Anderson v. United States

• Decision Date: 11 September 2014
• Docket Number: No. 12–2566.,12–2566.
• Citation: 762 F.3d 787
• Parties: Aaron William ANDERSON, Jr., Petitioner–Appellant v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

762 F.3d 787

Aaron William ANDERSON, Jr., Petitioner–Appellant

v.UNITED STATES of America, Respondent–Appellee.

No. 12–2566.

United States Court of Appeals,

Eighth Circuit.

Submitted: April 16, 2014.

Filed: Aug. 8, 2014.

Rehearing and Rehearing En Banc Denied Sept. 11, 2014.^*

Angela L. Campbell, argued, Des Moines, IA, for appellant.

Stephen Patrick O'Meara, USA, argued, Council Bluffs, IA (Mary Clare Luxa, AUSA, Des Moines, IA, on the brief), for appellee.

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.

COLLOTON, Circuit Judge.

A jury found Aaron Anderson guilty of possession with intent to distribute crack cocaine. Anderson filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255, alleging that his trial counsel was ineffective in failing to move to suppress evidence and to seek a hearing based on alleged false statements by a police officer in a search warrant affidavit. The district court ¹ dismissed Anderson's motion without a hearing. Anderson then filed a motion to reopen the judgment, which the district court also denied. Anderson appeals, and we affirm.

I.

In the underlying criminal case, law enforcement officers suspected that Anderson was dealing crack cocaine out of his residence in Davenport, Iowa, and began to investigate him. As part of that investigation, officers performed two trash pulls at Anderson's residence, a house converted into an apartment building at 1214 Bridge Avenue. The first occurred on January 21, 2008, and the second on February 4, 2008.

Based on evidence of drug dealing that officers found during the trash pulls, the police obtained a search warrant for Anderson's residence. Officer John Hutcheson's affidavit in support of the warrant specified:

4. On 01/21/08 your affiant and Cpl Behning seized three bags of trash from three City of Davenport trash receptacles left out for collection along the curb in front of 1214 Bridge Ave....

On your affiant and Cpl Behning going through the three bags of trash seized from 1214 Bridge Ave. the following items were found:

Indicia of occupancy for Aaron Anderson, being a Burke Cleaners receipt with a PBX of 563–676–6179 and a[n] address of 1402 Harrison St....

Several baggies with the corners twisted or cut off. Baggies with suspected cocaine residue, ... which tested positive for the possible presence of cocaine.

Several ends of suspected marijuana cigars, ... which tested positive for the possible presence of marijuana.

A razor blade with suspected cocaine residue, ... which tested positive for the possible presence of cocaine....

6. On 02/04/08 your affiant and Sgt Smull seized three bags of trash from three City of Davenport trash receptacles left out for collection along the curb in front of 1214 Bridge Ave.

On your affiant and Sgt Smull going through the three bags of trash seized from 1214 Bridge Ave. the following items were found:

Indicia for 1214 Bridge Ave. apartment # 1, being a Domino's Pizza box.

Baggies with the corners missing and a corner of a baggie.

Baggies with suspected marijuana residue, ... which tested positive for the possible presence of marijuana.

Ends of suspected marijuana cigars and suspected marijuana stems, ... which tested positive for the possible presence of marijuana.

A box for a Pro Scale LC 300 digital scale, which contained pieces of the scale and a pack of Zig Zag rolling papers.

A broken Pro Scale LC 300 digital scale.

At trial, Officer Hutcheson testified that both trash pulls were performed at 1:30 a.m. from three trash cans that he said were “located on Bridge Street by the driveway, sitting on the curb” and “out on the sidewalk.”

Items seized during the trash pulls and execution of the search warrant were received in evidence at Anderson's trial, and a jury found Anderson guilty of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The district court sentenced Anderson to 360 months in prison. Anderson appealed, this court affirmed, United States v. Anderson, 618 F.3d 873 (8th Cir.2010), and the Supreme Court denied certiorari.Anderson v. United States, ––– U.S. ––––, 131 S.Ct. 1550, 179 L.Ed.2d 359 (2011).

On February 23, 2012, pursuant to 28 U.S.C. § 2255, Anderson filed a pro se motion to vacate his sentence, alleging that Officer Hutcheson lied in his affidavit in support of the search warrant and that trial counsel was ineffective in “failing to follow [Anderson's] express instructions to file a suppression motion.” He also asserted that counsel should have moved for a hearing to consider whether Hutcheson provided false information to procure the search warrant. Anderson specifically challenged paragraph four of Hutcheson's affidavit:

The three garbage bags that Ofc. Hutcheson ... stated in the affidavit were from three City of Davenport trash receptacles left outside for collection along the c[ur]b in front of 1212[sic] Bridge Ave, is a blatant lie. These trash bags were within the curt[ ]ilage of my private property. This is indeed true because on January 21, 2008 there was an abu[n]dan[ce] of snow and there was nowhere on ‘the c[ur]b’ to place the trash receptacles.... My home sat on the corner of 13th St & Bridge Ave., and my drive way, which is approximately 30–feet from the c[ur]b of Bridge Ave is private property, and there is a fence, where the trash in question was, that separated my home from my neighbors['] home.

Anderson attached to his § 2255 motion only the first page of Officer Hutcheson's warrant affidavit; the second page was included for the first time with Anderson's submission on appeal. Anderson asserted in the § 2255 motion that he would “be forwarding pictures of the lay out of the property” to the court, but proffered no other evidence regarding his claim of ineffective assistance.

On March 7, 2012, the district court dismissed Anderson's ineffective-assistance claim without a hearing. The court concluded: “The information provided by [Anderson] is insufficient to call for an evidentiary hearing. The allegations are therefore also insufficient to support this claim of ineffective assistance of counsel.”

On April 3, 2012, Anderson moved to alter or amend the judgment pursuant to Rule 59(e) or, alternatively, to reopen the judgment under Rule 60(b). He asked the court to “allot [Anderson] enough time in which he can procure the ‘material evidence’ he needs to prove his [ineffective assistance of counsel] claim.” Anderson stated that his § 2255 motion “specifically apprised the Court that he would be promptly forwarding photos and other evidence,” but “the Court did not give [him] enough time or an opportunity to procure all of the ... evidence.” Anderson insisted he was “currently seeking” various documents to prove his claim, namely (1) photographs showing where he normally keeps his trash cans, the fence surrounding his residence, and the driveway “on [his] private property”; (2) weather reports and a letter from the supervisor of the Iowa Department of Sanitation verifying that there was snow on the curb during January and February of 2008; and (3) an affidavit from Tina DeBerry attesting that Anderson never put his trash cans on the curb until trash pick-up day. But Anderson did not submit any evidence with his motion to reopen.

The district court denied Anderson's motion under Rule 59(e) and Rule 60(b) on May 9, 2012. The court acknowledged that Anderson had “provide[d] some additional factual support” for his ineffective-assistance claim, but determined that Anderson's “additional allegations and argument do not change this court's conclusions.”

In April 2013, Anderson filed in this court what he called a “Motion/Letter Pursuant to Fed. R.App. P. 28(j).” With that filing, Anderson submitted several exhibits—namely, according to Anderson, (1) photographs showing that his trash cans have lids and are kept “within the curtilage” his residence and “all of the apartments on th[e] property,” (2) photographs depicting a fence on the property that includes Anderson's residence, (3) an affidavit from Tina DeBerry, attesting that on “numerous occasions” she “tried to place[ ] the trash on the c[ur]b ... before the scheduled time, and Aaron would stren [u]ously object, and instruct [her] to wait for the scheduled day to put the trash out on the curb,” (4) Officer Hutcheson's warrant affidavit; and (5) photographs of the street and Anderson's driveway that “show[ ] easy access for the police to come upon the property ‘undetected’ to search the trash recept [a]cles.” On June 21, 2013, this court granted a certificate of appealability as to Anderson's ineffective-assistance-of-counsel claim.

II.

Section 2255 provides that a district court may deny a motion without a hearing if the files and records of the case conclusively show that the prisoner is entitled to no relief. 28 U.S.C. § 2255(b). The standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), provides the framework for evaluating Anderson's ineffective-assistance-of-counsel claim. To establish a violation of the Sixth Amendment, Anderson must show that his counsel's performance was deficient and that Anderson suffered prejudice as a result. Id. at 687, 104 S.Ct. 2052. Reviewing the district court's decision de novo, we conclude that the court did not err in dismissing Anderson's § 2255 motion without a hearing because even accepting his allegations as true, counsel's performance did not fall below an objective standard of reasonableness.

A.

There are two steps to Anderson's argument. First, he contends that counsel should have moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), alleging that Officer Hutcheson stated falsely in his affidavit that Anderson's trash cans were located at the curb when Hutcheson pulled trash from the cans. Second, once it is established that the trash cans were instead located within the curtilage of...