U.S. v. Hernandez

• Decision Date: 22 September 1993
• Docket Number: D,No. 1319,1319
• Citation: 5 F.3d 628
• Parties: UNITED STATES of America, Appellee, v. Noel HERNANDEZ, Defendant-Appellant. ocket 92-1326.
• Court: U.S. Court of Appeals — Second Circuit

Page 628

5 F.3d 628

UNITED STATES of America, Appellee, v. Noel HERNANDEZ, Defendant-Appellant.

No. 1319, Docket 92-1326.

United States Court of Appeals Second Circuit.

Argued May 6, 1993.

Decided Sept. 22, 1993.

Ira S. Cooper, New York City (Neil Rothfeld, Zerin & Cooper, of counsel), for appellant.

Eric D. Bernstein, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Mary Jo White, U.S. Atty., Susan Corkery, Asst. U.S. Atty., E.D.N.Y., of counsel), for appellee.

Before: MESKILL, PIERCE and WALKER, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from a judgment of conviction entered on June 8, 1992, after a jury trial, in the United States District Court for the Eastern District of New York, Dearie, J., convicting Noel Hernandez of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 and knowing and intentional possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). We affirm in part and dismiss in part.

Hernandez raises two main arguments on appeal. First, he contends that the district court's denial of his motion to suppress the cocaine seized after he consented to a search of the vehicle that he was driving was clearly erroneous. He argues that, based on the totality of all the circumstances, the consent he gave to Drug Enforcement Administration (DEA) agents to search the car was not voluntary. Second, he argues that he received ineffective assistance of counsel. He claims that his trial counsel's performance was so deficient that it fell below the standard of reasonableness. Hernandez contends that he was prejudiced by this ineffective assistance rendered by his trial counsel and that there is a reasonable probability that, but for such ineffective representation, the result of his trial would have been different.

We affirm the district court's denial of Hernandez's suppression motion. We dismiss his claim of ineffective assistance of trial counsel. Hernandez raised his ineffective assistance of counsel claim in a motion pursuant to 28 U.S.C. Sec. 2255. Because Hernandez never appealed the district court's denial of his section 2255 motion, we lack appellate jurisdiction to review the district court's decision. We also will not consider Hernandez's claim of ineffective assistance of counsel as part of his direct appeal. We hold that Hernandez has waived this claim because the only time he raised it before the district court was in a proceeding from which he took no appeal.

BACKGROUND

The uncontroverted testimony at trial and at the suppression hearing establishes the following facts.

On December 17, 1990, DEA agents followed a car in the borough of Queens, New York City, that was being driven in a suspicious manner. Appellant Hernandez was driving the car and Walter Cerpa was riding in the front passenger seat. After Hernandez made a phone call from a public telephone, Hernandez drove for approximately fifteen minutes circling city blocks before stopping five blocks from where he got into the car. Hernandez then stopped to pick up a third person, Luis Sierra. Hernandez drove around in circles for another fifteen minutes, eventually parking in a darkened section of a parking lot that was about two blocks from where Sierra had entered the vehicle. A few minutes later, Sierra exited Hernandez then drove from Queens to Brooklyn. The agents followed Hernandez to Brooklyn where, using their flashing lights and siren, they stopped the car. Agent Levine testified at trial that just before Hernandez stopped his car he, Levine, observed Cerpa lean forward and make a motion that looked like he was placing an object under the seat.

the car and walked approximately one block to his apartment.

After stopping Hernandez's vehicle, four DEA agents exited two DEA cars. Agent Levine and one other agent approached the driver's side and the two other agents approached the passenger side. Agent Levine testified that his gun was out of the holster but down at his side. After announcing that they were police officers and yelling to Hernandez and Cerpa to put their hands where they could be seen, Agent Levine told Hernandez and Cerpa to step out of the car. As soon as the men complied, he reholstered his gun. The agents informed the two men that they were conducting a drug investigation. When Agent Levine asked Hernandez where he had been driving, Hernandez replied that he was going to his mother's house down the street and that he had been driving in Brooklyn. Agent Levine then asked Hernandez if he had been in Queens at all that evening. Hernandez replied that he had not. When the agents told Hernandez that they had followed him from Queens, Hernandez admitted that he had been there. Agent Levine asked Hernandez if he could search the car for guns and drugs. Hernandez replied: "[N]o problem, go ahead and search the car." The agents found approximately 500 grams of cocaine under the front passenger seat.

On January 16, 1991, Hernandez and Cerpa were indicted together on charges of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846 and possession with intent to distribute in violation of 21 U.S.C. Sec. 841. Hernandez's counsel moved to suppress the cocaine seized from the car on the grounds that the agents did not lawfully stop the car and that they did not have Hernandez's voluntary consent to search the car. His counsel also moved to suppress the statements Hernandez made to the agents when the car was first stopped, on the ground that the statements were custodial in nature and were not preceded by Miranda warnings. The district court held a hearing on the motions on February 22, 1991. The court denied the suppression motions prior to trial. The court granted a motion by Hernandez's counsel for a severance from co-defendant Cerpa; Cerpa was subsequently tried and acquitted.

Hernandez was tried before a jury and was convicted. He relieved his trial counsel and obtained new counsel, Ira Cooper. On June 5, 1992, Hernandez was sentenced to fifty-one months in prison. On the same day, Hernandez timely filed a notice of appeal from the judgment of conviction. Also on the same day, Hernandez filed a motion in the district court pursuant to 28 U.S.C. Sec. 2255 "to vacate, set aside, or correct sentence by a person in federal custody" on the ground that he received ineffective assistance from his trial counsel. Principally, Hernandez claimed that his trial counsel had failed to confer adequately with him or to investigate properly and also had failed to call defense witnesses, including Hernandez himself, to testify on his behalf.

On June 24, 1992, Hernandez made a motion to our Court asking us "[t]o stay [his] appeal until [his] 2255 Motion [wa]s decided by Judge Dearie, or [to] allow withdrawal of [his] appeal without prejudice to reinstate[ment] by written notice to [the] Clerk of Court within ten (10) days of [the] District Court's decision as to [the] 2255 Motion." He argued that allowing the relief requested would avoid the duplicative efforts of defense counsel, the prosecutor and the Court. In an accompanying affidavit, Attorney Cooper indicated that he had not been retained by Hernandez until more than ten days after his conviction and, therefore, had been unable to move for a new trial on Hernandez's behalf prior to sentencing. ¹ Attorney Cooper argued that if the section 2255 motion was granted, a new trial would follow thus eliminating the need for the appeal. If the section On July 9, 1992, we granted Hernandez's motion "to the extent that the appeal [was] withdrawn without prejudice to reinstatement by written notice to the Clerk of the Court within 10 days of the District Court's decision on the Sec. 2255 motion." By Memorandum and Order dated November 23, 1992, Judge Dearie denied Hernandez's section 2255 motion. He concluded: "Trial counsel knew what he was doing. The result was just; virtually no possibility exists that the outcome would have been different were [Hernandez] at liberty to rewrite the script." A judgment dated December 2, 1992 was entered denying Hernandez's section 2255 motion.

                2255 motion was denied, he contended, "that denial [could] be incorporated into the Appeal."   Attorney Cooper urged us to grant the stay of Hernandez's appeal or the withdrawal without prejudice contending that if we did so he would be able to develop the record and consolidate the appeal on all the relevant issues
                

By letter dated December 14, 1992, Hernandez asked us to reinstate his direct appeal. He enclosed with his letter a copy of Judge Dearie's order denying Hernandez's section 2255 motion. Hernandez, however, never filed a notice of appeal from that order.

DISCUSSION

I. Appellate Jurisdiction

We first address the question of our jurisdiction to hear this appeal. We conclude that we have jurisdiction to consider Hernandez's claim that the district court improperly denied his suppression motion. Hernandez timely filed his notice of appeal for his direct appeal. We granted his motion for withdrawal of his direct appeal without prejudice, and he complied with our instructions for reinstatement of his appeal. ² Therefore, the suppression issue is properly before us.

Our jurisdiction to hear Hernandez's claim of ineffective assistance of trial counsel is considerably more problematic. Hernandez presented his ineffective assistance argument to the district court in a section 2255 motion which the district court denied by memorandum and order. ³ Hernandez, however, has never appealed this order. Although the government did not mention this fact or challenge our jurisdiction to consider this issue, we must consider it sua sponte. See, e.g., In re Lomas Financial Corp., 932 F.2d 147, 150 (2d Cir.1991); In re Chateaugay Corp., 922 F.2d 86, 89 (2d Cir.1990).

At oral argument, we asked both sides whether Hernandez had filed a notice of appeal from the district court's denial of his section...