Filed: Dec. 15, 1999
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-50581 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS GREGORY C. NIEMANN, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas (W-97-CA-14) December 14, 1999 Before KING, Chief Judge, STEWART, Circuit Judge, and ROSENTHAL, District Judge.* PER CURIAM:** Gregory C. Niemann pleaded guilty to an indictment charging possession of firearms by a convicted felon and possession of methamphetam
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-50581 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS GREGORY C. NIEMANN, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas (W-97-CA-14) December 14, 1999 Before KING, Chief Judge, STEWART, Circuit Judge, and ROSENTHAL, District Judge.* PER CURIAM:** Gregory C. Niemann pleaded guilty to an indictment charging possession of firearms by a convicted felon and possession of methamphetami..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50581
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GREGORY C. NIEMANN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(W-97-CA-14)
December 14, 1999
Before KING, Chief Judge, STEWART, Circuit Judge, and ROSENTHAL,
District Judge.*
PER CURIAM:**
Gregory C. Niemann pleaded guilty to an indictment
charging possession of firearms by a convicted felon and possession
of methamphetamine with the intent to distribute. He appeals from
the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence. Niemann claims that his trial counsel
*
District Judge of the Southern District of Texas,
sitting by designation.
**
Pursuant to 5th Cir. Rule 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. Rule
47.5.4.
provided ineffective assistance by failing to recognize and raise
grounds to suppress evidence seized in a search of his house under
a federal search warrant. The district court held that Niemann
could prove neither the reasonableness nor prejudice prong of an
ineffective assistance claim. We reverse and remand for further
proceedings.
I. FACTS AND PROCEDURAL HISTORY
On March 31, 1992, upon application by an agent of the
Bureau of Alcohol, Tobacco, and Firearms (“ATF”), a federal
magistrate judge issued a warrant to search Niemann’s house for
firearms. That night, ATF agents, assisted by Texas Department of
Public Safety (“DPS”) officers and Hamilton County Sheriff’s
Department deputies, executed the search warrant and seized eleven
firearms and several rounds of ammunition. The state law
enforcement officers also seized a disassembled methamphetamine
laboratory, precursor chemicals for manufacturing methamphetamine,
415.93 grams of methamphetamine, and $2,500 in cash.
Niemann pleaded guilty on July 31, 1992 to one count of
possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a), and to one count of possession of
methamphetamine with intent to distribute, in violation of
21 U.S.C. § 841(a)(1). At the sentencing hearing held on
November 25, 1992, Niemann’s attorney moved to withdraw. The trial
court granted the motion and reset the hearing. Niemann retained
new counsel. On February 17, 1993, the trial court sentenced
Niemann to concurrent terms of 120 months of imprisonment for the
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firearms conviction and 150 months of imprisonment for the drug
conviction. On direct appeal, Niemann raised two sentencing
guideline issues. This court affirmed. See United States v.
Niemann, No. 93-8130 (5th Cir. October 1, 1993)(unpublished
disposition).
On January 17, 1997, Niemann filed this section 2255
motion, alleging that his first attorney provided ineffective
assistance because he did not even attempt to suppress the evidence
seized from Niemann’s house and advised Niemann that there was no
ground on which a court would suppress the evidence. The district
court denied Niemann’s section 2255 motion without an evidentiary
hearing and denied his request for a certificate of appealability
(“COA”). This court granted Niemann a COA as to the ineffective
assistance of counsel claim.
On this appeal, Niemann asserts that his first counsel
provided deficient performance by failing to recognize and raise
the following grounds for suppressing the evidence: (1) the search
warrant for Niemann’s house was executed at night in violation of
Rule 41(c)(1) of the Federal Rules of Criminal Procedure; (2) the
officers executing the search violated the “knock and announce”
rule, 18 U.S.C. § 3109; and (3) the officers seized evidence beyond
the scope of the search warrant, in violation of the Fourth
Amendment to the United States Constitution. The district court
ruled as a matter of law that Niemann could not prove an
ineffective assistance claim based on his attorney’s failure to
recognize and raise these challenges to the search and seizure.
3
The district court held that Niemann had no basis on which to move
to suppress the evidence seized because the federal search warrant
was validly issued. Niemann argues that even if the warrant was
properly issued, the defects in the manner of execution provided
valid grounds for suppression, which his first attorney failed to
pursue. We reverse and remand to permit the district court to
consider fully the asserted grounds for suppression, in order to
resolve Neimann’s ineffective assistance claim.
II. THE STANDARD FOR REVIEWING INEFFECTIVE ASSISTANCE CLAIMS
On appeal from a denial of a section 2255 motion, this
court reviews the district court’s factual findings for clear error
and its conclusions of law de novo. See United States v. Faubion,
19 F.3d 226, 228 (5th Cir. 1994). Ineffective assistance of
counsel claims raise mixed questions of law and fact and are
subject to de novo review. See
id.
This court applies the two-part test set out in
Strickland v. Washington,
466 U.S. 668 (1984), to challenges to
guilty pleas based on ineffective assistance of counsel. See Hill
v. Lockhart,
474 U.S. 52, 58 (1985). To prevail on his ineffective
assistance of counsel claim, Niemann must show that: (1) his
counsel’s performance, judged on the facts of the case, viewed as
of the time of counsel’s conduct, fell below an objective standard
of reasonableness; and (2) there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial. See
Strickland, 466 U.S. at
687-694;
Hill, 474 U.S. at 59.
4
III. THE REASONABLENESS OF COUNSEL’S PERFORMANCE
Niemann asserts that his first counsel was deficient in
failing to assert that the agents wrongfully executed the search
warrant at night, violated the “knock and announce” rule, and
seized evidence beyond the scope of the search warrant. In an
affidavit submitted with his section 2255 motion, Niemann described
his attorney’s performance as follows:
I [] asked [my lawyer] how could the agents
search my entire house and take things that
were not on the search warrant, how the D.P.S.
agent could break open my safe without a
warrant, how I could be arrested by the state
for drugs when there was a federal search
warrant for guns, and how the state could
return to my house two days after I was
arrested with a warrant to search for and
seize money, motor vehicles and personal
property and take additional incriminating
evidence.
Niemann stated that, in response, his attorney “said you can not
beat a federal search warrant and the government would just lie
about when and where they found those things and he couldn’t stop
them.”
On July 30, 1992, according to Niemann’s affidavit, his
attorney told Niemann that he must plead guilty the next day or
face 35 years in jail. Niemann again asked the attorney about the
execution of the search warrant and told the attorney he “wanted
copies of the search warrants because [he] wanted a friend to look
at them.” The attorney “told [Niemann] he did not have the search
warrants and you can’t beat a federal search warrant and that the
warrants and search were entirely legal.” The attorney also “told
5
[Niemann] he had a deal with the prosecutor that if [Niemann] would
plead guilty, they would only charge [Niemann] with the guns and
drugs they found.”
Niemann pleaded guilty on July 31, 1992. At a sentencing
hearing on November 25, 1992, both Niemann and the attorney asked
that the court allow the attorney to withdraw. The court granted
the request. Niemann then retained a second attorney. The trial
court held another sentencing hearing on February 17, 1993. At
that hearing, the newly retained attorney asked Niemann several
questions about his decision not to ask the court to allow him to
withdraw his guilty plea. Niemann responded to the questions as
follows:
Q: Mr Niemann, both you and I have been
through quite a bit since you retained me
in this case --
A: Yes, sir.
Q: -- and I wanted to clarify a few things
on the record, at this point. It was
your decision today to come and plead
guilty is that correct, sir?
A: Yes, sir.
Q: And you’re aware of all the consequences
that have taken place by your entry of
this sentence, is that correct?
A: Yes, sir.
Q: And do you understand that you had many
search and seizure questions when you
first retained me in this case, is that
correct?
A: Yes, sir.
Q: And that you understand by that not being
able to withdraw your plea, at this time,
and entering the sentence, has waived all
of your search and seizure questions for
appeal purposes, is that correct?
A: Yes, sir.
Q: And that was your decision, is that
correct?
6
A: Yes, sir. My decision was based on, I
asked you to check on the search warrants
and be sure they were valid. You told me
they were both valid, even the dates
after it was executed, three days after I
had been in jail, you said it was still
valid, so I was going on your word. Yes,
sir, I think what I am doing is right.
Q: Okay. And you understand that you had a
right to withdraw your plea in this case
– you had a right to ask the Court to
withdraw your plea in this case, is that
correct?
A: Yes, sir.
Q: And it was your decision to decide
against making that motion, is that
correct?
A: Yes, sir.
The quoted excerpt from Niemann’s sentencing, although it
does not relate directly to his initial guilty plea, supports his
affidavit testimony that he had questioned from the outset whether
the March 31, 1992 search was legal and that he had decided to
plead guilty based on assurances that there was no ground to move
to suppress the evidence seized in the search of his house.
Niemann argues that the legal assistance rendered fell below an
objective standard of reasonableness.
The current record, although not fully developed,
discloses facts that support Niemann’s claims that the search and
seizure violated statutory and constitutional provisions. Niemann
contends that the nighttime search of his house violated Rule
41(c)(1) of the Federal Rules of Criminal Procedure. Rule 41(c)(1)
provides that a federal search warrant “shall be served in the
daytime, unless the issuing authority, by appropriate provision in
the warrant, and for reasonable cause shown, authorizes its
7
execution at times other than daytime.” “Daytime” is defined in
Rule 41(h) as “the hours between 6:00 a.m. and 10:00 p.m. according
to local time.” The government admitted that the search began at
11:18 p.m. The record reveals no finding of reasonable cause, and
the warrant did not authorize a nighttime search. To the contrary,
preprinted language on the warrant that could authorize a search
“at any time in the day or night” was struck through by a hand-
drawn line.
Niemann also maintains that the law enforcement officers
executing the search warrant violated the “knock and announce”
rule, 18 U.S.C. § 3109. Section 3109 provides:
The officer may break open any outer or inner
door or window of a house, or any part of a
house, or anything therein, to execute a
search warrant if, after notice of his
authority and purpose, he is refused
admittance or when necessary to liberate
himself or a person aiding him in the
execution of the warrant.
Niemann and another person who claimed to witness the search
submitted affidavits stating that officers broke down Niemann’s
door without first knocking or announcing their presence and
without being refused admittance.
Niemann also claims that officers seized evidence beyond
the scope of the federal warrant, in violation of the warrant
requirement of the Fourth Amendment. The government admitted that
in the search, the officers seized evidence relating to the drug
8
count, despite the fact that the federal search warrant described
only firearms.1
The government submitted no evidence to controvert the
affidavit and other record evidence concerning the execution of the
search warrant and the quality of counsel performance. The current
record is insufficient to determine the merits of Niemann’s
constitutional and statutory suppression arguments.
The district court denied Niemann’s section 2255 motion,
holding as a matter of law that the first attorney’s performance
was not deficient because “a Fourth Amendment challenge to the
evidence seized would have failed.” The district court reasoned
that no basis existed to suppress the evidence seized in the March
31, 1992 search because “[t]he seizure was based on a federal
search warrant issued after a neutral and detached determination of
probable cause by a” magistrate judge. Therefore, “[c]ounsel could
not have performed any additional investigation that would have
resulted in suppression of the firearms seized.”
The district court treated Niemann’s ineffective
assistance claim as if it relied solely on counsel’s failure to
challenge the validity of the warrant. However, Niemann contended
not only that his attorney should have challenged the issuance of
the warrant, but also that the attorney should have challenged the
1
In its submissions, the government made reference to a
state warrant that described drug-related evidence. However, the
record — though it does show that a state warrant describing drug-
related evidence issued several days after the March 31, 1992
search — does not show that any such warrant existed at the time of
the challenged search and seizure.
9
manner of its execution. Niemann argued that his first attorney
erred in advising him that a motion to suppress challenging the
manner of execution would fail and in failing to pursue such
challenges. The district court’s holding, based on the fact that
magistrate judge made a neutral and detached determination of
probable cause in issuing the warrant, simply does not address
Niemann’s challenges to the execution of the search warrant. See
United States v. Heldt, 668 F.2d 1238, 1256–1257 (D.C. Cir. 1981).
The district court erred in holding that the magistrate
judge’s neutral and detached finding of probable cause made any
motion to suppress futile. The district court also erred in
holding, on that basis, that Niemann’s first attorney performed at
a level within the “range of competence demanded of attorneys in
criminal cases” in deciding not even to attempt a motion to
suppress the evidence seized. Strickland, 466 U.S. at 687.
IV. PREJUDICE
The Supreme Court has described the prejudice inquiry in
guilty plea cases, stating that the inquiry often
will closely resemble the inquiry engaged in
by courts reviewing ineffective-assistance
challenges to convictions obtained through a
trial. For example, where the alleged error
of counsel is a failure to investigate or
discover potentially exculpatory evidence, the
determination whether the error “prejudiced”
the defendant by causing him to plead guilty
rather than go to trial will depend on the
likelihood that discovery of the evidence
would have led counsel to change his
recommendation as to the plea. This
assessment, in turn, will depend in large part
on a prediction whether the evidence likely
would have changed the outcome of the trial.
10
Similarly, where the alleged error of counsel
is a failure to advise the defendant of a
potential affirmative defense to the crime
charged, the resolution of the “prejudice”
inquiry will depend largely on whether the
affirmative defense likely would have
succeeded at trial.
Hill, 474 U.S. at 59. As with the “reasonableness” prong of the
Strickland inquiry, the merits of Niemann’s underlying suppression
claims are critical to the “prejudice” prong.2 The connection is
particularly close in this case because the evidence seized
provided virtually conclusive proof of the two alleged offenses,
unlawful possession of a firearm by a convicted felon and
possession of methamphetamine with the intent to distribute.
Suppression of the evidence would have considerably weakened the
case against Niemann.
The record discloses a reasonable probability that
Niemann would not have pleaded guilty and would have insisted on
going to trial if his first attorney had moved for suppression of
the evidence and if that motion had succeeded. Hill, 474 U.S. at
59. Proof of valid grounds for suppression of the evidence seized
would likely be sufficient to show prejudice under Strickland.3
2
However, the court must apply different legal standards
to the two stages of the Strickland analysis. On the
“reasonableness” prong, the court must assess the attorney’s
performance in light of the law existing at the time the attorney
made the challenged decisions. See Lockhart v. Fretwell, 506 U.S.
364, 371–372 (1993). On the “prejudice” prong, the court must
apply the current law to determine whether “the result of the
[initial] proceeding was fundamentally unfair or unreliable.” See
id. at 368–370.
3
If the district court were to conclude on remand that
law enforcement agents violated Rule 41(c) or 18 U.S.C. § 3109 when
11
The district court did not articulate the reasons for its
holding that Niemann could not, as a matter of law, show prejudice
from any errors his first attorney made. However, as noted
earlier, the district court erred in holding that the magistrate
judge’s “detached and neutral determination of probable cause”
would have made a motion to suppress futile. An examination of the
merits of the suppression claims is necessary to determine the
prejudice prong of the ineffective assistance claim. The district
court erred in holding that Niemann could not show prejudice
without first addressing the asserted defects in the execution of
the search warrant.
This court remands in order to permit the district court
to determine whether Neimann’s attorneys rendered ineffective
assistance in failing to move to suppress the evidence based on the
execution of the search warrant.
V. CONCLUSION
We reverse the district court’s denial of Niemann’s
section 2255 motion and remand this case for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
they executed the warrant and that suppression would have been the
required remedy, Niemann could show prejudice on both the firearm
possession and drug possession counts. If the district court were
to conclude that the only ground for suppression was that the
agents violated the warrant requirement of the Fourth Amendment by
seizing drug evidence not described in the federal warrant, Niemann
could show prejudice on the drug possession count only.
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