U.S. v. Cook, 93-5017

• Citation: 997 F.2d 1312
• Decision Date: 25 June 1993
• Docket Number: No. 93-5017,93-5017
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lewis Aaron COOK, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1312

997 F.2d 1312

UNITED STATES of America, Plaintiff-Appellee, v. Lewis Aaron COOK, Defendant-Appellant.

No. 93-5017.

United States Court of Appeals, Tenth Circuit.

June 25, 1993.

Submitted on the briefs: ^*

Lewis Aaron Cook, pro se.

Tony M. Graham, U.S. Atty., James L. Swartz, Asst. U.S. Atty., Tulsa, OK, for plaintiff-appellee.

Before TACHA, BALDOCK and KELLY, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Lewis Aaron Cook appeals the district court's denial of his 28 U.S.C. § 2255 motion, raising thirty-one grounds for relief. We have jurisdiction under 28 U.S.C. § 1291.

On December 22, 1989, Defendant was convicted of two counts of possessing a controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and one count of knowingly maintaining a place for the distribution of controlled substances, 21 U.S.C. § 856(a). On April 3, 1990, the district court sentenced Defendant to prison terms of 262 months and 240 months to run concurrently, followed by five years of supervised release. That same day, Defendant filed a notice of appeal. Also on April 3, 1990, long before we decided Defendant's appeal, Defendant filed a number of motions in the district court including a motion styled "writ of habeas corpus and/or motion for new trial and/or motion to dismiss." On November 5, 1991, we decided Defendant's appeal and issued an opinion. See United States v. Cook, 949 F.2d 289 (10th Cir.1991). On October 6, 1992, Defendant filed a § 2255 motion in the district court. ¹ In this motion, Defendant alleged:

1. Illegal search in violation of the Fourth Amendment.

2. Government witness Yvonne Cross was threatened and forced to testify.

3. Conflict of interest in that Defendant's counsel met with government witness Yvonne Cross after she refused to testify.

4. Ineffective assistance of counsel in examination of government witness Officer Mark McCrory of the Tulsa Police Department.

5. Ineffective assistance of counsel in that counsel failed to investigate the facts of the affidavit supporting the search warrant.

6. District court curtailed cross-examination of government witnesses.

7. Ineffective assistance of appellate counsel in that counsel failed to present certain important issues to the Tenth Circuit on direct appeal.

In its order, the district court considered only the first five of these issues. The court found that it was without jurisdiction to address the first and second issues because it had previously addressed the arguments and found them meritless. ² The district court found no support in the record for Defendant's conflict of interest assertion, and further found Defendant had abused the writ by failing to bring his ineffective assistance of counsel claims in his first "habeas" motion. ³

In the present appeal, Defendant raises thirty-one grounds for relief. To the extent that he failed to raise these grounds in his § 2255 motion to the district court, he has waived them. ⁴ See Lucero v. United States, 425 F.2d 172, 173 (10th Cir.1970). Furthermore, defendant did not appeal the district court's rejection of his fourth claim that his counsel was ineffective in examining government witness Officer Mark McCrory. Therefore, the district court's resolution of the issue stands.

Of the six preserved issues, we first address the four issues that were actually addressed by the district court. First, we address the district court's rejection of Defendant's Fourth Amendment claims. ⁵

Today, we join the Ninth Circuit and hold that Fourth Amendment violations are not reviewable in a § 2255 motion when the federal prisoner has had a full and fair opportunity to litigate the Fourth Amendment claim at trial and present issues on direct appeal. See United States v. Hearst, 638 F.2d 1190, 1196 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); Tisnado v. United States, 547 F.2d 452, 455 (9th Cir.1976); see also United States v. Byers, 740 F.2d 1104, 1137 n. 90 (D.C.Cir.1984) (Robinson, C.J., concurring); Curzi v. United States, 773 F.Supp. 535, 540-41 (E.D.N.Y.1991), aff'd on other grounds, 973 F.2d 107 (2d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993); C. Wright, 3 Federal Practice and Procedure 453, § 594 (1982). Our conclusion is supported by three Supreme Court cases.

In Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), the Supreme Court held that Fourth Amendment claims could be reviewed in § 2255 motions. Id. at 231, 89 S.Ct. at 1076. The Court's decision was, essentially, that § 2255 review should parallel the review afforded to state prisoners in habeas proceedings brought under § 2254, and previous decisions by the Court left no doubt that the § 2254 habeas remedy extended to those alleging Fourth Amendment violations. Id. at 225, 89 S.Ct. at 1073. Seven years later, the Court held in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), that Fourth Amendment claims were not cognizable in § 2254 state habeas proceedings when the state had provided a full and fair opportunity to litigate the issue. Id. at 494, 96 S.Ct. at 3052. Therefore, the underlying premise of Kaufman was overruled by Stone. See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure, § 27.3, at 315 n. 37 (1984) (Kaufman "assumed the validity of earlier cases recognizing Fourth Amendment claims under § 2254, which were now overruled" by Stone). Although the Court in Stone did not explicitly overrule Kaufman to the extent Kaufman relied upon "the supervisory role of [the Supreme] Court over the lower federal courts," Stone, 428 U.S. at 481 n. 16, 96 S.Ct. at 3046 n. 16, we hold that Kaufman does not survive the Stone holding in light of the Court's policy of treating grounds for relief as equivalent under § 2254 and § 2255. See Davis v. United States, 417 U.S. 333, 344, 94 S.Ct. 2298, 2304, 41 L.Ed.2d 109 (1974). Furthermore, in United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), the Court stated:

After Stone v. Powell, 428 U.S. 465 [96 S.Ct. 3037, 49 L.Ed.2d 1067] (1976), the only cases raising Fourth Amendment challenges on collateral attack are those federal habeas corpus cases in which the State has failed to provide a state prisoner with an opportunity for full and fair litigation of his claim, analogous federal cases under 28 U.S.C. § 2255, and collateral challenges by state prisoners to their state convictions under postconviction relief statutes that continue to recognize Fourth Amendment claims.

Johnson, 457 U.S. at 562 n. 20, 102 S.Ct. at 2594 n. 20 (emphasis added). From this language, it is clear that the Court intends for Fourth Amendment claims to be limited in § 2255 proceedings as they are limited in § 2254 proceedings--i.e., to be addressed only if a defendant has not had a full and fair opportunity to raise the claims at trial and on direct appeal.

Although the district court has previously found that Defendant had a full and fair opportunity to litigate his Fourth Amendment claims at trial, see United States v. Cook, No. 89-CR-107-E (N.D.Okl. May 2, 1990) (order denying post-trial motions), we remand to the district court for a determination of whether Defendant had a full and fair opportunity to raise his Fourth Amendment issues on direct appeal. We note that Defendant asserted one Fourth Amendment violation on direct appeal, which this court rejected. See United States v. Cook, 949 F.2d 289, 292-93 (10th Cir.1991). Where the Defendant on appeal has raised at least one Fourth Amendment issue on direct appeal, it normally would follow that Defendant had a full and fair opportunity to raise his Fourth Amendment claims on direct appeal, but because Defendant has asserted that his appellate counsel was ineffective in failing to present the other Fourth Amendment issues on direct appeal, it is possible that he was denied this opportunity. In the event that Defendant can show he was denied effective assistance of appellate counsel, the district court must address Defendant's newly raised Fourth Amendment claims.

Next, the district court addressed Defendant's allegation that government witness Yvonne Cross was threatened and forced to testify against him at trial. ⁶ Like the Fourth Amendment claim, the district court rejected this claim because it had previously addressed the argument and found it meritless. Because we were unable to find in the record where the court had previously addressed this issue, we were unable to ascertain the basis for the issue's rejection. Therefore, we remand this issue to the district court for further consideration.

Third, the district court rejected Defendant's conflict of interest claim, stating that "neither Cook's Petition nor anything in the record supports a conflict of interest." The district court relied on the fact that "[s]eparate counsel was retained for the co-defendants in this action and therefore any issue of conflict by virtue of multiple representation of co-defendants was eliminated at an early stage." However, Defendant did not assert conflict of interest based on multiple representation but asserted conflict of interest by alleging that Defendant's own counsel met with government witness Yvonne Cross and encouraged her to testify against Defendant after she initially refused to testify. Because the district court did not properly address Defendant's conflict of interest assertion, we remand this issue for reconsideration.

Finally, the district court rejected Defendant's ineffective assistance of counsel claim that counsel failed to investigate the facts of the affidavit for the search warrant. The district court seemed to have based its rejection on Defendant's abuse of the writ.

Abuse of the writ occurs when claims are raised for the first time in a second or subsequent habeas petition or § 2255 motion. McClesky v. Zant, 499 U.S. 467, ----, ---- - ----, 111 S.Ct. 1454, 1465, 1470-71, 113...