# Appendix — Larson v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1899%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 919

## Text

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(UNPUBLISHED)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 L

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1899%3A2. Public record. Not legal advice.