New v. U.S.

• Decision Date: 31 August 2011
• Docket Number: No. 10–2308.,10–2308.
• Parties: Donovan NEW, Appellant,v.UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

652 F.3d 949

Donovan NEW, Appellant,

v.UNITED STATES of America, Appellee.

No. 10–2308.

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2011.Filed: Aug. 31, 2011.

James Arthur Eirinberg, argued, Sioux Falls, SD, for Appellant.Ted McBride, AUSA, argued, Gregg Peterman, AUSA, on the brief, Rapid City, SD, for Appellee.Before COLLOTON and BENTON, Circuit Judges, and KOPF,¹ District Judge.

COLLOTON, Circuit Judge.

After he was convicted of two counts of involuntary manslaughter, Donovan New filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The district court ² denied the motion, and we affirm.

New is a member of the Oglala Sioux Indian tribe. On June 17, 2005, New was traveling in a vehicle with his father and cousin on a highway within the Pine Ridge Indian Reservation in South Dakota. New and his cousin had been drinking heavily that day. The driver lost control of the vehicle while it was moving at approximately 89 miles per hour—24 miles per hour above the posted speed limit—and the car went into a ditch, rolled twice, and landed in a field. The impact of the crash threw New and his cousin from the vehicle and trapped New's father in the back seat. New's father and cousin died as a result of the accident.

An ambulance transported New to a local hospital, where he informed a police officer that his cousin was driving at the time of the crash. New was flown by helicopter to the Rapid City Regional Hospital, where a blood test indicated that New had marijuana in his system and a blood alcohol level of .320, well above the legal limit for motor vehicle operators in South Dakota. Later that day, hospital personnel gave New a variety of medications due to his spinal injuries, difficulty breathing, and chest and shoulder pain. Special Agent Charles Cresalia of the Federal Bureau of Investigation interviewed New in his hospital room the following afternoon. New admitted to Cresalia that he had been driving at the time of the crash and had consumed alcohol earlier that day. Several weeks later, New traveled to the Bureau of Indian Affairs (“BIA”) building in Pine Ridge, South Dakota, to reclaim property that he had left at the accident scene. While he was there, New told BIA Special Agent Fred Bennett that he was driving at the time of the crash, although he also said that others were telling him that he was not the driver.

In late July 2005, a federal grand jury charged New with two counts of involuntary manslaughter, in violation of 18 U.S.C. §§ 1112 and 1153. New moved to suppress his statements to Special Agent Cresalia on the basis that they were involuntary and obtained in violation of the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court denied the motion. At trial, a jury heard evidence from various lay witnesses, law enforcement personnel, doctors, and experts in accident reconstruction. New testified that he had been drinking prior to the accident on June 17, but had no recollection of the accident itself and could not recall whether he was driving at the time of the crash. The jury found New guilty on both counts of involuntary manslaughter, and the district court sentenced him to consecutive terms of 72 months' imprisonment on each count. New raised several challenges to his convictions and sentence on direct appeal, and this court affirmed. United States v. New, 491 F.3d 369 (8th Cir.2007).

New filed his motion pursuant to 28 U.S.C. § 2255 in August 2008, arguing that his trial and appellate counsel had been constitutionally ineffective in six respects. The district court denied New's motion with regard to five of his claims and referred the sixth claim to a magistrate judge for an evidentiary hearing. That claim concerned the failure of New's trial counsel to obtain an audio expert to examine the authenticity of the tape recording of New's interview with Special Agent Cresalia. The magistrate conducted a hearing and recommended that the district court deny New's motion. The district court agreed, and thus denied New's § 2255 motion in its entirety. The court granted New a certificate of appealability with respect to four issues. See 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b)(1). We review the district court's legal conclusions de novo and its findings of fact for clear error. United States v. Davis, 406 F.3d 505, 508 (8th Cir.2005).

First, New contends that he was deprived of his Sixth Amendment right to effective assistance of counsel because his trial counsel failed to litigate properly his motion to suppress the statements he made to Special Agent Cresalia. Whether a defendant was deprived of effective assistance of counsel is a mixed question of law and fact that we review de novo. Id. We review a claim of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must make two showings to obtain relief:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. 2052. Our scrutiny of counsel's performance must be “highly deferential.” Id. at 690, 104 S.Ct. 2052.

New asserts that his trial counsel should have argued that Special Agent Cresalia's warrantless entry into New's hospital room constituted a “search” within the meaning of the Fourth Amendment, and was therefore a violation of the Fourth Amendment's prohibition on unreasonable searches and seizures. Whether the entry was a Fourth Amendment “search” depends upon whether New had a reasonable expectation of privacy in the room. See Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). New acknowledges a split of authority on the question whether a patient has a reasonable expectation of privacy in a hospital room, and this court has not specifically addressed the issue. See New, 491 F.3d at 374 n. 3. Compare, e.g., People v. Courts, 205 Mich.App. 326, 517 N.W.2d 785, 786 (1994), with State v. Stott, 171 N.J. 343, 794 A.2d 120, 127–28 (2002), and People v. Brown, 88 Cal.App.3d 283, 151 Cal.Rptr. 749, 754 (1979).

A failure to raise arguments that require the resolution of unsettled legal questions generally does not render a lawyer's services “outside the wide range of professionally competent assistance” sufficient to satisfy the Sixth Amendment. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. This court has held that an attorney's failure to anticipate changes in the law does not constitute constitutionally ineffective assistance. Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir.1999). Then in Fields v. United States, 201 F.3d 1025 (8th Cir.2000), this court reached the same conclusion about unsettled issues. We denied relief to a § 2255 movant who argued that his attorney's failure to object to the district court's jury instructions deprived him of effective assistance of counsel. See id. at 1026. We noted that neither the Eighth Circuit nor the Supreme Court had decided whether the jury instructions at issue were adequate, and that two other courts of appeals had addressed the issue and come to contrary conclusions. We then said the following:

Given this split of authority at the time Fields was tried, and the complete lack of Eighth Circuit or Supreme Court authority on the subject, it must be said that counsel's performance fell within the wide range of professionally competent assistance.... If counsel's failure to anticipate a change in the law will not establish that counsel performed below professional standards, then counsel's failure to anticipate a rule of law that has yet to be articulated by the governing courts surely cannot render counsel's performance professionally unreasonable. Moreover, Fields has not directed our attention to Supreme Court or Eighth Circuit precedent (and our research has located none) that can be said to clearly portend the law ... as Fields would have us state it.

Id. at 1027–28 (emphasis added) (internal quotation and citations omitted); see also Givens v. Cockrell, 265 F.3d 306, 309–10 (5th Cir.2001); Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir.1999); Dutton v. Brown, 812 F.2d 593, 598 & n. 4 (10th Cir.1987) (en banc).

New has not identified any controlling legal authority that directly supported his Fourth Amendment argument, or any controlling authority that “clearly portend[s]” that such an argument would have been successful. Fields, 201 F.3d at 1028. We therefore conclude that New has not made a showing that his trial counsel's performance was deficient.

New also argues that his trial counsel was ineffective because he failed to argue that Special Agent Cresalia violated New's Sixth Amendment right to counsel by interviewing him without an attorney present. The Sixth Amendment right to counsel does not attach, however, until the government commences adversary judicial criminal proceedings against a defendant. McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). There is no assertion here that such proceedings were underway at the time of New's conversation with Special Agent Cresalia. Because New could not have been prejudiced by his attorney's failure to make a meritless argument, we reject the contention.³

The second issue New raises on appeal is that he was denied effective assistance of appellate counsel because his attorney failed to argue that the evidence was insufficient to support his convictions. The Sixth...