Unpublished Disposition, 908 F.2d 978 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 908 F.2d 978 (9th Cir. 1989)

No. 87-6735.

United States Court of Appeals, Ninth Circuit.

Before HUG and CANBY, Circuit Judges, and DAVID A. EZRA,*  District Judge.

MEMORANDUM** 

Defendant-appellant Dario DiCesare appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate or set aside his December 13, 1983 conviction for conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846, possession with intent to distribute cocaine in violation of 21 U.S.C. § 841, and conspiracy to cause the failure to file currency transaction reports in violation of 18 U.S.C. § 371. DiCesare makes numerous arguments, but his major contention is that he should be permitted to withdraw his guilty plea because he was denied effective assistance of counsel in violation of the Sixth Amendment.

We affirm.

JURISDICTION

We face a threshold jurisdictional question. DiCesare's section 2255 motion was denied by the district court on October 27, 1987. On October 30, 1987, DiCesare filed a motion for reconsideration. While this motion was still pending, DiCesare filed a notice of appeal on November 30, 1987. By order dated October 14, 1988, this court remanded this case to the district court for the limited purpose of allowing the district court to rule on DiCesare's motion for reconsideration.

If the motion for reconsideration is treated as a motion under Fed. R. Civ. P. 59, then the notice of appeal would be premature and of no effect. Rule 59 does not mention a motion for reconsideration as within its ambit. Some cases do treat a motion for reconsideration as a Rule 59 motion for purposes of tolling, thus, the ambiguity is treated as not foreclosing an appeal where the notice was filed after the order disposing of the motion. See Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415 (9th Cir. 1984). However, it would be harsh to treat a motion for reconsideration as a Rule 59 motion, even though the rule does not so specify, when the effect is to abrogate an appeal because the notice was filed while the motion was pending. The policy considerations are quite different when the ambiguity in the rule would foreclose the appellate opportunity rather than afford it. See United States v. Cortes, 895 F.2d 1245 (9th Cir.), cert. denied, 110 S. Ct. 2191 (1990) (discussing policy considerations in allowing appeal to go forward in a criminal appeal when the notice of appeal was premature.) Our October 14, 1988 order did not treat the motion as a Rule 59 motion, which would have foreclosed jurisdiction. We, in effect, treated it as a motion under Fed. R. Civ. P. 60(b).

The district court held a hearing on the motion on January 9, 1989, and filed an order granting the motion in part and denying it in part on January 25, 1989.1  This case has now returned to us from the limited remand and is before us on the basis of the original notice of appeal.

WITHDRAWAL OF GUILTY PLEA

DiCesare contends that, because he preserved the Ketch Apartment Suppression Motion for appeal in his Fed. R. Crim. P. 11(a) (2) conditional plea and because codefendant Marin was successful in raising that issue on appeal, he now should be deemed to have prevailed upon appeal. DiCesare thus maintains that he should be allowed to withdraw his plea under Rule 11, in spite of the fact that he failed to raise the issue on appeal.2 

We disagree. First, even if DiCesare complied with the first section of Rule 11(a) (2) providing that "a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion," he failed to comply with the requirement in the next portion of the rule. The second requirement of the rule is that the defendant prevails on appeal in order to be allowed to withdraw his guilty plea. The advisory note to Rule 11 clearly states that "the only avenue of review of the specified pretrial ruling permitted under a rule 11(a) (2) conditional plea is an appeal, which must be brought in compliance with Fed. R. App. P. 4(b). Relief via 28 U.S.C. § 2255 is not available for this purpose." Fed. R. Crim. P. 11(a) (2) advisory committee's note (1983 amendment) (emphasis in original).

DiCesare did not prevail on appeal of the suppression issue because he did not raise the issue on appeal, and he may not now challenge the pretrial ruling via 28 U.S.C. § 2255.

DiCesare argues that he should be permitted to collaterally attack his guilty plea because his failure to appeal was due to ineffective assistance of counsel. We address this issue next.

INEFFECTIVE COUNSEL

DiCesare contends that he was denied effective assistance of counsel, both at trial and on direct appeal of his conviction. DiCesare argues that: (1) both his trial and his appellate counsel should have argued that the conduct alleged in count 6, the conspiracy to fail to file currency transaction reports count, was not criminal; (2) appellate counsel should have challenged the district court's denial of his motion to suppress the fruits of the search of codefendant Marin's Ketch apartment; and (3) appellate counsel should have challenged the entry by law enforcement officers into an allegedly private parking area to subject codefendant Flannery's BMW automobile to a canine sniff.

To succeed on an ineffective assistance of counsel claim, DiCesare must show that he has met the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, DiCesare must show that his counsel's performance was deficient. That is, that counsel's performance fell below a standard of reasonableness defined as within the range of competence demanded of attorneys handling criminal cases. Id. at 687-88. Second, DiCesare must show that actual prejudice to the defense flowed from the deficient performance. That is, but for counsel's errors the result of the proceeding would have been different. Id. at 687, 691-92. We find that DiCesare does not meet the Strickland requirements.

With respect to DiCesare's first claim, Dicesare does not show that his trial counsel acted unreasonably in permitting him to enter a guilty plea to a conspiracy count that was based upon acts that DiCesare now alleges are not crimes. At the time DiCesare entered his plea, such acts were considered to be criminal. DiCesare claims that at the time of his plea, "numerous attorneys were challenging the government's bringing of similar charges against other individuals involved in similar currency transactions." This statement alone cannot support a determination that DiCesare's trial counsel acted unreasonably.

As to the effectiveness of appellate counsel on this issue, it was not until 1986, in United States v. Varbel, 780 F.2d 758, 762 (9th Cir. 1986), that the Ninth Circuit first indicated that certain individuals may not be subject to the reporting provisions of the Currency Reporting Act. Varbel was decided after the decision in DiCesare's appeal had been filed. It was not unreasonable for appellate counsel to fail to raise a novel issue that would have been an issue of first impression within this circuit. Nor is it at all clear that the Varbel rule would have been applicable to DiCesare's conduct. See United States v. Segal, 852 F.2d 1152, 1156 (9th Cir. 1988); United States v. Hayes, 827 F.2d 469, 472-73 (9th Cir. 1987).

Next, DiCesare alleges that Stanley Greenberg, his appellate counsel, was ineffective in failing to appeal the denial of codefendant Marin's motion to suppress the evidence found in the search of Marin's apartment at 27 Ketch # 2, Los Angeles, California. DiCesare asserts that in conjunction with his conditional plea he filed a statement of appellate issues pursuant to Rule 11(a) (2) and preserved therein his right to appeal the denial of Marin's suppression motion concerning the Ketch apartment. What DiCesare fails to note in his 2255 motion is that Marin filed two suppression motions concerning the Ketch apartment. The first of those motions is entitled "Motion to Suppress Evidence Obtained Pursuant to State Search Warrant Issued for 27 Ketch, # 2, City of Marina Del Rey and Search Warrant for 4333 Admiralty Way." ("First Suppression Motion"). The second suppression motion filed by Marin was entitled "Motion to Suppress Evidence; Request for Evidentiary Hearing Pursuant to Franks v. Delaware" ("Second Suppression Motion").3 

In DiCesare's statement of appellate issues, DiCesare preserved the right to appeal the denial of the First Suppression Motion but not the denial of the Second Suppression Motion.4 

The primary issue in the First Suppression Motion was whether Special Agent Audrey Rodriguz of the Customs Service was authorized to obtain the state search warrant. This very issue was, in fact, appealed by DiCesare's counsel in United States v. DiCesare, 765 F.2d 890, 897 (9th Cir.), amended, 777 F.2d 543 (1985). Marin prevailed on appeal, not on that issue, but on the issue of probable cause to search his apartment. Id. at 898-99. DiCesare contends that the issue of probable cause to search Marin's apartment should have been argued on his behalf on appeal. However, the probable cause issue had been raised solely in the Second Suppression Motion, and DiCesare did not preserve the right to challenge the denial of the Second Suppression Motion in his statement of appellate issues pursuant to Rule 11(a) (2). Therefore, Greenberg had no right to raise that second issue on appeal. Greenberg was not ineffective by failing to raise on appeal an issue that DiCesare had not preserved.

Moreover, Greenberg raised numerous other arguments on DiCesare's behalf.5  Greenberg's decision to raise certain arguments and yet not raise others does not constitute ineffective assistance of counsel. As the Supreme Court has observed:

Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.

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* * *

... A brief that raises every colorable issue runs the risk of burying good arguments--those that, ... "go for the jugular,"....

Jones v. Barnes, 463 U.S. 745, 751-53 (1983).

Therefore, even if DiCesare had preserved the Second Suppression Motion, his counsel's failure to challenge the denial of the Second Suppression Motion does not necessarily render him ineffective. Counsel need not appeal every issue preserved for appeal in the Statement of Appellate Issues.

The fact that Greenberg, in an affidavit, later stated that he could not remember why he did not choose to challenge a certain issue on appeal, does not stand as evidence to show that Greenberg acted unreasonably. Greenberg cannot be held accountable for recalling every decision he made in a past proceeding. In scrutinizing Greenberg's performance in relation to a claim of ineffective assistance, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.

There is, in fact, a serious question whether DiCesare even had standing to appeal under the grounds stated in the Second Suppression Motion. The Ketch apartment was Marin's, not DiCesare's. DiCesare asserts that, since the lease had his name on it and because a utility bill with his name was found in the Ketch apartment, he has standing to challenge the search of the Ketch apartment.

In order to contest the legality of a search or seizure, a defendant must establish that he or she has a "legitimate expectation of privacy" in the place searched or in the property seized. Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir. 1984). The defendant must have exhibited an actual subjective expectation of privacy and, more importantly, the expectation must be one that society is prepared to accept as reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979). DiCesare has the burden of establishing that, under the totality of the circumstances, the search or seizure violated his legitimate expectation of privacy in a particular place. Rawlings, v. Kentucky, 448 U.S. 98, 104 (1980). DiCesare did not meet the burden in this case.

Just because an allegation in the indictment states that DiCesare rented the apartment on June 21, 1983 and a utility bill found in the apartment bore DiCesare's name, does not mean that DiCesare established standing. There is no evidence presented by DiCesare that he occupied the apartment, had a key for it, paid the rent, or that he maintained any possession there. In fact, throughout the trial the Ketch apartment was referred to as codefendant Marin's and the Admirality Way address was referred to as DiCesare's address. DiCesare did not object to this characterization of the two addresses.

Although we are not ruling on the issue of standing in this disposition, the probable lack of standing is another reason justifying Greenberg's failure to appeal on the Second Suppression Motion, if it was preserved.

DiCesare also fails to demonstrate ineffective assistance of counsel regarding the dog sniff of the BMW automobile. DiCesare asserts that the BMW, which was subject to a dog sniff, was his automobile and that appellate counsel should have challenged that dog sniff on appeal. The fact is, however, that the BMW automobile was not DiCesare's but codefendant Flannery's. See DiCesare's Suppression Motion 1. Here, DiCesare ignores entirely his apparent lack of standing. Moreover, Flannery, who did have standing, raised this issue on appeal. This court held:

The canine's sniff of the trunk was not a "search" requiring probable cause. See, e.g., United States v. Place, 462 U.S. 696, 707 (1983).... We conclude that under the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed to search Flannery's car and her apartment.

DiCesare, 765 F.2d at 897.

There is no reason to believe that DiCesare would have fared any better than Flannery even if he had standing to raise the issue. We find that DiCesare failed to satisfy the requirements of Strickland.

EVIDENTIARY HEARING

DiCesare also argues that the district court erred in not granting him an evidentiary hearing on his section 2255 motion because he claims there were factual issues in dispute that mandated an evidentiary hearing. DiCesare asserts that there were factual issues involved in each of the issues raised in the section 2255 motion; however, he does not specify any of the factual issues in dispute.

Under 28 U.S.C. § 2255 the statute specifically provides that no evidentiary hearing is required if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." This standard was further explained in United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985):

The standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted. A hearing must be granted unless the movant's allegations, when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.

(citations omitted.)

Where a section 2255 motion "presents no more than conclusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required." United States v. Quan, 789 F.2d 711, 715 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986). DiCesare's claim that he was entitled to an evidentiary hearing is merely a conclusory allegation, unsupported by facts and refuted by the record.

First, DiCesare's claim that he prevailed on appeal with regard to the denial of the Ketch Suppression Motion lacks merit, because DiCesare failed to appeal that issue or even to preserve that issue. Thus, there is no factual issue with regard to that claim that could have been resolved at an evidentiary hearing.

Second, DiCesare argues that a factual dispute exists with regard to his effectiveness of counsel claim. We disagree. The district court could, and did, adequately determine that DiCesare failed to show that his counsel's performance was constitutionally ineffective. Such a determination can be made without an evidentiary hearing. See Schaflander, 743 F.2d at 718-22.

DiCesare did not, at the time of the section 2255 motion, and has not in the instant appeal, made sufficient factual showings that would require an evidentiary hearing. Accordingly, we affirm the district court's decision to deny DiCesare's request for an evidentiary hearing on his section 2255 motion.

AFFIRMED.

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The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

On January 12, 1989, prior to the filing of the district court's order, DiCesare filed a second notice of appeal. However, that notice is superfluous because this matter is returned to us on the basis of the original notice of appeal

 2

DiCesare contends he preserved under Rule 11(a) (2) the issue on which his codefendant prevails. The record shows he preserved an issue regarding Marin's apartment, but not the issue on which Marin ultimately prevailed

 3

In the Second Suppression Motion, Marin attempts to distinguish his involvement in the drug transactions from DiCesare's involvement. It is quite reasonable that DiCesare's counsel failed to join a motion that painted DiCesare's actions in a less than favorable light

 4

Item 6 in the statement of DiCesare's issues is "Motion to Suppress Evidence Obtained Pursuant to State Search Warrant Issued for 27 Ketch, No. 2, City of Marina Del Rey, and Search Warrant for 4333 Admiralty Way." In DiCesare's opening brief and his supplemental brief, Exhibit C, DiCesare specifically refers to Item 6 as the basis for his claim that he has preserved his right to appeal. Item 6 corresponds to the First Suppression Motion

 5

Among the issues raised on DiCesare's behalf on appeal were: (1) the denial of DiCesare's motions for evidentiary hearings concerning the search of his apartment and of his secretary's handbag; (2) the authority to obtain a search warrant of the officer who secured the warrant to search DiCesare's apartment; (3) the failure to disclose the Custom Service Narcotics K-9 Training Manual; and (4) the specificity of the indictment