U.S. v. Pierce

• Decision Date: 21 April 1992
• Docket Number: No. 91-4097,91-4097
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee PIERCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1297

959 F.2d 1297

UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee PIERCE, Defendant-Appellant.

No. 91-4097.

United States Court of Appeals, Fifth Circuit.

April 21, 1992.

Rehearing Denied May 17, 1992.

Mike A. Hatchell (court-appointed), Tyler, Tex., for defendant-appellant.

Tonda L. Curry, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Tyler, Tex., Thomas M. Gannon, Vicki S. Maran, U.S. Dept. of Justice, Crim. Div., Appellate Section, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before GOLDBERG, DUHE, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

The pivotal issues in this appeal from denial of § 2255 relief are the scope of such proceedings, and Roy Lee Pierce's ineffective assistance of counsel claim concerning a search purportedly violative of the Fourth Amendment, but which Pierce lacks standing to challenge. We AFFIRM.

I.

At the Los Angeles American Airlines terminal in December 1987, Pierce's sister-in-law, Angela Evans, picked up a package sent from Tyler, Texas. Shortly thereafter, she presented a package to American Airlines employee McAdam for shipment to Tyler. In response to his inquiry, Evans stated that it contained an iron. ¹ She filled out an invoice, listing Amy Long as the shipper and Hazel Crumpton as the recipient. Evans informed McAdam that she was shipping the package for a friend; but Evans, not Amy Long, was the sender.

After Evans left, McAdam became suspicious, because the package was too light to contain an iron; his resulting x-ray revealed an opaque mass instead. McAdam contacted his supervisor; and, pursuant to airline policy, they opened the package and discovered what later proved to be rock cocaine. ² McAdam's supervisor then contacted the DEA office at the airport, which arranged a controlled delivery, forwarding the package to its intended destination and establishing surveillance there. The next day, at the Tyler airport, Crumpton was arrested after she picked up the package. Pierce had been observed driving her to the airport and was waiting in the car. He was arrested as he attempted to escape.

In January 1988, Pierce, Crumpton, Angela Evans, and her husband, James Evans, were indicted for conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846; Pierce and Crumpton, also for possession of cocaine, in violation of 21 U.S.C. § 841(a)(1). Pierce moved to suppress the cocaine found in the package, asserting that the search violated the Fourth Amendment. A supplement contended that he had "derivative standing to object to the search" because the results would be used against him. The district court, without addressing standing, denied the motion.

Crumpton and the Evanses pleaded guilty during trial in July 1988; Angela Evans and Crumpton testified. The jury found Pierce guilty on both counts; his sentence included 262 months' imprisonment. He appealed, contending that the Los Angeles search violated the Fourth Amendment. The government countered that Pierce lacked standing to contest it. In United States v. Pierce, 893 F.2d 669 (5th Cir.1990), this court affirmed, holding, inter alia, that the Fourth Amendment had not been violated and, accordingly, declining to address standing. Id. at 674 n. 2.

In May 1990, Pierce moved under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence, asserting 24 grounds for relief, the majority of which were ineffective assistance of counsel claims. The government's response included the standing challenge. Without addressing standing, the magistrate judge, in a most thorough and well-reasoned report, recommended denial; and the district court adopted the recommendation. ³ Pierce timely appealed. ⁴

II.

Pierce limits the issues to the following: he was denied, on several grounds, his Sixth Amendment right to effective assistance of counsel; the government knowingly used perjured testimony and misled the jury about benefits his co-conspirators would receive for cooperating with the government; and the government's attorney committed perjury in denying production of alleged Jencks Act material to Pierce. ⁵

For a collateral attack under § 2255, "a distinction is drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the other." United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A 1981). See United States v. Drobny, 955 F.2d 990, 994-95 (5th Cir.1992). ⁶ This is because, "[a]fter conviction and exhaustion or waiver of any right to appeal, 'we are entitled to presume that [the defendant] stands fairly and finally convicted.' " United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.1991) (en banc) (quoting United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)), cert. denied, --- U.S. ----, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992). Accordingly, "[a] defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude, and may not raise an issue for the first time on collateral review without showing both 'cause' for his procedural default, and 'actual prejudice' resulting from the error." Id. at 232 (citations omitted). "This cause and actual prejudice standard presents 'a significantly higher hurdle' than the 'plain error' standard that we apply on direct appeal." Id. (quoting Frady, 456 U.S. at 166, 102 S.Ct. at 1593). Other types of error may not be raised in a collateral attack, unless the defendant demonstrates that "the error could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice." Id. at 232 n. 7. See also Capua, 656 F.2d at 1037. ⁷

A.

Pierce's ineffective assistance of counsel claims are obviously of constitutional magnitude and satisfy the cause and actual prejudice standard. "Ineffective assistance of counsel ... is cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). "[I]f [a] procedural default is the result of ineffective assistance of counsel, the Sixth Amendment ... requires that responsibility for the default be imputed to the [government], which may not 'conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance.' " Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980)). Moreover, " '[t]he general rule in this circuit is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.' " United States v. Munoz-Romo, 947 F.2d 170, 179 (5th Cir.1991) (quoting United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1051, 98 L.Ed.2d 1013 (1988)). Except in those rare instances where an adequate record exists to evaluate such a claim on direct appeal, this court generally declines to address it, without prejudice to it being raised under § 2255. E.g., id.

Pierce maintains that his counsel was ineffective because first, he failed to present, on direct appeal, a "controlling" Fifth Circuit case concerning whether the airline employees were acting as agents or instruments of the government, thereby violating the Fourth Amendment by searching the package, and, instead, relied on a Ninth Circuit standard; second, he failed to investigate before trial, or present on appeal, whether the airline search was required by federal regulations, thereby constituting federal action for purposes of determining whether the search was conducted by a private party or by an agent or instrument of the government; third, he failed to object, move for a mistrial, or request limiting instructions when Pierce's co-conspirators' plea agreements were introduced at trial; and fourth, he refused both to cross-examine Angela Evans on whether the package (with money) she received from Pierce--before she sent the package (with cocaine) addressed to Crumpton--had been opened prior to receipt and to question Pierce at the suppression hearing on this subject. "To succeed on any claim of ineffective assistance of counsel, a defendant must show that: (1) the attorney's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that except for the attorney's unprofessional errors, the results of the proceeding would have been different." United States v. Kinsey, 917 F.2d 181, 183 (5th Cir.1990) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064-65, 2068, 80 L.Ed.2d 674 (1984)). An insufficient showing of prejudice pretermits addressing the adequacy prong. E.g., United States v. Fuller, 769 F.2d 1095, 1097 (5th Cir.1985).

1.

The first two ineffective assistance contentions relate to Pierce's claim that the search in Los Angeles was by instruments or agents of the government and violated his Fourth Amendment rights. ⁸ The government maintains that he lacks standing to challenge this search. Pierce responds, as he did in the § 2255 district court proceeding, that the government has waived its right to contest standing, because it did not do so in the trial court. ⁹ Steagald v. United States, 451 U.S. 204, 209, 101 S.Ct. 1642, 1646, 68 L.Ed.2d 38 (1981), holds that the government "may lose its right" to raise Fourth Amendment standing on appeal "when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation."

Steagald involved the government's first-time assertion, after grant of certiorari, that a defendant lacked standing to object to the search of another's house. The Court noted that, in the district court and this court, the government had failed to challenge...