Curzi v. US

Citation773 F. Supp. 535
Decision Date13 September 1991
Docket NumberCV-91-0385 and CV-91-1604.,No. CR-85-0143,CR-85-0143
PartiesBarbara Jean CURZI, Jaan Karl Laaman and Richard C. Williams, Plaintiffs, v. UNITED STATES of America, Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

Linda J. Thompson, Salomone & Thompson, Springfield, Mass., for Curzi.

Jaan Karl Laaman, pro se.

Kenneth J. King, Fenn & King, Jamaica Plain, Mass., for Williams.

Charles Rose, Asst. U.S. Atty., Andrew Weissman, Asst. U.S. Atty., Brooklyn, N.Y., for U.S.

MEMORANDUM AND ORDER

GLASSER, District Judge:

Petitioners move pursuant to 28 U.S.C. § 2255 for an order vacating or setting aside their sentences. The factual background of this case has been set forth in detail in numerous published decisions. United States v. Levasseur, 618 F.Supp. 1390 (E.D.N.Y.1985); United States v. Levasseur, 620 F.Supp. 624 (E.D.N.Y.1985); United States v. Levasseur, 816 F.2d 37 (2d Cir.1987); United States v. Levasseur, 699 F.Supp. 965 (D.Mass.1988); United States v. Curzi, 867 F.2d 36 (1st Cir.1989). Familiarity with those decisions is presumed; however, a synopsis of the events most relevant to the instant petition is presented, as follows.

Petitioners were members of a terrorist group which called itself the United Freedom Front. In 1984, following a massive manhunt for the members of the group, federal law enforcement authorities closed in on a neighborhood at West 22nd Street in Cleveland, Ohio, where they had followed petitioner Richard Williams. Agents took up positions on the evening of November 3, 1984 and in the morning of November 4 determined that Williams and possibly other persons were inside the house at 4248 West 22nd Street. After the occupants were notified by loudspeaker of the police presence outside, Laaman, Curzi, Williams and several children emerged. Shortly after they were taken into custody, FBI SWAT team members entered the house to ascertain whether there were other persons inside. During the "protective sweeps" that ensued four weapons and a canister of black powder were discovered in plain view. The weapons were not touched by the agents pending the securing of a search warrant. The canister was seized immediately.

Defendants Laaman and Curzi moved before trial to suppress the weapons and canister on the ground that they were discovered during an illegal warrantless search. Williams did not join this motion. This court declined to suppress the evidence holding that

the conclusion that entering into the house was necessary, indeed required, by a compelling urgency is inescapable. * * * The intrusion upon the premises being clearly lawful, the weapons which were in plain view could properly have been seized although, as has been indicated, they were not until after the search warrant was obtained. The seizure of the canister in the basement prior to the issuance of the warrant was clearly justified under the plain view doctrine.

United States v. Levasseur, 618 F.Supp. at 1392-93.

The admissibility of the evidence was also challenged on the ground that the search warrant was invalid. The warrant application was supported by the affidavit of special agent Leonard Cross, dated November 5, 1984. Cross had been assigned in February 1984 to coordinate the ongoing investigation into defendants' terrorist activities. His affidavit, which was detailed and extensive, set forth with precision the criminal activities in which defendants were believed to be involved, the evidence sought, and the nexus between the places to be searched and the items to be seized. In particular, paragraph 53 of the affidavit described the weapons and black powder canister as having been in plain view during the protective sweep. Defendants moved under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) challenging the veracity of material statements in the affidavit. This court concluded with respect to paragraph 53 that it

does not knowingly and intentionally misrepresent the facts in this regard. On the contrary, I find that the statement is correct. I should add that even if the statement were not accurate, ... there was more than enough lawfully obtained information in the Cross affidavit amounting to probable cause which would have justified the issuance of the warrant and made admissible the evidence seized pursuant to it.

United States v. Levasseur, 618 F.Supp. at 1393.

After other pretrial activity and a trial in which 160 witnesses were called and some 1500 exhibits were admitted, petitioners Laaman, Curzi, and Williams were found guilty and sentenced to 53 years, 45 years, and 15 years, respectively.

On May 29, 1986, a United States grand jury in the District of Massachusetts indicted the defendants for other acts of violence and terrorism. The defendants moved to suppress the evidence seized from the 4248 West 22nd Street house, and the Massachusetts district court granted the motions citing the agents' failure to obtain a search warrant prior to their initial entry. United States v. Levasseur, 699 F.Supp. at 1001. The court held the later warrant-backed search to have been illegal as well: "The problem with their latter search is that the government's affidavit, shorn of the unlawfully obtained information, fails to establish a sufficient nexus between the items to be seized and the place to be searched." Id. The First Circuit affirmed this decision. United States v. Curzi, 867 F.2d at 38. As to Williams the district court denied the motion on the ground that as a visitor to the house he lacked standing to challenge the search. United States v. Levasseur, 699 F.Supp. at 999.1

Petitioners now move pursuant to 28 U.S.C. § 2255 to vacate their sentences on the grounds that (1) their convictions were obtained by the use of evidence seized during searches which violated the Fourth Amendment to the Constitution; (2) the failure of Laaman and Curzi's attorneys to appeal the denial of their suppression motion denied them the effective assistance of appellate counsel in violation of the Sixth Amendment to the Constitution; and (3) the failure of Williams' trial counsel to join the suppression motion denied him the effective assistance of trial counsel in violation of the Sixth Amendment to the Constitution.

I. The Fourth Amendment Claim.
A. Deliberate Bypass

It is well-settled that a petitioner's failure to raise a nonconstitutional or nonjurisdictional claim on direct review precludes the assertion of the claim in a collateral proceeding. Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976); Sunal v. Large, 332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947). A different rule applies to constitutional claims, however, and in the Second Circuit, that rule has been explained as follows:

With respect to constitutional or jurisdictional claims, we have adhered to the rule that a section 2255 petitioner may raise such claims even though they were not raised on direct appeal, unless there is some showing of deliberate delay or bypass.

Brennan v. United States, 867 F.2d 111, 117 (2d Cir.), cert. denied, 490 U.S. 1022, 109 S.Ct. 1750, 104 L.Ed.2d 187 (1989). See also Chin v. United States, 622 F.2d 1090, 1093 (2d Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1375, 67 L.Ed.2d 353 (1981); Pacelli v. United States, 588 F.2d 360, 362 (2d Cir.1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979); Williams v. United States, 463 F.2d 1183 (2d Cir.), cert. denied, 409 U.S. 967, 93 S.Ct. 299, 34 L.Ed.2d 232 (1972), all applying the "deliberate bypass" standard to collateral review of constitutional claims not raised on direct appeal. Cf. Cross v. United States, 893 F.2d 1287, 1289 (11th Cir.) (applying "cause and prejudice" standard), cert. denied, ___ U.S. ___, 111 S.Ct. 138, 112 L.Ed.2d 105 (1990); Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir.1989) (same).

Both Laaman and Curzi and their attorneys knew of the existence of their Fourth Amendment claim when their direct appeal was taken. They had, of course, unsuccessfully litigated it in a pre-trial suppression motion. On appeal they claimed with specificity other Fourth Amendment errors related to the same search (the Franks v. Delaware motion) and to the search of a codefendant's foot locker. Yet the instant claim was not raised and petitioners do not claim they asked their attorneys to do so. See United States v. Williams, 615 F.2d 585, 591 (3d Cir.1980).

The conclusion that petitioners deliberately bypassed this claim on appeal is irresistible.2 Their decision to present it now rests entirely on their changed perception of their likelihood of success in litigating it, inspired by the contrary decisions of the District Court of Massachusetts and the First Circuit Court of Appeals. However, a change of perception does not nullify the deliberate nature of a bypass. That argument was made and rejected in Williams v. United States, 731 F.2d 138 (2d Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 956, 83 L.Ed.2d 963 (1985), where petitioner claimed that the reason he had not raised a constitutional claim on direct appeal or in his prior § 2255 petition was that his attorney had first advised him that the claim would probably be rejected "whereas more recently he has taken a more optimistic view of such a claim." Counsel conceded that there had been no change in the law governing the case. The Second Circuit concluded, "We are unpersuaded that the mere fact that `counsel has now altered his opinion' ... — if that was the sole reason for the bypass — was sufficient to require the district court to reach the merits of the present petition." Id. at 142.

A conclusion of deliberate bypass is also compelled by Williams v. United States, 463 F.2d 1183 (2d Cir.1972), where petitioner similarly attempted to raise a fourth amendment claim in a § 2255 petition having omitted to raise it on direct appeal. All the facts surrounding petitioner's...

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