United States v. Lee Vang Lor

• Decision Date: 05 February 2013
• Docket Number: No. 12–8024.,12–8024.
• Citation: 706 F.3d 1252
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. LEE VANG LOR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

706 F.3d 1252

UNITED STATES of America, Plaintiff–Appellee,

v.LEE VANG LOR, Defendant–Appellant.

No. 12–8024.

United States Court of Appeals, Tenth Circuit.

Feb. 5, 2013.

Jonathan W. Rauchway (Eric C. Reese with him on the brief), Davis Graham & Stubbs LLP, Denver, CO, for Defendant–Appellant.

David A. Kubichek, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), Casper, WY, for Plaintiff–Appellee.

Before HARTZ, BALDOCK, and MURPHY, Circuit Judges.^*

BALDOCK, Circuit Judge.

A Wyoming Highway Patrol trooper stopped Defendant Lee Vang Lor for speeding in March 2007. After gaining consent to search the vehicle, the trooper found methamphetamine. The district court denied Defendant's motion to suppress the methamphetamine, and Defendant entered a conditional guilty plea to one count of possessing methamphetamine with intent to distribute and one count of conspiring to do the same. The district court sentenced him to 121 months' imprisonment. We affirmed the district court's denial of the suppression motion. United States v. Thao, 291 Fed.Appx. 129 (10th Cir.2008).

Defendant then filed a pro se petition to vacate his sentence under 28 U.S.C. § 2255 on the basis of newly discovered evidence. This new evidence was that the Wyoming Highway Patrol terminated the trooper who stopped Defendant because the trooper called in a false dispatch report in April 2007, after Defendant's arrest but before his suppression hearing. Defendant argued this evidence would have undermined the trooper's testimony at Defendant's suppression hearing and that he is therefore entitled to a new hearing. The district court denied Defendant's § 2255 petition. Defendant appealed. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court's denial of his petition.

I.

Wyoming Highway Patrol trooper Ben Peech stopped an SUV driven by Defendant for speeding on Interstate 80. Defendant and his passenger, Lee Thao, both said they had been to Reno, Nevada, but gave inconsistent stories as to why they were there. Trooper Peech also noted other suspicious circumstances. For example, the vehicle had been rented in Minnesota by a third party who lived in Wisconsin. Peech gave Defendant a speeding ticket, and then Thao consented to a search of the vehicle. After consenting, but before Peech began the search, Thao asked if he could have refused consent. Peech said “yes” he could “absolutely refuse.” Thao then said he did not want the car to be searched. Peech acknowledged the withdrawn consent, but said he was going to detain the men pending the arrival of a drug dog. Thao and Defendant then gave verbal and written consent to a search of the SUV. The search, conducted by Peech and three other troopers, yielded approximately two pounds of crystal methamphetamine.

At the suppression hearing on May 31, 2007, Defendant and Thao testified that while the search was in progress Thao yelled at the troopers to stop. Each of the four troopers present during the search testified that neither Defendant nor Thao made any attempt to revoke their consent to search. On appeal from the district court's denial of their motion to suppress, Defendant and Thao argued (1) Trooper Peech unreasonably detained them and (2) their consent to search the vehicle was involuntary. Thao, 291 Fed.Appx. at 132. We held that Peech had reasonable suspicion to detain the men based on a number of facts. Id. at 133. As to the consent issue, we relied on the district court's credibility determinations with respect to Defendant, Thao, and the four officers who testified. Id. at 134. The district court observed in the suppression hearing, “I was more impressed with the truthfulness and testimonies of the sworn peace officers than I am of an individual who has had numerous encounters in a confrontational situation with peace officers all over and who is a convicted felon....” Id. The district court also noted it had observed both Defendant and Thao's demeanor during the testimony. Id.

Defendant outlined the factual basis for his § 2255 petition as follows:

On October 9, 2007, after I initiated my appeal, Mr. Peech was fired from the Wyoming Highway Patrol for falsifying a dispatch report for a traffic stop that occurred on April 7, 2007. Mr. Peech falsely told the dispatcher that the driver of the vehicle was driving under the influence of alcohol in order to justify a traffic stop of a vehicle that he suspected of carrying illegal drugs and a large quantity of money. See Jared Miller, Patrol Upholds Trooper Firing,Casper–Start Tribune, Nov. 8, 2007.

Record on Appeal (ROA) at 12. The Government introduced the referenced newspaper article, as well as Peech's report of the stop, into the record. The article indicates Trooper Peech was cooperating with the federal Drug Enforcement Agency, which directed him to conduct a “wall stop” of a silver Dodge truck.¹ ROA at 74–75. When he realized he would not be on patrol after midnight because of state cost cuts, Trooper Peech called Wyoming's drunk driving hotline and falsely reported seeing a vehicle driven by someone under the influence. Id. at 75. After being called on duty to respond to his own false report, he stopped the Dodge pickup for driving four miles per hour over the speed limit. Id. at 56. After gaining consent to search the pickup, he found $3.3 million in cash inside. Id. at 75.

Defendant argued in his § 2255 petition that because the “main issue during the suppression hearing was one of credibility,” the district court “would have ruled differently in light of this new evidence.” Id. at 14. The district court rejected this argument, and held that Defendant had a full opportunity to litigate his claim. The court said the “newly discovered evidence” concerning Trooper Peech was from an unrelated incident and “[a]t best ... might have provided a basis for impeaching Trooper Peech's credibility.” Defendant appealed, seeking a certificate of appealability, which the district court had denied. Without granting the certificate, we ordered the Government to brief the following questions: Whether evidence discovered after a Fourth Amendment claim has been fully litigated can ever be the basis for relief under 28 U.S.C. § 2255, and if so, under what standard that evidence should be assessed. After the Government submitted its brief, we granted a certificate of appealability as to those questions, appointed Defendant counsel, and ordered counsel to file supplemental briefing. The matter has now been fully briefed.

II.

A federal prisoner is entitled to have his sentence vacated or corrected if it was “imposed in violation of the Constitution or laws of the United States ... or is otherwise subject to collateral attack....” 28 U.S.C. § 2255(a). Defendant makes two arguments in support of his § 2255 motion. First, he argues that he had no full and fair opportunity to litigate his Fourth Amendment claim because he did not have “crucial evidence needed to impeach the Government's sole witness to establish reasonable suspicion.” Aplt.'s Supp. Br. at 19. Second, he argues he is entitled to an evidentiary hearing to determine whether the Government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which requires the Government to disclose material exculpatory evidence prior to trial. We take these arguments in reverse order.

A.

Defendant's second argument is that the district court erred in not conducting an evidentiary hearing to consider his Brady claim. But Defendant's § 2255 petition did not mention Brady or request an evidentiary hearing. Defendant raised Brady only in his reply brief before the district court. Accordingly, the district court did not discuss Brady, but only mentioned it in passing. In civil cases, at least, a party waives an issue in the district court if he waits to raise the argument until his reply brief. F.D.I.C. v. Noel, 177 F.3d 911, 915–16 (10th Cir.1999) (concluding the appellant waived an issue by not raising it until his reply brief in the district court). Section 2255 petitions are, admittedly, “strange and slippery creatures” that defy “traditional ‘civil’ or ‘criminal’ characterization.” United States v. Simmonds, 111 F.3d 737, 742, 743 (10th Cir.1997), overruled on other grounds by United States v. Hurst, 322 F.3d 1256 (10th Cir.2003). But the same rule logically applies in a § 2255 proceeding, considering that plain error review does not apply to forfeited errors on § 2255 review. United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The Ninth Circuit reached exactly this conclusion. United States v. Berry, 624 F.3d 1031, 1039 n. 7 (9th Cir.2010) (holding that a Brady claim raised by a pro se § 2255 petitioner in his district court reply brief was too late and was not within the certificate of appealability). Of course, we construe pro se pleadings liberally, United States v. Tony, 637 F.3d 1153, 1155 n. 1 (10th Cir.2011), but even construed as liberally as possible, Defendant's § 2255 petition simply does not raise a Brady claim. Therefore, we do not consider his second argument on appeal.²

B.

Defendant's first argument is that the newly discovered evidence of Trooper Peech's deception entitled him to § 2255 relief because it shows he was “denied the opportunity for ‘full and fair litigation’ ... of his Fourth Amendment claims in the trial court or on direct appeal.” Aplt.'s Supp. Br. at 12. Defendant's petition asked the district court to grant him a new suppression hearing so he could present the newly discovered evidence.³

The Fourth Amendment protects persons against unreasonable searches and seizures. U.S. Const. amend. IV. The Supreme Court has enforced the Fourth Amendment through the exclusionary rule, a “prudential doctrine created ... to compel respect for the constitutional guaranty.” Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011...