed that conviction by memorandum disposition. United States v. Alfred Lewis Cameron, 566 F.2d 1184 (1977). On August

Page 972

30, 1977, both Cameron and Melvin Thomas Wilcox were sentenced to serve various concurrent sentences on several firearms offenses. This court also affirmed those convictions by memorandum. United States v. Cameron and Wilcox, 570 F.2d 352 (1978), cert. denied, Wilcox v. United States, 436 U.S. 912, 98 S.Ct. 2251, 56 L.Ed.2d 412, and Cameron v. United States, 437 U.S. 906, 98 S.Ct. 3096, 57 L.Ed.2d 1137 (1978).

Cameron and Wilcox each filed motions to vacate these sentences pursuant to 28 U.S.C. § 2255. Their separate motions stated identical claims for relief. Each claimed first that certain evidence had been seized pursuant to a warrant which had not been issued by a state "court of record" as required by Fed.R.Crim.P. 41(a), 2 and second that their respective attorneys' failure to raise the Rule 41(a) issue either at trial or on appeal constituted ineffective assistance of counsel in violation of the sixth amendment.

The facts essential to the appellees' Rule 41(a) claim may be summarized briefly. Certain evidence pertinent to both the bank robbery and firearms charges were seized by a team of federal and state law enforcement officers from an apartment where both Wilcox and Cameron had resided on at least a temporary basis. 3 The search was conducted pursuant to a warrant issued by a justice of the peace. It has been conceded that at the time the warrant issued, justices of the peace were not "courts of record" under Nevada law. As noted earlier, the Rule 41(a) argument was not raised either at trial or on direct appeal.

The district court held an evidentiary hearing at which evidence concerning appellees' ineffective assistance of counsel claim was adduced. Following the hearing, the district judge granted from the bench appellees' motions to vacate. The court did not rule on the ineffective assistance claims, but concentrated instead on the unlawful nature of the search and seizure. After noting that the introduction of the seized evidence had been prejudicial in the sense that each conviction rested heavily on that evidence, the court held that it was "... a violation of (appellees') rights to due process of law to be convicted on a basis of relevant and material evidence which was unlawfully obtained by the Government." The court accordingly vacated and set aside each of the judgments of conviction and each of the sentences.

The government appeals.

II. DISCUSSION

While the parties have submitted briefs on both the Rule 41(a) and ineffective assistance of counsel claims along with subsidiary issues, we find it necessary to address only the issue whether the appellees may raise the Rule 41(a) claim in a § 2255 motion. We conclude that they cannot do so.

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