Challenges to Fourth Amendment in Post-Conviction: Stone Bar & Collateral Review, Exams of Federal Courts

Download Challenges to Fourth Amendment in Post-Conviction: Stone Bar & Collateral Review and more Exams Federal Courts in PDF only on Docsity! No. 14-1337 In the Supreme Court of the United States JESUS MANUEL DIAZ, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION DONALD B. VERRILLI, JR. Solicitor General Counsel of Record LESLIE R. CALDWELL Assistant Attorney General DAVID M. LIEBERMAN Attorney Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217 (I) QUESTION PRESENTED Whether, under Stone v. Powell, 428 U.S. 465 (1976), a prisoner may challenge his federal conviction in post-conviction proceedings under 28 U.S.C. 2255 on the ground that evidence obtained in violation of the Fourth Amendment was introduced against him at trial. (1) In the Supreme Court of the United States No. 14-1337 JESUS MANUEL DIAZ, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The order of the court of appeals denying a certifi- cate of appealability (Pet. App. 1a-5a) is not published in the Federal Reporter but is reprinted at 598 Fed. Appx. 591. The order of the district court (Pet. App. 6-23) is unreported. A prior opinion of the court of appeals is not published in the Federal Reporter but is reprinted at 356 Fed. Appx. 117. JURISDICTION The judgment of the court of appeals was entered on February 4, 2015. The petition for a writ of certio- rari was filed on May 5, 2015. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the District of New Mexico, petitioner was 2 convicted of possession with intent to distribute over 1000 kilograms of marijuana, in violation of 21 U.S.C. 841(b)(1)(A). He was sentenced to 121 months of imprisonment, to be followed by five years of super- vised release. Judgment 1-3. The court of appeals affirmed. 356 Fed. Appx. 117. Petitioner filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. 2255. The dis- trict court denied relief and declined to issue a certifi- cate of appealability (COA). Pet. App. 6a-25a. The court of appeals denied petitioner’s application for a COA and dismissed his appeal. Id. at 1-5. 1. Petitioner was the owner-operator of a trucking company. 356 Fed. Appx. at 119. He drove his tractor-trailer into New Mexico and stopped at a port of entry operated by the New Mexico Department of Public Safety to obtain the required trucking permits. Petitioner’s bill of lading and weight scale ticket piqued the attention of Officer James Smid. Ibid. The gross weight of petitioner’s tractor-trailer was 56,760 pounds, which was approximately 14,000 pounds heav- ier than it should have been based on the weight of the tractor-trailer and the cargo that petitioner was re- portedly hauling. Id. at 119-120. Officer Smid decid- ed to conduct a “Level Two Regulatory Inspection.” Id. at 120. New Mexico law authorizes officers to undertake that type of inspection, which includes an in-depth review of the driver’s paperwork and a physi- cal inspection of the vehicle, to ensure that a tractor- trailer complies with all state laws and regulations. Ibid. (citing N.M. Stat. Ann. § 65-5-1 (2011)). Officer Smid examined petitioner’s logbook, which showed that petitioner had been in California for two months—an unusually long stretch of down time for a 3 commercial trucker. 356 Fed. Appx. at 120. Petition- er told Officer Smid that he had been sick with the flu. Ibid. When Officer Smid inquired about the weight discrepancies, petitioner stated that the shipper might have placed additional merchandise into his trailer without listing it on the bill of lading. Ibid. Officer Smid found both explanations odd. Ibid. He also noted a change in petitioner’s demeanor; petitioner began “lowering his head, rubbing his lips with his hand, and scratching his neck.” Ibid. During the physical inspection of the tractor- trailer, Officer Smid observed a lock and seal on the trailer doors, which, in his experience, was peculiar given the type of cargo (dollar-store merchandise) purportedly being transported. 356 Fed. Appx. at 120. Inside the cab, Officer Smid saw four cell phones but no CB radio, a common tool for most commercial truckers. Ibid. In Officer Smid’s experience, individ- uals transporting contraband often use multiple cell phones. See ibid. When Officer Smid then inspected the cargo, he detected the strong smell of air freshen- er, which is often used by drug traffickers to conceal contraband. Id. at 121. Officer Smid also noticed clear differences in the pallets of boxes lining the trailer. Ibid. Large amounts of dust had collected on the boxes near the front, but the boxes at the rear were clean. Ibid. In Officer Smid’s experience, this variation was consistent with the use of a “cover load”—a group of boxes that remain in the trailer to give the cargo the appearance of legitimacy. Ibid. Upon completing his inspection, Officer Smid asked petitioner whether the trailer contained any cocaine, heroin, or methamphetamine. 356 Fed. Appx. at 121. Petitioner answered “no.” Ibid. Officer Smid also 6 tion and, therefore, was unconstitutional under the Fourth Amendment, tainting the subsequent search that uncovered the marijuana. Pet. App. 9a-10a, 38a- 40a. Petitioner argued that his trial counsel was con- stitutionally ineffective for failing to seek suppression on that basis. Id. at 10a-11a, 35a-38a. A magistrate judge recommended that the district court dismiss the motion. Pet. App. 26a-40a. The magistrate judge concluded that petitioner’s Fourth Amendment claim was not cognizable in proceedings under 28 U.S.C. 2255 because petitioner “had a full and fair opportunity to litigate the Fourth Amend- ment claim at trial and present issues on direct ap- peal.” Id. at 38a. The magistrate judge also recom- mended that the district court deny petitioner’s claim of ineffective assistance of counsel because, even if the initial Level Two inspection was an unconstitutional search, the evidence of petitioner’s drug trafficking was admissible in light of the district court’s alterna- tive ruling that petitioner had knowingly and volun- tarily consented to the search of the tractor-trailer. Id. at 35a-38a. “Because discovery of the marijuana arose from a valid consensual search,” the magistrate judge explained, “there is no reasonable probability that the evidence would have been suppressed had counsel argued that raising the level of the required safety inspection was a pretext.” Id. at 37a. The district court adopted the magistrate judge’s recommendation and dismissed the motion. Pet. App. 6a-22a. In denying petitioner’s claim of ineffective assistance of counsel, the district court pointed to its alternative holding in the trial-stage proceedings that “the validity of the search was premised on [petition- er’s] knowing and voluntary consent.” Id. at 12a. 7 Because “any irregularities in the [initial] inspection * * * were of no consequence to * * * whether the search uncovering the marijuana was supported by valid consent,” the district court held, “[petitioner] could not establish actual prejudice for trial counsel’s failure to bring those arguments.” Ibid. 5. The court of appeals denied petitioner’s request for a COA and dismissed his appeal. Pet. App. 1a-5a. The court held that petitioner’s Fourth Amendment claim was not cognizable in post-conviction proceed- ings under 28 U.S.C. 2255. Pet. App. 5a (citing Stone v. Powell, 428 U.S. 465, 494-495 (1976); and United States v. Lee Vang Lor, 706 F.3d 1252, 1257 (10th Cir.), cert. denied, 134 S. Ct. 679 (2013)). The court also held that the district court’s rejection of petition- er’s ineffective-assistance-of-counsel claim was “not reasonably debatable” because, regardless of coun- sel’s efforts to pursue the argument that the Level Two inspection was unconstitutional, Officer Smid obtained petitioner’s “knowing and voluntary consent to the [subsequent] search which uncovered the mari- juana.” Id. at 4a. ARGUMENT Petitioner argues that this Court should grant cer- tiorari to resolve (i) whether Stone v. Powell, 428 U.S. 465 (1976), restricts the ability of federal prisoners to raise Fourth Amendment claims in proceedings under 28 U.S.C. 2255 (Pet. 12-18); and (ii) if so, whether petitioner can circumvent the Stone bar on the ground that he lacked a full and fair opportunity to litigate his Fourth Amendment claim at his federal trial (Pet. 18- 24). Petitioner’s arguments lack merit. As this Court has explained, the Stone bar applies with full force in Section 2255 proceedings, see United States v. John- 8 son, 457 U.S. 537, 562 n.20 (1982), and petitioner has identified no legal support for his view that he was denied a full and fair opportunity to litigate a suppres- sion motion in his trial in federal court. Although an Eighth Circuit panel held in 2008 that Stone does not apply in Section 2255 proceedings, see Baranski v. United States, 515 F.3d 857, 859-860, cert. denied, 555 U.S. 1011 (2008), that holding was clearly incorrect. Because the prisoner lost on the merits in Baranski, that case did not present a suitable occasion for en banc rehearing. And in any event, the decision below, in rejecting petitioner’s ineffective-assistance-of- counsel claim, establishes that petitioner could not prevail on his Fourth Amendment claim even if it were cognizable on collateral review. Further review is therefore unwarranted. 1. The court of appeals correctly held that peti- tioner’s Fourth Amendment claim is not cognizable in a collateral-review proceeding under Section 2255. See Pet. App. 5a. a. In a series of decisions in the mid-Twentieth Century, this Court recognized that state prisoners could seek federal habeas relief under 28 U.S.C. 2254 for violations of federal constitutional rights in their trials. See, e.g., Fay v. Noia, 372 U.S. 391 (1963); Brown v. Allen, 344 U.S. 443 (1953); cf. Waley v. Johnson, 316 U.S. 101 (1942) (per curiam). In 1961, this Court held in Mapp v. Ohio, 367 U.S. 643, that the exclusionary rule must be applied by state courts in trials and on direct appeal to exclude the admission of evidence obtained in violation of the Fourth Amend- ment (as incorporated against the States by the Four- teenth Amendment). See id. at 655, 657. In the fol- lowing years, this Court entertained habeas petitions 11 Thus, as nearly every court of appeals to address the question has held (see p. 13, infra), “the underly- ing premise of Kaufman was overruled by Stone.” United States v. Cook, 997 F.2d 1312, 1317 (10th Cir. 1993). Kaufman’s holding rested expressly and exclu- sively on the view that state prisoners could invoke the exclusionary rule to challenge their convictions in federal habeas proceedings (and that no sound basis existed to deny federal prisoners the same opportuni- ty). See Kaufman, 394 U.S. at 221-227. Once the Court’s premise about the availability of habeas relief for state prisoners was overruled in Stone, the Kauf- man rule was invalidated as well. That is why Stone expressly noted that the stated rationale of Kaufman was “rejected.” 428 U.S. at 481 n.16. It is true that the same footnote in Stone left open the possibility that Kaufman’s outcome could be sepa- rately supported by the federal courts’ supervisory role over federal courts, citing a pre-Mapp decision invoking the Court’s supervisory authority as a basis for applying the exclusionary rule on direct appeal in a federal prosecution where evidence had been obtained by state officers in violation of the Fourth Amend- ment. See 428 U.S. at 481 n.16; see also Elkins, 364 U.S. at 216; but cf. Mapp, 367 U.S. at 649 (“There are in the cases of this Court some passing references to the [Weeks v. United States, 232 U.S. 383 (1914)] rule as being one of evidence. But the plain and unequivo- cal language of Weeks * * * to the effect that the Weeks rule is of constitutional origin[] remains entire- ly undisturbed.”). But Kaufman did not even discuss this Court’s supervisory power over federal courts, let alone hold that the supervisory power justifies apply- ing the exclusionary rule in Section 2255 proceedings. 12 The footnote in Stone merely declined to decide whether the supervisory power could supply a new basis to adopt Kaufman’s holding, in a case where that question was not presented. Stone unequivocally and expressly overruled the actual basis for Kaufman, and no decision of this Court since Stone has revived Kaufman’s holding on supervisory-power grounds. To the contrary, since Stone, this Court has re- solved any potential doubt about whether Fourth Amendment claims are cognizable under Section 2255. In United States v. Johnson, supra, the Court ex- plained that “[a]fter Stone * * * the only cases rais- ing Fourth Amendment challenges on collateral attack are those federal habeas corpus cases in which the State has failed to provide a state prisoner with an opportunity for full and fair litigation of his claim, analogous federal cases under 28 U.S.C. § 2255, and collateral challenges by state prisoners to their state convictions under postconviction relief statutes that continue to recognize Fourth Amendment claims.” 457 U.S. at 562 n.20 (emphases added). And more broadly, this Court has repeatedly confirmed that the grounds for relief under Sections 2254 and 2255 are generally equivalent (as the Court did in Kaufman itself, see 394 U.S. at 221-222). See Davis v. United States, 417 U.S. 333, 343 (1974) (“[Section] 2255 was intended to afford federal prisoners a remedy identi- cal in scope to federal habeas corpus.”); Danforth v. Minnesota, 552 U.S. 264, 281 n.16 (2008) (“[Section] 2255 was enacted as a functional equivalent for habeas corpus.”). Accordingly, the court of appeals correctly held that petitioner’s Fourth Amendment challenge was subject to the Stone bar—that is, that it could be 13 raised only if petitioner was denied a full and fair opportunity to raise his challenge in his original trial and on direct appeal. b. Petitioner contends (Pet. 12-18) that review is warranted to resolve a conflict over whether Stone applies in Section 2255 proceedings. Almost every court of appeals to consider the question over the nearly forty years since Stone has held that the Stone bar applies to federal prisoners challenging their convictions under Section 2255. See Ray v. United States, 721 F.3d 758, 761-762 (6th Cir. 2013); Brock v. United States, 573 F.3d 497, 500 (7th Cir.), cert. de- nied, 558 U.S. 1058 (2009); United States v. Ishmael, 343 F.3d 741, 742-743 (5th Cir. 2003), cert. denied, 540 U.S. 1204 (2004); Cook, 997 F.2d at 1317 (10th Cir.); United States v. Hearst, 638 F.2d 1190, 1196 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981); see also Unit- ed States v. Byers, 740 F.2d 1104, 1137 n.90 (D.C. Cir. 1984) (Robinson, J., concurring). Alone among courts of appeals, the Eighth Circuit, in its 2008 decision in Baranski, supra, held that Stone does not apply in Section 2255 proceedings. Id. at 859-860. * The Eighth Circuit’s short discussion relied on the view that Stone “did not overrule Kauf- man” and that “the supervisory power of federal ap- pellate courts over district courts is broader than its authority to review state court decisions under § 2254.” Id. at 859-860. For the reasons discussed * Petitioner incorrectly states (Pet. 12) that earlier decisions of the First and Second Circuits recognized a “split” of authority. The cited decisions merely declined to decide the question of Stone’s applicability to Section 2255 proceedings because it was unnecessary to the disposition of the cases. They did not identify any conflict of authority. 16 such process in the federal district court where he was tried. Like any federal defendant, he had the right to file a pretrial motion seeking the suppression of evi- dence due to a Fourth Amendment violation. See Fed. R. Crim. P. 12(b)(3)(C). Some courts of appeals have focused additionally on the adequacy of the procedures used in the particu- lar case to resolve the prisoner’s Fourth Amendment claim. See, e.g., Willett v. Lockhart, 37 F.3d 1265, 1273 (8th Cir. 1994) (en banc) (asking whether “the prisoner was foreclosed from using th[e] procedure because of an unconscionable breakdown in the sys- tem”), cert. denied, 514 U.S. 1052 (1995); Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978) (hold- ing that review is available “where the state court wilfully refuses to apply the correct and controlling constitutional standards”); but see Good, 729 F.3d at 639 (rejecting that approach). No dispute exists on the adequacy of the procedures employed by the dis- trict court here. Petitioner filed a pretrial motion to suppress raising other claims, the district court enter- tained each claim in his motion, and the court con- vened an evidentiary hearing to take evidence related to those claims. Petitioner has identified no colorable basis in his certiorari petition to conclude that he was denied a full and fair opportunity to litigate his Fourth Amendment claim, just like any defendant in federal court. Indeed, as petitioner acknowledges (Pet. 29), he did not even attempt to raise at trial or on direct appeal the pretextual-search Fourth Amendment claim that he now presses. Accordingly, even if petitioner had not forfeited his new argument that he was denied a full and fair op- portunity to litigate his Fourth Amendment claim, 17 review would not be warranted because his claim clearly lacks merit and is not supported by the deci- sion of any court of appeals. 3. This case is not a suitable vehicle for addressing whether and when Fourth Amendment claims are cognizable in Section 2255 proceedings. Even if the Court answered petitioner’s first ques- tion in his favor, it is clear from the court of appeals’ disposition of other aspects of petitioner’s appeal that other procedural hurdles would preclude review of his Fourth Amendment claim. As petitioner acknowledg- es (Pet. 4, 29), at trial and on direct appeal, petitioner did not contest the district court’s ruling that Officer Smid’s safety inspection qualified as a valid regulatory search under the Fourth Amendment. 356 Fed. Appx. at 123. As petitioner explains, his “pretextual admin- istrative search claim was not raised by trial counsel— and was in fact conceded in pre-trial pleadings.” Pet. 29. He raised the claim for the first time in his Sec- tion 2255 motion. When a prisoner fails to raise a claim at trial or on direct appeal, the claim is procedurally defaulted. A court generally may not consider a defaulted claim on collateral review unless the prisoner establishes both “cause” for the default and “prejudice” from the as- serted error. United States v. Frady, 456 U.S. 152, 167-168 (1982). Petitioner cannot meet that burden (and he does not contend otherwise in his petition). In particular, petitioner cannot establish that ineffective assistance of counsel was cause for his default, see Murray v. Carrier, 477 U.S. 478, 488 (1986), because the district court and the court of appeals have al- ready rejected his standalone ineffective-assistance 18 claim (see pp. 6-7, supra), and he has not sought certi- orari on that issue. Nor can petitioner invoke the “actual innocence” alternative to the cause-and-prejudice requirement. See Dretke v. Haley, 541 U.S. 386, 388 (2004). The court of appeals (on direct appeal) and the magistrate judge (on post-conviction review) cataloged the exten- sive trial evidence showing that petitioner knowingly transported the marijuana found inside his tractor- trailer. 356 Fed. Appx. at 124-125; Pet. App. 34a-35a. More broadly, even if petitioner could obtain re- view of his claim that Officer Smid’s Level Two in- spection of his tractor-trailer violated the Fourth Amendment, it would have no effect on the outcome of this case. Officer Smid’s subsequent search of the tractor-trailer—which led to discovery of the marijua- na—was independently justified on a separate ground. After Officer Smid concluded the initial inspection, he asked petitioner for consent to perform a more thor- ough search. Petitioner verbally agreed to the re- quest and signed a consent form. 356 Fed. Appx. at 121. Following an evidentiary hearing, the district court “expressly found that [petitioner’s] consent was knowingly and voluntarily given.” Pet. App. 13a. And the decision below affirmed that finding in the course of rejecting petitioner’s ineffective-assistance claim. See id. at 4a (“[Petitioner’s] claims—which essentially contend that counsel failed to adequately argue that the officers’ administrative safety inspection was a mere pretext for a criminal investigation—do not account for [petitioner’s] knowing and voluntary con- sent to the search which uncovered the marijuana.”). As a result, petitioner’s consent provides an inde- pendent legal basis for upholding the constitutionality