Hayes v. Hawes

• Decision Date: 18 December 1990
• Docket Number: No. 89-1706,89-1706
• Citation: 921 F.2d 100
• Parties: Larry Charbert HAYES, Petitioner-Appellant, v. Warden HAWES and Neil F. Hartigan, Attorney General for the State of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 100

921 F.2d 100

Larry Charbert HAYES, Petitioner-Appellant, v. Warden HAWES and Neil F. Hartigan, Attorney General for the

State of Illinois, Respondents-Appellees.

No. 89-1706.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 3, 1990.

Decided Dec. 18, 1990.

Marvin G. Miller, Crain, Cooksey & Veltman, Centralia, Ill., for petitioner-appellant.

Larry C. Hayes, pro se.

Terence M. Madsen, Marcia L. Friedl, Asst. Attys. Gen., Office of Atty. Gen., Chicago, Ill., for respondents-appellees.

Before WOOD, Jr., CUDAHY, and MANION, Circuit Judges.

PER CURIAM.

Petitioner-Appellant, Larry Charbert Hayes, an inmate at Centralia Correctional Center filed a petition for writ of habeas corpus under 28 U.S.C. Sec. 2254 in the district court. The parties consented pursuant to 28 U.S.C. Sec. 636(c) to final disposition by a magistrate. The magistrate denied the petition. Hayes appeals.

I. Background

In September 1983, an agent with the Naval Investigative Service (NIS), a group of civilian federal agents employed by the Navy to conduct its criminal investigations, received information that a sailor, found in possession of cocaine, had purchased the drug at the General Music Arcade across from the Great Lakes Naval Base in North Chicago, Illinois. The NIS agent contacted a detective in the North Chicago Police Department, who told the agent that the police also had information about drug sales at the Arcade. Thereafter, several NIS agents, working in conjunction with several police detectives, placed the Arcade under surveillance.

On November 21, 1983, an undercover NIS agent made arrangements with Hayes to purchase some cocaine. On November 22, 1983, the agent met the petitioner in a restroom in the Arcade, made the controlled purchase, and, using a device provided by the police officers, signalled to them when the transaction was completed. After hearing the signal, the police officers came into the restroom where the transaction had occurred, placed Hayes under arrest, and feigned the arrest of the NIS agent. Subsequent to the arrest, the officers recovered the money that the agent had given Hayes for the cocaine. In addition, the police searched the briefcase from which Hayes had taken the cocaine he sold to the NIS agent. The search revealed significant quantities of cocaine and marijuana.

Petitioner was charged with multiple counts of possession with intent to distribute in state court in Illinois. The public defender appointed to represent Hayes filed a Motion to Suppress on the ground that the search was neither pursuant to a warrant nor justified by exigent circumstances. Hayes also filed a pro se Motion to Suppress, alleging that the evidence was seized in violation of the federal Posse Comitatus Act, 18 U.S.C. Sec. 1385. A hearing was held on both Motions and each was denied. Thereafter, petitioner plead guilty to one count of unlawful delivery and was sentenced to fourteen years in prison.

Following sentencing, Hayes alleged ineffective assistance of counsel and a new attorney was appointed to represent him. The newly-appointed attorney filed a Motion to Vacate the plea. After a hearing on the Motion to Vacate, the court denied relief. On appeal, a third appointed attorney argued only plain error in sentencing. Petitioner unsuccessfully sought leave to file a pro se brief on appeal, raising the Posse Comitatus issue. The Illinois Court of Appeals denied leave to proceed pro se and determined that the trial judge had not abused his discretion in sentencing. Hayes subsequently filed a Petition for Leave to Appeal with the Illinois Supreme Court and a Petition for Writ of Certiorari in the United States Supreme Court which were both denied.

In the petition for post-conviction relief and on appeal of the denial of that petition, court-appointed counsel (a different attorney at each level) argued, inter alia, ineffective assistance of trial and appellate counsel in their failure to argue that the federal Posse Comitatus Act provided a basis for suppressing the evidence in this case. After the post-conviction petition was denied initially and on appeal, Hayes filed his petition for writ of habeas corpus in the district court.

II. Analysis

Initially, we note that there is both a pro se appellant's brief in this case and an appellant's brief filed by counsel. The state maintains, despite this court's denial of a motion to strike the pro se brief, that Hayes is not permitted to engage in hybrid representation, acting both pro se and with appointed counsel. The state relies on cases which prohibit a defendant's attempt to proceed pro se in the middle of a trial. Those cases arise in response to much different concerns than are presented in this case; therefore, they do not provide support for the proposition that a party represented by counsel is prohibited from filing a pro se brief on appeal in addition to the brief filed on his behalf by counsel. Although there is no Sixth Amendment right to file a pro se brief when the appellant is represented by counsel, nothing precludes an appellate court from accepting the pro se brief and considering the arguments contained therein for whatever they may be worth.

After considering both the pro se brief and the counseled brief, we have determined that the only issue warranting discussion in this case is whether Hayes received ineffective assistance of counsel at the trial and appellate court levels, because of appointed counsel's failure to advance a violation of the Posse Comitatus Act as a basis for suppression of evidence. In order to prevail on his ineffective assistance claim, the petitioner must establish that counsel's representation fell below an objective standard of reasonableness, and demonstrate that but for counsel's error he would not have plead guilty. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To evaluate the ineffectiveness claim, we must consider the merits of the underlying allegation that the evidence in this case was seized in violation of either the federal Posse Comitatus Act, 18 U.S.C. Sec. 1385, ¹ or 10 U.S.C. Sec. 375, ² which also restricts military participation in civilian law enforcement activities. Defendant maintains that the involvement of the NIS agents in the surveillance and the controlled drug transaction in this case was in contravention of the limitations that those statutes impose on military involvement in civilian law enforcement.

Initially, there is a question of whether Sec. 1385, which only expressly refers to the Army and the Air Force, applies to the Navy. In United States v. Roberts, 779 F.2d 565 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986), the court determined that by its express terms the Act applied only to the Army and the Air Force, and it declined to extend the Act to apply to the Navy. Id. at 566. See also, State v. Short, 113 Wash.2d 35, 775 P.2d 458 (1989) (court declined to extend the statute beyond its express terms to make it applicable to the Navy). In United States v. Walden, 490 F.2d 372 (4th Cir.), cert. denied, 416 U.S. 983, 94 S.Ct. 2385, 40 L.Ed.2d 760 (1974), the court concluded that, because of the firmly rooted policy that military participation in law enforcement should be carefully restricted, the Act was applicable to all branches of the armed services, despite its failure to name all of the branches in its text. See also United States v. Ahumedo-Avendano, 872 F.2d 367, 372 n. 6 (11th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 100, 107 L.Ed.2d 63 (1989) (collecting cases and noting that a majority of courts considering the application of the statute to the Navy have concluded that the statutory prohibitions apply).

We need not, for the purposes of this case, determine our view of the conflict existing between the circuits. It is unnecessary, because 10 U.S.C. Sec. 375 and the regulations promulgated thereunder at 32 C.F.R. Secs. 213.1-213.11, make the proscriptions of Sec. 1385 applicable to the Navy ³ and serve to limit its involvement with civilian law enforcement officials. Consequently, Sec. 1385 is relevant to this case in the sense that the case law interpreting that statute provides a basis for interpreting Sec. 375 and its prohibition against enforcement of the law by the Navy.

In arguing that the evidence in this case was seized illegally, Hayes relies primarily upon Taylor v. State, 645 P.2d 522 (Okla.Cr.1982). In Taylor, the court found a violation of the Posse Comitatus Act and applied an exclusionary rule to suppress the evidence seized in violation of the statute. Petitioner's reliance on Taylor is misplaced. The military police officer's involvement in the Taylor case was pervasive; he actively participated in the undercover purchase, he pulled a gun during the arrest, he participated in the search of the defendant's house after the arrest, and he took possession of the drugs following the arrest, delivering them to the police station for testing. The court found that military participation of this magnitude was excessive and on the facts of the case decided that the application of an exclusionary rule was justified. Id. at 525.

In this instance, the NIS agent's involvement in the drug transaction and subsequent arrest was far removed from that in Taylor. The agents herein merely shared information about drug activity at the Arcade with the police department, aided the police in the surveillance of the Arcade, made the undercover buy, and signalled to the police when the transaction was completed. Unlike in the Taylor case, the NIS agents did not become involved in any of the...