Fernandez v. United States

• Decision Date: 16 December 1982
• Docket Number: No. 82 Civ. 3714 (CHT).,82 Civ. 3714 (CHT).
• Citation: 553 F. Supp. 260
• Parties: Antonio FERNANDEZ, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

553 F. Supp. 260

Antonio FERNANDEZ, Petitioner, v. UNITED STATES of America, Respondent.

No. 82 Civ. 3714 (CHT).

United States District Court, S.D. New York.

December 16, 1982.

Antonio Fernandez, pro se.

John S. Martin, Jr., U.S. Atty., S.D.N.Y., New York City, for the Government; Louis J. Freeh, Asst. U.S. Atty., New York City, of counsel.

MEMORANDUM and ORDER

TENNEY, District Judge.

Petitioner Antonio Fernandez has moved pursuant to 28 U.S.C. § 2255 to vacate the sentence imposed upon him by this Court. He presents four alternate claims as a basis for relief. For the reasons described below, the motion is denied.

Background

On March 24, 1980 a Federal Grand Jury empaneled in the Southern District of Florida filed a six-count indictment against Fernandez and four others. The first and second count charged them with conspiring to import and distribute heroin in violation of 21 U.S.C. §§ 846 and 963. The other counts did not involve Fernandez. On September 24, 1980, Judge Alcee L. Hasting entered an order pursuant to Federal Rule of Criminal Procedure ("Rule") 21(b) transferring so much of the indictment as concerned Fernandez to the Southern District of New York.

Subsequently, after a one-and-a-half day bench trial, the Court convicted the defendant on both counts and sentenced him to serve two consecutive three year terms of imprisonment. The Court later suspended the second sentence, ordering Fernandez to be placed on probation during the period of that sentence. Notwithstanding the fact that he signed a written waiver, Fernandez thereafter appealed his conviction on the ground that he did not knowingly and intelligently waive his right to a jury trial. His conviction was affirmed. United States v. Fernandez, 661 F.2d 911 (2d Cir.1981).

Fernandez now moves pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence on the grounds that: (1) the government used illegally seized evidence at his trial in violation of his Fourth Amendment rights; (2) the government failed to produce evidence in accordance with a Court directive, thus violating his Fifth Amendment rights, as set out in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (3) his counsel provided ineffective assistance, in violation of his Sixth Amendment rights, and (4) the Court improperly considered a prior conviction to enhance punishment.

Discussion

A. Fourth Amendment Claim

Evidence seized in violation of the warrant requirement of the Fourth Amendment must be suppressed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), unless the seizure falls within one of the traditional exceptions to this rule. See, e.g., United States v. Ross, ___ U.S. ___, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (search of packages found during warrantless automobile search is an exception); United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973) (search incident to a lawful arrest is a traditional exception).

Fernandez concedes that his arrest was lawful. Memorandum of Law in Support of Motion to Vacate Sentence ("Petitioner's Memorandum") at 4. But now, for the first time in this post conviction motion for relief, he claims that an exhibit¹ used to link him with one of the coconspirators was not seized from his person or from an area within his immediate control, but was taken from his personal locker, which was not near the arrest site. Citing United States v. Robinson, supra, he argues that since the search was not incident to a lawful arrest the evidence should have been suppressed.

The trial record, however, indicates that the evidence was taken from Fernandez's person. Trial Transcript at 88. His attorneys did not object to this testimony at trial nor did they bring up this point on appeal. Petitioner has, therefore, erected a number of insurmountable hurdles that prevent the Court from entertaining his Fourth Amendment claim.

First, petitioner does not present a colorable claim that the Drug Enforcement Administration ("DEA") agents took the exhibit from any other place but his person. No evidence supports his claim. Second, and more important, assuming arguendo that the government found the exhibit in his locker and an agent testified to this at trial, Fernandez waived his right to complain about the alleged illegal seizure in his § 2255 petition by not raising this point in a pretrial motion pursuant to the requirements of Rule 12.² The Rule clearly states that motions to suppress evidence must be raised before trial or they will be deemed waived. United States v. Natale, 526 F.2d 1160, 1172-73 (2d Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976) (appellants may not, for first time on appeal, raise claim that material ought to have been suppressed since motion to suppress under Rules 12(b) and 41(f) must be made prior to trial); United States v. Rollins, 522 F.2d 160, 165 (2d Cir.1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1976) (claim raised after trial was clearly waived by defendant's failure to move for suppression prior to trial).

Section 2255 does not have a waiver provision, nor does it incorporate Rule 12 by reference. However, in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), the Supreme Court, discussing Rule 12(b)(2) (predecessor to 12(f)³), stated that

it is inconceivable that Congress, having in the criminal proceeding foreclosed the raising of a claim such as this after the commencement of trial ... nonetheless intended to perversely negate the Rule's purpose by permitting an entirely different but much more liberal requirement of waiver in federal habeas proceedings. We believe that the necessary effect of the congressional adoption of Rule 12(b)(2) is to provide that a claim once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas proceedings.

Id. at 242, 93 S.Ct. at 1582-83. In Davis, supra, the defendant sought to challenge the composition of the grand jury for the first time in his § 2255 motion.⁴ The Court held that "the waiver standard expressed in Rule 12(b)(2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review." Id. The Court stated that once a defendant waived a claim pursuant to Rule 12 he could introduce the matter in his § 2255 proceeding only by showing both a cause excusing the procedural default and actual prejudice resulting from the error. Id. at 243-44, 93 S.Ct. at 1583.

While the holding in Davis was limited to the waiver of an objection to the composition of a grand jury, the Second Circuit in Indiviglio v. United States, 612 F.2d 624 (2d Cir.1979), cert. denied, 445 U.S. 933, 100 S.Ct. 1326, 63 L.Ed.2d 768 (1980), found that under the principles of Davis, "the waiver provisions of Rule 12(b) concerning the suppression of evidence apply ... when an accused seeks to raise his constitutional claims for the first time ... in his collateral attack on that conviction in a 28 U.S.C. § 2255 petition." Id. at 630. See also United States v. Underwood, 440 F.Supp. 499 (D.R.I.), aff'd without opinion, 553 F.2d 91 (1st Cir.), cert. denied, 430 U.S. 950, 97 S.Ct. 1590, 51 L.Ed.2d 799 (1977).

Therefore, even if Fernandez could prove that the evidence was illegally taken, he must still meet the "cause and actual prejudice" standard established in Davis to overcome the 12(b) waiver provision. Fernandez fails to meet this standard. He presents no reason why his attorney did not object at trial. Moreover, he cannot show actual prejudice, since the government introduced evidence other than the exhibit in question, linking Fernandez to the coconspirators. Consequently, the Court is precluded from reviewing Fernandez's claim that there was a Fourth Amendment violation.

B. Brady Material

As a second ground for his motion, petitioner relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady the Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1196-97. See also Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) (Brady principle covers material evidence that could be used to impeach a government witness whose reliability could determine guilt or innocence).

In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court refined the Brady principle by delineating the three possible situations in which the rule could apply and the standard of materiality that should be applied to each. Id. at 103-04, 110-12, 96 S.Ct. at 2397-98, 2400-01. And in Ostrer v. United States, 577 F.2d 782 (2d Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1018, 59 L.Ed.2d 73 (1979), the Second Circuit, reviewing the Court's conclusions in Agurs, stated that in the first two situations, "where the undisclosed evidence shows that the Government's case includes perjured testimony and that the prosecutor knew, or should have known, of the perjury" or, second, "where the defendant made a specific request for particular undisclosed information," a strict standard of materiality applies. Id. at 786.

Thus, if any reasonable likelihood exists that the withheld information could have influenced the outcome of the trial, the defendant is entitled to a new trial. Id. (citing United States v. Agurs, supra, 427 U.S. at 103-04, 96 S.Ct. at 2397). See also United States v. Menghi, 641 F.2d 72, 74 (2d Cir.), cert. denied, 451 U.S. 975, 101 S.Ct. 2058, 68 L.Ed.2d 356 (1981); United States v. Provenzano,...