Murray v. U.S.

• Decision Date: 07 July 1998
• Docket Number: No. 96-3807,96-3807
• Citation: 145 F.3d 1249
• Parties: 11 Fla. L. Weekly Fed. C 1562 Jason Todd MURRAY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1249

145 F.3d 1249

11 Fla. L. Weekly Fed. C 1562

Jason Todd MURRAY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 96-3807

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

July 7, 1998.

Jason Todd Murray, Pensacola, FL, pro se.

Tamra Phipps, Susan H. Rothstein-Youakim, Linda Julin-McNamara, Asst. U.S. Attys., Tampa, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BLACK, CARNES and HULL, Circuit Judges.

PER CURIAM:

Jason Todd Murray appeals the district court's dismissal of his pro se 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Initially, we decide that this appeal is limited to the one issue specified in the certificate of appealability. Turning to that issue, we also decide that the district court's judgment dismissing Murray's ineffective assistance of counsel claim is due to be affirmed.

I. BACKGROUND

In 1989, Murray pled guilty to possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841, and was subsequently sentenced to 188 months in prison. In 1991, he filed a direct appeal of his conviction and sentence. We affirmed.

On August 23, 1996, Murray filed this 28 U.S.C. § 2255 motion claiming: (1) a Fourth Amendment violation due to an illegal stop and search of his car; (2) ineffective assistance of counsel due to his counsel's failure to inform him of or to litigate his meritorious Fourth Amendment claim; (3) a sentence based on erroneous and false information; and (4) a double jeopardy violation.

Without conducting an evidentiary hearing, the district court rejected all of Murray's asserted grounds for relief and dismissed his § 2255 motion. Murray appealed the denial of relief, and we granted a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c). We limited the COA to the following issue:

Whether appellant received ineffective assistance of counsel in that his attorney failed to argue that the stop and search of appellant's car violated the Fourth Amendment.

See § 2253(c)(3) (the COA "shall indicate which specific issue or issues satisfy the showing required."). Notwithstanding our specification of only one issue in the COA, Murray's brief raises other issues. It argues the merits of his Fourth Amendment claim, and also presents instances of ineffective assistance of counsel other than the one specified in the COA.

II. ISSUES PRESENTED

Murray's appeal raises two issues. The first is whether we consider on appeal any issues other than the ones for which a COA was granted pursuant to 28 U.S.C. § 2253(c). The second issue is whether the district court erred by dismissing, without an evidentiary hearing, Murray's claim that he received ineffective assistance of counsel because of his counsel's performance in connection with the allegedly meritorious Fourth Amendment claim.

III. THE CERTIFICATE OF APPEALABILITY ISSUE

Murray's attempt to have us decide issues other than the one for which we granted a certificate of appealability presents us with a threshold question: Does the granting of a COA open up to appellate review all of the issues that petitioner wishes to pursue, or is review instead confined to the issue specified in the COA? Although this is a question of first impression in this circuit, see Hunter v. United States, 101 F.3d 1565, 1571 n. 4 (11th Cir.1996) (en banc) (reserving the issue), it is not a difficult one.

The Fifth Circuit answered this question in Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir.1997), concluding that the plain import of 28 U.S.C. § 2253(c)(3) requires that the scope of review in a habeas appeal be limited to issues specified in the COA. Section 2253(c)(3) mandates that the COA indicate "which specific issue or issues satisfy the showing" necessary for granting such a certificate. See also Hunter, 101 F.3d at 1584 (remanding a case with instructions that the district court specify the issue or issues meant to be covered in the COA). As the Fifth Circuit pointed out in Lackey, there would be little point in Congress requiring specification of the issues for which a COA was granted if appellate review was not to be limited to the issues specified. See 116 F.3d at 152.

We agree with the Fifth Circuit's reasoning and add a point of our own. Before enactment of the Antiterrorism and Effective Death Penalty Act ("ADEPA"), which included the 28 U.S.C. § 2253(c)(3) COA issue specification provision, a certificate of probable cause (CPC) to appeal requirement served much the same appellate gatekeeping function in 28 U.S.C. § 2254 proceedings as the COA requirement does in both §§ 2254 and 2255 proceedings now. See Hunter, 101 F.3d at 1571 & n. 4. Under the pre-ADEPA regime, we held that when a CPC was granted on fewer than all of the issues in a habeas case, the appeal was limited to the issues specified. See Clisby v. Alabama, 52 F.3d 905, 906 (11th Cir.1995) (where district court granted CPC limited to one issue); Clark v. Dugger, 901 F.2d 908, 910 (11th Cir.1990) (where we granted CPC limited to one issue). Thus, even though there was no requirement that a CPC specify the issues that could be appealed, if it did do so appellate review was limited to the issues specified. In view of that prior circuit law, it would be anomalous for us to hold, now that there is an issue specification requirement, see § 2253(c)(3), that the appeal is not limited to the issues specified. Consistent with our own prior decisions in Clisby and Clark, with the Fifth Circuit's Lackey decision, and with the obvious import of § 2253(c)(3), we hold that in an appeal brought by an unsuccessful habeas petitioner, appellate review is limited to the issues specified in the COA. We turn now to the issue specified in the COA issued in this case.

IV. THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Although we will not decide any issue not specified in the COA, we will construe the issue specification in light of the pleadings and other parts of the record. Because Murray pleaded guilty, we construe the issue specified to include all aspects of counsel's performance in connection with the Fourth Amendment claim as it relates to Murray's plea conviction. The issue is whether Murray is entitled to an evidentiary hearing on his § 2255 motion. We begin with his allegations and the facts concerning the proceedings to date.

A. MURRAY'S PLEA AGREEMENT

In support of his contention that he received ineffective assistance of counsel in connection with his Fourth Amendment claim, Murray first alleges certain facts regarding the stop and search of his car on the day of his arrest. However, the facts that Murray alleges in his § 2255 motion differ from the facts Murray expressly agreed to in his plea agreement at the time of the entry of his guilty plea. The facts surrounding Murray's arrest were outlined in his plea agreement, paragraph 13 of which states as follows:

13. Defendant will plead guilty because he is in fact guilty of the charges contained in Count One of the Indictment. In pleading guilty to this Count, defendant acknowledges the facts as stated in the stipulation contained below are true, and were the case to go to trial, the government would be able to prove beyond a reasonable doubt the following:

Stipulated Facts

On July 27, 1989, the defendant Jason Todd Murray was operating a motor vehicle in Pinellas County, Florida. Defendant Deniceso Lopez Washington was a passenger in the car. Pursuant to an investigatory stop a deputy with the Pinellas County Sheriff Department stopped the defendant's vehicle. Defendant Murray was questioned by law enforcement officers and produced a baggie containing marihuana. The defendant Murray was arrested for the possession of marihuana.

During the search of the defendant's rental car incident to the arrest law enforcement found a bag containing approximately 884 grams of crack cocaine. A Pinellas County lab later confirmed that the substance found was cocaine base a schedule II narcotic drug.

Fingerprints were found on the outside of the bag which contained the crack cocaine. These fingerprints have been identified as those of the passenger in the vehicle, defendant Washington.

After the arrest defendant Murray admitted to control of the cocaine and knowledge of its presence. Defendant Murray further told officers that Washington had control of the cocaine and knowledge of its presence.

Murray initialed each page of his plea agreement and entered his plea on the day of his scheduled trial on November 28, 1989. He had two prior felony convictions for drug-related offenses and was facing the possibility of a mandatory life sentence if the government filed the information for enhancement. As part of the plea agreement, the government agreed not to file the information for enhancement if Murray did not proceed with his Motion to Suppress.

The plea transcript shows that the government specifically acknowledged on the record its verbal agreement not to file enhancement information. The plea transcript also shows that Murray's counsel specifically acknowledged that the government could establish the stipulated facts enumerated above and that Murray was waiving his Motion to Suppress by stipulating to these facts.

B. MURRAY'S MOTIONS TO WITHDRAW HIS PLEA

After the presentence report was issued showing his guideline sentence, Murray filed a pro se one-page Motion to Withdraw his plea on February 2, 1990, on the general ground that he believed that it was in his best interest to withdraw his plea and go to trial. Murray did not mention the Motion to Suppress. On February 7, 1990, the magistrate judge issued an order stating that the Motion to Withdraw the plea did not comply with the local rules and giving Murray additional time to file an amended motion that complied with the local rules. When no amended motion was filed, the magistrate judge issued a report,...