Appendix — Larson v. United States

Pe

Bupreme Court, u.s,

DEC. 3.0 1999

OFFICE OF THE CLERK

In the Supreme Court of the Wnited States —

92-1119

October Term, 1992

DUANE WENDALL LARSON, Petitioner

V.

UNITED STATES OF AMERICA

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHT CIRCUIT

PETITIONER’S APPENDIX

Duane W. Larson

Pro Se

22261 Clearbrook

Mission Viejo, CA 92692

Phone: (714) 830-6025

DOCUMENT: PAGES:

Opinion of the United States ... 1-3

Court of Appeals for the Eighth

Circuit (October 8, 1992)

Order of the United States Court . 4

of Appeals for the Eighth Circuit

Denying Rehearing and Rehearing

En Banc (November 16, 1992)

Order of the United States .... 5-9

District Court (March 10, 1992)

Report and Recommendation o * © 10-37

(December 23, 1991) as Adopted by

District Court

Opinion of the United States Court 38-51

of Appeals for the Eighth Circuit

905 F.2d 218 (June 6, 1990)

Order of the District Court .... 52-53

(February 23, 1989)

Report and Recommendation ..... 54-85

(January 13, 1989)

Opinion of the United States ... 86-91

Court of Appeals for the Eighth Circuit

833 F.2nd 758 (November 25, 1987)

Order of the District Court .... 92-116

(July 2, 1987)

Report and Recommendation... . . 117-168

(April 17, 1987)

Opinion of the United States ... 169191

Court of Appeals for the Eighth Circuit

760 F.2d 852 (April 11, 1985)

ii

AUSA Vosepka's response of 8-20-86 to

to Petitioner's 28USC2255 .... . 191-195

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 92-2212 MN

Duane Wendall Larson,

Appellant, Appeal from

the United

States ;

pistricte

Court

for the

District of

Minnesota

United States of America

Appellee.

+e -eteeeeee + + +

(UNPUBLISHED)

Submitted: October 5, 1992

Filed: October 8, 1992

Before FAGG, BOWMAN, AND WOLLMAN, Circuit

Judges.

PER CURIAM.

Duane Wendall Larson appeals’ the

district court's order dismissing as

successive and abusive his third motion for

relief under 28 U.S.C. § 2255 and

dismissing as untimely his motion to

reconsider his first section 2255 motion.

We affirn.

- 2 -

Having carefully reviewed the record,

we conclude the district court correctly

denied as successive Larson's third section

2255 motion, which raised the same Fourth

Amendment, ineffective assistance of

counsel, and evidentiary hearing issues as

Larson's earlier motions. Larson simply

disagrees with the earlier decisions. We

also affirm the denial of Larson's motion

for reconsideration of his first section

2255 motion.

In addition, we agree with the

district court that Larson's discovery

Claim abused the writ. The Government

satisfied its burden of asserting Larson

abused the writ when it stated Larson

~~

did not raise the issue in his first and

second section 2255 motions. See McCleskey

vy. Zant, 111 S. Ct. 1454, 1470 (1991);

Andiarena v. United States, 967 F.2d 715,

717 (lst Cir. 1992) (per curiam) (McCleskey

standard applies to section 2255

aaa

- 3 -

proceedings). To disprove the abuse,

Larson must show cause and prejudice to

excuse his failure to raise the claim

earlier. McCleskey, 111 S. Ct. at 1470.

Because Larson knew of the discovery's

existence, he cannot show prejudice. See

United States v. Bagley, 473 U.S. 667, 678

(1985). Larson's right-to-testify claim is

also abusive.

Accordingly, we affirm. We deny

Larson's motion to argue his appeal.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

oho

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 92-22122MNMI

Duane Wendall Larson,

Order denying

Petition for

Rehearing and

Suggestion

for

United States

of America,

Rehearing En

Banc

Appellant,

vs.

Appellee.

+eeeneeee ete & + + &

The suggestion for rehearing en banc

is denied. The petition for rehearing is

also denied.

November 16, 1992

Order Entered at the Direction of the

Court:

Clerk, U.S. Court of Appeals, Eighth

Circuit

- 5 =

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

DUANE WENDALL LARSON,

Petitioner, Civil 4-91-192

(Cr. 4-83-84)

Vv.

UNITED STATES OF AMERICA,

Respondent.

On December 23, 1991, United States

Magistrate Judge Floyd E. Boline issued a

Report and Recommendation herein.

Magistrate Judge Boline recommended that

petitioner's third motion for relief under

28 U.S.C. § 2255 and his motion for

reconsideration be denied. He also

determined that certain motions for

discovery were moot and that the

petitioner's motion for an evidentiary

hearing should be denied because he is not

entitled to relief as a matter of law.

Petitioner requested additional time

to prepare his objections to the Report and

Recommendation and received it. He also

- 6 -

requested oral argument on his objections

and filed a motion for return of property

taken in 1983. The government has

responded to petitioner's objections and to

his motion for return of property.

In his objections petitioner indicates

that he seeks "primarily a reconsideration

of the district court's first writ

finding." He seeks to reargue search and

seizure points raised in earlier § 2255

motions. He also complains about what he

asserts to be discovery violations and

missing evidence. He denies that he

- 1 -

has abused the writ and claims that his

right to due process has been violated. He

again asks in his objections for an

evidentiary hearing “to determine the

correct amount of cocaine legally found (if -

any)."

Petitioner's objections require the

court to make a de novo review and

determination of the record which it has

— -

done. Petitioner is a convicted drug

dealer found with a very large amount of

cocaine who has now served his time in

prison but continues to argue technical

points related to search and seizure

issues. Petitioner made a knowing and

willing choice at trial to prevent his two

sets of counsel who were standing by at

trial from defending his interests. This

was a big mistake about which the court

cautioned him many times. He should have

permitted his counsel to develop the

factual record at trial rather than te Try

to reconstitute the record years later. In

this petition and in the material submitted

in support of it and in objection to the

Report and Recommendation, he continues to

mischaracterize the record and this court's

prior rulings.

After its de novo review, the court

finds itself in basic agreement with the

findings and conclusions of Magistrate

Judge Boline. This petition is an abuse of

QQ

o @

the writ, and petitioner has not made the

required showing of cause and prejudice.

Nor has he shown any fundamental

miscarriage of justice in his case. The

issues have been amply briefed and there is

no showing that oral argument is necessary

to elaborate on the written material. The

petition shoute be denied.

o 2 «

The government has responded to the

motion for return of property by indicating

that all the property taken in 1983 was

either made available to petitioner or

destroyed and the motion is therefore moot.

Petitioner replies with an allegation that

this was intentional and planned evidence

destruction, but he points to no support in

the record for his conclusion. Based upon

the record this motion should be dismissed

as moot.

Accordingly, based upon the above, and

all the files, records, and proceedings

herein, IT IS HEREBY ORDERED that:

——-

- 9G-

1.) The petition for relief under 28

U.S.C. § 2255 and the motion for

reconsideration are denied.

2.) The request for oral argument and/or

an evidentiary hearing is denied.

3.) The motion for return of evidence

taken in 1983 is dismissed as moot.

Dated: March 10, 1992

DIANA E. MURPHY

United States District Judge

mei

- 10 -

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

CIVIL 4-91-192

(CRIMINAL 4-83-84 (1) )

DUANE WENDALL LARSON,

Petitioner,

Vv. REPORT AND

RECOMMENDATION

UNITED STATES OF AMERICA,

Respondent.

Before the Court are petitioner's

motions for relief from his sentence under

28 U.S.C. § 2255 and for reconsideration of

his first motion for § 2255 relief. MThis

case was referred to the undersigned United

States Magistrate Judge for Report and

Recommendation under 28 U.S.C. § 636 and

Local Rule 72.1. For the following

reasons, the undersigned recommends that

both motions be denied.

BACKGROUND

When he filed his § 2255 motion on

March 7, 1991, petitioner was an inmate at

the Federal Correctional Institution in

- 1 -

Sandstone, Minnesota, where he was serving

an aggregate fifteen year sentence for his

separate convictions on drug and tax

offenses.’

Vv. son,

Criminal 4-83-84(1) (D. Minn.); United

States _v. Larson, Criminal 3-85-43 (D.

Minn.). Petitioner's drug conviction

ajo

was affirmed on direct appeal. See United

States v. Larson, 760 F.2d 852 (8th Care),

cert. denied, 474 U.S. 849 (1985).

Petitioner then filed two previous § 2255

motions attacking this conviction. See

Larson v. United States, Civil 4-86-483 (D.

Minn.); Larson V. United States, Civil 4-

88-750 (D. Minn). This Court denied both

motions, and the denials were each upheld

on appeal. See Larson v. United States,

833 F.2d 759 (8th Cir. 1987), cert. denied,

486 U.S. 1008 (1988) (first motion); Larson

v. United States, 905 F.2d 218 (8th Cir.

1 petitioner was released from prison

in August, 1991.

- 12-

1990) (second motion).

Petitioner's third § 2255 motion now

raises the following four claims:

1.) Evidence admitted at his trial was

obtained in violation of the Fourth

Amendment because it was seized from closed

containers without a search warrant;

2.) He "was not afforded the superior

Bagley discovery process he is entitled to"

under United States v. Bagley, 473 U.S. 667

(1985) and Teague v. Lane, 489 U.S. 288

(1989);

3.) He was denied effective assistance of

counsel because counsel failed to raise the

container search issue; and

4.) This Court's factual finding (made in

the course of denying his first § 2255

motion) that the search of the containers

was justified because some of the drugs

were in plain view, is a "tainted" finding

which should now be reviewed and reversed.

Motion, Docket No. 175 in Criminal 4-83-

84(1), at 5-6. The fourth ground in also

raised in petitioner's motion for

reconsideration. See Docket No. 177.

Petitioner also filed numerous motions for

- 2 -

permission to obtain discovery from the

government (see Docket Nos. 176 and 178-

182).

= 13 <

DISCUSSION

The court concludes that petitioner's

third § 2255 motion and his motion for

reconsideration should be denied. The

first, third, and fourth claims raised in

the third § motion are successive and

therefore subject to summary dismissal, and

the second claim is both abusive and

meritless. Petitioner's motion for

reconsideration is both untimely and an

improper attempt to obtain further review

of a successive clain.

om Dismissal of Successive or Abusive

Motions Under § 2255

Congress specifically provided in §

2255 that a court "shall not be required to

entertain a second or successive motion for

similar relief on behalf of the same

prisoner." 28 U.S.C. § 2255; see also 28

U.S.C. 2244 (a) (court need not entertain

successive application for habeas relief

where it is satisfied that "the ends of

justice will not be served by such

inquiry.") In Sanders v. United States 373

we

- 14 -

U.S. 1 (1963), the Supreme Court stated

that:

Controlling weight may be given

to denial of a prior application for.

- § 2255 relief only if (1) the same

ground presented in the subsequent

application was determined adversely

to the applicant on the prior

application, (2) the prior

determination was on the merits, and

(3) the ends of justice would not be

served by reaching the merits of the

subsequent application.

- 3 -

Id. at 15 (footnote omitted). All three of

these conditions must be satisfied before

relitigation of previously rejected claims

is barred. Williams v. Lockhart, 862 F.2d

155, 157 (8th Cir. 1988). Where the first

two Sanders conditions are satisfied, a

petitioner bears the burden of showing that

a redetermination of the claims would serve

the interest of justice. Id. (citing

Sanders, 373 U.S. at 17).

Following Sanders the Supreme Court

adopted rules for § 2255 proceedings that

incorporated the Sanders standard for

dismissal of successive motions (which

» 6 «

reassert previously adjudicated grounds)

and also addressed the related problem of

motions that are abusive because they raise

new grounds (which should have _ been

asserted in a previous motion). These

rules provide that:

A second or successive motion may be

dismissed if the judge finds that it

fails to allege new or different

grounds for relief and the prior

determination was on the merits or, if

new and different grounds are alleged,

the judge finds that the failure of

the movant to assert those grounds in

the procedure governed by these rules.

Rule 9 (b), Rules Governing Section 2255

Proceedings (emphasis added).

The Supreme Court recently adopted a

"cause and prejudice" analysis for

evaluating a second application for habeas

relief that is alleged to be an abuse of

the writ:

When a prisoner files a second or

subsequent application, the government

bears the burden of pleading abuse of

the writ. The government satisfies

this burden if, with clarity and

- 4-

particularity, it notes petitioner's

- 16 -

prior writ history, identifies the

claims that appear for the first time,

and alleges that petitioner has abused

the writ. The burden to disprove

abuse then becomes petitioner's. To

excuse his failure to raise the claim

earlier, he must show cause _ for

failing to raise it and prejudice

therefrom as those concepts have been

defined in our procedural default

decisions. The petitioner's

opportunity to meet the burden of

cause and prejudice will not include

an evidentiary hearing if the district

court determines as a matter of law

that petitioner cannot satisfy the

standard. If petitioner cannot show

the fail . 5 ai

in an earlier petition may nonetheless

be excused if he or she can show that

fund Te mcr

would result from a failure to

neta ts et 1%

McCleskey _v. Zant, 111 S. Ct. 1454, 1470

(1991) (emphasis added). * The court also

é While McCleskey dealt with an

application for habeas corpus relief by a

state prisoner under 28 U.S.C. § 2254, the

decision is equally applicable to § 2255

motions from federal prisoners. See Davis

v. United States, 417 U.S. 333, 344 (1974);

Kaufman v. United States, 394 U.S. 217, 225-

28 (1968); United States _v. Palumbo, 608

F.2d 529, 532 n. 11 (8th Cir. 1979), cert.

denied, 446 U.S. 922 (1908); but see Stone

v. Powell, 428 U.S. 465, 482 (1976) (holding

only that federal collateral review of

fourth amendment claims by state prisoners

is barred where there was a "full and fair

opportunity" to litigate those claims in

state court). The undersigned previously

recommended that petitioner's fourth

-17-

stated that the "fundamental miscarriage of

justice" exception "gives meaningful

content to the otherwise unexplained ‘ends

of justice' inquiry mandated by Sanders."

Id. at 1471. Finally, the court reaffirmed

its holding in Kuhlmann v. Wilson, 477 U.&.

436 (1986), that federal courts are not

required to entertain a successive petition

unless a petitioner "supplements

« 2%

a constitutional claim with a 'colorable

showing of factual innocence. '" Id.

(quoting Kuhlmann, 477 U.S. at 454).

The ‘'cause' factor adopted in

McCleskey "requires a showing of some

external impediment preventing counsel from

constructing or raising a claim." Murray

v. Carrier, 477 U.S. 478, 492 (1986). AS

the court stated in McCleskey:

amendment claim be dismissed by extension of

to § 2255 motions. See

Report and Recommendation, Docket No. 133,

at 4-9. This analysis has since been

adopted by at least one federal court. See

Curzi v. United States, 773 F.Supp. 540-41

(E.D.N.Y. 1991). :

- 18 -

For cause to exist, the external

impediment, whether it be governmental

interference or the reasonable

unavailability of the factual basis

for the claim, must have prevented

petitioner from raising the clain.

Abuse of the writ doctrine examines

petitioner's conduct: the question is

whether petitioner possessed, or by

reasonable means could have obtained,

a sufficient basis to allege a claim

in the first petition and pursue the

matter through the habeas process ....

The requirement of cause in the abuse

of the writ context is based on the

principle that petitioner must conduct

a reasonable and diligent

investigation aimed at including all

relevant grounds for relief in the

first federal habeas petition. If

when petitioner knows oor could

discover upon reasonable investigation

supports a claim for relief in a

federal habeas petition, what he does

not know is irrelevant. Omission of

the claim will not be excused merely

because evidence discovered later

might also have supported or

strengthened the claim.

111 S. Ct. at 1472 (citations omitted,

emphasis original). Petitioner's claims

will be measured against these standards.

Il. § , Nat . First. Thira

and Fourth Claims

Based upon a review of petitioner's

third § 2255 motion and the record of the

previous proceedings in this matter, the

Court finds the first two elements of the

:

:

{

:

- 19 -

Sanders test are satisfied as to

petitioner's first, third and fourth

claims, each of which were

- = «

previously raised by him and denied by this

Court on their merits. See Report and

Recommendation, Docket No. 156 (Civil 4-88-

750) (considering and rejecting all three

claims raised in second motion); see also

Larson, 905 F.2d at 219-21 (same); Larson,

833 F.2d at 758-59 (first and third claims

denied on merits upon first motion). That

petitioner's third § 2255 motion may have

alleged some new facts or offered new legal

arguments in support of these three claims

does not alter the Court's conclusion that

the claims themselves are identical. See

Sanders, 373 U.S. at 16. Thus, petitioner

cannot obtain further review of his first,

third and fourth claims unless_ he

demonstrates that the "ends of justice"

would be served by such an inquiry. Id. at

- 20 -

15, 17; see also Williams, 862 F.2d at 157.

This he cannot do.

The court is of course thoroughly

familiar with the facts surrounding

petitioner's drug conviction, which stemmed

from the discovery of three pounds of

nearly pure cocaine in a motel room. See

Larson, 760 F.2d at 853-54. In affidavits

filed with the Court, petitioner has gone

so far as to describe how he transported

and packaged that cocaine prior to his

arrest. See Joint Appendix, Docket No.

183, at 48-50, 56-60, and 62-62. Even in

the fact of such admissions, petitioner now

argues that he should be allowed yet

another opportunity to establish facts

showing the cocaine was illegally seized

and should have been suppressed, and that

his counsel was ineffective for not

pursuing his fourth amendment "container"

clain. This is not a case where an

innocent person was wrongly convicted due

to mistaken identity, false testimony, or

:

t

2

:

)

‘

- 21 =

an

unfair trial; rather, petitioner simply

seeks to avail himself of the benefits of

the exclusionary rule.’ Under these

circumstances petitioner cannot make the

required "“colorable claim of factual

innocence." Kuhlmann, 477 U.S. at 454; see

also __McCleskey, 111 S.Ct. at 1475

(petitioner could not demonstrate that

alleged violation of his rights caused

conviction of an innocent person).

The Court therefore concludes that as

a matter of law, petitioner has not and

cannot met his burden of showing the ends

of justice* will be served by reaching the

5 The justification given for the

exclusionary rule is deterrence of police

misconduct. See Mapp v. Ohio, 367 U.S. 643,

657-58 (1961). The rule has often been

criticized because its application can

result in dismissal of criminal charges

without regard to the guilt or innocence of

a defendant.

. In holding that petitioner's

second § 2255 motion should have been

dismissed as successive, the Eighth Circuit

did not expressly address the "ends of

- 22 «=

merits of his first, third and fourth

Claims. No fundamental miscarriage of

justice will occur if those three claims

are again denied as successive.

iv cond aim

Petitioner's second claim essentially

has two parts. First, petitioner contends

United States v. Bagley, 473 U.S. 667

(19&5), announced a ‘new rule' that greatly

expanded the scope of pretrial discovery in

criminal cases. Secondly, petitioner

claims the

» @ «

Bagley rule became applicable to his case>

when the Supreme Court adopted the

retroactivity analysis set forth in Teaque

Vv. Lane, 489 U.S. 288 (1989). Thus,

justice" element of Sanders. See Larson,

905 F.2d at 220-22. Magistrate Becker

applied Kuhlmann to petitioner's second §

2255 motion and found he had not satisfied

this third element of Sanders. See Report

and Recommendation, Docket No. 156, at 6-8.

This Court fully agrees with that analysis.

There is no dispute’ that

petitioner's conviction was not yet final

when Bagley was decided in 1985.

- 23 -

petitioner argues he is "now entitled to

the superior discovery process of Bagley as

opposed to the inferior Brady discovery he

was given." Motion, Docket No. 175, at 19.

Petitioner's ultimate goal is to compel the

government to disclose information which he

believes will support his other three

claims.

Petitioner's second claim is a new

claim in the sense that it was never

asserted at trial, on direct appeal, or in

the two previous § 2255 motions. The

government affirmatively and adequately

alleged that this claim was an abuse of the

writ. See Response, Docket No. 188, at 10,

13-15. Moreover, the Court has already

concluded that no fundamental miscarriage

of justice will occur if petitioner is

barred from further collateral review of

his drug conviction. See McCleskey, 111

s.ct. at 1470. Thus, to obtain review of

his second clain, petitioner must

demonstrate both adequate cause for his

- 24 -

failure to raise the claim earlier and

actual prejudice. Id.; see also Murray,

477 U.S. at 492.

With regard to cause, petitioner has

not shown that any "external impediment"

prevented him from asserting his Bagley

Claim in the earlier proceedings. Bagley

was decided in 1985, before petitioner's

conviction became final and well before he

filed his first § 2255 motion in 1986. If

petitioner believed he was

a 9 «

entitled to relief under Bagley he could

have included the claim in his first (or

even his second) § 2255 motion.

: The fact that Teague was not decided

until 1989 does not excuse petitioner's

failure to assert his Bagley claim. As

petitioner points out, the issue of whether

a new rule® could be applied to cases on

collateral review (as opposed to cases on

. For purposes of this ‘cause and

prejudice' analysis only, the Court will

assume that Bagley announced a ‘new rule’.

Ree de a

- 25 -

direct review) was an open question prior

to Teaque. See Motion, Docket No. 175, at

18 (citing Griffith v. Kentucky, 479 U.S.

314 (1987) (holding only that new rules for

conduct of criminal prosection would apply

retroactively to all cases "pending on

direct review or not yet final ...."))-

When Bagley was decided, questions of

retroactivity were addressed on a case-by~

case basis using the three-pronged analysis

adopted in Linkletter v. Walker, 381 U.S.

618 (1965), and Stovall _v. Denno, 388 U.S.

293 (1967). See Griffith, 479 U.S. at 320-

21; see also Teague, 489 0.8. 8 305

(discussing prior uncertainty in

retroactivity analysis for cases. on

collateral review); it t Vv.

Johnson, 457 U.S. 537 (1982) (reviewing

previous retroactivity dec isions and the

dissenting opinion of Justice Harlan in

Desist v. United States, 394 U.S. 244

(1969)).

The decision in Teague ended this

- 26 =-

uncertainty by holding that with few

exceptions, "new constitutional rules of

criminal procedure will not be applicable

to those cases which have become final

before the new rules are announced."

Teague, 489 U.S. at 310

o 49.0

(emphasis added). This holding is phrased

in the negative, and in light of the prior

unsettled state of the law, Teague must be

viewed as limiting the retroactive

application of new rules to cases on

collateral review. Petitioner is therefore

mistaken in his contention that the Teague

decision somehow enabled him to pursue his

Bagley claim: since the issue of whether

petitioner could avail himself of Bagley on

collateral review was an open question from

1985 to 1989, nothing prevented him from

testing the waters by raising the claim in

either his first or second § 2255 motions.’

Petitioner was represented by

private counsel on his second § 2255 motion,

and therefore cannot be heard to claim that

é SPORES PAB ALE ag RAB Re PALE OEE IPE 0S ate BA

= 29 «-

The Court therefore finds petitioner

cannot make the required showing of cause

for his failure to raise the Bagley claim

in his two previous § 2255 motions. see

Murray, 477 U.S. at 486-87 (failure to

recognize legal basis for claim does not

constitute "cause" for a procedural

default).

Nor can petitioner demonstrate any

actual prejudice to his case from the

claimed lack of discovery under Bagley.®

All of the cases which have developed the

government's duty to disclose, including

Bagley, are based upon due process

he was unaware of Bagley and the state of

retroactivity law until the Teague decision.

Further, petitioner's second § 2255 motion

was pending before the Eighth Circuit when

Teague was decided, yet he chose to proceed

with the appeal rather than seek a remand to

amend his second motion and raise the Bagley

clain.

8 Petitioner's claim that he is now

entitled to discovery under Bagley appears

somewhat confused, since he also expressly

disclaims that Bagley was violated. See

Motion, Docket No. 175, at 19 ("Petitioner

makes clear from the outset that he is not

alleging a Bagley violation ....").

—

considerations and the

o» 34 oe

recognition that it is fundamentally unfair

for the government to withhold material

information if _the defendant would

See Bagley, 473 U.S. at 678 (suppression of

evidence “known to the prosecution but

unknown to the defense" amounts’ to

Constitutional violation only if it

deprives defendant of a fair trial); see

also United States v. Agurs, 427 U.S. 97

(1976) (prosecutor has obligation to

disclose material, exculpatory information

even in absence of defense request); Giglio

v. United States, 405 U.S. 150 (1972)

(government failed to disclose grant of

immunity to witness); Brady v. Maryland,

373 U.S. 83 (1963) (failure to disclose

confession of co-defendant); Napue_v.

Illinois, 360 U.S. 264 (1959) (prosecutor's

failure to disclose his knowledge of

perjury by witness). These principles are

- 29 -

not implicated where a defendant has

personal knowledge of the information at

issue. See Bagley, 473 U.S. at 682

(information is material and subject to

disclosure “only if there is a reasonable

probability that, had the evidence been

disclosed to the defense, the result of the

proceeding would have been different.");

see also Agurs, 427 U.S. at 108 (failure to

disclose not a constitutional violation

unless defendant is deprived of a fair

trial).

Here the government has never been

obligated by any of these cases to formally

disclose information regarding the

packaging of the seized cocaine because, as

his own affidavits conclusively establish,

petitioner has always been fully aware of

those facts. _The Court therefore finds

that the outcome of the December, 1983

no 12 «

pretrial suppression hearing in this matter

would have been the same even if the

» $0 «=

government's duty to disclose had then been

subject to the materiality standard set

forth in Bagley. Since he cannot show the

outcome of the pretrial suppression hearing

would have been different if he had been

provided with discovery under. Bagley,

petitioner cannot establish any actual

prejudice. See e.g. Murray, 477 U.S. at

494 (Prisoner must show errors "worked to

his actual and substantial disadvantage

-.--1"); United States v. Frady, 456 U.S.

152, 169-75 (no actual prejudice where

prisoner did not show that error in jury

instructions infected his entire trial).

The Court finds petitioner has not

shown either adequate cause for his failure

to previously raise his second claim, or

actual prejudice stemming from that clain.

Petitioner's second claim should therefore

be denied as abusive within the meaning of

§ 2255, Rule 9(b) of the Rules Governing §

2255 Proceedings, and McCleskey.

IV. Merits of Second Claim

~ 22 =

Even if petitioner were able to make

an adequate showing of cause and prejudice,

his second claim would fail on its merits

for several reasons. First, as discussed

above, the Supreme Court has never imposed

a constitutional duty upon the government

to disclose information which is already

available to a defendant. See Bagley, 473

U.S. at 675 (reiterating that prosecutor is

not required to deliver his entire file to

defense counsel); see also United States v.

Williams, 902 F.2d 678, 681-82 (8th Cir.

1990) (no Brady violation where defendant

was free to subpoena his own telephone

« 23 «=

records). Here the government did not

breach its duty to disclose under Brady,

Bagley or any other case.

Secondly, the Court is not persuaded

that Bagley even announced a ‘new rule' as

that term is explained in Teague:

It is admittedly difficult to

determine when a case announces a

new rule, and we do not attempt

to define the spectrum of what

- 32 -

may or may not constitute a new

rule for retroactivity purposes.

In general, however, a case

announces a new rule when it

breaks new ground or imposes a

new obligation on the States of

the Federal Government. To put

it differently, a case announces

a new rule if the result was not

dictated by precedent existing at

the time the defendant's

conviction became final.

Teague, 489 U.S. at 301 #£=(citations

omitted). Bagley held that the same

standard of materiality (which was

developed in Brady, Agurs and Strickland v.

Washington, 466 U.S. 668 (1984)) would be

used in all instances to determine whether

the government had a duty to disclose

information to the defense. See Bagley,

473 U.S. at 682. In light of the extensive

existing precedent regarding the

prosecutor's duty to disclose favorable

evidence, Bagley did not break any new

ground or impose a new duty on the

government. The Bagley case is properly

viewed as an inevitable refinement of the

law of criminal discovery, not a ‘'new

rule’.

- 33-

Finally, the Court does not believe

the government the government has a

constitutional duty under Brady or Bagley

“to disclose information that is only

relevant to a fourth amendment clain.

Brady established the government's duty to

disclose evidence "favorable to an accused

where the evidence is material either

to guilt or to punishment ..." Brady, 373

U.S. at 87. Thus, there is no

= 464 «=

question that the government must disclose

evidence which is exculpatory because it

tends to show the defendant is in fact

innocent of a charged offense, or evidence

which could impeach a government witness at

trial. Such information is material and

subject to disclosure precisely because it

~is highly likely to affect the decision by

the trier of fact. See Bagley, 473 U.S. at

681-82. As the Court has noted, however,

questions of whether evidence should be

suppressed under the exclusionary rule are

» 24 =

of an entirely different nature since they

bear only tangentially upon the ultimate

finding of guilt or innocence.

Accordingly, fourth amendment claims are

susceptible to determination by the Court

prior to trial, rather than by the jury.

See Rule 12 (b) (3), Ped.R.Crim.P.

Consequently, the government's duty to

disclose information to the defense in

connection with such pretrial proceedings

is not governed by either Brady or Bagley.

See Rules 12(d) and (i), and 26.2(a),

Fed.R.Crim.P.; see e.g. Franks v. Delaware,

438 U.S. 154, 155-56 (1978) (defendant must

make "substantial preliminary showing" of

false statement in search warrant affidavit

before a hearing is required into veracity

of the affidavit). The Court has been

unable to find any case which applies Brady

to a pretrial suppression hearing.

Petitioner's second claim therefore

fails on its merits.

V. Amendment to Third § 2255 Motion

Aon Stat at Dh

- 35 -

On March 20, 1991, petitioner amended

his motion by adding a claim that he was

denied the right to testify at the 1983

= 1§ =

suppression hearing. See Amendment, Docket

No. 184, at 6-7. Petitioner contends he

did not realize he had such a right until

he read several cases in February, 1991.

Id. at 6. Petitioner's ignorance of this

potential claim does not constitute cause

for his failing to raise it earlier. See

McCleskey, 111 S.Ct. at 1472. Petitioner's

attempt to raise this claim now constitutes

an abuse of the writ, and the claim should

therefore be denied.

VI. Motion for Reconsideration of First §

2255 Motion

Petitioner has also filed a motion for

"reconsideration" of this Court's denial in

July, 1987 of his first § motion. See

Motion, Docket No. 177. The focus of the

motion is petitioner's continuing

disagreement with the Court's factual

finding that "the record indicates at least

= 36 «

some of the cocaine was in plain view

rather than in closed and opaque

containers." Memorandum Opinion and Order,

Docket No. 139, at 7. Petitioner has had

ample opportunity to seek review of this

find. See Larson, 833 F.2d at 759 (appeal

from denial of first § 2255 motion); see

also Larson, 905 F.2d at 221 (noting that

the finding was reaffirmed by this Court in

denying petitioner's second § 2255 motion).

Petitioner's motion for "reconsideration"

is extraordinarily untimely. See Rule

60(b), Fed.R.Civ.P. _The motion is also

indistinguishable from the fourth Claim of

petitioner's third § 2255 motion, which the

Court has found to be procedurally barred

as successive. The motion for

reconsideration should therefore be denied.

—°

VII. Motions for Discovery

Petitioner filed various motions to

obtain discovery from the government. See

Docket Nos. 176, 178-182, 189, 190 and 192.

= 239 «

In light of the Court's recommended

disposition of this matter, these motions

are now moot.

VIII. Motion for Evidentiary Hearing

Petitioner also filed a motion for an

evidentiary hearing. See Motion, Docket

No. 191. The Court has determined from the

files and records of this case that

petitioner is not entitled to relief as a

matter of law. Accordingly, no evidentiary

hearing is required. See Townsend v. Sain,

372 U.S. 293, 309 (1963); Rule 8(a), § 2255

Proceedings.

RECOMMENDATION

IT Is HEREBY RECOMMENDED that

Petitioner's third motion for relief under

28 U.S.C. § 2255 (Docket No. 175) and his

motion for reconsideration (Docket No. 177)

be denied.

FLOYD E. BOLINE

UNITED STATES MAGISTRATE JUDGE

Dated: December 23, 1991

- 38 =

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 89-5171

Duane Wendall Larson,

Appellant,

Vv.

United States of America,

Appellee.

+*eeneeee ewe te

Submitted: February 12, 1990

Decided: June 6, 1990

Rehearing and Rehearing En

Banc Denied 7-25-90

Before WOLLMAN, MAGILL and BEAM, Circuit

Judges.

BEAM, Circuit Judge.

Duane Wendall Larson appeals from the

district Court's dismissal of his second

petition for a writ of habeas corpus

papeuantt to 28 U.S.C. § 2255 (1988).

Because we find that Larson's’ second

petition is successive and that’ the

district court's denial of Larson's first

TR A ne UL rete: Be :

= 39 -

petition was a determination upon the

merits, we hold that the district court

should have given controlling weight to its

denial of Larson's first petition, and

dismissed the second petition for that

reason. Accordingly, we affirm.

I. BACKGROUND

Larson was convicted in 1984 of

possession with intent to distribute

cocaine in violation of 21 U.S.C. §

841(a) (1) (1988), and of aiding and

abetting such action, 18 U.S.C. § 2 (1988),

after a police search of a motel room

occupied by Larson yielded three pounds of

cocaine. For a complete recitation of the

facts surrounding Larson's conviction see

United States v. Larson, 760 F.2d 852, 853-

55 (8th Cir.), cert. denied, 474 U.S. 849,

106 S.Ct. 143, 88 L.Ed.2d 119 (1985). On

direct appeal of his conviction, Larson

argued, in part, that the cocaine seized in

sa

the motel room should have been suppressed

because the seizure violated his fourth

- 40 -

amendment rights. We found that Larson had

no legitimate expectation of privacy in the

motel room, and affirmed the district

court's denial of the suppression motion.

Larson then filed his first habeas

petition pursuant to section 2255. He

argued, for the first time, that the

cocaine found in the motel room should have

been suppressed because it was in. sealed

containers that could not be searched

without a search warrant. Larson also

argued that he received ineffective

assistance of counsel because his lawyer

failed to raise this argument. The

district court denied this petition, and

this court affirmed. Larson v. United

States, 833 F.2d 758 (8th Cir. 1987), cert.

denied, 486 U.S. 1008, 108 S.Ct. 1736, 100

L.Ed.2d 200 (1988). We found that because

he had not raised it below, Larson's fourth

amendment claim was procedurally barred

absent a showing of cause and actual

prejudice. Because the district court had

RAO A Mev ct

« 42 «

found that some of the cocaine was in plain

view, the fourth amendment argument was

without merit. Accordingly, Larson could

prove no prejudice. Since the fourth

amendment claim was without merit, so was

the ineffective assistance claim; it cannot

be ineffective assistance not to raise a

meritless argument. Larson, 833 F.2d at

759.

In his section 2255 petition, Larson

raises the same ineffective assistance

claim, based on the same fourth amendment

sealed container argument. In addition,

however, Larson now offers his own

a we

affidavit, and that of a private

investigator who interviewed several

witnesses, as proof that the district court

erred in finding that some of the cocaine

was in plain view. Larson argues that

this is new evidence, and that he is

entitled to an evidentiary hearing on the

matter.

oe 43 «

(1) In reviewing Larson's’ second

petition, the United States Magistrate

found that the district court's denial of

Larson's first petition could not be the

basis for dismissal under Rule 9(b) of the

Rules Governing Section 2255 Cases in the

District Courts. The district court did

not hold an evidentiary hearing on the

factual issue of whether the cocaine was in

sealed containers when it considered the

first petition. Thus, the magistrate found

that the details of the first petition was

not "on the merits," as required by Sanders

Vv. United States, 373 U.S. 1, 15,83 S.Ct.

1068, 1077, 10 L.Ed.2d 148 (1963), if the

denial of the first petition were to be the

basis for dismissing the second petition as

successive. The magistrate instead

considered the second petition on the

merits. He concluded that, even if the

facts alleged by Larson were true, the

fourth amendment motion to suppress would

not have been successful. The search would

« 4% @

still have been valid because, among other

reasons, some of the cocaine was in plain

view. Thus, the sixth amendment claim of

ineffective assistance lacked merit, and

the magistrate recommended that the second

petition be dismissed. The district court

adopted the magistrate's report and

recommendation, and dismissed Larson's

second petition.

On appeal, Larson argues that the

district court's finding that some cocaine

was in plain view, made in the district

court's consideration of Larson's first

petition, is clearly erroneous, that the

district court in its consideration of the

second petition so held, and that he is

entitled to an evidentiary hearing. We

think that Larson ignores the procedural

disposition of this case. Larson's second

petition is clearly a successive petition

that should have been dismissed under the

criteria set forth in nders. The

district court's denial of Larson's first

« £4 <

petition is entitled to be give controlling

weight, and the second petition was,

therefore, properly dismissed.

II. DISCUSSION

In Sanders, the Supreme Court set

forth the consideration which a district

court must give to a successive habeas

petition under either section 2254 or

section 2255. Sanders held that

controlling weight may be given to the

district court's denial of a prior habeas

petition if: "(1) the same = ground

presented in the subsequent application was

determined adversely to the applicant on

the prior application, (2) the prior

determination was on the merits, and (3)

the ends of justice would not be served by

reaching the merits of the subsequent

application." Sanders, 373 U.S. at 15, 83

§.ct. at 1077. These criteria were

substantially codified in the enactment of

28 U.S.C. § 2254(b), dealing with state

prisoners, and in Rule 9(b) of the Rules

» 46 «

Governing Section 2255 Cases in the United

States District Courts. Rules 9(b)

provides that a successive petition may be

dismissed if the court "finds that it fails

to allege new or different grounds for

relief and the prior determination was on

the merits." In its consideration of

Larson's second petition, the district

court concluded, as indicated, that it

could not dismiss the petition as

successive because its prior determination

was not "on the merits." We disagree.

In his report and recommendation, the

magistrate concluded that the district

court's denial of Larson's first petition

was not on the merits because the district

court did not hold an evidentiary hearing.

Report and Recommendation at 6. Sanders

does not, however, provide that a prior

determination is on the merits only if a

hearing is held. Rather, the district

court may deny the first petition "on the

basis that the files and records

» 46

conclusively resolved" the factual issues

raised. Sanders, 373 U.S. at 16, 83 S.Ct.

at 1077. Even though the district court

did not hold an evidentiary hearing on the

first petition, we think that its prior

determination was nonetheless on the

merits.

[2,3] A district court need not hold

an evidentiary hearing if the facts

alleged,

» 2 «©

taken as true, would not justify relief.

United States v. Kraemer, 810 F.2d 173, 178

(8th Cir. 1987). "An evidentiary hearing

is not required in a section 2255 case

where the files and records of the case

conclusively show that the petitioner is

not entitled to relief." United States v.

Schmitz, 887 F.2d 843, 844 (8th Cir. 1989).

See also United States v. Johnson, 751 F.2d

291, 294 (8th Cir. 1984), cert. denied, 471

U.S. 1126, 105 S.Ct. 2659, 86 L.Ed.2d 275

(1985). Nor does Sanders somehow change

» £47 =

the criteria for determining whether a

‘district court must hold an evidentiary

hearing. Sanders says only that the prior

determination must be on the merits to be

given controlling weight. There is no

requirement that a district court must

conduct an evidentiary nearing if the

record is sufficient without it. Thus, we

have held that the district court's denial

of a prior habeas petition was on the

merits even though the court did not hold

an evidentiary hearing. See, €.g.,

Williams v. Lockhart, 862 F.2d 155, 157

(8th Cir. 1988).

Larson's first habeas petition in this

case was denied by the same district judge

who presided at trial. The district court

made a factual finding in its review of the

first habeas petition that some of the

cocaine seized was in plain view. Larson

admits that he argued that this finding was

clearly erroneous in his appeal to the

Eighth Circuit. Brief for Appellant at 2.

o

On appeal, we upheld the district court's

finding, and thus pemshuted that Larson's

fourth amendment argument was’ without

merit. Larson, 833 F.2d at 759. Given the

district court's finding from the trial

record and this court's conclusions on

appeal, the district court was not required

to conduct an evidentiary hearing in this

matter.

Larson further argues, however, that

he is entitled to an evidentiary hearing

because the district court in its dismissal

of his second petition concluded that its

factual findings ir ‘the first habeas were

Clearly erronevous. Brief for Appellant at

2,7. Larson misconstrues the magistrate's

report and recommendation, adopted by the

district court. The magistrate merely held

that "[fjor the purpose of determining the

merit of such a suppression motion," he

would accept Larson's factual allegations

as true. Report and Recommendation at 12.

In no way is this a finding that the

- 49 -

district court was clearly erroneous in its

earlier finding that some cocaine was in

plain view. Indeed, the magistrate found

that "the files and records in this case

conclusively show that the paper bags were

not sealed, [and] that all the cocaine was

[not] inside opaque containers." Id. at n.

3. Thus, Larson is not entitled to an

evidentiary hearing on the ground that the

district court has admitted error.

[4] Nor is Larson entitled to an

evidentiary hearing because he presents

newly discovered evidence relevant to the

fourth amendment argument. Larson's

evidence, consisting of his own affidavit

and the conclusions of a private

investigator, is simply not new. Anything

asserted here was within Larson's knowledge

at the time he filed his first habeas

petition. Even if Larson's evidence were

new, he would not be entitled to relief.

Newly discovered evidence cannot be the

basis for habeas relief absent a showing

- 50 -

that it "would probably produce an

acquittal on retrial." Dumond v. Lockhart,

885 F.2d 419, 421 (8th Cir. 1989) (quoting

Mastrian v. McManus, 554 F.2d 813, 823 (8th

Cir.) cert. denied, 433 U.S. 913, 97 8.Ct.

2985, 53 L.Ed.2d 1099 (1977)). Larson has

not made such a showing and, for the

reasons stated by the district court in its

denial of his second petition, Larson can

make no such showing.

III. CONCLUSION

Accordingly, we hold that the district

court's denial of Larson's first habeas

petition should have been given controlling

weight by the district court. Its prior

determination was on the merits as required

by Sanders. Thus, Larson argues only that

the district court was initially incorrect

in its finding that some of the cocaine was

in plain view -- a finding already

established in the appeal of Larson's first

habeas petition. "Something more than mere

disagreement [with the previous habeas

arena aise

- 51 -

court} must be shown to justify a

successive habeas petition." Williams, 862

F.2d at 158 (quoting Walker v. Lockhart,

726 F.2d

- 3 =

1238, 1250 (8th Cir.) (en banc) (Arnold,

J., concurring), cert. dismissed, 468 U.S.

1222, 105 S.Ct. 17, 82 L.Ed.2d 912 (1984)).

Here, Larson does no more than disagree

with the previous habeas court. As a

result, we affirm the judgment of the

district court dismissing Larson's

successive habeas petition.

- 52 -

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

DUANE WENDALL LARSON,

Petitioner, Civil 4-88-750

vs.

UNITED STATES OF AMERICA,

Respondent. ORDER

On January 13, 1989, United States

Magistrate Bernard P. Becker issued a

Report and Recommendation. He recommended

that petitioner's successive section 2255

application be dismissed. Subsequently

petitioner filed an objection with multiple

exhibits. The government has submitted a

response to his objections. Petitioner

also moved to remand to the magistrate for

reconsideration in light of additional

evidence.

The court is most familiar with this

case, having presided at trial and over

petitioner's previous petition. The court

has carefully reviewed petitioner's

- 53 -

objections and made a de novo review of the

record as to then. The court has also

considered the points made in petitioner's

motion. After the court's de novo review

and consideration of all the points raised,

it finds itself in basic agreement with the

findings and conclusions of Magistrate

Becker. Further, the court is not

persuaded that a remand is warranted.

Accordingly, based upon the above, and

all the files, records, and proceedings

herein, IT IS HEREBY ORDERED that:

—

1.) Petitioner's successive section 2255

petition is dismissed.

2.) Petitioner's motion to remand to the

Magistrate for reconsideration is denied.

Dated: February 23, 1989

DIANA E. MURPHY

United States District Judge

- 54 -

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

DUANE WENDALL LARSON,

#01786-041-I, Civil No. 4-88-750

Cr. 4-83-84(1)

Petitioner,

Vv. REPORT &

RECOMMENDATION

UNITED STATES OF AMERICA,

Respondent.

FRANCIS L. GOODWIN, Esq., appeared on

behalf of the petitioner.

RICHARD E. VOSEPKA, Esq., Assistant United

States Attorney, appeared on behalf of the

respondent.

BERNARD P. BECKER, United States Magistrate

This matter is before the undersigned

United States Magistrate on petitioner's

application for a writ of habeas corpus

pursuant to 28 U.S.C. § 2255 and on his

motion for an evidentiary hearing. This

case has been referrec to the undersigned

for Report and Recommendation pursuant to

28 U.S.C. § 636 and Local Rule 16.

I. PROCEDURAL HISTORY

Petitioner, Duane Wendall Larson was

- 55 -

convicted and sentenced on a count of an

indictment charging him with possessing

cocaine with intent to distribute and

aiding and abetting in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The

conviction was appealed. United States v.

Larson, 760 F.2d

-i-

852 (8th Cir.), cert. denied, 474 U.S. 849

(1985). In 1986, petitioner filed his

first 28 U.S.C. § application. He alleged

six separate grounds for relief, three of

which he argued on appeal to the Eighth

Circuit. See Larson Vv. United States, 833

F.2d 758 (8th Cir. 1987). One of the three

issues he argued on appeal was that

[H]je received ineffective

assistance of counsel from one

attorney who failed to object to

_ the admission of evidence

obtained in the search of a bags

and from another attorney who

advised him not to participate at

trial.

Id. at 758-759.

(see I GEL A A et WO

In his first section 2255 motion

before the Honorable Diana E. Murphy,

OE

- 56 -

United States District Court for the

District of Minnesota, petitioner alleged

that he received ineffective assistance of

counsel because his attorney, Mr. Smith,

failed to raise a suppression motion

relative to the alleged illegal seizure of

cocaine inside of closed containers. In

arguing the substance of his’ Fourth

Amendment claim, petitioner stated in his

first petition that "it became abundantly

apparent [during the trial) that the

cocaine was sealed in packages and

concealed from view." Magistrate Boline

Report and Recommendation at 13. In his

affidavit, petitioner stated that he had

informed his defense attorneys that the

cocaine was "enclosed in paper bags and

also in manila envelopes or small paper

bags inside the large bag." See Judge

Murphy, Order dated July 2, 1987, at 11.

But the district court found that "not all

the cocaine was

one hee SS oe

- 57 -

contained in opaque packaging and that at

least some of the cocaine was visible to

the hotel manager when he looked around the

room." Id. Relative to the Sixth

Amendment clain, the Magistrate

recommended, and the Court concluded, that

it was significant that the "petitioner

chose not to participate with his attorney

at trial in the attempt to suppress the

evidence." Id. the Magistrate noted that:

Larson instructed Smith, who was

instructed by the Court to act as

"stand-by" counsel, not to take

any part in the proceedings.

Larson cannot now complain that

he was denied effective

assistance of counsel because

Smith followed his instructions.

Magistrate Boline Report and Recommendation

at 22. Finally, the Magistrate reported

that the container search issue "cannot

alone be regarded as a_ professional

unreasonable error" because

[ijt is clear from the

circumstances of the search, and

from Larson's own statement of

facts in his 2255 motion, that he

was more intimately familiar with

the location and packaging of the

cocaine and the other evidence

- 58 -

than the other witnesses. .. .

If Attorney Smith was unaware

until midway through the trial

that the cocaine was concealed

inside sealed envelopes, his

ignorance can only be attributed

to Larson's failure to inform him

of that fact. (cites) Larson has

not alleged that he even informed

Attorney Smith of these facts,

which would be crucial to the

viability of a suppression motion

based on an illegal container

search.

ig. at 2i.

- 3 -

The petitioner's application for

section 2255 relief was denied by the

district court and affirmed on appeal.

Larson, 833 F.2d 849. Petitioner now files

a second application for section 2255

relief, alleging a violation of his Sixth

Amendment right to effective assistance of

counsel because his attorney failed to file

a motion to suppress cocaine found in

closed containers. Petitioner also moves

the Court to hold an evidentiary hearing on

this issue. Specifically, petitioner

alleges that the hotel manager did not see

any cocaine when he first inspected the

Whe al eet tings Sy

SE ital wae a8 1

ee ees Kay , ins ,

Dpsattuatias ee ee Te ee OT CNTY ere, OM Le Sie

- 59 -

room and that he saw only sugar-based

substances. Petitioner argues that this

information proves that the cocaine seized

from the search of his motel room was all

in closed containers.

Il. SCUS

A. Petitioner's Motion to _Re-

Litigate Issues Decided in a

Prior Section 2255 Application

The issue presented to this Court,

i.e., that petitioner has been denied

effective assistance of counsel for failure

of his attorney to raise the closed

container suppression issue, has already

been litigated and decided by a court.’

Furthermore, the issue has been reviewed by

the Eighth Circuit Court of Appeals.’ This

Court is not required to

~ 4

entertain a successive motion under section

' Judge Diana E. Murphy, United

States District Court for the District of

Minnesota. See Order dated July 2, 1987

(Docket entry 139).

é Larson v. United States, 303 F.2d

758 (8th Cir. 1987).

- 60 -

2255. Rule 9(b) of the rules governing

section 2255 proceedings in the United

States District Courts states:

A second or successive motion may

be dismissed if the judge finds

that it fails to allege new or

different grounds for relief and

the prior determination was on

the merits. or, if new and

different grounds are alleged,

the judge finds that the failure

of the movant to assert those

grounds in a prior motion

constituted an abuse of the

procedure governed by these

rules.

The statute itself, 28 U.S.C. § 2255,

provides, in part: "The sentencing court

shall not be required to entertain a second

or successive motion for similar relief on

behalf of the same prisoner."

In Sanders v. United States, 373 U.S.

1 (1962, the Supreme Court set forth the

conditions which must exist when a court

may give “controlling weight" to a denial

of a prior application for section 2255

relief. A court may give controlling

weight to a previous denial and not hold a

en ee ees

- 61-

hearing or decide the successive petition

on the merits

[OjJnly if 1) the same ground

presented in the subsequent

application was determined

adversely to the applicant on the

prior application, 2) the prior

determination was on the merits,

and 3) the ends of justice would

not be served by reaching the

merits of the subsequent

application.

Id. at 15. All three of the enumerated

factors must be present before a successive

petition may be dismissed without a hearing

=~ & @

a review of the claim on the merits.

William v. Lockhart, 1988 U.S. App. LEXIS

15351 (Nov. 17, 1988).

Regarding the first condition,

petitioner herein has asserted the same

ground presented in the previous

application, which was determined adversely

to him at that time. According to the

Sanders court, an identical ground may be

proven by different factual allegations.

Here, the petitioner alleges additional

evidence relative to what the hotel manager

« 62 «

saw. These facts were not alleged in the

previous application for relief, but it is

Clear petitioner is alleging the same

"ground" for relief, i.e., the Sixth

Amendment claim.

The second condition imposed by

Sanders requires that the prior

determination was made on the merits. The

Sanders court explained "on the merits" as

meaning "that if factual issues were raised

in the prior application . . . an

evidentiary hearing was held." Id. at 16.

Here, no evidentiary hearing was held on

the initial application for relief, even

though petitioner alleged a factual issue,

i.e. that all the cocaine admitted against

him at trial was found in closed

containers. The district court found that

the trail record revealed that some of the

cocaine was in plain view of the hotel

manager and that not all of the cocaine was

in opaque packaging. Under the procedural

history of this case, this condition of

a

Ried) Pathe

a ee See ee)

—

Sanders cannot be met.

Third, the petitioner must show that

the ends of justice would be served by

permitting a redetermination of the

o@ «=

issue. In Williams v. Lockhart, 1988 U.S.

App. LEXIS 15351 (November 17, 1988), the

Eighth Circuit suggested that a petitioner

should present new facts or legal

developments in order to warrant re-

litigation of the claim under Sanders. Id.

at 8.

In 1986, the Supreme Court re-examined

the standards governing successive habeas

petitions. Kuhlmann v. Wilson, 477 U.S.

436 (1986) (plurality opinion). A

plurality of the justices determined that

under the “ends of justice standard,"

"courts may consider whether there is a

colorable claim of factual innocence when

presented with a successive petition

containing claims previously rejected on

the merits." Williams, LEXIS at 8. In

« 66 <

Williams, the Eighth Circuit found it

unnecessary to reach the issue of whether

Walker was able to make a colorable showing

of factual innocence because he presented

no new facts or legal developments which

warranted re-litigation of the claim under

Sanders. In adopting the standara proposed

by Judge Friendly a decade before, the

Kuhlman court said,

A requirement that the prisoner

come forward with a colorable

showing of innocence identifies

those habeas petitioners who are

justified in again seeking relief

from their incarceration. he

adopt this standard now to

effectuate the clear intent of

Congress that successive federal

habeas review should be granted

only in rare cases, but that it

should be available when the ends

of justice so require. The

prisoner may make the requisite

showing by establishing that

under the probative evidence he

has a colorable claim of factual

innocence. The prisoner must

make his evidentiary showing even

though--as argued in this case--

the evidence of guilt may have

been unlawfully admitted.

- 7 «=

477 U.S. at 454. Ina footnote, the court

explained that a prisoner does not make a

rer erneeentteeneneeel

errr eee

- 65 -

colorable showing of innocence,

[b]y showing that he might not,

or even would not, have been

convicted in the absence of

evidence claimed to have been

unconstitutionally obtained.

(cites) Rather, the prisoner must

'show a fair probability that, in

light of all the evidence,

including that alleged to have

been illegally admitted. .. and

evidence tenably claimed to have

been wrongly excluded or to have

become available only after the

trail, the trier of the facts

would have entertained a

reasonable doubt of his guilt.'

(cites) Thus, the question

whether the prisoner can make the

requisite showing must be

determined by reference to all

probative evidence of guilt or

innocence.

Id., footnote 17 (emphasis added).

Mr. Larson has made no_ colorable

showing of factual innocence here. "Almost

three pounds of pure cocaine were seized

and other evidence of drug trading was

present in the searched room occupied by

Larson." Larson, 833 F.2d at 759. While

the petitioner argues that the cocaine

should have been suppressed and thus

attempts a showing of legal innocence,

there is no

eee ai ie.

- 66 -

basis for the suggestion that the "trier-

of-the-facts would have entertained a

reasonable doubt of his guilt" in light of

all the evidence.

Because all three of the enumerated

conditions cannot be met, this Court cannot

dismiss petitioner's claim under Sanders.

Rather, than give controlling weight to the

initial

eo = «

section 2255 denial, petitioner's case must

be reviewed as if before the Court for the

first time.

B.. Motion for Evidentiary Hearing

and Merits of Claim

Petitioner has moved the Court to

hold an evidentiary hearing pursuant to 28

U.S.C. § 2255. That section provides in

part:

Unless the motion and the files

and records of the case

conclusively show that the

prisoner is entitled to no

relief, the court shall cause

notice thereof to be served upon

the United States Attorney, grant

a prompt hearing thereon,

determine the issues and make

eae

Lie Nyala Molin Nima AC lt

se ne intaal hast aC Cine Ki hatrcn al sath ha ie

Fide A, NP hh a age ele aw

« 67 «

findings of fact and conclusions

of law with respect thereto.

The Eighth Circuit has said,

[ajn evidentiary hearing on 4a

section 2255 motion must be

granted when the facts alleged

would justify relief if true, or

when a factual dispute arises as

to whether or not a

constitutional right is being

denied.

Smith v. United States, 618 F.2d 507,510

(8th Cir. 1980); United States v. Kraemer,

810 F.2d 173, 178 (8th Cir. 1987).

Because the statute requires that this

Court assess the merits of petitioner's

claim in order to decide petitioner's

motion for an evidentiary hearing, the

merits of his claim will be discussed at

this time. Review of the merits is also

necessary because, under Sanders, this

Court may not give controlling weight to

the sentencing court's disposition of

petitioner's first section 2255

application.

- 9 -

Here, petitioner claims that he has

@ 68 «

been denied his Sixth Amendment right to

effective assistance of counsel because his

pre-trial attorney, Mr. Smith, failed to

move to suppress the search and seizure of

certain closed containers containing

cocaine. This claim, if true, must have

merit in order to justify holding an

evidentiary hearing. In order for this

Claim to have merit, petitioner must meet

the standard set forth in Strickland v.

Washington, 466 U.S. 668 (1984). In order

to prevail, a defendant must show both 1)

that counsel's representation fell below an

objective standard of reasonableness and 2)

that there exists a reasonable probability

that, but for counsel's unprofessional

errors, the result of the proceeding would

have been different. Id. at 688, 694.

More recently, the Supreme Court in

Kimmelman v. Morrison, 477 U.S. 365 (1986),

explained the correct standard to apply

when an attorney's incompetence is founded

upon a failure to make a Fourth Amendment

- 69 -

clain.

Where defense counsel's failure

to litigate a Fourth Amendment claim

competently is the principal

allegation of ineffectiveness, the

defendant must also prove that his

Fourth Amendment claim is meritorious

and that there is a reasonable

probability that the verdict would

have been different absent’ the

excludable evidence in order to

demonstrate actual prejudice.

Id. at 375. °

The Eighth Circuit has adopted

substantially the same standard. "The

prejudice flowing from an attorney's

failure to file a suppression motion is

determined by examining the likely

- 10-

success of the motion." ello v. SC P

741 F.2d 1099, 1104 (8th Cir. 1984); United

States v. Johnson, 707 F.2d 317, 320 (8th

Cir. 1983). In United States v. Johnson,

the Eighth Circuit opined that "(t)jhe

failure to make a motion to suppress what.

is essentially the only evidence against a

defendant can be sufficient to establish

lack of diligence on the part of the

- 70 -

attorney if the motion would have

succeeded." 707 F.2@ 317, 320 (6th Cir.

1983), citing, United States v. Easter, 539

F.2d 663 (8th Cir. 1976), cert. denied, 434

U.S. 844 (1977).

Thus, the issue before this Court on

petitioner's motion for an evidentiary

hearing, is to determine whether a motion

to suppress the cocaine, if it had been

made, would have been successful. If the

suppression motion would have been

successful and if petitioner's attorney was

so lacking in professional competence as to

deny him effective assistance, and thus, a

fair trail, then petitioner's application

for relief has merit and an evidentiary

hearing should be held.

On review before the Eight Circuit,

the court surveyed the findings and

conclusions of the district court in

petitioner's first motion under section

2255:

The district court found some of

the seized drugs in the grocery

- ve -

bags were in plain view, and some

were obtained during a police

search that followed a private

search conducted by the owner of

the premises. Thus, the search

of the bags challenged by Larson

was not invalid under the Fourth

Amendment.

‘= ll -

Larson, 833 F.2d at 759. In this petition,

Mr. Larson's second section 2255

application, petitioner asserts facts which

might prove two theories: 1) that the

police search exceeded the scope of the

private search and 2) that the seized drugs

were not in plain view of the owner of the

premises, i.e. the hotel manager who did

the private search, and, by implication,

they were not in plain view of the police

when they searched the premises. For the

purpose of determining the merit of such a

suppression motion, this Court will accept

as true petitioner's factual allegations

relative to what the hotel manager

i

= 92 «

observed.?

The search of the hotel room could be

legitimate under any of several theories:

1) because the rental period of the hotel

room had expired, petitioner lacked an

expectation of privacy in the room 2) the

custodian of the premises gave consent to

the police to search the room; 3) exigency

justified the warrantless entry and search;

4) the cocaine was in plain view when the

police came in; or 5) a private search of

the room legitimized the later police

search. First, the private search

a |

of the motel room. Petitioner's

5 Petitioner also asserts, as he did

in his first section 2255 application, that

all the cocaine was in sealed containers and

thus should have been suppressed.

Petitioner asserts no new facts to convince

the Court that the grocery bags were sealed

or that the cocaine was in opaque packaging.

See United States v. Mefford, 658 F.2d 588,

591-92 (8th Cir. 1981), cert. denied, 455

U.S. 1003 (1982). Besides, the files and

records in this case conclusively show that

the paper bags were not sealed, nor that all

of the cocaine was inside opaque containers.

A hearing will not be held to delve into the

closed container issue.

SE ae eed That eb a At ERLE OE AE COC SON herbed neh AR Aaetannnal

Me tin Sila ei c+ wnt teh ae ott

eA TA ie lila Oo mt

- 93 =<

allegations as to what the hotel manager

saw in his private search of the hotel room

does not differ in a material way with the

testimony at trial. At trial, the hotel

manager testified that he saw two paper

bags on a table. One paper bag had liquor

bottles in it, while the other paper bag

had two plastic bags of white powder

contained within it. T1T.T. II at 307, 310-

312. The new facts alleged by the

petitioner clarify that what the hotel

manager saw in the room was probably a non-

drug substance and not cocaine. But there

was no evidence at trial that what the

hotel manager saw was indeed cocaine. To

the contrary, the hotel manager's

description at trial of the two plastic

bags filled with white powder in the

grocery bag comports with Officer Clark

Holden's description at trial of Government

Exhibits 6, 7, and 8, which were later

identified as sugar-based substances. T.T.

III at 527. None of the other grocery bags

a |’ a

filled with plastic bags and/or manila

envelopes containing cocaine fit the

description given by the hotel manager at

the trial. The hotel manager saw in the

only grocery bag which had two zip lock

plastic bags inside. None of the other

bags fit this description. Thus, a

determination that the private search

legitimized the police search would be no

different under the facts alleged now by

petitioner. Thus, what this discussion

proves is that a private search could not

support the police search under either the

evidence adduced at trial or the "new

facts" put forth by petitioner. On the

facts, the private search was simply too

—.

limited in scope to legitimize the scope of

the police search. ee ited States v.

Jacobson, 466 U.S. 109 (1984).

Second, the plain view doctrine

supports the search. At trial, the hotel

manager testified that when he first

» 75 =

noticed the grocery bags containing the

white powder, they were on 4 table in the

hotel room. At that time, no one was in

the room. Between the time the hotel

manager was in the room and the time the

police arrived, the furniture arrangement

had been slightly changed. In particular,

the table had been moved and the grocery

bags were no longer on the table. At the

time of the search by the police, there was

a grocery bag on the sink in the bathroom

(Government Exhibits 1, 2 and 3), one under

the TV (Government Exhibit 4), a plastic

bag of white powder on the bed under the

bedspread (Government Exhibit 5), a grocery

bag with two zip lock plastic bags of

powder and a plastic cup inside located on

top of the bed (Government Exhibits 6, 7

and 8), and a paper bag containing one

plastic bag of white powder under the TV

(Government Exhibit 9). There was no

evidence at trial that the paper grocery

bags (containing the bags and envelopes of

- 76 -

white powder) were sealed in any manner.

There is no expectation of privacy in a

paper bag not sealed with tape, staples, or

string. United States v. Mefford, 658 F.2d

588, 591-592 (8th Cir. 1981), cert. denied,

455 U.S. 1003 (1982). Further, there was

no evidence that the manilla envelopes

which contained white powder and which were

inside the paper grocery bags were sealed.

All the plastic bags containing cocaine

were

o~ 24 =

transparent, so that the cocaine could be

seen without unsealing the zip lock plastic

bag. See Robbins v. California, 453 U.S.

420 (1988) (plurality opinion) (contents of

transparent container could be said to be

in plain view).

The petitioner provides the Court with

no factual allegations that the packages

containing the cocaine were sealed and

hidden from plain view. the facts before

the Court on this issue are the same as

4

)

j

:

3

i

4

|

;

:

:

o 39 =

those before Judge Murphy on the initial

section 2255 motion and at trial. No new

evidence has been presented to disprove the

view that evidence was in plain view during

the search by the police. All that the

petitioner alleges is that the hotel

manager saw only sugar-based substances and

no cocaine. First, this piece of

information has absolutely nothing to do

with what was in plain view when the police

S he room. Even if the undersigned

accepts as true petitioner's allegation as

to what the hotel manager saw, it does not

alter, under the plain view doctrine, what

the police saw. Second, at least one of

the grocery bags and the table on which it

sat had been moved between the time that

the hotel manager saw the room and when the

police arrived and searched the room.

Thus, what the hotel manager saw is not

relevant to what was in the room and in

plain view when the police arrived. The

inference that the hotel manager and the

= 98 «

police saw the same items in, plain view

cannot be supported.

Third, the search of the room can be

justified under the exigent circumstances

doctrine.‘ As an initial matter, the

police had probable cause to believe that

contraband was located in the motel room.

See Illinois v. Gates, 462 U.S. 213 (1983).

Hotel personnel had examined the white

powder in the grocery bag and Suspected it

was an illegal substance. They contacted

the police. Further, the trial transcript

revealed that the police, upon arriving at

the hotel and after notifying the room's

occupant that they had arrived and wanted

to speak to him, heard some rustling noises

inside the room before the defendant

answered the door. Given that the police

. This Court is not required to

reconsider this issue, since the Eighth

Circuit reviewed it on direct appeal. 760

F.2d at 855. See Kraemer, 810 F.2d at 177

(petitioner cannot raise the same issues in

a section 2255 petition as he did on direct

appeal). The following discussion

reiterates the findings of the Eighth

Circuit.

» 9 «

suspected drug trafficking, the noise of

moving around inside the room would lead a

reasonable police officer to assume that

evidence was being destroyed. Under the

totality of the circumstances, probable

cause and exigency existed to enter the

room without a warrant. See Larson, 760

F.2d at 855.

Fourth, hotel personnel consented to

the search of the motel room and petitioner

Larson had no expectation of privacy in the

room after the rental period expired.’ Co-

defendant Sheila Burgess rented the motel

room on October 28, 1983. She paid for the

room in advance. The next morning, she

checked out but asked if her co-occupant

could remain in the room until two o'clock,

two hours after the normal check-out time.

After two o'clock, a maid was informed by

petitioner that he wished to stay another

night. At approximately 5:30 p.m., when no

’ See previous footnote. This issue

was litigated on direct appeal.

i

« 86 «

additional rent had been paid for the room

and several long distance phone calls still

remained unpaid, a bell person was sent to

the room to check out the situation. It

was reported to the hotel manager that the

room was unoccupied. At that point, the

hotel manager went to the room. and

inspected it after finding no one there.

He discovered empty liquor bottles in a

bag, prescription pills, keys and grocery

bags containing plastic bags filled with

white powder. 760 F.2d at 855. He called

the police. The police arrived at 6:40

p.m. Apparently around 7:00 p.m., the

hotel manager went to the room and knocked

whereupon a voice answered and the manager

and the petitioner had a conversation

through the closed door. Then the police

knocked on the door and after hearing some

noises from within, petitioner stepped out

of the room, closing the door behind hin.

Petitioner refused to let the officers

enter the room and the hotel manager

= @1 -

consented to the entry of the police into

the room. Id.

The issue at this point is whether the

hotel manager had the power to consent to a

search of a room occupied by the

petitioner. Where the term a guest's

occupancy of a room expires, a guest loses

his exclusive right to privacy in the roon.

At that point, hotel personnel have the

right to enter

- 17 =

the room and consent to a search and

seizure of items there found. See Larson,

760 F.2d at 855, citing United States v.

Parizo, 514 F.2d 52, 54 (2nd Cir. 1975).

See also United States v- Croft, 428 F.2d

884 (10th Cir. 1970). "When the rental

period has elapsed, the guest has

completely lost his right to use the room

and any privacy associated with it." Id.;

Croft, 429 F.2d at 887. It is a

defendant's burden of proving that he has a

legitimate expectation of privacy in a room

» 62 «

at the time of the search. See Rawlings v.

Kentucky, 448 U.S. 98, 104-105 (1980);

Rakas v. Illinois, 439 U.S. 128, 131 n. 1

(1978); Larson, 760 F.2d at 854. Here,

petitioner stayed beyond the occupancy

period without paying for another day.

Although he had informed the maid that he

wished to stay another day, he had failed

to comply with the motel's policy that

persons pay for their room in advance. The

petitioner simply failed to meet his burden

that he had an expectation of privacy in

the room. Thus, the hotel was clearly

within its rights to consent to a search of

the roon. Given the lack of privacy by

Larson in the room and the consent to

search, a search of those items found in

the room was therefore permissible.

The search of the motel room can be

justified on the basis of several legal

theories. Given the fact that’ the

petitioner offers no new evidence that

would support a successful suppression

ANS Ree Aatenp

o £3 «

motion, it is obvious that petitioner

cannot claim ineffective cneiecanos of

counsel on this basis. ee son, 707

F.2d at 323.

= 18 «

Further, petitioner offers no factual

allegations which undermine the competency

of his attorneys at trial. His factual

assertions only go to what the _ hotel

manager saw. As discussed, this

information does nothing to undermine the

validity of the motel room search and the

resultant admissibility of the cocaine into

evidence. Thus, under Strickland,

petitioner cannot meet a prong of the two-

part test. In order for his claim of

ineffective assistance of counsel to have

merit, petitioner must also show under

Strickland that his legal representation

fell below an objective standard of

- reasonableness. This Court finds it

significant that Mr. Larson had three

attorneys working on his case, one of whom

= §4 <

worked strictly on suppression-type

motions. That attorney, Mr. Smith, worked

on petitioner's case for 400 hours. This

Court finds it wholly improbably that Mr.

Smith fell below an objective standard of

reasonableness.

Petitioner's motion for an evidentiary

hearing is denied. If petitioner's factual

allegations relative to the hotel manager

are taken as true, a review of petitioner's

Claim of ineffective assistance of counsel

has no merit. This Court is not required

to hold an evidentiary hearing on a

meritless claim. Further, the files and

records conclusively show that Mr. Larson

is entitled to no relief on this clain.

Therefore, his claim should be dismissed on

the merits.

Based on the foregoing, and all the

files, records and proceedings herein.

- 19 -

2a tad eaten

- 85 =

IT Is HEREBY RECOMMENDED

petitioner's successive section

application be DISMISSED.

DATED: January 13, 1989.

that

2255

BERNARD P. BECKER

United States Magistrate

- 86 -

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 87-5307

Duane Wendall Larson, *

*

Appellant, * Appeal from

* the United

Vv. * States

* Pistrict

* Court

United States of America * for the

* District of

Appellee. * Minnesota

*

*

Submitted: October 23, 1992

Filed: November 25, 1987

Before MCMILLIAN, FAGG, and BOWMAN, Circuit

Judges.

PER CURIAM.

Duane Wendall Larson appeals pro se

from the district court's order denying his

petition for a writ of habeas corpus under

28 U.S.C. § 2255. We affirm.

Larson was convicted and sentenced on

a count of an indictment charging him with

possessing cocaine with intent to distribute

- 87 -_

and aiding and abetting. See 21 U.S.C. §

841 (a)(1); 18 U.S.C. § 2. A full

description of the facts relating to the

offense is set fourth in this court's

opinion affirming Larson's convictions. See

United States v. Larson, 760 F.2d 852, cert.

denied, 474 U.S. 849 (1985). Larson's

habeas petition contained six separate

grounds for relief, three of which he argues

on appeal. Larson contends: (1) evidence

contained inside paper grocery bags was

illegally seized; (2) he received

ineffective assistance of counsel from one

attorney who failed to object to the

admission of evidence obtained in the search

of the bags and from another attorney who

advised him not to participate at trial; and

(3) his presentence investigation report

(PSI) contains information improperly

obtained from the grand jury. We conclude

none of these contentions entitle Larson to

habeas relief.

Larson did not raise the fourth

»~ Oe «

amendment claim challenging the warrantless

police search of the paper grocery bags

before or during trial. Thus, he is barred

from raising the claim unless he can show

cause excusing the procedural default and

actual prejudice. United States v. Frady.

456 U.S. 152, 167-68 (1982); United States

v. Johnson, 707 F.2d 317-320 (8th Cir.

1983). The district court found some of the

seized drugs in the grocery bags were in

plain view, and some were obtained during a

police search that followed a private search

conducted by the owner of the premices.

Thus, the search of the bags challenged by

Larson was not invalid under the fourth

amendment. See United States v. Newton, 788

F.2d 1392, 1394 (8th Cir. 1986) (plain view

doctrine); United States v. Jacobson, 466

U.S. 109, 113-15 (1984) (police search

within scope of private search not a fourth

amendment violation); ite ¥,

Mefford, 658-F.2d 588, 591-92 (8th Cir.

1981) (no expectation of privacy in paper

> 6 =

bag not sealed with tape, staples, or

string), cert. denied, 455 U.S. 1003 (1982).

Because this underlying evidentiary claim is

without merit, Larson has’ failed _ to

demonstrate actual prejudice from the

introduction of this evidence. See Johnson,

707 F.2d at 323.

In order to prevail on his claims of

ineffective assistance of counsel, Larson

must show the legal representation he

received fell below an objective standard of

reasonableness and that there is a

reasonable probability, but for these

unprofessional errors, the result of his

trial would have been different. See

Kimmelman v. Morrison, 477 U.S. 365, ,

fo6 s. ct. 2574, 2583, (1986); Strickland v.

Washington, 466 U.S. 668, 687-88, 694

(1984).

~~ =

First, in view of our conclusion Larsons'

fourth amendment claim lacks merit, the

failure of Larsons' counsel to raise the

- 90 -

issue does not constitute ineffective

assistant. See Johnson, 707 F.2d at 323.

Second, the advice of Larson's other counsel

not to participate at trial will not support

an ineffective assistance claim in the

circumstances of this case. Almost three

pounds of pure cocaine were seized and other

evidence of drug trading was present in the

searched room occupied by Larson. In

addition, Larson had access to alternate

counsel from whom he could have sought

advice, and the district court repeatedly

warned Larson he was waiving constitutional

rights by voluntarily choosing not to

participate. Under these conditions, Larson

did not receive ineffective assistance of

counsel.

Finally, Larson argues information in

his PSI was improperly obtained from grand

jury records. While both direct and

indirect disclosure of grand jury material

is prohibited, only information that reveals

what transpired in the grand jury room is

- 91-

protected from disclosure, and not all

future revelations to proper authorities are

foreclosed. See In re Grand Jury Matter,

682 F.2d 61, 63 (#d Cir. 1982). Atter

reviewing the record, we conclude Larson's

argument on this point is purely speculative

and does not provide grounds for habeas

relief.

We have thoroughly reviewed the record

and Larson's contentions. We affirm the

district court's denial of Larson's

petition.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

(TO BE PUBLISHED]

OO

= 92 -

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

DUANE WENDALL LARSON,

Petitioner, MEMORANDUM

OPINION AND

vs. ORDER

UNITED STATES OF AMERICA, Civ. 4-86-483

Crim. 4-83-84

Respondent.

Petitioner Duane W. Larson was

convicted of one count alleging possession

of approximately three pounds of essentially

undiluted cocaine with intent to distribute

and aiding and abetting. He was sentenced

to ten years imprisonment and a $25,000

fine. His conviction was affirmed, after

which he began to serve his’ sentence.

United States v. Larson, 760 F.2d 852 (8th

Cir.), cert. denied, 106 S. Ct. 143

(1985) .'

Larson has petitioned for relief

, Larson also pleaded guilty before

the Honorable Edward J. Devitt to one count

of tax evasion. A five year sentence was

imposed, and he is now serving an aggregated

sentence of fifteen years.

- 93 -

pursuant to 28 U.S.C. § 2255. He seeks to

have his conviction vacated or,

alternatively, to have his sentence and the

presentence investigation corrected. United

States Magistrate Floyd E. Boline

recommended denial of all requests for

relief with the exception of one issue on

which he made no recommendation. The matter

is now before the court on

~~

Larson's objections to the Report and

Recommendation and the government's response

to then.

Petitioner's § 2255 submission

consisted of six separate motions seeking

various forms of relief. First, Larson

asserted that his conviction was unlawful

because it was based on illegally seized

evidence. He then asserted that his

conviction cannot stand because he was

denied effective assistance of counsel by

two attorneys. His third request was for a

new trial “with counsel of- his choice."

- 94 -

Fourth, he sought resentencing on a variety

of grounds: Fed. R. Civ. P. 32(c)(3)(D), 48

U.S.C. § 4205(b)(2), the reversal of his

codefendant's conviction, and_ possible

reliance in sentencing on two. prior

convictions that should have been expunged

from the record. Fifth, he claimed that the

court relied on erroneous information about

parole guidelines and therefore should

reduce his sentence. Finally, he argued

that his aiding and abetting conviction

should be vacated because his codefendant's

conviction was reversed. Magistrate Boline

considered each of these arguments, but

found none persuasive.

Larson obviously reviewed the Report

and Recommendation carefully and submitted

objections to the magistrate's findings and

recommendations on all or part of the first,

second, and fourth of his original claims.

He explicitly did not object to the

magistrate's rejection of the other three

Claims. Pursuant of Fed. R. Civ. P. 72(b),

the court has made a de novo determination

of those matters to which objections were

filed. In making

—

its de novo determination, the court has

carefully studied petitioner's objections

and his exhibits, as well as the entire

record, including the thorough Report and

Recommendation and the trial transcript.

After this de novo review, the court finds

itself in basic agreement with’ the

magistrate on most issues. The court was

obviously aided in review and consideration

of the record by having presided at trial

and the sentencing hearing.

Petitioner seeks an evidentiary hearing

and Magistrate Boline found as a preliminary

matter that there was no need for such a

hearing. Section 2255 requires such a

hearing "({ujnless the motion and the files

and records of the case show conclusively

- 96 -

that the prisoner is entitled to relief," 28

U.S.C. § 2255. "(Tj)he decision as to

whether a hearing is necessary to determine

the factual contentions is committed to the

discretion of the district court." Widgery

Vv sta , 796 F.2d 223, 224 (8th

Cir. 1986).

The magistrate found the files and

records an entirely adequate basis for

determining the merits of all but one of

Larson's claims. Larson now concedes that

most of his claims can be resolved without

a hearing. The- “possible exception"

identified by the magistrate, and emphasized

by Larson, related to his claim that certain

advice of attorney Oscar Goodman amounted to

ineffective assistance of counsel.

=o

In support of his objections,

petitioner has filed his own affidavit, as

well as one by his wife. They state Goodman

confirmed in a June 1986 telephone call that

he had advised petitioner not to participate

nf

o 69 =

at trial if the court didn't grant a

continuance because a new trial would

result, at which Goodman would represent

@ Larson seeks an evidentiary hearing

him.

to bring this out. Such a hearing is not

necessary, however, because for purposes of

this petition, the court will take as true

Larson's account of the advice given by

attorney Goodman.

Fourth Amendment Claim

The three pounds of cocaine at issue in

this case were seized in a search of a motel

room. This search was described at trial

and on appeal. 760 F.2d at 852. Larson's

codefendant rented the room for a single

night, paying in advance. She checked out

the following morning, after obtaining

permission for Larson to stay until 2:00

p.m., two hours past the usual check out

time. Larson did not leave by 2:00 p.m. and

e His affidavit also states he spent

$250,000 in his defense: $30,000 to Jay

Kelly, $50,000 to Goodman, and the remainder

to Raymond Smith.

- 98 =-

subsequently told a maid that he intended to

stay an additional night. He did not pay

for the second night, however. At about

5:30 p.m., fearing that Larson would leave

without paying for certain telephone calls,

a hotel manager sent a bellman to check out

the room. Informed that no one was present,

the manager entered the room, where he found

personal effects, empty liquor bottles,

wer er

prescription pills, and grocery bags

containing plastic bags of white powder. He

informed the general manager, who called the

police. After police arrived at the motel

and knocked on the room door, Larson

responded and refused to permit them to

enter the room. The motel manager.consented

to the search, but no warrant was obtained.

In his objections, Larson concentrates

his fourth amendment argument on the

warrantless search of the grocery bags found

in the motel room, which he describes as

- 99 =-

3

closed containers. Magistrate Boline,

relying on Stone v. Powell, 428 U.S. 465

(1976), concluded that Larson was not

entitled to raise fourth amendment claims

because he had already had a "full and fair

opportunity" to present them at a number of

stages in the proceedings: in his pretrial

suppression motion before Magistrate J. Earl

Cudd and on de novo review to the district

court, at trial, in a motion for a new

trial, on appeal, and in his petition to the

Supreme Court for a writ of certiorari. To

the extent that Larson and counsel failed

specifically to raise the container issue,

the Magistrate found that it had been waived

under Fed. R. Civ. P. 12(b)(3) and (f).

Larson argues that the magistrate

overestimates the scope of Stone v. Powell

3 The trial testimony revealed that

when the hotel manager looked into the

grocery bags, he saw plastic bags inside,

filled with white powder. Not all the

plastic bags were in manila envelopes, and

the tops of some of the grocery bags were

open. Pretrial Transcript (P.T.) (Vol.) I:

62-3, 134. Trial Transcript (T.T.) II: 307-

8,312,336,351,373.

- 100 -

and that he did not waive his container

search

—

argument. He states "[p]Jermission to raise

the container issue mid-trial would most

likely have been denied, (Objections at 16)

and at trial "it was already too late to

raise the container issue." (Objections at

21). The record contradicts this. The

court told petitioner at trial he had the

right to challenge the government's evidence

and warned he was in danger of giving up

that very important right. T.T. I: 220-21;

II: 394. He was told the jury would decide

this fate based "on the evidence that I

allow in and on the instructions that I'm

going to give at the end of the case." T.T.

I: 221. Larson admitted he understood

this.* And Smith continued to raise

. The Court: "You have the right to

object to any evidence that comes in by any

form. You have the right to request

limiting instructions from the court. You

have the right to seek to suppress evidence

during the course of the trial... . You

understand that .. . don't you?"

- 101 =

suppression issues at trial T.T. II: 299,

III: 528.

The objections suggest that the focus

of Larson's argument is not so much the

fourth amendment per _ se. Rather, he

stresses that counsel's failure to raise the

container argument is proof of ineffective

assistance. The ineffective assistance

argument will be considered separately.

The court finds itself in _ basic

agreement with Magistrate Boline's findings

and conclusions with respect to the full and

fair opportunity petitioner had to litigate

fourth amendment

~~ a

claims and his waiver of the right to raise

then. Larson is not entitled to mount a

collateral attack here on the search and

seizure of the bags. Nor is he entitled to

a new trial or the suppression of the

evidence. Even if the court were to reach

Larson: "Yes, I do, Your Honor."

T.T. III: 442

- 102 =

the merits of the container issue, the

record indicates at least some of the

cocaine was in plain view rather than in

closed and opaque container. See supra note

3.

Ineffective Assistance of Counsel

Several attorneys appeared on Larson's

behalf during the pre-trial stages of the

case including Jay Kelley of Minneapolis,

Minnesota, Raymond Smith of Chicago,

Illinois, and Oscar Goodman of Las Vegas,

Nevada.

On January 30, 1984, two days before

trial, Larson moved for a continuance.

Larson explained that he had hired three

sets of attorneys - one to conduct the

trial, one to handle pre-trial motions, and

one to serve as local counsel. Although he

had not previously informed the court of

this arrangement, he argued that only

Goodman could present the case at trial and

that he was engaged in another trial which

would last approximately one week. The

Se

- 103 -

motion for a continuance was denied because

Larson had had adequate time for trail

preparation and adequate notice of the trial

date. Larson reentered his motion on

February 1, 1984, the trial date. The

motion was again denied. The court cited

the previous grounds for denial and noted

the case was not particularly complex, it

was increasingly clear when Goodman would

o> «

even be available for trial, and Smith was

familiar with the facts of the case.

The court also denied a motion to

withdraw appearances by Larson's other

counsel and required Smith to act as standby

counsel. The court advised Larson of the

perils of proceeding without counsel, not

participating in the trial, and _ not

permitting his attorneys to do so.

Some examples are illustrative.

The Court: "I hope you'll listen

to me carefully right now,

because I think that the posture

that you're proceeding under

right now is not in your best

- 104 -

interest, and let me explain why

- So the consequences for

you of the trial could be very

great."

T.T. Is: 59-60.

The Court: "You'd be much better

off if you had your lawyer

representing you here. . . z

advise you that in my judgment at

would be a foolish step for you

to take."

The Court: "Think about it very

carefully"

Larson: "I'll do that"

The Court: "Under any way you

look at it, you'd be better off .

"

The court told Larson he was foolish not be

represented by the able counsel available at

trial and that constitutional rights can be

waived or given up. T.T. I: 116; 218-19.

The Court: "I want you again to

talk with the lawyers who have

appeared in this case, your

standby counsel here, and with

Mr. Goodman. It's going to be up

to you, but if you choose to go

- 105 -

Nevertheless, Larson refused to

— we

permit counsel to participate in the trial

and chose essentially to stand mute.

forward in this way, you are

giving up very important

constitutional rights."

Larson: "In understand that. I

appreciate your concern. Mr.

Smith is concerned as well, and

I've got a certain amount of

concern myself. I've got this

afternoon to talk with him and

think about it and make that

decision. As of yet, I haven't

made a decision."

The Court: "IT must inform you

that you are giving up

significant constitutional rights

of representing yourself or, more

importantly, in my judgement, of

being represented by capable

counsel that's familiar with this

case"

T.T. I1:230

Larson was told he could change his mind at

any time. He stated that he "appreciate([d)

[the court's] genuine concern" and would let

the court know. T.T. II: 231.

~

- 106 -

Larson now argues that he is entitled

to a new trial because two lawyers denied

him adequate assistant of counsel. Larson's

argument as to attorney Goodman rests on his

advice that a continuance would be granted

or a new trial would be ordered on appeal.

Larson asserts that he believed the

"prominent" Goodman and therefore relied on

his incorrect advise. Larson's argument as

to attorney Smith largely rests on his

failure to raise the container search issue

in the trial court.

Magistrate Boline refrained from making

a finding relating to Goodman's alleged

advice or whether it was outside the "range

of professionally competent assistance."

Strickland v. Washington, 466 U.S. 668, 690

(1984). It is unnecessary to reach the

issue of professional competence if

petitioner has not demonstrated prejudice,

however. Strickland, 466 U.S. at 695-96;

= 9

United States v. Reed, 756 F.2d 654, 656

(8th Cir.), . denied, 106 S. Ct. 111

(1985). For purposes of this motion, the

court assumes Goodman gave the advice

petitioner claims, but finds that the record

shows that petitioner was not prejudiced by

such advice.

It was clear at trial that petitioner

was making his own decisions after

considering the court's instructions and

conferring by phone with Goodman and in

person with Smith, his standby trial

.counsel. See, e.g., T.T. I: 63, 222; II:

229, 231. This court gave repeated and

detailed instructions to him personally at

various steps of the trial. T.T. I: 58-64,

116, 216-22; II: 230-31; III: 442,548. The

court advised him he had no constitutional

right to a particular attorney and that he

would lose specific rights and opportunities

by persisting in his’ policy of not

participating in the trial. Petitioner

weighed the various advice he received and

made his voluntary decision toa proceed in

‘= 303 =<

the way he did. He chose not to heed the

court's specific warnings. Clearly he is

dissatisfied with the outcome, but he has

not shown that it was caused by ineffective

assistance of counsel.

As the magistrate said, the evidence

against petitioner was overwhelming. He was

"caught 'red-handed' with about three pounds

of pure cocaine." Report and Recommendation

at 19. Other indicia of the drug trade were

also found in his room, such as scales, a

cutting agent, and packaging equipment.

Petitioner stated at trial that Smith was

his suppression expert, so

~ 208 =

Goodman's absence was not’ considered

critical by him for search and seizure

issues. It was petitioner who ordered Smith

not to represent him at trial even though

Smith was there and in fact continued to act

to suppress evidence. 1T.T. II: 299,528.

The court also told petitioner that he could

object to the introduction of any evidence.

-s00 *

Zene 38 220-21; II: 394; III: 442. In

short, any advice from Goodman, even if

ineffective, or his failure to appear at

trial, was not prejudicial under all the

circumstances.

Petitioner also claims that Smith's

failure to raise the issue of the

warrantless search of the containers in the

motel room amounted to ineffective

assistance of counsel In his affidavit, he

states that he informed the defense team

that the cocaine seized “was enclosed in

paper bags and also in manila envelopes or

smaller paper bags inside the larger bag"

and that the defense team had access to

photographs of the evidence in the motel

room.

The testimony at trial was that not all

the cocaine was contained in opaque

packaging and that at least some of the

cocaine was visible to the hotel manager

when he looked around the room. ee supra

note 3. As already referenced, petitioner

- 110 =

chose not to participate with his attorney

at trial in the attempt to suppress the

evidence. Smith showed himself to be an

able attorney in this case, and defense

counsel in fact succeeded in suppressing

additional amounts of cocaine and in getting

a

o £3 «

second count dismissed. His performance

certainly was within the range of reasonable

professional conduct. Petitioner has

mischaracterized what happened at trial in

his attempt to show ineffective assistance,

but the record refutes his clain.

oti or Re

Petitioner advances several bases for

his request for resentencing: (1) asserted

failure to comply with Fed. R. Civ. P. 32

(c) (3) (D) and possible reliance on two prior

convictions that should have been expunged

from his record; (2) the asserted

applicability of 48 U.S.C. § 4205 (b)(2);.-

and (3) the reversal of his co-defendant's

=

= iii =

conviction. In his Objections, Larson

indicates no objection to the magistrate's

findings that the second and third of these

arguments must fail.

Under Rule 32 (c)(3)(D), where

the defendant or counsel

allege{s] any factual inaccuracy

in the presentence investigation

report ... the court shall, as to

each matter controverted, make

(i) a finding as to- the

allegation, or (ii) a

determination that no such

finding is necessary because the

matter controverted will not be

taken into account in sentencing.

Petitioner now concedes that the court

did order expungement of a prior conviction

for possession of methamphetamines, but he

argues that the reference to a conviction

for driving under the influence and open

bottle should also have been expunged due to

an uncounseled guilty plea. He also alleges

error in failing to make specific findings

about allegedly incorrect financial

information and in failing to exclude

portions of the presentence report (PSI)

allegedly based on grand jury materials.

- 12 -

; - 112 =

Prior to sentencing on May 2, 1984,°

petitioner submitted two sets of written

objections to the PSI. One was written by

attorney Kelley and also signed by

petitioner; the other was written by Larson

himself. These documents complained about

certain financial information being grand

jury material and about other references to

two prior convictions, automobile and house

searches, informant statements, and details

relating to the motel where the evidence was

found. As the magistrate noted, petitioner

essentially “objected to the nature of the

information" rather than to any potential

factual inaccuracies. Report and

Recommendation at 25-26.

At the sentencing hearing, petitioner

and attorney Smith said they had no further

objections. Sentencing Transcript (S.T.) 3-

4. Defense counsel recognized that the

. Petitioner was permitted to remain

free on bond pending determination of his

appeal so he did not begin to serve his

sentence until October 2, 1985.

Bs -

- 113 -

court had ruled on the objections. S.T. 3.

The court noted all the objections and

ordered that the PSI be altered to reflect

that the conviction for possession of

methamphetamines had been expunged. S.T.

31. Other objections were overruled because

the type of information ch=lienged had been

"generally accepted as appropriate for a

presentence report." Id. The court stated

to petitioner that

o 23 «

shows that you have been a major drug

dealer." S.T. 31 (emphasis added) .’”

As indicated at _ sentencing, the

sentence was based on the evidence

introduced at trial. The court did not take

into consideration in sentencing’ the

Petitioner apparently believes

that the court's characterization of him as

a "major drug dealer" was based on financial

data in the PSI. In fact, it was based on

the substantial quantity of nearly pure

cocaine seized from the motel room, as well

as the other indicia of drug distribution

found there.

eee ee

- 1134 =

challenged financial data, any _ prior

conviction, statements from informants, or

results of automobile or house searches. In

regard to the events at the motel, the court

relied on the trial evidence.

Under Fed. R. Crim. P. 32(c)(3)(D), the

court should have made clearer findings and

determinations at the sentencing hearing and

appended them to the PSI, together with

copies of petitioner's objections. Written

determinations, together with the

objections, will be attached to the PSI and

forwarded to the appropriate places. To

this extent, petitioner is entitled to

relief. He is not entitled to be

resentenced, however. United States v.

Weber, 818 F.2d 14 (8th Cir. 1987). The

record as a whole makes clear that no

dispute matter affecting the sentence

"remained unaired or unresolved at the

hearing." Id. at 15.

Petitioner continues to object to

financial data found in the PSI on the

=» iso *

grounds that it represents unwarranted use

of grand jury materials. He relies on

United States v. Hogan, 489 F. Supp. 1035

(W.D. Wash. 1980), which held that probation

» 44 «

officers were not entitled to automatic

disclosure of grand jury testimony under

Fed. R. Crim. P. 6(e) (3) (A) (ii). The

instant case is not like Hogan. The Hogan

PSI contained material clearly obtained from

grand jury records. Here the source of the

material was the United States Attorney's

office and the Internal Revenue Service.

"There is no question that the probation

officer ... is entitled to interview

government agents and prepare a report that

includes the substance of the interviews and

the probation officer's personal

conclusions." 489 F.Supp. at 1039. It

appears that the probation officer in this

case did just that. As indicated at the

time of sentencing, this objection should be

overruled.

- 116 =-

Conclusion

After carefully reviewing the record

and petitioner's requests for relief, the

court concludes that he is not entitled to

the relief he seeks and that his motions

should be denied and his petition dismissed.

Copies of his objections at sentencing and

the court's findings and determinations

should be attached to his PSI, however, and

this will be addressed in a separate order

to be issued today.

Accordingly, based upon the above and

all the files, records, and proceedings

herein, IT Is HEREBY ORDERED that

petitioner's motions for relief under 28

U.S.C. § 2255 are denied, and his petition

is dismissed.

Dated: July 2, 1987

DIANA E. MURPHY

United States District Judge

a i il

- 117 -

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

Civil 4-86-483

Criminal 4-83-84(1)

DUANE W. LARSON,

Petitioner,

REPORT AND

vs. RECOMMENDATION

UNITED STATES OF AMERICA,

Respondent.

Duane W. Larson, #10786-041, FCI, P.O.

Box 1000A, Sandstone, Minnesota 55072, pro

se.

Richard E. Vosepka, Assistant United

States Attorney, 234 United States

Courthouse, 110 South Fourth Street,

Minneapolis, Minnesota 55041, for

respondent.

Before the Court are various motions

brought by petitioner, Duane W. Larson,

under 28 U.S.C. Section 2255. This matter

has been referred to the undersigned United

States Magistrate for Report and

Recommendation in accordance with 28 U.S.C.

Section 636 and Local Rule 16.

- 118 -

REPORT

Duane W. Larson (hereinafter Larson)

was tried in United States District Court

for the District of Minnesota on a one-count

indictment charging him with possession with

intent to distribute cocaine, 21 U.S.C.

Section 841 (a)(1), and aiding and abetting,

18 U.S.C. Section 2. After a jury trial

before District Judge Diana E. Murphy,

Larson was convicted and sentenced to

imprisonment for ten years.

— a

The judgment of conviction was affirmed

on appeal to the Eighth Circuit. United

States v. Larson, 760 F.2d 852 (8th Cir.),

cert. denied, 106 S.Ct. 143 (1985).

On August 1, 1985, Larson was convicted

in the District of Minnesota on two counts

of concealment of multiple currency

transactions, 18 U.S.C. Section 1001. These

two convictions were reversed on appeal.

United States v. Larson, 796 F.2d 244 (8th

Cir. 1986). Larson also pleaded guilty to

- 119 =

one count of tax evasion, 26 U.S.C. Section

7201. He received a sentence of five years,

to be served consecutively to the ten-year

sentence imposed by Judge Murphy. Larson in

now serving an aggregated sentence of

fifteen years at the Federal Correctional

Institutional in Sandstone, Minnesota.

Larson's Section 2255 motion is 75

pages long, and includes six separate

motions for various types of relief. First,

Larson claims that evidence admitted against

him at trial was obtained in violation of

the fourth amendment. Second, Larson

contends he was denied effective assistance

of counsel in his’ representation by

Attorneys Oscar Goodman and Raymond Smith.

Third, Larson argues he is entitled to a new

trial with "counsel of his choice." Fourth,

Larson contends he should be resentenced

because Judge Murphy failed to make findings

as required by F. R. Crim. P. 32 (c) (3) (D);

he is entitled to a sentence under 18 U.S.C.

Section 4205(b)(2); he was improperly

- 120 =

sentenced for aiding and abetting; and Judge

Murphy should not have considered his two

prior convictions. Fifth, Larson

—

requests reconsideration of his previous

motion for modification of his sentence

under Rule 35. Sixth, Larson argues that

his aiding and abetting conviction should be

vacated because his codefendant's

convictions were reversed on appeal.

As a preliminary matter, the

undersigned must determine whether Larson is

entitled to an evidentiary hearing. Section

2255 requires such a hearing "[u]nless the

motion and the files and records of the case

show conclusively that the prisoner is

entitled to no relief ...." 28 U.S.C.

Section 2255. The decision as to whether an

evidentiary hearing is necessary to

determine factual contentions is committed

to the discretion of the district court.

See Widgery v. United States, 796 F.2d 223,

224 (8th Cir. 1986).

= 121 °-

The facts in this case have been

developed through a pretrial evidentiary

hearing, a jury trial, and an appeal. The

undersigned has reviewed Larson's motions

and the extensive record generated by these

proceedings, including a _ lengthy trial

transcript. Larson himself relies almost

exclusively on the existing record. The

undersigned finds that, with the possible

exception of certain alleged conversations

between Larson and Attorney Oscar Goodman,

the files and records do provide an adequate

basis for determination of this Section 2255

motion. The undersigned therefore concludes

that no evidentiary hearing is required, and

none will be held, at this time.

= 3

Rather than belabor the facts of this

case, which are both familiar to the Court

and contained in the published opinion in

Larson, supra, the under signed will proceed

to address the issues presented. Particular

facts relevant to the legal issues will be

- 122 =

included as appropriate.

I.

MOTION TO SUPPRESS

Larson first contends that evidence

seized from his motel room and admitted

against him at trial was obtained in

violation of the fourth amendment. Larson's

pretrial motion to suppress this’ same

evidence on fourth amendment grounds was

denied, and the denial of that motion upheld

on appeal. See Larson, supra, at 854-56.

Larson now presents a "container search"

argument for suppression of the evidence,

and contends that claim is cognizable in

this Section 2255 proceeding. Larson wants

this Court to vacate his convictions,

suppress the evidence, and grant him a new

eriss .

In Kaufman v. United States, 394 U.S.

217, 231 (1968), the Supreme Court held that

a federal prisoner may mount a collateral

attack under Section 2255 where evidence

- i23 -

obtained in an illegal search and seizure

was admitted against him at trial. See also

Johnson v. Petrovsky, 626 F.2d 72,73 (8th

Cir. 1980) (holding only that voluntary

guilty plea barred fourth amendment claim).

The Kaufman majority rejected the rule,

consistently

+ =

followed by a majority of the Courts of

Appeals, that such claims could only be

presented on appeal. Kaufman, supra, at

2129-21 n.3-4; see Stone v. Powell, 428 U.S.

465, 479 n. 12 (1975). The majority opinion

in Kaufman reviewed the historical scope of

habeas corpus and Section 2255, and observed

that “the federal habeas remedy extends to

state prisoners alleging that

unconstitutionally obtained evidence was

admitted against them at trial." Kaufman,

supra, at 225. The majority found no

substantial differences between state and

federal prisoners, and rejected the

government's argument that collateral

- 4464 =

remedies for federal prisoners should be

more limited. Id. at 225-28. However, the

majority also recognized that "where the

trial or appellate court has had a 'say' on

a federal prisoner's claim, it may be open

to the Section 2255 court to determine that

on the basis of the motion, files, and

records, ‘the prisoner is entitled to no

relief.'" Id. at 227 n. 8 (citing Thornton

v. United States, 368 F.2d 822, 833 (D.C.

Cir. 1966) (dissenting opinion of Wright,

J.)).

The Kaufman decision stood unassailed

for eight years, until the landmark case of

Stone v. Powell, 428 U.S. 465 (1976), in

which the Supreme Court held that:

where the State has provided an

opportunity for full and. fair

litigation of a Fourth Amendment

claim, the Constitution does not

require that a state prisoner be -

granted federal habeas corpus

relief on the ground that

evidence obtained in an

unconstitutional search or

seizure was introduced at his

trial.

428 U.S. at 482. The Stone v. Powell

- 125 =-

majority focused on the

— =

primary justification for the exclusionary

rule: 'the deterrence of police conduct

that violates Fourth Amendment rights." Id.

at 486. The court characterized Kaufman as

“premised on the view that implementation of

the Fourth Amendment also requires the

consideration of search-and-seizure claims

upon collateral review of state convictions"

and found this view "unjustified." Id. at

481, 486; see Roach v. Parratt, 541 F.2d

772, 773 (8th Cir. 1976).

After balancing the utility of the

exclusionary rule against the costs of

extending it to collateral review of fourth

amendment’ claims, the Stone majority

concluded that "the contribution of the

exclusionary i /jrule, if any, to the

effectuation of the Fourth Amendment is

minimal and the a _ substantial costs of

application of the rule persist with special

force." Id. at 495. The court noted that

- 146 =

"in the case of a typical Fourth Amendment

claim, asserted on collateral attack, a

convicted defendant is normally asking

society to redetermine an issue that has no

bearing on the basic justice of his

incarceration." Id. at 492 n. 31. Finally,

the court also noted the effect of its

holding on the earlier decision in Kaufman:

The issue in Kaufman was the

scope of Section 2255. Our

decision today rejects the dictum

in Kaufman concerning the

applicability of the exclusionary

rule in federal habeas corpus

review of state-court decisions

pursuant to Section 2254. To the

extent the application of the

exclusionary rule in Kaufman did

not rely upon the _ supervisory

role of this Court over the lower

federal courts, cf. Elkins V.

United States, 364 U.S. 206

(1960), see infra at 484,

- 6 -

the rationale for its application

in that context is also rejected.

Id. at 481-82 n. 16.

Since Stone v. Powell the Supreme Court

has not specifically addressed the scope of

collateral review of fourth amendment claims

by federal prisoners under Section 2255.

- 127 -

However, the Ninth Circuit has interpreted

Stone v. Powell as precluding such claims:

Thus, according to Stone vy.

Powell, a federal court may not

grant either Section 2254 or

Section 2255 habeas corpus relief

on the basis that evidence

obtained in an unconstitutional

search or seizure was introduced,

respectively, at a state or

federal trial where the defendant

was provided an opportunity to

litigate fully and fairly his

fourth amendment claim before

petitioning the general court for

collateral relief.

Tisnado v. United States, 547 F.2d 452, 456

(9th Cir. 1976); see also United States v.

Hearst, 638 F.2d 1190, 1196 (9th Cir. 1980),

cert. denied, 451 U.S. 938 (1981). In

Hearst the Ninth Circuit made the further

observation that:

If the provided opportunity has

been squandered due to defense

counsel's incompet:ce or

misconduct, a convict's only

option on collateral review is a

sixth amendment claim kEased on

inadequate assistance of counsel.

Hearst, supra, at 1196 (citing Canary v.

Bland, 583 F.2d 887, 890 (6th Cir. 1978)).

These cases have led one noted

commentator to observe that, after Stone v.

- 128 =

Powell, the holding in Kaufman "appears to

have lost its vitality." 4 W. LaFave, Search

and Seizure Section 11.7(f) (2d ed. 1987).

Another scholar has more

-7J-«

forcefully stated that the "full and fair

opportunity" rule:

surely must apply to a federal

prisoner seeking relief under

Section 2255, and it will only be

in a highly unusual case in which

there was not a full and fair

opportunity to litigate the

Fourth Amendment claim in the

original trial and appeal that it

will be raisable on motion.

C. Wright, Federal Practice Section 594, p.

453 (2d ed. 1982); see also United States v.

Byers, 740 F.2d 1104, 1137 n. 90 (D.C. Cir.

1984) (concurring opinion of Robinson,

Cid. ds

Foregoing analysis shows a recent trend

in the law away from the broad-based

collateral review of fourth amendment claims

espoused in Kaufman and toward the more

limited scope of review set forth in Stone

v. Powell. While the Supreme Court and the

- 129 =

Eighth Circuit have not as yet applied the

“full and fair opportunity" rule to a fourth

amendment claim by a federal prisoner under

Section 2255, the undersigned believes that

rule best accommodates the deterrent

purposes behind the exclusionary rule and

the goal of finality, which must be reached

at some point in criminal proceedings. See

Stone v. Powell, supra, at 480-89.

Moreover, to freely extend collateral

review of fourth amendment claims to federal

prisoners under Section 2255 and Kaufman,

while precluding similar claims by state

prisoners under Section 2254 and Stone v.

Powell, would be to _ sanction unequal

treatment. See generally Kaufman, supra, at

228-31; see also Stone v. Powell, supra, at

519 n. 14 (dissenting opinion of Brennan,

3.A.

~~

The undersigned is persuaded by the

reasoning in Tisnado, supra, and concludes

that Larson may not raise a fourth amendment

- 130 -

Claim under Section 2255 unless he was

previously denied a "full and _e fair

opportunity" to litigate that clain.

Full and Fair Opportunity

The Eighth Circuit has discussed the

"full and fair opportunity" doctrine at

length in the context of petitions for

federal habeas corpus relief by state

prisoners:

It is the existence of state

processes allowing an opportunity

for full and fair litigation of

fourth amendment claims, rather

than a defendant's use of those

processes, that bar federal

habeas corpus consideration of

Claims under Stone. '[I]f state

procedures afford the defendant

in a criminal case the

opportunity to [fully and fairly]

litigate whether evidence

obtained in violation of the

fourth amendment should be

excluded ... then Stone v. Powell

precludes federal habeas corpus

consideration of those issues

whether or not the defendant

avails himself of that

opportunity.' The Stone bar

applies despite a state court's

error in deciding the merits of a

defendant's fourth amendment

Claim. Moreover, the Stone bar

applies with equal force to

procedural mistakes that thwart

the presentation of fourth

amendment claims.

- 131 -

Lenza v. Wyrick, 665 F.2d 804, 808 (8th Cir.

1981) (citations omitted); see also Brunson

v. Higgins, 708 F.2d 1353, 1360-61 (8th Cir.

1983). Federal courts have summarily denied

habeas corpus relief to state prisoners who

received a "full and fair opportunity" to

present their fourth amendment claims even

where it was clear that illegally obtained

evidence was admitted against them at trial.

See Wolff v. Rice, 428 U.S.

=

465, 471-74 (1976) (decided with Stone v.

Powell, supra); Lenza, supra, at 809 n. 6;

Holmberg v. Parratt, 548 F.2d 745, 746 n. 1

(8th Cir. 1977).

In this case, Larson made a pretrial

motion to suppress all items seized from his

motel room by the Burnsville police. After

an evidentiary hearing, United States

Magistrate J. Earl Cudd recommended that the

motion be denied because Larson had no

reasonable expectation of privacy in the

room and police had probably cause to

- 132 -

believe illegal narcotics were present "and

that exigency required immediate action

eee" D.C. Document No. 22 at 6. Larson

objected to the Magistrate's recommendation,

challenged "almost every factual finding:

and argued that police had no probably cause

to believe the powder found in the room by

motel staff was contraband. D.C. Document

No. 31 at 1 and ll.

Judge Murphy made a de novo review of

the record and agreed with the Magistrate's

determination that Larson's motion should be

denied. At trial, Larson continued to

object to the admission of any of the items

seized from the motel room. Transcript at

528. Larson also argued in his motion for

a new trial that the evidence was

erroneously admitted. D.C. Document No. 58.

Larson then appealed his conviction to

the Eighth Circuit, and again argued that

the evidence seized in the warrantless

search of the motel room should have been

suppressed. See Larson, supra, 760 F.2d at

- 133 =

854-56. The Court

a 1 =

of Appeals also found Larson had 09°no

legitimate expectation of privacy in the

motel room, agreed with the Magistrate that

there were exigent circumstances justifying

a warrantless search, and affirmed the

district court's denial of Larson's

suppression motion. Jd. The court cited

with approval the reasoning in United States

v. Parizo, 514 F.2d 52, 54 (2d Cir. 1975),

that "{wjhen the rental period has elapsed,

the guest has completely lost his right to

use the room and any privacy associated with

se." Larson, supra, at 885 (emphasis

omitted). The court also noted that once

the rental period has lapsed, "the manager

of a motel then has the right to enter the

room and may consent to search of the room

and the seizure of the items there found."

Id. (citing United States v. Croft, 429 F.2d

884 (10th Cir. 1970)) (emphasis added). On

October 7, 1985, the Supreme Court denied

- 134 -

Larson's petition for writ of certiorari.

United States _v. Larson, 106 S.Ct. 143

(1985).

Thus, Larson had the opportunity to

present his fourth amendment claims in a

pretrial suppression hearing; by objection

at trial; in a motion for new trial; on

appeal; and, finally, in his petition to the

Supreme Court. The undersigned finds that

Larson has already had a "full and fair

opportunity" to present his claim that

evidence used against him at trial was

obtained in violation of the fourth

amendment. See Lenza, supra, at 808. The

undersigned therefore concludes that under

the circumstances of this case,

- ll -

Larson is barred from litigating fourth

amendment claims in this’ collateral

proceeding under Section 2255. See Stone v.

Powel] supra; Hearst supra; Tisnado

Supra.

Waiver and Deliberate Bypass

- 135 -

Larson takes the position in his

Section 2255 motion that evidence seized

from the motel room should have been

suppressed as the fruit of an illegal

container search. Larson argues that while

he had no legitimate expectation of privacy

in the motel room, see Larson, supra, at

855, he retained such an interest in the

paper bags containing the cocaine. He thus

seeks to distinguish his present fourth

amenament claim from the issue already

decided adversely to hin. See generally

Motion at 1-46, Traverse at 2-12.

The undersigned finds thi. while the

focus of Larson's present claim differs

somewhat, he is actually advancing the same

ground for relief: suppression under the

exclusionary rule. See Sanders v. United

States, 373 U.S. 1, 16 (1962). Moreover,

Larson failed to raise the container search

claim by pretrial motion, at trial, or on

appeal. Larson's contention that fault lies

with his counsel, Raymond Smith, is a sixth

- 136 -

amendment issue and will be discussed below.

For purposes of this analysis, Larson's

failure to make a pretrial suppression

motion claiming that containers were

illegally searched resulted in a waiver of

that defense. F. R. Crim. P. 12(b)(3) and

(f); United States v. Ostertage, 619 F.2d

767, 777i nn. 3

= 39 «

(8th Cir. 1980) (citing United States v.

Johnson, 614 F.2d 622 (8th Cir. 1980)).

Larson states in his motion that "it

became abundantly apparent that the cocaine

was sealed in packages and concealed from

view" during the trial. See Motion at 8-12,

50. Larson's own decision to forego a

defense and his instructions to Attorney

Smith that he was not to participate in the

trial precluded the possibility of raising

the container search issue during trial, as

allowed under Rules 2.72(f) and 41(f). Again,

Larson's contention that his decision was

based on erroneous advice from Attorney

ee ea einem

- 137 -

Oscar Goodman is a sixth amendment clain,

and will be discussed below. Larson's

defensive posture (or lack thereof)

prevented litigation of the container search

issue at the proper time and in the proper

forum: the district court. Larson adopted

that posture with the knowledge of the risks

it entailed, and disregarded warnings from

the trial court.

The undersigned therefore concludes

that Larson is not entitled to Section 2255

relief because he “deliberately bypassed the

orderly federal procedures at or before

trial and by way of appeal...." Kaufman,

supra, at 227 n. 8; see e.g. Individglio v.

United States, 612 F.2d 624 (2d Cir. 1979),

cert. denied, 445 U.S. 933 (1980) (failure

to raise fourth amendment claim at trial

constituted waiver and precluded Section

2255 relief). Larson's motion to suppress

evidence and for a new trial should be

denied.

- 13-

- 138 -

II.

INEFFECTIVE ASSISTANCE OF COUNSEL

Larson advances two separate claims

that he was denied effective assistance of

counsel, as guaranteed by the sixth

amendment. First, Larson contends he

received incompetent advice from Attorney

Oscar Goodman. Larson alleges that Goodman

told him he would have grounds for a new

trial if the court did not grant a

continuance until Goodman could appear.

Motion at 47. Specifically, Larson alleges

Goodman told him: "don't defend yourself or

let anybody else defend you" if the

continuance was denied. Motion at 48.

Larson argues that his decision not to

participate in his trial was based entirely

on this alleged advice from Goodman.

Secondly, Larson argues he was denied.

effective assistance of counsel by the

conduct of Attorney Raymond Smith, who

handled the pretrial motions and acted as

"standby" counsel at trial. Larson alleges

- 139 -

that Smith was incompetent because he failed

to raise the container search issue

addressed above. Larson further alleges

that Smith did not adequately prepare his

case because he failed to interview all the

employees from the motel where the evidence

was seized, and did not investigate the

scene. Motion 52-53. Finally, Larson

alleged that Smith failed to raise several

other legal issues, any one of which would

have resulted in the suppression of

evidence. Motion at 54-56.

—

The Strickland Standard

In order to prevail on a claim of

ineffective assistance of counsel, a

criminal defendant must show both that (1)

his counsel's representation fell below an

objective standard of reasonableness, and

(2) there is a reasonable probability that,

but for counsel's unprofessional errors, the

result of the proceeding would have been

different. Strickland v. Washington, 466

- 4460 =

—_—

U.S. 668, 688, 694 (1984); see also

Kimmelman v. Morrison, 106 S.Ct. 2574, 2586-

87 (1986).

In evaluating the reasonableness of an

attorney's conduct under the first prong of

Strickland, the court must:

judge the reasonableness of

counsel's challenged conduct on

the facts of the particular case

viewed as of the time of

counsel's conduct. A convicted

Gefendant making a claim of

ineffective assistance must

identify the acts or omissions of

counsel that are alleged not to

have been the result of

reasonable professional judgment.

The court must then determine

whether, in light of all the

circumstances, the identified

acts or omissions were outside

the wide range of professionally

competent assistance.

Strickland, supra, at 690. There is a

strong presumption that counsel has

"rendered adequate assistant and made all

Significant decisions in the exercise of

reasonable professional judgement." Id.

Even if the court determines that

counsel made unprofessional errors, the

defendant must also meet the second prong of

- 141 =

the Strickland test, and show "there is a

reasonable probability that, absent the

errors, the fact finder would have

» $8 <

had a reasonable doubt respecting guilt."

Id. at 695. The court must consider the

totality of the evidence before the jury,

and determine " if the decision reached

would likely have been different absent the

errors." Id. at 695-96. Keeping this

standard in mind, the undersigned now turns

to the specific claims advanced by Larson.

Alleged Advice From Attorney Goodman

Larson has made serious allegations,

detailed above, concerning advice given him

by Attorney Oscar Goodman. Larson made his

allegations under penalty of perjury. See

Rule 2(b), Rules Governing Proceedings Under

Section 2255.

The government argues it is implausible

that goodman gave Larson such advice, and

that if he did, he should be disbarred for

"unconscionably unethical practice."

- 142 -

Response at 5. The government also points

out that Larson represented to the trial

court that he would not participate in his

trial in the absence of Goodman because of

his feeling that no other attorney was

prepared to try the case. Transcript at

229-31. The trial court had previously

informed Larson he had no right to a

specific attorney, and that he had already

preserved the continuance issue for appeal.

Id. at 59-63. However, the government has

not presented any evidence to directly

refute Larson's allegations.

« %6 @

The First _ Prong: Professionally

Unreasonable Error

On the present state of the record, the

undersigned is reluctant to make a factual

find as to the precise nature of the advice

given Larson by Attorney Goodman. To do so

without any information from Goodman himself

would be unfair and unwise. Such a finding

is, of course, essential to application of

the first prong of the Strickland test.

- 143 -

However, the undersigned does not

perceive an immediate need for the

evidentiary hearing requested by Larson.

Traverse at 13. Instead, the undersigned

believes this case to be a proper candidate

for expansion of the record under Rule 7 of

the Rules Governing Proceedings Under

Section 2255. The undersigned would have

the authority under Rule 10 to order such an

expansion of the record.

But this procedure need not be followed

if the Court concludes from her personal

knowledge or recollection that Larson's

allegation is unsubstantiated, Marchibroda

v. United States, 368 U.S. 487, 495 (1962),

or finds that he has not demonstrated

prejudice under the second prong of the

Strickland test. See United States v. Reed,

756 F.2d 654, 656 (8th Cir.), cert. denied,

106 S.Ct. 111 (1985).

If the Court cannot reach either

conclusion, this matter may be referred to

the undersigned for drafting of appropriate

- 144 -

interrogatories directed to Attorney

Goodman, or for issuance of an enter

directing Goodman to submit an affidavit

addressing Larson's allegations. See Rule

7, supra.

- 17 =

The Second Prong: Prejudice

Larson argues he was denied a trial

altogether because he followed Goodman's

advice and presented no defense in hopes of

winning a new trial on appeal, based on the

denial of a continuance. The undersigned is

assuming, for purposes of this analysis,

that Larson was so advised by Attorney

Goodman, and that such advice was

professionally unreasonable. Several

circumstances surrounding Larson's trial

bear on a determination of whether he has

shown prejudice as defined in Strickland, |

Supra, at 695.

First, Larson's statement to the trial

court regarding his decision not’ to

participate in his trial does not include

- 145 -

any reference to the continuance issue:

Your Honor, I've decided to stand

on my decision. I've considered

it and discussed it with Mr.

Smith. It's not that I want Mr.

Goodman so much; it's just that

he's the only attorney that's

prepared, and he's well aware of

the narcotics laws. I don't

believe Mr. Smith is; I'm

certainly not. And I believe

I'll stay with what I've decided.

Transcript at 229; see Statement of Smith,

D.C. Document 41. Larson's statement

supports an inference that he would have

taken his "no defense" posture regardless of

Attorney Goodman's advice. Larson argues

that this inference is "unrealistic."

Motion at 48-49. If the inference is valid,

it seems questionable whether Larson has met

the "but for" test in the prejudice prong of

the Strickland standard.

Second, Larson's codefendant, Sheila

Burgess, was

- 18 -

represented by counsel throughout the trial.

It is true that Burgess' counsel, Michael

Nash, made it clear that he was only acting

- 146 -

on behalf of his client and not Larson.

Transcript at 64-67. However, Burgess was

charged with the same offense as Larson

based on a single factual episode. Attorney

Nash cross-examined virtually all of the

government's witnesses with the goal of

exposing any weaknesses in their testimony.

Even so, the jury found both Burgess and

Larson guilty. Burgess' conviction was

later reversed on appeal because the Eighth

Circuit found insufficient evidence to tie

her to the cocaine seized from the motel

room. See Larson, supra, ~t 857-58. Larson

did not challenge the “ufficiency of the

evidence on appeal. id. at 853.

Finally, the evidence against Larson

can only be characterized as overwhelming.

The testimony of the government's witnesses

established that Larson was caught "red-.

handed" with about three pounds of pure

cocaine. It is doubtful that even the trial

skills formerly attributed to Attorney

Goodman by Larson could have secured a

- 147 =

favorable verdict under such circumstances.

The under signed declines to make a

finding as to whether Larson has_ shown

prejudice, as required by Strickland, supra.

Such a finding would more appropriately be

made by the Court, who acted as the trial

court in this case and had the opportunity

to observe the witnesses and hear their

testimony. The undersigned believes the

court is therefore uniquely

=" en

qualified to determine whether Larson has

demonstrated a reasonable probability that

the outcome of his trial would have been

different.

Conduct of Attorney Smith

Larson first contends Attorney Smith

should have raise the container search

issue, discussed above, either in his

pretrial motion to suppress or during trial

under Rules 12(f) and 41(f) of the Federal

Rules of Criminal Procedure. Larson's

contention that Smith did not adequately

SES Ce

- 148 -

investigate his case is also tied to the

container search issue: Larson argues that

had Smith questioned the motel employees or

investigated the scene, he would have

discovered facts which would ultimately have

led to the suppression of evidence.

These claims are similar to those

raised in the recent case of Kimmelmann v.

Morrison, supra. In Kimmelmann, the Supreme

Court applied the Strickland standard in the

context of a collateral attack by a state

prisoner under 28 U.S.C. Section 2254. Like

Larson, the prisoner in Kimmelmann alleged

he was denied effective assistance of

counsel because his attorney failed to raise

a fourth amendment claim. In discussing the

appropriate standard to be applied in such

a case, the Supreme Court Stated:

As is obvious, Strickland's

standard, although by no means

insurmountable, is highly

demanding. More importantly, it

differs significantly from the

elements of proof applicable to a

straight-forward Fourth Amendment

Claim. Although a meritorious

Fourth Amendment issue is

- 149 =

- 20 =

necessary to the success of a

Sixth Amendment Claim like

respondent's, a good Fourth

wer + .

Only those habeas

petitioners who can prove under

Strickland that they have been

denied a fair trial by the gross

incompetence of their attorneys

will be granted the writ and will

be entitled to retrial without

the challenged evidence.

id. at 2587 (emphasis added).

That Attorney Smith did not raise the

container search issue now pressed by Larson

cannot alone be regarded as a professionally

unreasonable error. See Strickland, supra,

at 688; Individglio, supra, at 628-29; see

also United States v. Meyer, 417 F.2d 1020,

1023-24 (8th Cir. 1969). It is clear from

the circumstances of the search, and from

Larson's own statement of facts in his 2255

motion, that he was more ultimately familiar

with the location and packaging of the

cocaine and the other evidence than the

other witnesses. See generally Motion. If

Attorney Smith was unaware until midway

- 150 -

through the trial that the cocaine was

concealed inside sealed envelopes, his

ignorance can only be attributed to Larson's

failure to inform him of that fact. See

Strickland, supra, at 691; compare

Kimmelman, supra (attorney's own negligence

in failing to conduct any discovery

whatsoever made him unaware of damaging

evidence). Larson has not alleged that he

ever informed Attorney Smith of these facts,

which would be crucial to the viability of

a suppression motion based on an illegal

container search. The undersigned notes

that Attorney Smith and his associates

devoted some 400 hours to pretrial motions

» 22 =

on behalf of Larson. See D.C. Document 41.

The undersigned concludes that Larson was

not denied effective assistance of counsel.

in his pretrial representation by Attorney

Smith.

Larson's claim that Smith should have

requested a suppression hearing on the

-.i351 <=

container search issue based on facts

adduced at trial is disingenuous. Larson

instructed Smith, who was instructed by the

Court to act as "stand-by" counsel, not to

take any part in the proceedings. Larson

cannot now complain that he was denied

effective assistance of counsel because

Smith followed his instructions. See

Faretta v. California, 422 U.S. 806 (1975);

United States v. Dickens, 695 F.2d 765 (3rd

Cir. 1982), cert. denied, 460 U.S. 1092

(1983).

Larson also contends there were other

legal grounds available to Attorney Smith,

any of which "would have resulted in a

suppression of evidence." Motion at 56.

Had Smith failed to move for suppression of

evidence altogether, this argument might

carry some weight. See e.g. Morrison v.

Kimmelman, 752 F.2d 918 (3rd Cir. 1985),

aff'd, 106 S.Ct. 2574 (1986). However,

Smith did argue for suppression on the

grounds that Larson had aé_e reasonable

- 152 =

expectation of privacy in the motel roon.

See Larson, supra, at 854-56. Contrary to

Larson's assertions, the undersigned finds

there was substantial merit in this

position, which was addressed at length by

the Eighth Circuit. Id. Further, effective

assistance of counsel "does not demand that

every possible

~ 22 «

motion to be filed, but only those having a

solid foundation." United States v. Hines,

470 F.2d 255, 2332 (3rd Cir. 1972), cert.

denied, 410 U.S. 968 (1973).

The undersigned therefore declines

Larson 's invitation to "second-guess" the

strategic choices made by Attorney Smith

from among possible legal argument. See

Strickland, supra, at 689. Smith's conduct

was that of a reasonably competent attorney.

Id. at 688.

Finally, Larson contends Smith should

have requested imposition of sentence under

18 U.S.C. Section 4205(b)(2). As discussed

- 153 -

below, the sentencing court was aware of

sentencing alternative sunder Section 4205;

chose to impose sentence under Section

4205(a); and later declined to alter that

sentence on Larson's motion for relief under

Rule 35 of the Federal Rule sof Criminal

Procedure. The undersigned concludes that

Larson has failed to show any prejudice from

this alleged oversight on the part of

Attorney Smith. See Strickland, supra, at

694.

o 23 «

Iii.

MOTION FOR NEW TRIAL

Larson has moved for a new trial "with

counsel of his choice” and contends his

right to chose counsel was violated when the

district court denied his motion for a

continuance. Motion at 57. The undersigned

agrees with the government that this issue

was decided by the Eighth Circuit in Larson,

supra, 760 F.2d at 658-57. That court found

"the trial court did not abuse its

- 154 -

discretion, as it had more than ample

justification for refusing Larson's motion

for a continuance." Jd. at 857. Larson may

not relitigate the denial of a continuance

in this Section 2255 proceeding. See

Houser, supra, at 515 and n. 27; see also

United States v. Little, 608 F.2d 296, 299-

300 (8th Cir. 1979), cert. denied, 444 U.S.

1089 (1980).

Iv.

MOTION FOR RESENTENCING

Larson makes several arguments in

support of his motion for resentencing. He

contends that: (1) the sentencing court

failed to make findings of fact regarding

his objections to the presentence

investigation report (PSI), as required by

F. R. Crim. P. 32(c)(3)(D)? (2) he is

entitled to a sentence under 18 U.S.C.

Section 4205(b)(2); (3) he was improperly

sentenced for the crime of aiding and

abetting; and (4) the sentencing court

should not have considered two prior

- 155 -

convictions in imposing sentence. See

Motion at 61-66. The undersigned finds no

merit in any of these contentions.

» 94

Findings of Fact Under Rule 32

Rule 32 provides for disclosure of the

PSI to a defendant and his counsel before

imposition of sentence. r. R. Cerin. P

32(c) (3) (A). The court must afford a

defendant the opportunity to comment on the

PSI "and, in the discretion of the court, to

introduce testimony or other information

relating to any alleged factual inaccuracy

contained in it." Id. Rule 32 also

prescribes the procedure to be used by the

court in resolving any allegations of

factual inaccuracy:

If the comments of the defendant

and his counsel or testimony or

other information -introduced by

them allege any factual

inaccuracy in the presentence

report or the summary of the

report or part thereof, the court

shall, as to

each matter

controverted, make (i) a finding

as to the allegation, or (ii) a

determination that no such

finding is necessary because the

- 156 -

matter controverted will not be

taken into account in sentencing.

A written record of such findings

and determinations shall _ be

appended to and accompany any

copy of the presentence

investigation report thereafter

made available to the Bureau of

Prisons or the Parole Commission.

Id. at 32(c)(3)(D) (emphasis added).

Larson states he has objected to the

PSI on numerous occasions and he knows

"there are many statements in the PSI that

are not true." Motion at 64; Traverse at

22. However, Larson has not made any

specific allegations in his Section 2255

motion of factual inaccuracies in the PSI,

or offered any evidence to controvert any

particular portion of the PSI. Moreover,

Judge Murphy; comments at_ sentencing

indicate that Larson's objections to the PSI

at sentencing did not allege any

- 25 -

factual inaccuracy, and that he only

objected to the nature of the information:

I note the objections, but I

overrule them, because the type

of information that's complained

about is the type that has

- 157 -

generally been accepted as

appropriate for a _presentence

investigation report.

Transcript of Sentencing at 31. It is

axiomatic that where no factual inaccuracies

are raised, no written findings or

determinations are required. F. R. Crim. P.

32 (Cc) (3) (D).

The undersigned concludes that the

sentencing court complied with Rule 32 and

Larson is not entitled to resentencing on

that basis. The district court will have

the opportunity, upon submission of this

Report and Recommendation, to make its own

findings as to whether Larson alleged any

factual inaccuracies in the PSI.

Request for Sentence _ Under _ Section

4205(b) (2) |

The court has twice declined to grant

Larson the advantage of a sentence imposed

under 18 U.S.C. Section 4205(b) (2): once at

his original sentencing, and the second time

by denial of his Rule 35 motion. Thus,

Larson will not be eligible for parole until

he has served one-third of his sentence. 18

- 138 -

U.S.C. Section 4205(a); United States v.

Pry, 625 F.2d 689, 692 (5th Cir. 1980),

cert. denied, 450 U.S. 925 (1981). The

decision whether to designate a prisoner as

eligible for parole under Section 4205(a),

(b) (1), or (b)(2) is a matter committed to

the discretion of the sentencing court. See

18 U.S.C. Section 4205. Larson has not

demonstrated any abuse of that discretion.

« 26 «

Larson contends he was’ improperly

sentenced for both possession with intent ot

distribute cocaine, 21 U.S.C. Section

841(a)(1), and aiding and abetting, 18

U.S.C. Section 2. This claim is related to

his contention, discussed below, that his

conviction for aiding and abetting should be

vacated.

Larson is correct that the Judgment and

Commitment Order, Motion Exhibit 32-10, does

not state that his ten-year sentence was

imposed only for his drug conviction.

- 159 -

However, this fact does not support Larson's

conclusion that he was sentenced for aiding

and abetting.

That statute in question, 18 U.S.C.

Section 2, "does not define a crime but

merely makes punishable as a principal on

who aids and abets another in the commission

of a substantive crime." Powers v. United

States, 470 F.2d 991 (5th Cir. 1972).

Accordingly, the aiding and abetting statute

itself does not include any penalty

provision. See 18 U.S.C. Section 2. The

undersigned concludes that Larson, who was

convicted for the substantive offense of

possession of cocaine as charged in a one-

count indictment, was actually sentenced for

that substantive offenses.

Use of Two Prior Convictions

According to the record, the parties

agreed at sentencing that one of Larson's

two prior convictions had been expunged.

Transcript of Sentencing at 3-4. The

sentencing court also ordered that the PSI

2 - 160 -

"be altered to reflect the fact that this

- 27 -

. one conviction was expunged ...." Id. at

31. The record therefore directly refutes

Larson's claim that the sentencing court

improperly considered the expunged

conviction in imposing sentence upon hin.

Larson also argues the sentencing court

should not have considered his 1969

conviction for DWI and open bottle, and

claims he was not represented by an attorney

in that proceeding. Larson has apparently

filed an action in Martin County, Minnesota,

seeking to have this second conviction

expunged. See Motion Exhibit 32-69.

The real focus of Larson's motion seems

to be directed at the effect his prior

conviction will have on his salient factor

score an eventual release on parole. See 28

C.F.R. Section 2.20 (Salient Factor Score

Manual). This is a matter for Larson to

take up with the Parole Commission at his

initial hearing. However, the court may

- 161 =

wish to clarify the record as to the effect,

if any, that Larson's prior 1969 DWI

conviction had upon his sentence.

Vv.

MOTION FOR RECONSIDERATION OF

RULE 35 MOTION

Larson asks the court to reconsider its

Order of February 11, 1986, which denied his

motion to modify his sentence in accordance

with-18 U.S.C. Section 4205(b)(2). Larson

now alleges the court was misinformed as to

the effect his sentence structure would have

on his eligibility for parole. Larson

argues that under United States v. Solly,

559 F.2d 230

« 26 =

(3rd Cir. 1977), the court still has

jurisdiction to modify his sentence under F.

R. Crim. P. 35(b). For several reasons, the

undersigned concludes that this motion

should be denied.

First, Larson's motion for relief under

Rule 35 is untimely. On October 7, 1985,

the Supreme Court declined to review the

—— OOO

- 162 =

Eighth Circuit's decision affirming Larson's

convictions. See Larson, supra, 106 S.Ct.

at 44. Any motion for reduction of sentence

under Rule 35 had to be filed within 120

days of that date. F. R. Crim. P. 35(b).

Larson filed his Section 2255 motion on June

10, 1986, which clearly exceeds the 120-day

period. This court therefore lacks

jurisdiction to consider relief under Rule

35.

The fact that Larson previously filed

a timely Rule 35 motion only supports the

second ground for denying his’ present

motion: finality. In her Order denying

Larson's previous Rule 35 motion, Judge

Murphy concluded that "the sentence

originally imposed was proper under all

circumstances." Order of February 11, 1986.

Larson did not appeal that Order to the

Eighth Circuit. Compare Solly, supra, at

231 (appeal taken from denial of timely Rule

35 motion). Larson may not avoid the effect

of the prior Order, which is now final, by

- 163 -

styling his present Rule 35 motion as one

for “reconsideration” under Section 2255.

Lastly, the record does not

substantiate Larson's allegation that Judge

Murphy denied his Rule 35 motion based on

misinformation as to the amount of time he

would serve before

o 29 «

being paroled. Larson refers to an

"interview" between his wife and Judge

Murphy, but has not filed an affidavit

concerning the substance of the alleged

conversation. Motion at 67-68. Nor do

Judge Murphy's comments at’ sentencing

indicate any confusion about’ Larson's

eligibility for parole. On this record, the

undersigned cannot find that an experienced

judicial officer such as Judge Murphy was

unaware of the difference between a sentence

imposed under 18 U.S.C. Section 4205(a) and

4205(b) (2). Ww Vv. ,

574 F.2d 937, 941 (8th Cir.), cert.

dismissed, 439 U.S. 1040 (1978). Thus, the

- 164 -

undersigned cannot conclude that Judge

Murphy made a critical error or that her

expectations regarding Larson's sentence

have heen frustrated. See generally Edwards

at 942-45 (discussing so-called Kortness

doctrine, established in Kortness v. United

States, 514 F.2d 167 (8th Cir. 1975)).

VI.

MOTION TO VACATE AIDING AND

ABETTING CONVICTION

Larson contends his conviction for

aiding and abetting should be vacated

because his codefendant's convietions were

reversed on appeal. See Larson, supra, 760

F.2d at 857-58. The Eighth Circuit

determined there was insufficient evidence

for the jury to have concluded beyond a

reasonable doubt that the co-defendant,

Sheila Burgess, knew of the existence of the

cocaine seized from the motel room or

intended to aid and abet Larson's drug

scheme. Id. at 858. Larson argues that

since the government did not prove Burgess

committed any crime, his

- 165 -

» 36 «

conviction for aiding and abetting cannot

stand.

Larson's motion is essentially directed

at the sufficiency of the evidence and

therefore may not properly be brought in

this Section 2255 proceeding. See Houser,

supra 508 F.2d at 516 and n. 42. Larson

offers no explanation for his failure to

challenge the sufficiency of the evidence to

support his aiding and abetting conviction

on direct appeal. See Larson, supra.

Even if this issue were properly before

the court, Larson would not be entitled to

vacation of his aiding and _ abetting

conviction. First, the conviction of

another person is not an element of the

offense of aiding and abetting. See 18

U.S.C. Section 2. As the Supreme Court

stated in Standefer v. United States, 447

U.S. 10, 20 (1980):

all participants in conduct

violating a federal criminal

statute are "principals." As

such, they are punishable for

- 166 -

their criminal conduct; the fate

of other participants is

irrelevant.

In Standefer the court upheld a defendant's

conviction for aiding and abetting even

though the alleged principal was acquitted

of the substantive offense. Jd. at 13-14.

Nor do the cases cited by Larson compel

the conclusion that his conviction for

aiding and abetting must be vacated because

the government did not prove its case

against Burgess. See United States v.

Walkden, 464 F.2d 1015 (4th Cir.), cert.

denied, 409 U.S. 867 (1972) (discussing

proper venue); White v. United States, 366

F.2d 474 (10th Cir. 1966) (upholding

—

conviction); Morgan v. United States, 159

F.2d 85 (10th Cir. 1947) (reversing

conviction for aiding and abetting where

indictment failed to

« 31 ©

name any other person as principal).

Finally, vacating Larson's aiding and

abetting conviction would not affect his

- 167 -

sentence for the substantive offense of

possession with intent to distribute

cocaine. See Issue IV, supra.

RECOMMENDATION

Based on the foregoing, the undersigned

now makes the following recommendations:

1.) Larson's motion for a new

trial based on his claim that

evidence admitted against him was

obtained in violation of the

fourth amendment should be

denied.

aes} 6 628 the court cannot

determine from the existing

record whether Larson received

effective assistance of counsel,

that the record be expanded under

Rule 7 of the Rules Governing

Section 2255 proceedings, as

discussed herein.

3.) Larson's motion for a new

trial “with counsel of his

choice" should be denied.

4.) Larson's motion for

resentencing should be denied in

its entirety.

5.) Larson's motion for

reconsideration of his previous

Rule 35 motion should be denied.

6.) Larson's motion to vacate

his aiding and abetting

conviction should be denied.

= 366 -

Dated: April 17, 1987

FLOYD E. BOLINE

United States Magistrate

- 169 -

UNITED STATES COURT OF APPEALS

EIGHTH CIRCUIT

Nos. 84-5080, 84-5081

Duane Wendall Larson,

Appellant, Rehearing

and Rehearing

Vv. En Banc

a

*

*

*

*

+

United States of America *

x

Appellee. *

*x

Sheila Jane Burgess, *

*

Appellee, *

*x

Vv. *

x

United States of America, *

*x

*

Appellant.

Submitted: December 10, 1984

Decided: April 11, 1985

Denied: May 31, 1985

Before HEANEY, ROSS AND FAGG, Circuit

Judges.

ROSS, Circuit Judge.

A jury found Duane Wendall Larson and

Shield Burgess guilty on a count of an

indictment which charged them with

- 170 -

possessing three pounds of cocaine with

intent to distribute in violation of 21

U.S.C. § 841(a)(1) (1982), and aiding and

abetting such action in violation of 18

U.S.C. § 2 (1982). The cocaine was

discovered by police upon a warrantless

search of a motel room in Burnsville,

Minnesota.

On appeal, both defendants argue that

the evidence obtained pursuant to the search

should have been suppressed. The defendants

also assert that the trial court violated

their due process rights by refusing to

grant a continuance and by failing to

conduct a sufficient review of the

magistrate's findings and recommendations on

their motions ot suppress. Finally,

defendant Burgess argues that the evidence

was insufficient to support her conviction,

that the prosecutor failed to disclose

certain evidence in violation of the

dictates of Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and

.

—E~xeaaaSE

:

- avi =

that her due process rights were violated in

that she was not given sufficient time to

prepare for trial.

We affirm defendant Larson's

conviction, but reverse defendant Burgess'

conviction based on the insufficiency of the

evidence to support her conviction. Due to

our resolution

~—

of Burgess' sufficiency of the evidence

issue, we shall not address the other issues

as they relate to her.

FACTS

On the afternoon of October 28, 1983,

a woman rented room 124 of a Howard

Johnson's motel for one night. The woman

registered under defendant Burgess' name and

address and advised the desk clerk that two

people would be occupying the room. She

paid for the room in advance, as required by

motel policy.

On the morning of October 29, 1983, the

woman checked out of the motel room and took

- 172 -

a taxi to the airport to pick up a car. She

had received permission from William

Webster, the assistant manager, for the

other occupant of room 124 to stay in the

room until 2:00 p.m. The normal checkout

time is noon.

About 2:30 p.m. a maid went to clean

the room, but was told by defendant Larson

that "he did not want service and was

staying over." The maid then informed

Wester of this occurrence.

Webster sent a bellman to the room at

about 5:30 p.m., since he feared that the

occupant of room 124 would leave without

paying for several long distance phone calls

which had been made from the roon. The

beliman reported that the room was

unoccupied.

Webster then went to examine the room

himself. When no one answered the door, he

entered and discovered empty liquor bottles,

prescription pills, keys, and grocery bags

containing plastic bags with white powder in

|

- 173 -

them. After getting the motel's assistant

restaurant manager to help him examine the

white powder more closely, he called the

motel's general manager and the police.

At about 6:40 p.m. two Burnsville

police officers arrived at the motel.

Webster informed them that there were

several bags containing a suspicious white

powder in a vacated roon.

At about 7:00 p.m. Webster knocked on

the door to room 124. He was about to

enter, using a passkey, when he heard an

answer from within the _ roon. Webster

informed the occupant that the day's rent

had not been paid. Larson replied from

within that "he'd be down to take

This text is long and has been trimmed here. Open the source document for the complete record.