Petition for Writ of Certiorari — Blakeney v. United States

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P ’ SuUOr ne Court, U.S.

No.

Jrrivc Vb THE Cire

IN THE

SUPREME COURT OF THE UNITED STATES

ROY BLAKENEY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the

Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

FREDERICK F. COHN

601 S. LaSalle Street

Suite 700

Chicago, IL 60605

(312) 641-0692

Attorney for Petitioner

o-—---_--—_

QUESTIONS PRESENTED

1. IS THE INTEREST OF SOCIETY

(ENCOMPASSED IN THE 4TH AMENDMENT TO THE

U.S. CONSTITUTION] TO INSURE THAT

SEARCHES OF HOMES ARE CONDUCTED PURSUANT

TO WARRANTS, VIOLATED BY HOLDING THAT A

PERSON'S RIGHT TO A HEARING [ENCOMPASSED

IN THE DUE PROCESS CLAUSE OF THE 5TH

AMENDMENT TO THE U.S. CONSTITUTION], TO

ASCERTAIN WHETHER A LAW ENFORCEMENT

OFFICER ~- WHO MADE A VERY FACTUALLY

WRONG STATEMENT IN A WARRANT APPLICATION

~ THEREBY LIED, OR WAS RECKLESS, OR MADE

AN INNOCENT MISTAKE, IS SATISFIED BY

PERMITTING A COURT TO DENY AN

EVIDENTIARY HEARING [ENCOMPASSED IN THE

CONFRONTATION CLAUSE OF THE 6TH

AMENDMENT TO THE U.S. CONSTITUTION], AND

TO JUST SPECULATE AS TO WHETHER THE

OFFICER LIED, OR RECKLESSLY DISREGARDED

THE TRUTH, OR MADE AN INNOCENT MISTAKE?

2. IS THIS DECISION BY SPECULATION /

ASSUMPTION, IN VIOLATION OF THE DUE

PROCESS REQUIREMENT THAT WHEN THERE IS A

FACTUAL DISPUTE IN COLLATERAL

PROCEEDINGS ATTACKING THE CONSTITUTIONAL,

BASIS OF A CONVICTION, EVIDENCE SHOULD

BE HEARD - AND THUS, IN CONFLICT WITH

SUCH DECISIONS OF THIS COURT AS

Machibroda v. United States, 368 U.S.

487, 7 L.Ed.2da 473 (1962), AND Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 91

L.Ed.2d 202 (1986), AND IN CONFLICT WITH

THE 7th CIRCUIT IN Castillo v. United

States, 34 F.3d 443 (7 Cir. 1994)?

3. SHOULD THE RULE IN Franks v.

Delaware, 438 U.S. 154, 57 L.Ed.2d 667

(1978), THAT THERE IS NO NEED FOR A

HEARING, UNLESS THE WARRANT APPLICATION,

ABSENT THE FALSE STATEMENT, IS

INSUFFICIENT FOR A FINDING OF PROBABLE

CAUSE, BE LIMITED, WHERE THE BLATANT

MISSTATEMENT OF FACT IS CAUSED BY A LAW

ENFORCEMENT OFFICER'S DELIBERATE LIE OR

RECKLESS DISREGARD FOR THE TRUTH?

iii

PARTIES INVOLVED

Petitioner, Roy Blakeney, was the

defendant in the United States District

Court for the Eastern District of

Kentucky, London Division, and the

appellant in the United States Court of

Appeals for the Sixth Circuit.

Respondent, United States of America,

was the plaintiff in the United States

District Court for the Eastern District

of Kentucky, London Division, and the

appellee in the United States Court of

Appeals for the Sixth Circuit.

TABLE OF CONTENTS

Page

Questions Presented.........cccecceee i

PAPE iOe TVG EVNG isn os ieee sees iii

TAULG OF CORTCENER, 6 cc ehis eevee sedeves 1v

Table of Cited Authorities......... vii

Peaver FOr COPtierar.. viwciscesceeena 1

Opinions and Orders Below............ 1

Jurisdictional Statement... ....cscees 2

Constitutional Provisions.Involved... 2

SEATOMORG GCE THO CAMO. cece esicacvcsun 2

STSCOMONS GE FOCTH. ccc eesevsiseesseas 3

Reasons for Granting Certiorari:.... 11

1. THE INTEREST OF SOCIETY

[ENCOMPASSED IN THE 4TH AMENDMENT TO THE

UNITED STATES CONSTITUTION] TO INSURE

THAT SEARCHES OF HOMES ARE CONDUCTED

PURSUANT TO WARRANTS, IS VIOLATED BY

HOLDING THAT A PERSON'S RIGHT TO A

HEARING [ENCOMPASSED IN THE DUE PROCESS

CLAUSE OF THE 5TH AMENDMENT TO THE

UNITED STATES CONSTITUTION], TO

ASCERTAIN WHETHER A LAW ENFORCEMENT

OFFICER - WHO MADE A VERY FACTUALLY

WRONG STATEMENT IN A WARRANT APPLICATION

~- THEREBY LIED, OR WAS RECKLESS, OR MADE

AN INNOCENT MISTAKE, I8 SATISFIED BY

PERMITTING A COURT TO DENY AN

EVIDENTIARY HEARING [ENCOMPASSED IN THE

CONFRONTATION CLAUSE OF THE 6TH

AMENDMENT TO THE UNITED STATES

CONSTITUTION], AND TO JUST SPECULATE AS

TO WHETHER THE OFFICER LIED, OR

RECKLESSLY DISREGARDED THE TRUTH, OR

MADE AN INNOCENT MISTAKE..........--. 12

2. THIS DECISION BY SPECULATION/

ASSUMPTION, IS IN VIOLATION OF THE DUE

PROCESS REQUIREMENT THAT WHEN THERE IS A

FACTUAL DISPUTE IN COLLATERAL

PROCEEDINGS ATTACKING THE CONSTITUTIONAL

BASIS OF A CONVICTION, EVIDENCE SHOULD

BE HEARD ~- AND THUS, IN CONFLICT WITH

SUCH DECISIONS OF THIS COURT AS

Machibroda v. United States, 368 U.S.

487, 7 L.Ed.2da 473 (1962), AND Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 91

L.Ed.2da 202 (1986), AND IN CONFLICT WITH

THE 7th CIRCUIT IN Castillo v. United

States, 34 F.3d 443 (7 Cir. 1994)... 12

3. THE RULE IN Franks v. Delaware,

438 U.S. 154, 57 L.Ed.2d 667 (1978),

THAT THERE IS NO NEED FOR A HEARING,

UNLESS THE WARRANT APPLICATION, ABSENT

THE FALSE STATEMENT, IS INSUFFICIENT FOR

A FINDING OF PROBABLE CAUSE, SHOULD BE

LIMITED, WHERE THE BLATANT MISSTATEMENT

OF FACT IS CAUSED BY A LAW ENFORCEMENT

OFFICER'S DELIBERATE LIE OR RECKLESS

DISREGARD FOR THE TRUTH...........--- 21

COMMIS O SS 5 oe Cc CE OK Se bee betes eee 30

Appendices:

App. A - Opinion of the United States

Court of Appeals for the Sixth Circuit,

No. 98-5021, Roy C. Blakeney v. U.S.,

dated September 21, 1999........ App. 1

App. B - Order of the United States

Court of Appeals for the Sixth Circuit,

No. 98-5021, Roy C. Blakeney v. U.S

filed December 1, 1999, denying

rehearing and rehearing en banc. App. 17

App. C - Report and Recommendation of

the Magistrate, U.S. Dist. Ct., E.D.

Ky., London Div., U.S. v. Roy C.

Blakeney, Criminal Case No. 86-6-5-1,

motion to vacate filed as: Civil Case

No. 96-316, filed April 8, 1997. App. 19

App. D - Order of U.S. District

Court, E.D. Ky., London Div., filed

December 8, 1997, U.S. v. Roy C.

Blakeney, Criminal Case No. 86-6-5-1,

motion to vacate filed as: Civil Case

No. 96-316 - denying motion under 28

U.8.Gs- Q 2000s i 5s 05 65h App. 40

App. E - Constitutional Provisions

ENVOLWOR. cc cecessSoccsssssscvduse App. 42

vii

TABLE OF CITED AUTHORITIES

Cases

Anderson v. City of Bessemer,

470 U.S. 564,

84 L.Ed.2d 518 (1985)......... 16,

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242,

OF EMSA 262 (39668). 6c ccs ces 15,

Berger v. California, 393 U.S. 314,

Si 0.08. 26 SOG. (2980) .isc ck. 15,

Buffalo v. Sunn, 854 F.2d 1158

ie Cae, Shs 61540kest seuss ee eas

California v. Green, 399 U.S. 149,

26 %. 06.26 489 (1970). ccc cscs: 15,

Castillo v. United States,

34 F.3d 443 (7 Cir. 1994). 15, 16,

Clark v. Procunier, 755 F.2d 394

(S Cir. 1988) ccccccvccsccscsccecsee

Franks v. Delaware, 438 U.S. 154,

57 L.E@.2da 667 (1978). 13, 18, 21,

Fuentes v. Shevin, 407 U.S. 67,

te aes ) oe eer reer

Illinois v. Gates, 462 U.S. 213,

Re Se BT Rs | ee ere

In re Murchison, 349 U.S. 133,

POEs. BER LIOOG) 6 vic kdne edcewcs

viii

Johnson v. United States, 333 U.S. 10,

S92 Lhe Bs 436 CODES) 2 cc ccve 18, 20, 22

Machibroda v. United States,

368 U.S. 487,

7 0.06.90 473. (5062) 05.255. 15, 18-19

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

S bs BG.2G LOC1L (1961) oc cccvacsacecs 20

Mullane v. Central Hanover Bank &

7a. Co., 339. 0.8. 306,

me Geass BOe CEOS) nhs ewe adeeeess 13

Olmstead v. United States,

277 U.S. 438, 485,

72 L.Ed. 944, 959 (1928)

(Brandeis, J., dissenting)........ 20

Payton v. New York, 445 U.S. 573,

63 L.Ed.2d 639 (1980) ‘a, 2

Pointer v. Texas, 380 U.S. 400,

£3 1..86.2@ 923 (1965) viccciaas ao, 23

State v. Federici, 179 Conn. 46,

635 A. SE S28 VASTS) 6 2634 <5kss eee ee 25

United States v. Alvarez,

L277 F.38 372 (3 Cats 1997). 4625 eee I8

United States v. Blakeney, 942 F.2d 1001

C6 Cah ZOPR oc baczs seoavece 2, POSSin

United States v. Cortina,

G30 7.86 S007 47 CaSs . 2906) ci ickinces 9

United States v. Greene,

782 F.2G: 4366 (9- Cifs 29606). ..600% 25

United States v. Johnson, et al., No.

93-180-CR-T-24(C) (M.D. Fla. 1995). 5

United States v. Lefkowitz,

285 U.S. 452,

76 2508. B77. (2038)... 26, 16,26; 21

United States v. Mejia, 69 F.3d 309

Oe BOE Ue eek es awe acule 16

United States v. Shavers,

224 F.2G 2094 (8 Cir. 1975) ..ccece 25

Waller v. Georgia, 467 U.S. 39,

3 oe RS ae ees ere 13

Ward v. Lockhart, 841 F.2d 844

oe COs Be 543 ws koh neue & 6 eee 29

Constitutional Provisions and Statutes

UsS, CONSE. , OMONG. 4. 66 vic ca 2, passim

U.S. Const., amend. 5

eee Se ee eee 2, passim

U.S. Const., amend. 6 (confrontation;

right to be present)........ 2, passim

ae AAs Se ee bes eo wk ee eee kee 2

RP ia RS oie i ei io ee AK 2

oe Wess SB BOGS cai iiee cae 3, passim

Other Authority

2 LAFAVE, SEARCH AND SEIZURE, A TREATISE ON THE

FOURTH AMENDMENT

$ 3.4(e) at 249 (34-64. 1996)...14-25

Orfield, Deterrence, Perjury, and the

Heater Factor: An Exclusionary Rule

in the Chicago Criminal Courts,

63 U. CoLo. L. REV. 131 (1992)..... ae

5 WIGMORE, EVIDENCE § 1367

(3G O60. 1960) icc dies cee ekian -esees 2D

‘eiaiaiaael

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

Petitioner, Roy Blakeney (defendant)

prays that a writ of certiorari issue to

review the judgment of the United States

Court of Appeals for the Sixth Circuit,

affirming the judgment of the United

States District Court for the Eastern

District of Kentucky, London Division.

Opinions and Orders Below

The Opinion of the United States

Court of Appeals for the 6th Circuit,

No. 98-5021, dated September 21,\ 1999 ~

(not published, per Circuit Rule 206),

affirming the District Court's judgment

filed December 8, 1997, denying the

petition pursuant to 28 U.S.C. § 2255

and dismissing the matter with prejudice

(App. D, pp. App. 40-41), is set out at

App. A, pp. App. 1-16. On December 1,

1999, the 6th Circuit entered its Order

[unpublished] denying petitioner's

timely-filed petition for rehearing with

suggestion for rehearing en banc. (App.

B; pp. App. 17-18)

On December 8, 1997, the District

Court filed its Order (App. D, pp. App.

40-41), accepting the Report and

Recommendations of the Magistrate filed

April 8, 1997. (App. c, pp. App. 19-39)

The Opinion of the 6th Circuit,

affirming petitioner's conviction and

sentence on direct appeal, United States

v. Blakeney, is reported at 942 F.2d

1001 (6 Cir. 1991).

Jurisdictional Statement

On September 21, 1999, the 6th

Circuit filed its Opinion. (App. Aj; pp.

App. 1-16) Timely-filed petition for

rehearing with suggestion for rehearing

en banc, was denied December 1, 1999.

(App. B; pp. App. 17-18) This Petition

is timely filed within 90 days.

Jurisdiction is invoked under 28

U.S.C. § 1254(1).

Constitutional Provisions Involved

U.S. Const., Amends. IV, V and VI,

set out at App. E, p. App. 42.

STATEMENT OF THE CASE

Jurisdiction in the court of first

instance [with respect to the underlying

judgment in Criminal Case No. 86-6-6-5-

1} is based on 18 U.S.C. § 3231, which

provides that the district courts of the

United States shall have original

The appeal proceeded after the 6th

Circuit (via Order filed September 23,

1998), granted petitioner's application

for a certificate of appealability.

jurisdiction of all offenses against the

laws of the United States. This cause

arose initially as a prosecution of

defendant, alleging offenses against the

laws of the United States.

Jurisdiction in the court of first

instance {with respect to the motion to

vacate, filed as Civil Case No. 96-316]

is based on 28 U.S.C. § 2255.

STATEMENT OF FACTS

Petitioner Roy Blakeney (hereafter,

petitioner, defendant, or Blakeney) was

convicted of drug trafficking and

sentenced to 15 years on each count of

the 3-count indictment,’ with the

sentences on counts 2 and 3 concurrent

with one another and consecutive to the

term on Count 1, for a total of 30

years. (R 473, Apx. pg. 66) # The

judgment was affirmed on direct appeal.

United States v. Blakeney, 942 F.2d 1001

(6 Cir. 1991) (hereafter, Blakeney).

Count 1 charged conspiracy re

methamphetamine; count 2, possession

with intent re phenylacetone, and count

3, possession with intent re

methamphetamine.

"R" refers to items in the 6th

Circuit Record on Appeal in the habeas

appeal, and “Apx." to pages of the Re-

Corrected Joint Appendix in that cause.

Subsequently, he filed a Motion to

Vacate under 28 U.S.C. § 2255, averring

(a) that the affidavit for warrant that

resulted in the search and evidence on

which he was convicted, contained a

false statement, that was shown to be

false by the conflicting testimony of

the same agent (Agent Alan Sadowski) on

the same subject in a different federal

criminal trial, and (b) that the false

statement was intentionally false or

made with reckless disregard for the

truth, and that the said statement in

the affidavit for warrant was material

and essential to the finding of probable

cause. (R 473, Apx. pgs. 69, 72-79)

The U.S. Magistrate Judge filed a

Report and Recommendation [hereafter, R

& R} that the sec. 2255 motion be denied

(R 486, R & R, Apx. pgs. 106-116; App.

C, pp. App. 19-39); petitioner filed

objections. (R 487, Apx. pgs. 117-119)

The District Court adopted the R & R,

denying the petition pursuant to 28

U.S.C. § 2255 and dismissing the matter

with prejudice. (R 505, Apx. pg. 105;

App. D, pp. App. 40-41)

Conflicting Sworn Allegations

Agent Sadowski's Affidavit’

* Sadowski's warrant affidavit is

attached to the sec. 2255 Motion. (R

In his affidavit for warrant to

search defendant's residence, Agent Alan

Sadowski averred an affirmative fact -

that Curtis Anderson’ was observed

placing a garbage bag in a dumpster.

Blakeney, 942 F.2d at 1024, 1025.°

Sadowski's Tampa Trial Testimony’

At trial in United States v. Johnson,

et_al., No. 93-180-CR-T-24(C) in the

United States District Court for the

Middle District of Florida, Tampa

473, Apx. pgs. 95-104)

Anderson was a co-defendant with

defendant, both in the Kentucky case and

in the Tampa case. Per the 6th Circuit

direct appeal opinion, evidence as to

the association between Anderson and

defendant was material both to the

finding of probable cause to arrest

defendant, Blakeney, 942 F.2d at 1024,

and to the finding of probable cause to

search defendant's residence. Id. at

1025.

The bag was found to contain items

connected to Bakes jewelry store, a

store that had been robbed. Ibid.

Sadowski's Florida trial testimony

is attached to the sec. 2255 Motion. (R

473, Apx. pgs. 80-94)

— eeeeEoEEEeEeEeEeEeee

Division,’ Agent Sadowski on January 10,

1995 testified before the Hon. Susan C.

Bucklew, and a jury, that he did not

observe Anderson place the bag in the

dumpster, but instead, that Anderson was

out of his sight for 6 or 7 minutes.’

(R 473, Apx. pgs. 84-89) This trial

testimony of Sadowski in the Florida

case is diametrically opposed to the

warrant affidavit averments that

"Anderson had been observed dumping a

large plastic garbage bag into a trash

dumpster," Blakeney, 942 F.2d at 1024;

otherwise put, that "Anderson also had

been observed disposing of evidence from

the jewelry robbery in the trash

dumpster .. . in Boca Raton." Id. at

1025. (See R 473, G. App. p. 44, Apx.

pg. 102.)

At the Tampa trial, Sadowski

testified:

"QO. *** It's your testimony

that you did not personally

see him (Curtis Anderson]

place the garbage bag into the

Defendant was convicted in the

Florida case.

A copy of Agent Sadowski's cross-

examination on Jan. 10, 1995, pages 1

through 15, is attached to Blakeney's

sec. 2255 motion, R 473, Apx. pgs. 80-

94.

dumpster?

A. That's correct, I did not

see him do that." (R 473, App.

A, p. 6, lines 21-23, Apx. pg.

85)

Sadowski testified, "From the time he

[Anderson] walked behind the sporting

goods store, reappeared and departed, I

would -- I would guesstimate six, seven

minutes had elapsed." (R 473, Apx. pg.

86)

Sadowski testified that the bag seen

in Anderson's hands was "generic":

"Q. *** Was this what we would

know as a generic black or

green plastic garbage bag?

A. That's correct, yes.

Q. Can you describe it more

specifically than I have?

A. No. It was a, uh, dark

colored, uh, heavy plastic

garbage bag like a Hefty bag

type thing." (R 473, Apx. pg.

85)

Sadowski never testified he could

identify the bag.

He also testified:

"Oo. Okay.

And, in fact, there were

other dumpsters and garbage

cans if you have continued

along behind the buildings; is

that correct?

A. Yes, further -- further

away." (R 473, Apx. pg. 86)

In the Tampa trial, it was called to

Sadowski's attention, and he

acknowledged, that in his affidavit in

Support of the search warrant (R 473,

Apx. pg. 87), it says "that Anderson was

observed taking a large plastic garbage

bag from the trunk of the Cadillac and

placing the bag in a garbage dumpster

behind 5th Avenue shops," (R 473, Apx.

pg. 87); Sadowski acknowledged, "that

what it [his affidavit] says." (R 473,

Apx. pg. 87) Then, the following

question and answer:

"Q. * * * Today you're saying that

you did not actually see him

[Anderson] place the bag into the

dumpster; is that correct?

A. That's correct." (R 473,

Apx. pg. 87)

Sadowski acknowledged that when he

stated in his affidavit that Anderson

was observed placing the bag in the

dumpster, this was an assumption on his

part.

(R 473, Apx. pg. 88)

Sadowski testified further,

"So the assumption on my part was

that he [Anderson] placed it there,

that's correct." (R 473, Apx. pg.

89)

And again:

"Q. * * * But the truth is you

never saw him [Anderson]

actually place the bag in the

dumpster?

A. That's correct." (R 473,

Apx. 89)

Findings Below

The Magistrate made two specific

findings (App. C, pp. App. 36-38) -

adopted by the District Court (App. D,

pp. App. 40-41):

FIRST:

"While petitioner has pointed

out a specific discrepancy in the

sworn testimony and asserted that

the challenged statement in the

affidavit was made with deliberate

or reckless disregard for the

truth, the undersigned does not

find any deliberate falsity in the

affidavit. It appears from the

record that the inaccuracy was not

a deliberate lie, but rather a

logical inference under the facts."

(Emphasis added.) (App. C, p. App.

36)

The Magistrate re-stated the same

finding in the CONCLUSION of the R & R:

"(Tjhis Court finds that the

challenged statement by the

FBI agent was an [sic.]

logical assumption and did not

rise to the level of

‘deliberate or reckless

falsity'." (App. C, p. App.

38)

SECOND:

"The undersigned .. . finds

that even if the challenged

statement is omitted from the

August 19, 1989 affidavit,

sufficient facts to find probable

cause are amply demonstrated.

Petitioner points to the Sixth

Circuit Court of Appeals statement

that ‘in the absence of the August

19, 1989 affidavit, the search

Warrant was not supported with

probable cause.' See [United States

v.}] Blakeney, 942 F.2d [1001] at p.

1026 [6 Cir. 1991]. However, the

lone inaccuracy in the August 19,

1989 affidavit does not invalidate

the entire affidavit. . . [E]ven if

ek eh i AR

the challenged statement is

omitted, the remaining information

fully supports a finding of

probable cause to issue the search

warrant." (R 486, R&R, p. 10,

Apx. pg. 115; App. C, p. App. 37)

The Magistrate re-stated the same

finding in the CONCLUSION of the R & R:

"(E]ven after examining the

affidavits in detail without the

challenged statement, the

undersigned finds that the

remaining facts recited in the two

affidavits provide sufficient facts

to support a finding of probable

cause to issue the search warrant

for the petitioner's residence."

(App. C, p. App. 38) (Emphasis in

original.)

These findings - reached without an

evidentiary hearing - were adopted by

the District Court without an

evidentiary hearing. (App. D, pp. App.

40-41)

REASONS FOR GRANTING CERTIORARI

1. THE INTEREST OF SOCIETY

([ENCOMPASSED IN THE 4TH AMENDMENT TO THE

U.S. CONSTITUTION] TO INSURE THAT

SEARCHES OF HOMES ARE CONDUCTED PURSUANT

TO WARRANTS, IS VIOLATED BY HOLDING THAT

A PERSON'S RIGHT TO A HEARING

[ENCOMPASSED IN THE DUE PROCESS CLAUSE

OF THE STH AMENDMENT TO THE U.S.

CONSTITUTION], TO ASCERTAIN WHETHER A

LAW ENFORCEMENT OFFICER - WHO MADE A

VERY FACTUALLY WRONG STATEMENT IN A

WARRANT APPLICATION - THEREBY LIED, OR

WAS RECKLESS, OR MADE AN INNOCENT

MISTAKE, IS SATISFIED BY PERMITTING A

COURT TO DENY AN EVIDENTIARY HEARING

[ENCOMPASSED IN THE CONFRONTATION CLAUSE

OF THE 6TH AMENDMENT TO THE U.S.

CONSTITUTION], AND TO JUST SPECULATE AS

TO WHETHER THE OFFICER LIED, OR

RECKLESSLY DISREGARDED THE TRUTH, OR

MADE AN INNOCENT MISTAKE.

2. THIS DECISION BY SPECULATION/

ASSUMPTION, IS IN VIOLATION OF THE DUE

PROCESS REQUIREMENT THAT WHEN THERE IS A

FACTUAL DISPUTE IN COLLATERAL

PROCEEDINGS ATTACKING THE CONSTITUTIONAL

BASIS OF A CONVICTION, EVIDENCE SHOULD

BE HEARD - AND THUS, IN CONFLICT WITH

SUCH DECISIONS OF THIS COURT AS

Machibroda v. United States, 368 U.S.

487, 7 L.Ed.2d 473 (1962), AND Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 91

L.Ed.2d 202 (1986), AND IN CONFLICT WITH

THE 7th CIRCUIT IN Castillo v. United

States, 34 F.3d 443 (7 Cir. 1994).

The process by which search warrants

are obtained - ex parte hearing - is an

exception to the norm; as a rule,

judicial decisions concerning rights of

citizens must be made, in the open,’

after a hearing,’’ where both the

prosecution and the defense have the

right to contest, by examination, the

credibility and accuracy of what a

witness asserts. This being so, when

there is a major discrepancy between

what a witness asserts in his affidavit

for warrant, and what he should know is

the truth - for resolution of the issue

whether he lied, was reckless, or just

made an innocent mistake, this Court

"requires" a hearing: "(T]he Fourth

Amendment requires that a hearing be

held at the defendant's request."

Franks v. Delaware, 438 U.S. 154, 156,

57 L.Ed.2d 667, 672 (1978). (Emphases

added.) *’

'° See In re Murchison, 349 U.S.

133, 99 L.Ed. 942 (1955); Waller v.

Georgia, 467 U.S. 39, 81 L.Ed.2d 31

(1984) (right to public trial applies to

hearing on motion to suppress evidence).

'' Mullane v. Central Hanover Bank &

sckues £6. ,° 339 0.8: 306, 314, 94 L.Ed.

865, 873 (1950); Fuentes v. Shevin, 407

U.S. 67, 90 n.21, 32 L.8d.24 556, 575

n.21 (1972).

More fully stated:

"([Wje hold that, where the

defendant makes a substantial

preliminary showing that a false

Because, as this Court held in

Franks, a defendant has a burden to

prove by a preponderance of evidence,

that in making the false statement in

the warrant affidavit, the law

enforcement officer lied intentionally,

or acted with reckless disregard for the

truth - as opposed to making an innocent

mistake - the Fourth Amendment's hearing

requirement as per Franks must be just

statement knowingly and

intentionally, or with reckless

disregard for the truth, was

included by the affiant in the

warrant affidavit, and if the

allegedly false statement is

necessary to the finding of

probable cause, the Fourth

Amendment requires that a hearing

be held at the defendant's request.

In the event that at that hearing

the allegation of perjury of

reckless disregard is established

by the defendant by a preponderance

of the evidence, and, with the

affidavit's false material set to

one side, the affidavit's remaining

content is insufficient to

establish probable cause, the

search warrant must be voided and

the fruits of the search excluded

to the same extent as if probable

cause was lacking on the face of

the affidavit." Id. at 155-56, 57

L.Ed.2d at 672. (Emphases added.)

Ae LS a TO

i a'r

that - a hearing, which includes

defendant's right to make inquiry of the

officer by cross- examination, the

"greatest legal engine ever invented for

the discovery of truth." California v.

Green, 399 U.S. 149, 158, 26 L.Ed.2a

489, 497 (1970), quoting 5 WIcMorE,

EVIDENCE § 1367 (3d ed. 1940). Cross-

examination has a significant effect on

the "integrity of the fact-finding

process." Berger v. California, 393 U.S.

314, 315, 21 L.Ed.2d 508, 510 (1969).

"INJo one experienced in the trial of

lawsuits, would deny the value of cross-

examination in exposing falsehood and

bringing out the truth... ." Pointer

v. Texas, 380 U.S. 400, 404, 13 L.Ed.2a

923, 926 (1965).

Here, the Magistrate found, and the

District Court concurred, that the FBI

Agent's "inaccuracy" was a "logical

inference" or "logical assumption" and

not a deliberate or reckless falsehood,

and denied a hearing. (App. C, pp. App.

36, 38; App. D, pp. App. 40- -41)

This decision by speculation/

assumption, violates due process, which

requires that when there is a factual

dispute, evidence should be heard,

Machibroda v. United States, 368 U.S.

487, 7 L.Ed.2da 473 tr: Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 91

L.Ed.2d 202 (1986); ‘Castillo Vv. United

States, 34 F.3d 443 (7 Cir. 1994), and

that testimony should be taken where

factual disputes exist. Castillo v.

United States, supra; accord, Buffalo v.

Sunn, 854 F.2d 1158 (9 Cir. 1988).

The importance of live testimony in

determining credibility, due to "matters

that cannot be gleaned from a written

transcript," is underscored in United

States v. Mejia, 69 F.3d 309, 315 (9

Cir. 1995), utilizing principles

recognized and applied by this Court in

Anderson v. City of Bessemer, 470 U.S.

564, 575, 84 L.Ed.2d 518, 529 (1985)

("variations in demeanor and tone of

voice that bear so heavily on the

listener's understanding of and belief

in what is said").

Here, denying petitioner a hearing is

crucial, where there is good reason to

believe that at a hearing, confronting

Agent Sadowski, a competent counsel

could demonstrate the agent's motive to

lie, and that he lied - or, at the very

least, acted with reckless disregard for

the truth. Courts realize that agents

can be overzealous. As this Court has

long recognized, officers, because they

are overzealous, violate citizens'

rights. United States v. Lefkowitz, 285

U.S. 452, 464, 76 L.Ed. 877, 882

(1931). Such overzealousness leads

“Security against unlawful

searches is more likely to be

attained by resort to search

. - ome

them to "puff" in warrant applications -

i.e., to be reckless, or downright lie.

See United States v. Cortina, 630 F.2d

1207 (7 Cir. 1980); see also Orfield,

Deterrence, Perjury, and the Heater

Factor: An Exclusionary Rule in the

Chicago Criminal Courts, 63 U. CoLo. L.

REV. 131 (1992).

Here, the very facts (see pp. 3-9,

Supra) militate against the irrational

decision of the Magistrate, upheld by

the District Court and the 6th Circuit.

Those facts are:

Agent Sadowski was an experienced

agent with the FBI. It is an unbalanced

“equation” to equate the real facts (see

pp. 6-9, supra):

seeing Anderson take a bag from his

trunk and disappear behind a

building, where he remained for a

few minutes (at least three) in an

alley where there were back doors

to many businesses and many

dumpsters, hence, a place where

what was found could have been left

by others and what Anderson left

could have been placed into a

warrants than by reliance upon the

caution and sagacity of petty

officers while acting under the

excitement that attends the capture

of persons accused of crime." Ibid.

different dumpster (see Apx. 84-

86),

to the false statement in the Affidavit

(see p. 5, supra):

"Anderson was observed taking a

large plastic bag from the trunk of

the Cadillac and placing that Pai

in a garbage dumpster...

(App. A, p-. App. 4; Apx. 87)

And when such statement is made by an

experienced officer, it demonstrates an

officer lying. He is lying to obtain

what he knows he cannot obtain if he

does not lie. It is folly to believe he

was not acting in bad faith. See United

states v. Alvarez, 127 F.3d 372, 375 (5

Cir. 1997).

Finally, because the exclusionary

rule of the Fourth Amendment has as its

purpose, to protect all citizens - to

deny a hearing, where a prima facie

misstatement has been made - is contrary

to the purposes of the Fourth Amendment.

It is contrary to this Court's decisions

favoring warrants, Johnson v. United

states, 333 U.S. 10, 13-14, 92 L.Ed.

436, 440 (1948); United States v.

Lefkowitz, 285 U.S. 452, 464, 76 L.Ed.

, 882 (1931); Payton v. New York, 445

573, 63 L.Ed.2d 639 (1980);

38 U.S. 154, 156, 57 L.Ed.2d 667, 672

(1978); Machibroda v. United States, 368

)

requ iring a hearing, Franks v. Delaware,

434

U.S. 487, 7 L.Ed.2da 473 (1962); Anderson

Vv. Liberty Lobby, Inc., 477 U.S. 242, 91

L.Ed.2d 202 (1986); and recognizing the

need for cross-examination, California

Vv. Green, 399 U.S. 149, 158, 26 L.Ed.2d

489, 497 (1970); Berger v. California,

393 U.S. 314, 318, 21 Li 84.24 508, 510

(1969); Pointer v. Texas, 380 U.S. 400,

404, 13 L.Ed.2d 923, 926 (1965), and for

live testimony. Anderson v. City of

Bessemer, 470 U.S. 564, 9735, 84 L.84.24

518, 529 (1985).

Moreover, as to the need to hear

evidence where material facts are in

issue in a sec. 2255 proceeding, this

6th Circuit decision in Blakeney's case,

conflicts with the 7th Circuit's

decision in Castillo v. United States,

34 F.3d 443 (7 Cir. 1994).

This Court has an obligation to

citizens and to the judicial process, to

uphold the purpose of the 4th Amendment,

and not merely "wink" at police

corruption; for it is just as corrupt

for police to lie to convict the

ever~so-guilty, as to lie as part of a

payoff to help to acquit the guilty.

And when a trial court, or reviewing

court, accepts or condones such a lie -

calling it a "mistake," or a "logical

inference"’’ - the court acts contrary

It is not that inferences cannot

be drawn in the warrant procurement

to the interests of citizens and

contrary to dictates of the U.S.

Constitution, and tends to provide an

incentive to the police to lie, and/or

violate citizens' rights. Mapp v. Ohio,

367 U.S. 643, 659, 6 L.Ed.2d 1081, 1092

(1961), citing Mr. Justice Brandeis,

dissenting in Olmstead v. United States,

277 U.S. 438, 485, 72 L.Ed. 944, 959

(1928).

Unless this Court grants certiorari

in this case and takes appropriate

action, this Court is a tacit

confederate in the insidious use by the

government of a false statement by an

officer who violated his sworn duty to

uphold the law. Failure to act when

confronted with such a situation,

renders the Court an accomplice of the

wrongdoing, and encourages the

continuing use of blatant lies in

warrant applications. See Mapp, supra;

dissent of Justice Brandeis in Olmstead,

supra.

For the foregoing reasons, this

process; it is that inferences should be

drawn only by an impartial judicial

officer, not by an overzealous law

enforcement officer. Johnson v. United

states, 333 U.S. 10, 13-14, 92 L.Ed.

436, 440 (1948); United States v.

Lefkowitz, 285 U.S. 452, 464, 76 L.Ed.

877, 882 (1931).

Court should review this case.

3. THE RULE IN Franks v. Delaware,

438 U.S. 154, 57 L.Ed.2d 667 (1978),

THAT THERE IS NO NEED FOR A HEARING,

UNLESS THE WARRANT APPLICATION, ABSENT

THE FALSE STATEMENT, IS INSUFFICIENT FOR

A FINDING OF PROBABLE CAUSE, SHOULD BE

LIMITED, WHERE THE BLATANT MISSTATEMENT

OF FACT IS CAUSED BY A LAW ENFORCEMENT

OFFICER'S DELIBERATE LIE OR RECKLESS

DISREGARD FOR THE TRUTH.

The rule of Franks, supra - that no

hearing is required on whether the

factual misstatement was a purposeful

falsehood or made with reckless

disregard for the truth, or was merely

an innocent mistake, if the other

factual averments in the warrant

application are sufficient to

demonstrate probable cause - is contrary

to and undermines the effectiveness of

this Court's holdings that to protect

persons in their homes, residence

searches must "normally" be by way of

warrants obtained before neutral

magistrates, Johnson v. United States,

333 U.S. 10, 13-14, 92 L.Ed. 436, 440

(1948); Payton v. New York, 445 U.S.

573, 63 L.Ed.2d 639 (1980), in order to

deter improper police action motivated

by overzealousness in catching their

prey. United States v. Lefkowitz, 285

U.S. 452, 464, 76 L.Ed. 877, 882 (1931)

(see quotation, fn. 13, pp. 16-17,

Supra).

The Franks rule - by thus restricting

the requirement of a hearing, to

Situations where the averments absent

the incorrect information are

insufficient for probable cause - is

contrary to the foregoing mandatory

constitutional principles invoked in

Points 1 and 2 above; because where,

after a hearing, it can be proven that

the officer lied on a given issue, there

is no longer any reason to give credence

to any of the other factual allegations

this officer made in the warrant

application. Merely because the other

facts in the warrant application - as is

often the case - can not be demonstrated

to be lies by "hard" evidence, the very

nature of the allegations may, as here,

be sufficiently subjective (i.e.,

related to the officer's mental state),

that even though specific “hard" proof

of falsehood may not be forthcoming, all

the other allegations may also be lies.

That is the situation here.

The 6th Circuit sets out what the two

affidavits state as follows:

"(Rjead together, the

affidavits [in support of the

warrant to search Petitioner's

apartment] set forth the

following information:

(1) A burgundy Cadillac had

been linked to the jewelry

store robbery, and Petitioner

had a burgundy Cadillac

registered under an alias;

(2) Items fitting the

description of items stolen

from the jewelry store were

found in Petitioner's

Cadillac;

(3) Petitioner, Anderson, and

Johnson were all using

aliases;

(4) A silver Cadillac, driven

by Johnson, was also

registered to Petitioner's

alias;

(5) The plastic garbage bag

Anderson was observed carrying

behind the Fifth Avenue Shops

was found to contain jewelry

store price tags, several

pieces of jewelry, and other

evidence from the robbery of

the Green Bay jewelry store;

and

(6) When Petitioner, Anderson,

and Johnson were arrested on

outstanding arrest warrants,

Johnson's wife was in

possession of $15,680 in cash

and a ring which matched the

description of a ring taken in

the Green Bay robbery." (App.

A, pp. App. 14-15)

Paragraph 1 is vague and may be the

result of a reckless or lying officer,

cleverly constructing something out of

nothing. The assertion that a burgundy

Cadillac had been linked to the store

robbery, is not true. “Linked" means

involved. Here, there was nothing more

than mere speculation. The affidavit

for the search warrant reads:

"7, Witnesses to the

armed robbery of BAKE'S

JEWELRY, Green Bay, Wisconsin,

which occurred on August 11,

1989, have advised that during

the early morning hours of

that date, an unknown white

male and white female were

observed in a burgundy

Cadillac in the vicinity of

BAKE'S JEWELRY STORE."

(Attachment to R.473; Apx. 98;

par. 7, Affidavit dated Aug.

21, 1989)

This proves no "link". Under

Illinois v. Gates, 462 U.S. 213, 76

L.Ed.2d 527 (1983), there remains under

the balancing test, a requirement of

reliability. Here, there is no basis

for a court to find that the statement

in par. 7 is reliable evidence of

defendant's involvement in a crime.

Even with citizen witnesses, who are

et Ste

ae MAR GIR Ea FE NS ets Stina Pe eS peed

deemed credible, i.e., are not lying,

there is the issue of reliability, or

linkage. A magistrate does not know Se

by "early morning hours," the affiant

meant to refer to a time before or after

the crime; a magistrate does not know if

"vicinity" means, a block, or a mile; a

magistrate does not know if by "witness

to armed robbery" the affiant means

persons who actually saw the robbery, or

just saw this car some unknown distance

from, and unknown time-span before or

after, the robbery. Furthermore, the

information - burgundy Cadillac - is

just too general, fitting too many cars.

Similarly, the description of unknown

white male - with no description as to

age, size or height, is just too

general, to have any discernible

meaning. Here the description of the

car, would fit too many cars, and hence,

did not provide probable cause.

"{A}) description which would

fit many people [or cars) will

not suffice [to provide

probable cause]." 2 LAFAVE,

SEARCH AND SEIZURE, A TREATISE ON

THE FOURTH AMENDMENT § 3.4(c) at

243 (3d ed. 1996).

See United States v. Shavers, 524 F.2d

1094 (8 Cir. 1975); United States v.

Greene, 783 F.2d 1364, 1367 (9 Cir.

1986); State v. Federici, 179 Conn. 46,

425 A.2d 916 (1979).

Paragraph 2 also appears to be a

misstatement of facts known by the

agent. First, it was not items, plural.

What the affidavit alleged, was that one

(1) watch was found. Moreover, the

agent had an inventory of every Bake's

Jewelry watch stolen, and he knew, or if

he had consulted the inventory, should

have known, that what was found in

petitioner's car was not one of the

stolen Bake's Jewelry watches. This can

be proved at evidentiary hearing.

There is reason to believe he had

checked the inventory. As to a ring

found with Johnson's wife, he averred:

"Your affiant has reviewed a

listing of items stolen from

the aforementioned armed

robbery of BAKES'S JEWELRY

STORE and has found a ring

identical to the above

amethyst piece identified as

stock number R 3639."

(Attachment to R.473; Apx.

103; from par. 11 of Affidavit

dated Aug. 19, 1989)

Because he checked the listing of

items stolen (i.e., inventory) to make

sure that the ring found was a stolen

ring, we can properly assume he checked

- and Knew - that the watch found in

petitioner's car was not a watch stolen

in the robbery. If it was a stolen

watch, he, having gone over the

inventory, would have stated it was a

watch listed on the inventory, as he did

with the stolen ring.

Paragraphs 3 and 4 merely show that

petitioner and his friends may have been

using assumed names. It did not prove

that petitioner had any part in the

Wisconsin robbery.

Paragraph 5 was the crucial paragraph

that contained the agent's lie.

Paragraph 6 connected Johnson and his

wife. There is no connection to

petitioner Blakeney.

Hence, remove the lie, and knowing

the truth about Paragraphs 2 and 3

demonstrates there was no probable cause

to search petitioner's home. Therefore,

even under Franks as it now exists, the

6th Circuit was wrong when it found

there was probable cause. (App. A, pp.

App. 15-16)

The robbery occurred on 8/11/89; the

observation of Anderson on 8/18/89; the

arrest of defendant, on 8/19/89.

Paragraph 7 of the affidavit dated Aug.

19, 1989 (Apx. 101-02) - summarized as

par. 5 in the 6th Circuit's summary at

App. A, p. App. 14 (see P. 23, supra)

("the plastic garbage bag Anderson was

observed carrying . . . was found to

contain . . . (fruits and evidence of

the Bakes robbery]") - thus becomes THE

crucial fact constituting probable

cause, considering what is set out in

par. 8 of the Affidavit:

"8. Your affiant retrieved

that garbage bag and after opening

it, observed numerous jewelry store

price tags utilized to price

jewelry in retail stores, jewelry

display racks normally utilized to

display jewelry in retail stores,

identification tags for several

jewelry stores located in northern

states; one tag identifying BAKE'S

JEWELRY in Green Bay, Wisconsin,

several pieces of duck tape,

diamond certification appraisals,

and several pieces of women's

jewelry." (Apx. 102)

It is paragraphs 7 and 8 together,

that (arguably) provide probable cause.

Without par. 7 (Apx. 101-02) (summary

par. 5; App. A, p. App. 14, there is

nothing but surmise and suspicion.

Without the evidence that Anderson

possessed tags used in Wisconsin jewelry

stores, and a Bakes tag, all the other

evidence demonstrated only that: (a)

Johnson's wife had money; (b) Johnson's

wife possessed a stolen item, one stolen

ring, days after the event, and

petitioner may have possessed a stolen

watch.

There was no probable cause to

believe petitioner was involved in the

Wisconsin robbery, or that he possessed

in his house, items from that robbery.

One can buy a piece of stolen (burgled)

jewelry in the "market place," without

being involved in the burglary. Cf.

Ward v. Lockhart, 841 F.2d 844 (8 Cir.

1988) (recent possession of burgled

items insufficient to prove burglary) ;

Clark v. Procunier, 755 F.2d 394 (5 Cir.

1985) (same). Hence, the untrue portion

of the Affidavit was crucial.

Because par. 7 of the agent's

Affidavit is a lie, and the remaining

averments may also contain

misstatements, a hearing should have

been held.

We ask this Court to hold that

Judicial integrity and integrity of law

enforcement are more important than

catching who we may think is the "bad

guy." Law, and respect for the law,

demand rejection of the 6th Circuit

decision.

CONCLUSION

For the foregoing reasons, certiorari

should be allowed. \

O-

¢ |

\ (> ;

FREDERICK F. COHN

Attorney for Petitioner

APPENDICES

App. 1

APPENDIX A

NOT RECOMMENDED FOR PUBLICATION

NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION

Sixth Circuit Rule 206 limits citation to specific

situations. Please see Rule 206 before citing in a

proceeding in a court in the Sixth Circuit. If

cited, a copy must be served on other parties and

the Court.

This notice is to be prominently displayed if this

decision is reproduced.

No. 98-5021

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROY C. BLAKENEY,

Petitioner-Appellant,

Vv.

UNITED STATES OF AMERICA,

Respondent-Appellee.

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF

KENTUCKY

OPINION FILED

SEP 21 1999

LEONARD GREEN, Clerk

App. 2

BEFORE: KEITH, BOGGS, and CLAY, Circuit

Judges.

PER CURIAM. Petitioner, Roy C.

Blakeney, appeals from the order entered

by the United States District Court for

the Eastern District of Kentucky on

December 8, 1997, denying Petitioner's

motion to vacate his conviction and

sentence pursuant to 28 U.S.C. § 2255.

Petitioner was convicted of conspiracy

to unlawfully manufacture

methamphetamine, possession with intent

to manufacture, distribute and dispense

approximately 150 gallons of

phenylacetone, and possession with

intent to distribute approximately 14

pounds of methamphetamine.

Petitioner appealed his conviction

to this Court, which affirmed the

judgment of the district court. See

United States v. Blakeney, 9[{[4)2 F.2d

1001 (6th Cir. 1991). After his

conviction was upheld, Petitioner filed

a 28 U.S.C. § 2255 motion to vacate or

set aside his sentence, claiming that

new evidence had been discovered.

According to Petitioner, the affidavit

for the search warrant that resulted in

the search of his apartment contained an

intentionally false statement and

therefore all [p. 2] evidence from this

search must be suppressed. The district

court denied his motion and Petitioner

now appeals that decision.

App. 3

On March 12, 1986, a federal grand

jury returned an indictment charging

Petitioner and Herbert Spencer with

conspiracy to manufacture, possess and

distribute methamphetamine, in violation

of 21 U.S.C. §§ 846, 841(a)(1) and 18

U.S.C. § 2. Spencer was tried in the

Eastern District of Kentucky, convicted

on all counts, and sentenced to 27 years

imprisonment, while Petitioner absconded

and remained a fugitive at the time of

Spencer's trial. See United States v.

Spencer, 1988 WL 10698 (6th Cir. Feb.

11, 1988).

In August 1989, federal law

enforcement agents were investigating

the whereabouts of Curtis Anderson, John

Johnson, and Petitioner in connection

with an armed robbery of Bake's Jewelry

Store in Green Bay, Wisconsin. All three

were identified and placed under

surveillance in Boca Raton, Florida.

In the course of the surveillance,

on August 18, 1989, FBI Special Agent

Alan Sadowski observed Curtis Anderson

leave an apartment and drive away ina

Cadillac. Agent Sadowski followed

Anderson to a shopping district, where

he saw him get out of the car, open the

trunk, and retrieve a large plastic

garbage bag from the trunk. Anderson

then went behind a building called Fifth

Avenue Shops and reappeared a few

minutes later without the bag. Agent

Sadowski immediately went behind the

és

“

App. 4

Fifth Avenue Shops and saw several

garbage dumpsters. He looked into the

nearest dumpster, saw a large plastic

bag that appeared to be identical to the

one he had seen Anderson Carrying, and

retrieved it. The plastic bag was the

only one in the dumpster and was found

to contain jewelry tags (including one

with the name of Bake's Jewelry Store)

and jewelry that matched the [p. 3]

inventory of the stolen items. Anderson,

Johnson, and Petitioner were al]

arrested on outstanding fugitive

Warrants the next day, August 19, 1989.

Evidence recovered at the time of the

arrest from Petitioner's car and from

John Johnson and his wife included items

matching descriptions of the stolen

jewelry.

Immediately after the arrests,

Agent Sadowski appeared before a United

States magistrate judge and swore to an

affidavit in support of a warrant to

search Johnson's hotel room. The

affidavit contained the following

statement:

ANDERSON was observed taking a

large plastic bag from the trunk

of the Cadillac and placing that

bag in a garbage dumpster behind

FIFTH AVENUE SHOPS.

On the basis of that affidavit,

agents searched Johnson's hotel room.

That search yielded more stolen jewelry

as well as documents linking Johnson and

App. 5

Anderson to Petitioner at his Boca Raton

address. The agents then returned to the

magistrate with a second affidavit

recounting the new evidence seized

during the search of the hotel room,

incorporating the first affidavit, and

seeking permission to search

Petitioner's residence for further

evidence of the jewelry store robbery.

In addition to incorporating all of the

statements contained in his first

affidavit, Sadowski's second affidavit

stated that:

Based upon the affiant's

experience, the items found in the

hotel room registered to Anderson,

and the Gucci watch found in the

trunk of Blakeney's vehicle, your

affiant has good reason to believe

that {evidence of the robbery}

will be at [Blakeney's residence}.

Based on the information contained

in the two affidavits, the magistrate

judge found that there was probable

cause to search Petitioner's residence

and issued a warrant authorizing the

search. The search of Petitioner's

apartment yielded, among other things, a

recipe for methamphetamine manufacture,

chemical equipment for methamphetamine

production, and a lease for property in

{[p. 4] Pleasureville, Kentucky, where

agents had earlier found the remains of

a methamphetamine laboratory. See

Blakeney, 942 F.2d at 1008.

App. 6

Petitioner was returned to

Kentucky, and on September 6, 1989, he

and two co-defendants were indicted in

the Eastern District of Kentucky and

charged with (i) conspiracy to

manufacture, distribute and dispense

methamphetamine, in violation of 21

U.S.C. § 846; (ii) conspiracy to

4 manufacture, distribute and dispense

d approximately 150 gallons of

phenylacetone, in violation of 21 U.S.c.

'841(a)(1) and 18 U.S.C. § 2; and (iii)

possession with intent to distribute

$ approximately 14 pounds of

4 methamphetamine, in violation of 2]

2 U.S.C. § 841(a)(1) and 18 U.S.c. 52.

The case was tried before a jury

and Petitioner was found guilty on all

counts of the indictment. On May 8,

1990, the district court sentenced him

to 30 years imprisonment. This Court

affirmed Petitioner's conviction on

direct appeal in an opinion issued

August 23, 1991. See Blakeney, 942 F.2d

1001.

After his federal trial in

Kentucky, Petitioner and several co-

defendants, including Johnson and

Anderson, were tried in Florida on a

Criminal RICO charge. See United States

v. Johnson, et al., Case No. 93-180-CR-

: T-24(C) (M.D. Fla. 1995). During this

j trial, Agent Sadowski testified that,

contrary to the statement contained in

his August 19, 1989 affidavit, he had

not actually seen Anderson place the

App. 7

garbage bag in the dumpster behind the

Fifth Avenue Shops building. Rather,

Agent Sadowski testified, he had

observed Anderson carry the bag behind

the building, where he remained out of

view for a few minutes, and then return

empty-handed. Agent Sadowski further

testified that he immediately went

behind the building and retrieved the

only bag in the dumpster, and that the

bag appeared to be identical to the one

Anderson had been carrying moments

earlier. Based [p. 5] on Sadowski's

revised statement, Petitioner moved the

court for a Franks hearing, claiming

that the affidavit upon which the

magistrate had relied in issuing the

search warrant contained a known false

statement and therefore the fruits of

the search of his Boca Raton home should

be suppressed. The Florida district

court denied Petitioner's motion,

holding in effect that the evidentiary

record was sufficiently developed at

In Franks v. Delaware, 438 U.S.

154 (1978), the Supreme Court held that

where a defendant makes a substantial

preliminary showing that a false

statement knowingly and intentionally,

or with reckless disregard for the

truth, was included by an affiant in

search warrant affidavit, and if the

allegedly false statement is necessary

to the finding of probable cause, the

Fourth Amendment requires that a hearing

be held at defendant's request.

;

Pd i a oe

PEP ALL SE MB a ath je ead

aes Na ate ND

rosa att

;

App. 8

trial, and that no deliberate falsehood

tainted the warrant. Petitioner was

subsequently convicted on the RICO

charge in Florida, and he appealed to

the Eleventh Circuit Court of Appeals,

which upheld his conviction on August

21, 1997, in an unpublished table

decision. See United States v. Johnson,

124 F.3d 220 (11th Cir. 1997) (Table).

While his appeal to the Eleventh

Circuit was pending, Petitioner moved

the district court in the Eastern

District of Kentucky to vacate his

sentence pursuant to 28 U.S.C. § 2255,

Claiming that newly discovered evidence

had surfaced in his Florida trial.

Petitioner further claimed that Agent

Sadowski's testimony during the Florida

trial established that his August 19,

1989 affidavit, which ultimately led to

evidence used for his methamphetamine

convictions, was intentionally false.

Petitioner argued that Agent Sadowski's

false statement in the affidavit was

essential to the magistrate judge's

finding of probable cause for the search

and that, as a result, the search was

executed in violation of the Fourth

Amendment, requiring the fruits of the

search to be suppressed.

On April 8, 1997, United States

Magistrate Judge J.B. Johnson, Jr.

recommended that Petitioner's motion be

denied. The magistrate found that Agent

Sadowski's affidavit did not contain a

deliberate falsity; rather, the

App. 9

magistrate deemed the inaccuracy to be a

logical inference under the /[p. 6]

facts. The magistrate further found that

even if the challenged statement were

omitted from the affidavit, sufficient

facts still existed to support probable

cause sufficient for the issuance of the

search warrant. The magistrate thus

determined that Petitioner was not

entitled to a Franks hearing or any

other relief under § 2255.

Petitioner filed objections to the

magistrate's report, but the district

judge, after a de novo review of the

record, concurred with the result

recommended by the magistrate and issued

an order on December 8, 1997 adopting

the magistrate's report and

recommendation and denying Petitioner's

§ 2255 motion.

II.

In reviewing the denial of a 28

U.S.C. § 2255 petition, this Court

applies a de novo standard of review of

the legal issues and will uphold the

factual findings of the district court

unless they are "clearly erroneous."

Hilliard v. United States, 157 F.3d 444,

447 (6th Cir. 1998). Where no

evidentiary hearing is held, the

district court's denial of the motion

will be upheld where "the files and

records of the case conclusively

establish that the prisoner is entitled

to no relief." 28 U.S.C. § 2255; see

BAS NA REUTER A TOA Rel eC AC Nic OO CA SAAS ALORA. SY6TS

hay

BEE DIR Re Sit asi hols as

App. 10

also Baker v. United States, 781 F.2d

85, 92 (6th Cir. 1986).

Iit.

The government urges this Court to

reject Petitioner's argument on grounds

of issue preclusion since his Florida

conviction is now final. The government

argues that Petitioner is merely

attempting to relitigate an issue

already decided by the Middle District

Court of Florida and affirmed by the

Eleventh Circuit. We decline to do Te)

for several reasons. First, the Eleventh

Circuit affirmed Petitioner's entire

conviction without issuing an opinion,

giving no indication of the rationale

behind its decision. Second, the issue

before us is Closely connected to the

question of probable cause which [p. 7}

has already been considered by this

Court on direct appeal. Consequently, we

feel justice would best be served by

full consideration of Petitioner's claim

on its merits.

Iv.

Petitioner argues that the

Kentucky district court improperly

denied his § 2255 motion without the

benefit of a Franks hearing on his claim

that the false statement in Agent

Sadowski's affidavit required

Suppression of evidence used in

Petitioner's drug conviction. We

disagree. Under Franks, “a defendant is

App. 11

entitled to an evidentiary hearing on

the veracity of the statements of the

affiant in a warrant affidavit if and

only if (1) there is a substantial

preliminary showing that specified

portions of the affiant's averments are

deliberately or recklessly false and (2)

a finding of probable cause would not be

supported by the remaining content of

the affidavit when the allegedly false

material is set to one side." United

States v. Campbell, 878 F.2d 170, 171

(6th Cir. 1989).

We first consider whether Agent

Sadowski's statement to the effect that

he had observed Anderson place the

garbage bag in the dumpster behind the

Fifth Avenue Shops building constitutes

a substantial preliminary showing of

deliberate or reckless falsehood. The

Kentucky and Florida trial courts, in

examining this question, concluded that

Agent Sadowski's statement was neither

deliberately false nor made with a

reckless disregard for the truth but

rather was merely a "logical inference

under the facts." Agent Sadowski, on

cross-examination in the Florida trial,

admitted that he had seen Anderson carry

a bag behind a building, only to emerge

empty-handed a few minutes later. Agent

Sadowski testified that when he went

behind the building and looked in the

nearest dumpster, there was only one

plastic bag in the dumpster and that bag

appeared to be identical to the one he

had seen Anderson carrying. Agent

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App. 12

Sadowski further testified that although

there were other dumpsters behind the

Fifth Avenue Shops building, he did not

believe that Anderson would have had

[p. 8] time to walk all the way down to

the other dumpsters and back during the

few minutes he was out of view, and so

he looked in the dumpster closest to

where had last seen Anderson. It is

apparent that Sadowski logically and in

good faith concluded that Anderson had

placed the bag in the dumpster, even

though he did not actually see him do

So. And while hindsight tells us that

Agent Sadowski's inference was

undoubtedly the correct one, the

question before us is whether his

statement that he had actually observed

Anderson place the bag in the dumpster

is enough for a substantial preliminary

Showing of deliberate or reckless

falsehood. Our review of Agent

Sadowski's testimony and the relevant

case law lead us to conclude that it was

not. Agent Sadowski was cross-examined

extensively about his misstatement by

defense counsel in the Florida trial. He

admitted that he had made an assumption

based on facts he knew to be true. There

is no indication that Agent Sadowski's

Statement was anything other than a

permissible and logical inference, and

Petitioner has presented no evidence

which would establish that Agent

Sadowski made a false statement

knowingly or recklessly, as required by

Franks. In United States v. Ayen, 997

F.2d 1150, 1153 (6th Cir. 1993), this

App. 13

Court held that although an intentional

or recklessly made false statement must

be stricken from the affidavit, a

defendant cannot succeed in his

challenge to the search warrant by

demonstrating non-material negligence,

carelessness, or innocent mistakes.

Given the circumstances, we are

convinced that Agent Sadowski's

statement, while not technically

accurate, does not rise to the level of

a deliberate or reckless falsehood.

Regardless of the outcome on the

first prong of the Franks analysis,

however, the second prong must certainly

prove fatal to Petitioner's challenge.

It is plain that even if Agent

Sadowski's misstatement were in fact

proven to be deliberate or reckless, the

district court properly denied a Franks

hearing because the statement in

question was not essential to a finding

of probable cause. /[p. 9) "“[{I)f, when

material that is the subject of the

alleged falsity or reckless disregard is

set to one side, there remains

sufficient content in the affidavit to

support a finding of probable cause, no

hearing is required." Franks, 438 U.S.

at 171-72. Thus, our inquiry ceases

where, as here, there remains sufficient

evidence to support a finding of

probable cause even if the challenged

statement is excluded. See Mays v. City

of Dayton, 134 F.3d 809, 815 (6th Cir.

1998).

There were two affidavits

——

App. 14

Submitted in support of the Warrant to

search Petitioner's apartment. The

second affidavit incorporated the first

and read together, the affidavits set

forth the following information:

‘

(1) A burgundy Cadillac had been

linked to the jewelry store

robbery, and Petitioner had a

burgundy Cadillac registered under

an alias;

(2) Items fitting the description

of items stolen from the jewelry

Store were found in Petitioner's

Cadillac;

(3) Petitioner, Anderson, and

Johnson were al] using aliases;

(4) A silver Cadillac, driven by

Johnson, was also registered to

Petitioner's alias;

as Or Sam o. 2

(5) The plastic garbage bag

Anderson was observed carrying

behind the Fifth Avenue Shops was

found to contain jewelry store

price tags, several pieces of

jewelry, and other evidence from

the robbery of the Green Bay

jewelry store; and

(6) When Petitioner, Anderson, and

Johnson were arrested on

outstanding arrest warrants,

Johnson's wife was in possession

ofS 15,680 in cash and a ring

EEE

App. 15

which matched the description of a

ring taken in the Green Bay

robbery.

In light of the above listed

factors, it is plain to us that even if

Agent Sadowski's challenged statement

were omitted, there would still be

sufficient evidence to establish

probable cause to search Petitioner's

apartment for evidence connected to the

jewelry store robbery. This Court has

defined probable cause as “reasonable

grounds for belief, supported by less

than prima facie proof but more than

mere suspicion." United States v. Smith,

182 F.3d 473, 477 (6th Cir. 1999)

(citation and internal /[p. 10]

quotation omitted). We are convinced

that, under the totality of the

circumstances, the unchallenged

information in the affidavits was more

than sufficient to provide reasonable

grounds for belief that Petitioner may

have been in possession of additional

stolen items. See Illinois v. Gates, 462

U.S. 213, 238 (1983) (directing courts

to adopt a practical, common-sense

approach in determining whether, under

the totality of the circumstances, there

is a fair probability that contraband or

evidence of a crime will be found in a

particular place). We therefore find

Petitioner's claim that Agent Sadowski's

challenged statement was essential to a

finding of probable cause to be without

merit. The district court properly

denied Petitioner's § 2255 motion

App. 16

without the benefit of a Franks hearing.

Petitioner has failed to Show that Agent

Sadowski's misstatement was deliberately

Or recklessly false. Moreover, even if

Agent Sadowski's statement that he had

observed Anderson placing the garbage

bag in the dumpster were proven to be

deliberately or recklessly false, the

district court Properly held that this

Statement was not material to the

probable cause determination.

For the reasons set forth above,

the Order of Judge Jennifer B. Coffman

of the United States District Court for

the Eastern District of Kentucky is

hereby AFFIRMED.

App. 17

APPENDIX B

No. 98-5021

FILED

Dec 01 1999

LEONARD GREEN, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROY C. BLAKENEY,

Petitioner-Appellant,

UNITED STATES OF AMERICA,

ee ee eee ee eee

Respondent-Appellee.

BEFORE: KEITH, BOGGS and CLAY,

Circuit Judges.

The court having received a

petition for rehearing en banc, and the

petition having been circulated not only

to the original panel members but also

App. 18

to all other active’ judges of this

court, and no judge of this court having

requested a vote on the Suggestion for

rehearing en banc, the petition for

rehearing has been referred to the

Original panel.

The panel has further reviewed the

petition for rehearing and concludes

that the issues raised in the petition

were fully considered upon the original

Submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

Signed:

Leonard Green, Clerk

Judge Siler recused himself from

participation in this ruling.

App. 19

APPENDIX C

Eastern District of Kentucky

FILED

APR 8 1997

AT LONDON

LESLIE G. WHITMER

CLERK, U.S. DISTRICT COURT

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LONDON DIVISION

CRIMINAL CASE NO. 86-6-5-1

MOTION TO VACATE FILED AS:

CIVIL CASE NO. 96-316

UNITED STATES OF AMERICA

PLAINTIFF

Vs. REPORT AND RECOMMENDATION

ROY C. BLAKENEY

DEFENDANT

om kkkkKKK

This matter is before the Court

upon the "Motion to Vacate, Set Aside,

or Correct Sentence" (DE#473) pursuant

to 28 U.S.C. §2255 by the petitioner,

Roy C. Blakeney. Petitioner is

represented by counsel. This matter was

referred to the undersigned Magistrate

Judge for initial consideration and a

report and recommendation pursuant to 28

U.S.C. §636(b). The undersigned

Sam tate tie Paci Ty

App. 20

Magistrate Judge having considered the

Motion and Memorandum in Support

(DE#473, 474), Response (DE#479), and

Reply (DE#485), and being fully advised,

recommends as follows:

FACTS AND PROCEDURAL HISTORY

On March 12, 1986, a federal

indictment was returned against

petitioner and Herbert B. Spencer,

charging them with violation of 18

U.S.C. §846, 18 U.S.c. §841(a)(1), and

18 U.S.C. §2, including conspiracy to

unlawfully manufacture methamphetamine

in connection with a methamphetamine

laboratory in Kentucky. Petitioner was a

fugitive while the trial of co-defendant

Spencer proceeded in the United States

District Court for the Eastern District

of Kentucky. The jury found Spencer

guilty on all counts.

On August 18, 1989, FBI Agent Alan

Sadowski was surveilling curtis Anderson

in Florida as part of an investigation

regarding the suspected [P- 2]

involvement of Roy C. Blakeney, Curtis

Anderson, and John Robert Johnson in the

burglary of Bake's Jewelry Store in

Green Bay, Wisconsin. All three

individuals were using "alias" names and

were fugitives under indictment for

other crimes. Respondent states that FBI

agents had also conducted a search of a

Florida warehouse used by petitioner,

and discovered semiautomatic weapons

wrapped in ski masks, lock picks, bank

bags and police call radio frequency

App. 21

books.

Subsequent to the surveillance of

Anderson, two affidavits were provided

to the Magistrate Judge in Florida for

the purpose of obtaining a search

warrant to search the petitioner's

Florida residence. The earlier affidavit

on August 19, 1989 was the basis for a

search of room #1023 of the Marriot

Hotel located in Boca Raton, Florida.

Petitioner was also arrested on August

19, 1989. The later affidavit was

attached to the earlier affidavit and

listed additional information such as

evidence found in the hotel room search

and in the trunk of petitioner’s car

upon his arrest. The Magistrate Judge

found sufficient probable cause and

issued the search warrant.

During the search of the

petitioner’s residence, police found

chemical equipment for methamphetamine

production, a lease for Kentucky real

estate where agents had previously found

the remains of a methamphetamine

laboratory, as well as a book, recipe,

and other written information concerned

with methamphetamine production. Items

discovered in the search of petitioner's

Florida residence were used as evidence

in the subsequent federal trial in

Kentucky.

On September 6, 1989, a

superceding [sic.] indictment was

returned in the Eastern District of

Kentucky charging petitioner and two co-

defendants each with one count of

conspiracy to manufacture, distribute,

App. 22

and dispense methamphetamine, in

violation of 21 U.S.C. §846, one count

of possession with intent to

manufacture, distribute, and dispense

approximately 150 gallons of

phenylacetone, in violation of 21 U.S.c.

§841(a) (1), and one count of possession

with intent to distribute approximately

fourteen pounds of methamphetamine, in

violation of 21 U.S.c. §841(a)(1) and 18

U.S.C. §2. Petitioner pleaded not guilty

and received a jury trial. Petitioner

did not testify at his trial.

Petitioner was convicted on all

three counts in the United States

District Court for the Eastern District

of Kentucky for violation of 21 U.S.c.

§846, 21 U.S.C. §841, and 18 U.S.C. §2.

The trial court sentenced petitioner on

May 8, 1990 to fifteen years

imprisonment on each count, with Counts

Two and Three concurrent with each other

and consecutive to Count One, fora

total of thirty years [p. 3]

imprisonment. Petitioner's co-

defendants were also convicted.

On direct appeal, the Sixth

Circuit Court of Appeals affirmed the

convictions and sentences on August 23,

1991. Petitioner's petition for writ of

certiorari to the United States Supreme

Court was denied on January 13, 1992.

See United States v. Blakeney, 942 F.2d

1001 (6th Cir. 1991), cert. denied, 502

U.S. 1035 (1992).

Subsequent to his federal trial in

Kentucky, petitioner and numerous co-

defendants were convicted and sentenced

App. 23

on May 10, 1995 in the United States

District Court for the Middle District

of Florida for offenses such as RICO

violation, conspiracy to commit RICO -

violation, and conspiracy under the

Hobbs Act. See United States v. Johnson

et al., Case No. 93-180-CR-T-24(C). The

petitioner's federal conviction in the

previous Kentucky case provided a

predicate act for the petitioner's

federal conviction in the Florida case.

During the Florida trial, FBI

Agent Sadowski testified on January 10,

1995 regarding his surveillance of

Curtis Anderson in Florida and his

affidavit thereto. Id., TR. p. 10. See

also DE#473, Petition with attached

"Excerpt of Transcript of Testimony".

The record indicates that on August 18,

1989, Agent Sadowski was surveilling

Curtis Anderson in Florida and observed

him exit Apt.# 107, 5151 West Club

Circle, Boca Raton, and enter a

Cadillac. Agent Sadowski then followed

Anderson to a strip mall, "Fifth Avenue

Shops", where he observed Anderson get

out of the Cadillac, open its trunk, and

remove a large plastic bag.

The following fact provides the

basis for petitioner's argument in his

present motion under §2255: Agent

Sadowski then testified that he had

observed Anderson carry the bag and walk

behind the shops, out of Agent

Sadowski’s view, for several minutes and

then return without the bag. Agent

Sadowski further testified that he

immediately went to the back of the

App. 24

store where a dumpster was located and

retrieved the only bag in the dumpster.

The agent testified that it appeared to

be identical to the bag carried by

Anderson moments earlier and that the

dumpster was the only dumpster in the

immediate vicinity that Anderson could

have reached in that time interval. See

TR. p. 10. The bag contained evidence of

the jewelry store robbery.

In his earlier affidavit on August

19, 1989, Agent Sadowski had stated that

"Ande~son was observed taking a large

plastic bag from the trunk of the

Cadillac and placing that bag in a

garbage dumpster behind the FIFTH AVENUE

SHOPS." This is the only alleged

discrepancy between the affidavit and

the testimony in Florida on January 10,

1995.

Subsequent to the agent's

testimony in Florida, petitioner,

through his [p. 4] counsel, requested a

hearing under Franks v. Delaware, 438

U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2a 667

(1978) in order to suppress the fruits

of the search of the petitioner's

Florida residence. On November 17, 1995,

the United States District Court in

Florida denied the motion. See United

States v. Johnson et al., supra, TR.

Vol.VIII, p.114-116.

Petitioner’s appeal of his federal

conviction in Florida was pending before

the 11th Circuit Court of Appeals, Case

No. 95-2626, at the time the present

petition was filed. Petitioner also

recently indicated in his reply brief,

App. 25

filed March 19, 1997, that this appeal

was still pending. Research to date does

not reveal a decision by the Eleventh

Circuit Court of Appeals. The

petitioner’s motion to hold the

appellate decision "in abeyance",

pending disposition of the present §2255

motion, was denied in Florida.

Petitioner is currently in federal

custody at F.C.I. in Miami, Florida.

CONCLUSIONS OF LAW

A. Applicability of Amended §2255

The present §2255 motion to

vacate, set aside, or correct was filed

on August 9, 1996 subsequent to the

passage on April 24, 1996 of the

"Antiterrorism and Effective Death

Penalty Act of 1996" (hereinafter

"AEDPA") which contained significant

amendments to 28 U.S.C. §2255. This

Court notes that because the amended

statute was only recently enacted, there

are no Sixth Circuit Cour. of Appeals

opinions regarding the applicability and

possible retroactive effect of the new

one-year limit on filing petitions in

non-capital cases. But see Lyons v. Ohio

Adult Parole, 105 F.3d 1063 (6th Cir.

1997) (for discussion of retroactivity

with regard to other provisions of the

AEDPA) .

Other courts have reached

differing conclusions on related issues.

See Boria v Keane, 90 F.3d 36 (2d Cir.

1996), petition for cert. filed, 65 USLW

App. 26

3342 (Oct. 11, 1996) (No. 96-628); Lindh

v. Murphy, 96 F.3d 856, 86 1-77 (7th

Cir. 1996) (en banc), cert. granted in

part, i127 8.ct,. 726, 65 USLW 3483, 65

USLW 3487 (Jan. 10, 1997) (No. 96-6298);

Thye v. United States, 96 F.3d 635, 636-

37 (2d Cir.1996) (per curiam). See also

United States ex rel. Austin v. Gilmore,

1996 WL 243047 (N.D. Ill. May 9, 1996)

(unpublished) (declining to apply

provisions of the amended statute absent

guidance from the Court of Appeals or

Supreme Court).

If applicable in this instance,

new provisions of the AEDPA may require

dismissal of this petition because such

petition exceeds the new one-year period

of [p. 5] limitations. Under the prior

version of §2255, the statute provided

that "A motion for such relief may be

made at any time." This language has now

been replaced with the following

language:

"A l-year period of limitations

Shall apply to a motion under this

section. The limitation period

Shall run from the latest of--

(1) the date on which the judgment

of conviction becomes final;

(2) the date on which the

impediment to making a motion

created by governmental action in

violation of the Constitution or

laws of the United States is

removed, if the movant was

prevented from making a motion by

Such governmental action;

App. 27

(3) the date on which the right

asserted was initially recognized

by the Supreme Court, if that

right has been newly recognized by

the Supreme Court and made

retroactively applicable to cases

on collateral review; or

(4) the date on which the facts

supporting the claim or claims

presented could have been

discovered through the exercise of

due diligence." AEDPA, amended

§2255.

The above subsections (1) and (4) would

apply to petitioner’s present motion.

With regard to subsection (1),

petitioner's federal conviction in

Kentucky was "final" for purposes of the

AEDPA time limitation in 1992 when the

United States Supreme Court denied

petitioner's petition for writ of

certiorari. The respondent points out in

a footnote that the petitioner’s §2255

motion is clearly outside the time limit

under subsection (1), but also notes

that that the United States Department

of Justice ("DOJ") has taken the

position that if a conviction became

final before April 24, 1996, the DOJ

will not attempt to enforce subsection

(1) of the AEDPA’s time limit provisions

until one year after the AEDPA was

passed, i.e. April 24, 1997.

While petitioner’s conviction in

the United States District Court (M.D.

Fla., Tampa Division) is not considered

final because it is currently being

App. 28

appealed to the 11th Circuit Court of

Appeals, Case No. 95-2626, the date of

finality for the Florida conviction

would not provide a basis for the

“latest date" under Subsection (1) of

the AEDPA with regard to the present

§2255 motion, as this motion properly

concerns only the petitioner’s federal

conviction and sentence in Kentucky.

With regard to Subsection (4) of

the habeas statute, the present motion

is [p. 6] arguably based on "newly

discovered evidence", Specifically,

testimony given by an FBI agent in the

petitioner's trial in the United States

District Court for the Middle District

of Florida on January 10, 1995. Thus,

Such date would be the "latest date" for

purposes of determining the one-year

period of limitations under subsection

(4). The present motion was filed on

August 9, 1996, which is well over one

year beyond the date of the new

testimony which provides the basis for

the present motion. Petitioner certainly

"discovered" the facts Supporting his

Claim on January 10, 1995,

The application of Subsection (4)

of the time limit Provisions of the

AEDPA has not been briefed by either

party in this case. Rather than deciding

the issue on an unbriefed record, this

court will instead hola only that, if

applied to this petition, the time limit

amendments to the Act would bar this

petition. As the newly amended statute

does not Specify an effective date for

non-capital cases and in light of the

App. 29

fact that no Sixth Circuit Court of

Appeals case has yet decided the

retroactivity issue with regard to the

new one-year limitation provision of the

AEDPA, this Court in this instance

declines to apply the one-year statute

of limitations against this petitioner.

As this petition can be dismissed on

other grounds, those other grounds will

be set forth in the following analysis.

B. Procedural Analysis

Subsequent to Agent Sadowski’s

testimony in the Florida case,

petitioner requested a hearing under

Franks v. Delaware, 438 U.S. 154, 98

S.Ct. 2674, 57 L.Ed.2da 667 (1978) in the

United States District Court for the

Middle District of Florida. The Court

denied the request. An appeal of

petitioner’s conviction in that court is

presently pending before the Eleventh

Circuit Court of Appeals, although the

record before this Court does not ~

indicate what issues were raised in that

appeal. Petitioner subsequently filed a

motion under §2255 in this Court, with

jurisdiction based on petitioner's

earlier conviction in the United States

District Court for the Eastern District

of Kentucky.

Thus, this Court is presented with

a situation in which a federal court

from another circuit, conducting a

separate criminal trial involving

related charges (i.e. linked by a

predicate act) against the same

App. 30

petitioner with the same counsel, has

denied the petitioner's trial motion for

a Franks hearing, and the conviction in

that trial is presently being appealed.

The procedural waters are further

muddied because petitioner now attacks a

different conviction in the present

§2255 motion, making a second request

for a Franks hearing on the same factual

and legal basis [p. 7] as the previous

request (i.e. the new testimony arising

in the Florida case regarding the

surveillance and affidavit). It is not

the province of this Court to review the

findings of the United States District

Court in Florida, and this Court

questions whether it may independently

consider the Florida testimony as

grounds for this §2255 motion when the

Same underlying argument has already

been rejected by a federal court in

another circuit.

While this Court, as the

sentencing court in the present case,

certainly has jurisdiction to consider a

collateral attack on the federal

Kentucky conviction, the respondent

argues that a second consideration of

this Franks issue is precluded by the

Florida court's decision and cites

Montana v. United States, 440 U.S. 147,

99 S.Ct. 970, 59 L.Ed.2a 210 (1979) in

Support. Petitioner argues that

"preclusion" is not appropriate because

the appeal to the Eleventh Circuit Court

Of Appeals has not yet been decided, and

thus, the decision is not truly "final".

Assuming that the Florida court’s denial

App. 31

of the motion for the Franks hearing is

one of the petitioner’s grounds for

appeal, the undesirable possibility of

differing results in two different

circuits regarding the same evidence,

legal issue, and defendant could arise

if this petition is reviewed on its

merits.

In addition to the argument that

the Florida Court’s decision to deny a

Franks hearing is not final, petitioner

also raises the argument that the

statements made by the Florida court

have not “necessarily decided the

matters that have to be determined in

this [(Ky.] case -- that is, whether the

inaccurate statements were made

purposefully or with reckless disregard

for the truth, and whether the

inaccurate statements were essential to

the determination of probable cause."

DE#485, Petitioner's Reply, p.9.

Contrary to petitioner’s argument

that these issues were not resolved, the

record shows that the federal court in

Florida denied the petitioner’s motion

for a Franks hearing for two reasons: 1)

the allegedly false statement was not

made with deliberate or reckless

disregard for the truth, and 2) even

without the challenged statement, the

information was sufficient to support a

finding of probable cause. The Honorable

Susan Bucklew, United States District

Court Judge, stated: "I not even

prepared to say that it was made with

reckless disregard for the truth. He

[FBI Agent Sadowski} made an assumption.

App. 32

However, if I move on and take the

evidence as he testified to what he

actually saw....I think this is

sufficient probable cause in the

affidavit for the Magistrate Judge in

this case to Sign....the search warrant

and find there was probable cause to

search." United States v. Johnson. et

al., supra, T.R. pp.114-115.

Agent Sadowski candidly admitted

at trial that the discrepancy at issue

was [p. 8] based on an assumption on his

part. Regardless of any holding in

regard to the inaccuracy in the

affidavit, the record shows that the

trial court in Florida determined that

the petitioner was also not entitled to

a hearing because probable cause existed

even without the challenged statement.

See e.g. United States y. Barone, 584

F.2d 118 (6th Cir. 1978), cert. denied,

439 U.S. 1115 (1979) (warrant will be

voided only if the false statement is

necessary to establish probable cause).

C. Franks Analysis

Even assuming, without holding,

that this Court may at this time

consider the second request for a Franks

hearing and that this §2255 motion is

not an impermissable substitute for an

appeal, the petitioner is not entitled

to relief under the issue presented in

this §2255 motion.

In the direct appeal of his

Kentucky federal conviction, the

petitioner attacked the Magistrate's

App. 33

finding of probable cause to issue the

search warrant. A Magistrate’s finding

of probable cause is entitled to great

deference. See United States v. Pelham,

801 F.2d 875, 877 (6th Cir. 1986), cert.

denied, 479 U.S. 1092 (1987). In the

present case, the Sixth Circuit Court of

Appeals held that the Magistrate

properly found probable cause to issue

the search warrant for the purpose of

searching the petitioner’s home for

evidence of a jewelry store robbery.

United States v. Blakeney, 942 F.2d 1001

(6th Cir. 1991).

The Sixth Circuit upheld the

finding of "probable cause" based on

numerous facts set forth in the two

affidavits, including: 1) that a

burgundy Cadillac was linked to the

robbery and that petitioner had a

burgundy Cadillac registered under an

"alias", 2) that items fitting the

description of the stolen items were

found in the petitioner’s Cadillac, 3)

evidence linked to the robbery and a

catalog mailed to the petitioner's alias

were found in the hotel room of

defendant's associates, 4) Curtis

Anderson had frequented the petitioner's

residence, and 5) Curtis Anderson had

been observed disposing of evidence of

the jewelry store robbery in a trash

dumpster. The Sixth Circuit Court of

Appeals found that both affidavits were

relied upon to find probable cause.

A reading of the August 19, 1989

affidavit shows that it was extensive

and highly detailed. See DE#473,

App. 34

Affidavits attached to "Insert". The

subsequent affidavit, attached to the

earlier affidavit, provided numerous

additional details, including 1)

information regarding the alias used by

petitioner for his car registration and

for utilities at his Florida residence,

2) items found in the prior search of

the hotel room, ie. cocaine, drug

paraphernalia, a mail item addressed to

[P. 9] petitioner, and a Gucci watch in

its original box, 3) items found in the

trunk of petitioner's car upon

petitioner's arrest, i.e. another Gucci

watch in its original box, and so forth.

When an issue has been determined

and rejected on direct appeal, such

issue will not generally be reexamined

in a motion under §2255. See Stephan v.

United States, 496 F.2d 527 (6th Cir.),

cert. denied, 423 U.S. 861 (1975) (issues

in post-conviction §2255 motion that

were raised previously raised on direct

appeal were subject to dismissal as

prior adjudicated Claims). A §2255

motion may not be used to relitigate an

issue that was raised and considered on

direct appeal absent highly unusual

circumstances. See United States v.

Prichard, 875 F.2a 789-9 1 (10th Cir.

1989) (per curiam).

Petitioner, however, brings this

§2255 motion based on new testimony and

asserts that the Sixth Circuit court of

Appeals decision in the present case was

based on an affidavit now shown to

contain a material false statement.

Petitioner again seeks to challenge the

App. 35

validity of the search warrant for his

residence, and alleges that, absent the

false statement, probable cause for the

search was not established. Presumably,

petitioner seeks to invalidate the

search warrant, suppress evidence, and

obtain an order vacating the

petitioner's conviction. Petitioner also

assails the respondent's discussion of

the legal standard for newly-discovered

evidence and negates any question that

petitioner might be asking for a new

trial. See DE#485, Reply, p. 10.

Petitioner states:

"Newly discovered evidence, that

surfaced in defendant’s [sic]

affidavit for search warrant,

fruits of which were used in the

Kentucky trial, was intentionally

false, and that false information

was essential to finding of

probable cause. Therefore,

evidence obtained in violation of

4th Amendment was used against

defendant in the case under attack

in this Motion. The tainted

Warrant spawned all subsequent

evidence against defendant

Blakeney used in Kentucky trial."

(DE#473, Petition, p.5)

Assuming arguendo that the merits

of the present motion under §2255 may be

considered, petitioner has not

demonstrated that he is entitled to a

Franks hearing before this Court. The

Supreme Court held in Franks v.

App. 36

Delaware, 438 U.S. 154, 98 8.Ct. 2674,

57 L.Ed.2d 667 (1978) that where a

petitioner makes a substantial

preliminary Showing of falsity, "and if

the allegedly false statement is

necessary to the finding of probable

cause, the Fourth Amendment requires

that a hearing be held at the

defendant's request." Id. at 455, 156.