FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   December 22, 2014
                                       PUBLISH                    Elisabeth A. Shumaker
                                                                      Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.                                                         No. 14-2017
 RAUL CRUZ,

        Defendant-Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW MEXICO
           (D.C. Nos. 1:12-CV-01097-LH-CG and 1:10-CR-01178-LH-1)


Submitted on the briefs:

Todd A. Coberly of Coberly & Attrep, LLLP, Santa Fe, New Mexico, for Defendant-
Appellant.

Damon P. Martinez, United States Attorney; Laura Fashing, Assistant United States
Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.


Before BRISCOE, Chief Judge, HOLMES and BACHARACH, Circuit Judges.


BRISCOE, Chief Judge.


      Defendant Raul Cruz was convicted by a jury of knowingly and intentionally

possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B), and 18 U.S.C. § 2, and sentenced to a term of imprisonment of 63

months. Cruz’s conviction and sentence were affirmed on direct appeal. United States v.

Cruz, 

, 1262 (10th Cir. 2012) (Cruz I). Cruz subsequently filed a motion to

vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, alleging, in pertinent

part, that his trial counsel was ineffective for failing to move to suppress evidence on the

grounds that the search warrant when executed on Cruz’s residence was neither signed

nor dated by the issuing judge. The district court denied Cruz relief on that claim. Cruz

now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the

judgment of the district court.*

                                              I

                                    Factual background

       In March 2010, a law enforcement agent employed by the Middle Rio Grande

Valley Task Force prepared an affidavit for a search warrant for Cruz’s residence in

Albuquerque, New Mexico. On the face of the affidavit, the officer swore “upon his

oath” that he “ha[d] reason to believe that” Cruz had concealed at his residence a variety

of contraband, including “[m]ethamphetamine and other controlled substances of

unknown quantity,” “[p]araphernalia for weighing, packaging, ingestion, injection,

transportation and sales of controlled substances,” and “U.S. Currency used in narcotics


       *
        After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,
submitted without oral argument.

                                              2
transactions.” ROA, Vol. 2 at 122. In the subsequent pages of the affidavit, the officer

explained the factual basis for his suspicions. This included the officer’s statement that

he “was advised by a confidential source” that Cruz was “involved in the distribution of

large quantities of methamphetamine in Albuquerque,” and that the confidential source

was present inside Cruz’s residence when Cruz was “supplying unidentified individuals

with large quantities of methamphetamine.” 

The officer also stated that he

had conducted a controlled purchase of methamphetamine from Cruz’s residence with the

assistance of the confidential source.

       The last page of the affidavit included the concluding paragraphs of the officer’s

factual description, followed by a paragraph that stated: “Based on the above facts and

circumstances, Affiant has probable cause to believe the items sought and described

within this affidavit would be found inside [the residence], on the person of . . . Cruz and

in [Cruz’s vehicle].” 

this final paragraph was: (1) a date line that

read “THIS      DAY of        , 2010”; (2) separate signature lines for “JUDGE” and

“AFFIANT,” along with accompanying lines for the “TITLE” of the judge and the

affiant; and (3) a line that read “APPROVED BY ASSISTANT DISTRICT

ATTORNEY,” followed by a blank signature line and a blank date line. 

was signed and dated by an assistant district attorney on March 26,

2010. On that same day, the officer/affiant presented the affidavit to New Mexico

District Judge Kenneth Martinez. Judge Martinez signed the last page of the affidavit in

the blank signature line entitled “JUDGE,” and also handwrote “District Judge” in the

                                              3
accompanying line entitled “TITLE.” 

The officer/affiant also signed his name

in the blank signature line entitled “AFFIANT,” and handwrote “Agent 1291” in the

accompanying line entitled “TITLE.” 

Martinez or the officer completed

the blank date line by handwriting “26th” for the day and “March” for the month. 

warrant form itself listed Cruz’s address, stated that “[a] copy of the

Affidavit is attached and made a part of this Search Warrant,” and incorporated by

reference the affidavit’s list of property to be seized. 

warrant also

included a date and signature line. Judge Martinez did not, however, contemporaneously

sign or date the search warrant.

       Law enforcement officers executed the search warrant three days later, on March

29, 2010, and found inside of Cruz’s residence “baggies with 34.1 grams of

methamphetamine (about 90–100 doses), along with horse steroids (a cutting agent), cash,

and false identification.” Cruz 

. “Detectives saw no evidence of drug

use in the home or by Mr. Cruz.” 

“possession of the drug but not

intent to distribute it.” 

month later, on April 23, 2010, Judge Martinez signed and dated

the search warrant.1 ROA, Vol. 2 at 119. In doing so, Judge Martinez indicated that the

warrant was “DATED THIS 26th DAY OF March              , 2010 AT 10:00 HOURS.” 

this date line, Judge Martinez hand-wrote: “Nunc Pro Tunc on this


       1
         The circumstances of how the search warrant was presented to Judge Martinez on
this date are not made clear in the record.

                                             4
April 23, 2010.” 

       a) Cruz’s trial proceedings and direct appeal

       On April 18, 2010, a criminal complaint was filed against Cruz in federal district

court charging him with a single count of manufacturing, distributing, dispensing, or

possessing with intent to manufacture, distribute, or dispense, a controlled substance, in

violation of 21 U.S.C. § 841(a). Attorney Christin Kennedy was appointed to represent

Cruz. A federal grand jury subsequently indicted Cruz on a single charge of knowingly

and intentionally possessing with intent to distribute methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.

       The case against Cruz proceeded to trial in September 2010, and Cruz was found

guilty of the charge alleged in the indictment. In June 2011, the district court sentenced

Cruz to a term of imprisonment of 63 months, to be followed by three years’ supervised

release. The district court noted that Cruz, who was born in Mexico and granted

permanent residency in the United States in 1990, was subject to removal during his

sentence.

       This court affirmed Cruz’s conviction and sentence on direct appeal. Cruz 

, 1264.

       b) Cruz’s § 2255 proceedings

       On October 23, 2012, Cruz filed a motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2255, alleging two distinct claims of ineffective assistance on the

                                             5
part of Kennedy, his appointed trial counsel. First, Cruz alleged that the search warrant

that was issued for his residence in March 2010 was “facially invalid because [Judge

Martinez] did not sign or date the warrant,” ROA, Vol. 2 at 8, but that Kennedy “did not

move to suppress the physical evidence or . . . Cruz’s statements obtained as a result of

the defective warrant,” 

Second, Cruz alleged that Kennedy failed to adequately

advise him concerning “the Government’s repeated plea offers,” 

and that,

“[b]ecause he had no viable defense to the charge” alleged against him, “he would have

entered into a plea agreement with the Government in order to obtain the benefit of” a 3-

point reduction pursuant to U.S.S.G. § 3E1.1(b) had he been adequately advised by

Kennedy regarding the government’s plea offers, 

       Cruz’s claims were first addressed by a magistrate judge. After holding an

evidentiary hearing, the magistrate judge concluded there was merit to both of Cruz’s

ineffective assistance claims and recommended that the district court grant Cruz’s § 2255

motion and vacate his conviction. The government filed written objections to the

magistrate judge’s proposed findings and recommendations.

       On October 22, 2013, the district court issued a written order amending in part and

adopting in part the magistrate judge’s proposed findings and recommended disposition.

The district court first addressed the validity of the search warrant and Kennedy’s failure

to move to suppress on that ground, and rejected the magistrate judge’s conclusion that

the search warrant was “not properly issued . . . because . . . there was no signature on the

warrant by the judge, . . . no date that the warrant was allegedly issued, or any other

                                              6
indication on the face of the warrant that the judge had approved the warrant.” 

In the district court’s view, “Judge Martinez’s signature on the search warrant affidavit

provided assurance that he found probable cause and officially authorized the search,”

and “Judge Martinez’s nunc pro tunc signature on the warrant [wa]s additional evidence

that Judge Martinez made the probable cause determination and issued the warrant on

March 26, 2010, at the time he signed the affidavit.” 

In short, the district

court “conclude[d] that the warrant to search [Cruz’s] person and property was issued

within the meaning of the Fourth Amendment and was valid.” 

The district

court also agreed with the government’s alternative argument “that the officers who

searched [Cruz’s] home would have been entitled to the [Leon] good faith exception to

the exclusionary rule.” 

court thus concluded that, “had a motion to

suppress been filed,” the evidence seized from Cruz’s residence, as well as his admissions

to the police, “would not have been suppressed.” 

And it in turn concluded that

Kennedy’s “failure to file a motion to suppress did not prejudice [Cruz].” 

The

district court “therefore sustain[ed] the Government’s Objections to the [magistrate

judge’s] finding that [Cruz] suffered prejudice[] from his counsel’s failure to file a motion

to suppress,” and it stated that it “w[ould] not vacate [Cruz’s] conviction.” 

       As for Kennedy’s pretrial advice to Cruz regarding whether or not to plead guilty,

the district court agreed with the magistrate judge that Kennedy “failed to look into

whether” a prior conviction sustained by Cruz in 1994 “might affect his immigration

status,” 

and in turn “did not fully advise [Cruz] . . . that he was eligible for

                                                7
deportation even if acquitted on the 2010 drug charge,” 

The district court also

found support for the magistrate judge’s finding that Kennedy “did not adequately discuss

with [Cruz] that the Government had a very strong case against him.” 

And,

based upon these findings, the district court “agree[d] with the magistrate judge’s

conclusion that . . . Kennedy’s representation was constitutionally ineffective.” 

court further determined that “[t]he evidence support[ed] the conclusion that there

[wa]s a reasonable probability that, had . . . Kennedy presented [Cruz] with the

information that [his] 1994 conviction alone fell under the statute making him eligible for

deportation, coupled with information regarding the very strong case of the Government

and the possible 2- or 3-level reduction in his sentence for accepting responsibility for the

charge in the superseding indictment, [Cruz] would have pled guilty.” 

court agreed, however, “with the Government that . . . Kennedy’s failure to properly

advise [Cruz] about a plea agreement d[id] not support vacating his conviction.” 

“The proper remedy for this constitutional violation,” the district court concluded,

“[wa]s to set aside his sentence.” 

       Thus, in sum, the district court granted Cruz’s § 2255 motion “as to the request to

set aside the sentence” and ordered that Cruz “w[ould] be [granted] a new sentencing

hearing,” but denied the § 2255 motion “as to the request to vacate [Cruz’s] conviction.”

On the same date that the district court issued its order granting in part and

denying in part Cruz’s § 2255 motion (October 22, 2013), it purported to enter final

judgment.

                                              8
       On January 2, 2014, the district court resentenced Cruz to a term of imprisonment

of 46 months, to be followed by a three-year term of supervised release, and it again

noted that Cruz was subject to removal during his sentence.

       On January 4, 2014, Cruz filed a motion for certificate of appealability seeking to

challenge the district court’s partial denial of his § 2255 motion. The district court

granted that motion on February 4, 2014. Cruz filed a notice of appeal the following day.

                                              II

       At our request, the parties filed supplemental briefs addressing whether Cruz’s

notice of appeal, which was filed more than three months after the district court’s

purported entry of final judgment, was timely. The parties agree, as do we, that Cruz

filed a timely notice of appeal and that, as a result, we have jurisdiction over this appeal.

       As the parties correctly note in their supplemental briefs, a § 2255 motion is a

“hybrid type[] of case[].” Sloan v. Pugh, 

, 1323 (10th Cir. 2003) (internal

quotation marks omitted); see also United States v. Jones, 

, 468 (4th Cir.

2000) (noting “that habeas actions are a unique hybrid of civil and criminal”). Although

it relates to the original criminal proceeding, it is generally treated as an independent civil

suit.2 Andrews v. United States, 

, 338 (1963) (“An action under 28 U.S.C.

§ 2255 is a separate proceeding, independent of the original criminal case.”); Martin v.

       2
        That is reflected by the district court activity in this case. When Cruz filed his
§ 2255 motion, the district court clerk’s office responded by: (1) docketing the motion in
Cruz’s criminal case; and (2) opening a new civil proceeding (i.e., the § 2255
proceeding). The district court clerk’s office thereafter continued to simultaneously
docket pleadings in both proceedings.

                                               9
United States, 

, 777 (10th Cir. 1960) (same).

       The hybrid nature of a § 2255 proceeding impacts when an appeal may be taken in

such a proceeding. In Andrews, the Supreme Court held that a district court order

granting a § 2255 motion and ordering that the defendant be resentenced is not a final

appealable 

. More specifically, the Court held that until the

defendant in such a case is actually resentenced, the § 2255 proceedings are not complete.

As a result, the Court held, “no appeal c[an] be taken from a district court’s order

contemplating, but not accomplishing, the [defendant’s] resentencing.” United States v.

Hadden, 

, 662 (4th Cir. 2007) (analyzing Andrews); see 

(noting that “until the courts acts [to resentence the defendant], none of the parties

to th[e] controversy will have had a final adjudication of his claims by the trial court in

the[] § 2255 proceeding[].”).

       Applying Andrews to the case at hand, it is clear that the “final judgment” that was

purportedly entered by the district court on October 22, 2013, was not, in fact, a final,

appealable order because Cruz had not yet been resentenced. Under Andrews, Cruz’s

§ 2255 proceeding (i.e., the civil case that was precipitated by the filing of Cruz’s § 2255

motion) did not become “final,” and therefore appealable, until at least January 2, 2014,

when the district court resentenced Cruz. As a result, the notice of appeal filed by Cruz in

the § 2255 proceeding on February 5, 2014, was timely. See Fed. R. App. P. 4(a)(1)(B)

(providing that, in a civil case in which the United States is a party, “[t]he notice of

appeal may be filed by any party within 60 days after entry of the judgment or order

                                              10
appealed from . . . .”); see also 

(“To the extent the [resentencing]

order formally completes the prisoner’s § 2255 proceeding, it is part of that proceeding,

and, accordingly, a prisoner’s appeal of that aspect of the order is an appeal of a § 2255

proceeding.”).

                                              III

       We now turn to the merits of Cruz’s appellate arguments. According to Cruz, the

district court erred in rejecting his claim that Kennedy was ineffective for failing to move

to suppress the evidence obtained during and following the execution of the search

warrant at Cruz’s residence. Cruz in turn argues that the district court should have, on the

basis of that claim, granted his § 2255 motion in full and vacated his conviction.

       Because this appeal arises from “the denial of a § 2255 motion for post-conviction

relief, we review the district court’s findings of fact for clear error and its conclusions of

law de novo.” United States v. Rushin, 

, 1302 (10th Cir. 2011).

                                  The Strickland standards

       To prevail on his claim that Kennedy was ineffective for failing to move to

suppress evidence, Cruz must satisfy the two-part burden outlined by the Supreme Court

in Strickland v. Washington, 

(1984). Specifically, Cruz must establish that

(1) Kennedy’s “performance was deficient,” and (2) that “the deficient performance

prejudiced the defense.” 

. “[T]he ultimate focus of [this]

inquiry [is] on the fundamental fairness of the proceeding whose result is being

challenged.” 

                                              11
          Was Cruz prejudiced by Kennedy’s failure to file a motion to suppress?

        We begin and end our analysis with Strickland’s prejudice prong. See 

(“a court need not determine whether counsel’s performance was deficient before

examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.”). To satisfy the prejudice prong, Cruz “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” 

“A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” 

Cruz, Kennedy should have moved to suppress the evidence seized

during the search of Cruz’s residence, as well as his subsequent statements to police

regarding the fruits of the search, on the grounds that the search warrant was invalid

because it was not signed or dated, and thus had not been “issued” by a judge, at the time

of its execution. ROA, Vol. 2 at 90. Cruz in turn asserts, with respect to Strickland’s

prejudice prong, that such a motion would have been meritorious, would have resulted in

the suppression of the evidence seized from his residence and his statements to police,

and ultimately would have led to either the dismissal of charges against him or his

acquittal at trial.

        The text of the Fourth Amendment expressly prohibits “unreasonable searches and

seizures,” U.S. Const. amend. IV, and “[i]t is a basic principle of Fourth Amendment law

. . . that searches and seizures inside a home without a warrant are presumptively

unreasonable.” Kentucky v. King, 

, 1856 (2011) (internal quotation

                                             12
marks omitted). The text of the Fourth Amendment also states, in pertinent part, that “no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be seized.”

U.S. Const. amend. IV. Thus, “a warrant may not be issued unless probable cause is

properly established and the scope of the authorized search is set out with particularity.”

.

       The First Circuit recently concluded, and we agree, that “nothing in the [text of]

the Fourth Amendment [expressly] conditions the validity of a warrant on its being

signed.” United States v. Lyons, 

, 724 (1st Cir.), cert. denied, 

(2014). Instead, the text of the Fourth Amendment refers only to “probable cause”3

and a particular description of “the place to be searched, and the persons or things to be

seized.” U.S. Const. amend. IV. Further, “while Federal Rule of Criminal Procedure

4(b)(1)(D) explicitly states that arrest warrants must be signed . . . , neither federal nor

state rules of criminal procedure governing search warrants contain such a requirement.”

. Thus, such a requirement could exist only if we were willing

“to find implicit in the Fourth Amendment a constitutional mandate that the magistrate

who had made a probable cause determination also sign the warrant.” 

       In Lyons, which involved strikingly similar facts, the First Circuit dealt with this

precise question. The police in Lyons “completed a written application to search [the

       3
         The probable cause requirement is established “by an oath or affirmation and a
neutral or detached magistrate mak[ing] a probable cause determination.” 

.

                                              13
defendant’s home] and swore in support of that application.” 

“The application

recited facts establishing probable cause.” 

judge reviewed the application,

determined that probable cause existed, signed the application, and signed the

accompanying affidavit.” 

warrant described particularly the place to

be searched, and the persons or things to be seized,” “[t]he judge . . . unintentionally

forgot to sign the warrant itself before the officers conducted the search.” 

“after the search was complete[d], state law enforcement officials noticed the omission.”

promptly returned that day to the same judge, who belatedly signed

the warrant, at the same time writing a note explaining that his failure to sign previously

‘was inadvertent and of no substantive consequence.’” 

in Lyons argued, in pertinent part, “that the warrant was invalid

precisely because it was not signed until after the search.” 

Circuit rejected

that argument, concluding, in pertinent part, that there was “no convincing reason to find

implicit in the Fourth Amendment a constitutional mandate that the magistrate who has

made a probable cause determination also sign the warrant.” 

The First Circuit

noted that its “conclusion [wa]s strengthened by the consistent rejection of formalistic

approaches to signatures in warrants by federal appellate courts in other contexts.”4 

the First Circuit concluded, “show a consistent unwillingness to find a

       4
         For example, the Second Circuit has held that the Fourth Amendment, though
requiring “the determination of probable cause . . . [to] be made by a neutral and detached
magistrate,” does not “prevent[] [a] magistrate from delegating th[e] purely ministerial
task [of signing the warrant] to [a law enforcement agent].” United States v. Turner, 

, 50 (2d Cir. 1977).

                                             14
constitutional violation when the express mandates of both constitution and rule have

been satisfied.” 

Thus, “[g]iven the clear and contemporaneous evidence that

the state justice made a proper probable cause determination and approved the issuance of

a warrant for execution,” the First Circuit “decline[d] to find in the lack of a signature a

reason for suppression.” 

with and adopt the First Circuit’s reasoning in Lyons, subject to the

following “note of caution”:

       The presence of a signature provides easy and reliable proof that a warrant
       was in fact issued. An officer who observes that a warrant is unsigned
       might not be assured that it was actually issued, and might execute it at his
       peril if he has no other good reason to believe the warrant was issued. And
       when, as here, the warrant is not signed, proof of issuance becomes more
       involved and less certain. In many circumstances, the magistrate or judge
       may not recall reviewing or issuing the warrant by the time his belated
       signature is sought. For these reasons, we are confident that police will
       continue to have ample incentive to secure signatures. In any event, we
       find no sufficient reason to read a signature requirement into the Fourth
       Amendment, and we leave to any future revisers of Federal Rule of
       Criminal Procedure 41(e) whether to adopt such a presently-omitted
       requirement for search warrants.

       Cruz argues, however, that Lyons “ha[s] no import because [it did not] address[]

the issue of whether the warrant was facially valid in light of Groh[ v. Ramirez, 

(2004)].” Aplt. Br. at 18 n.8. According to Cruz, Groh held that “[b]efore a search

warrant may issue under the Fourth Amendment, it must: (1) include a finding of

probable cause; (2) be supported by oath or affirmation; (3) particularly describe what is

to be searched; and (4) particularly describe what is to be seized.” Aplt. Br. at 10. Cruz

                                              15
in turn argues that “[a]lthough the purported warrant in this case may have met the

second, third, and fourth requirements, it was facially deficient at the time of the search

because it lacked any indication that a neutral and detached magistrate had made a

determination of probable cause.” 

       Cruz’s arguments are only partially correct. To be sure, Groh recognized that the

text of the Fourth Amendment imposes four requirements on every warrant: (1) the

warrant must be “based on probable cause”; (2) the warrant must be “supported by Oath

or affirmation”; (3) the warrant must describe particularly the place to be searched; and

(4) the warrant must describe particularly the persons or things to be 

. But Cruz erroneously interprets this first requirement as requiring the face of the

warrant itself to “contain[] . . . markings,” preferably a signature, “indicating that a

neutral and detached magistrate . . . actually” made a finding of probable cause. Aplt. Br.

at 11. Nothing in Groh, however, let alone the text of the Fourth Amendment itself,

imposes such a facial requirement. Rather, the Fourth Amendment, as Groh recognized,

imposes a substantive requirement that every warrant issue only “upon probable cause.”

See 

(concluding that the Fourth Amendment’s probable cause

requirement is established “by an oath or affirmation and a neutral or detached magistrate

mak[ing] a probable cause determination”). Indeed, in concluding that the warrant at

issue in Groh satisfied this requirement, the Supreme Court stated simply that the warrant

“was based on probable cause”; it did not discuss what the warrant itself said in regards to




                                              16
the probable cause 

. Moreover, Groh thereafter dealt

exclusively with the fourth requirement, i.e., that the warrant particularly describe the

persons or things to be seized, and this requirement, by its express terms, does involve the

face of the warrant.6 Thus, in sum, Groh does not stand for the proposition that a warrant

must include, on its face, the issuing judge’s signature or any other specific marking from

the issuing judge.

       Cruz makes no other attempt to directly challenge Lyons. Instead, consistent with

his argument that a warrant must include on its face the issuing judge’s signature, he

suggests that we should adopt the reasoning outlined in United States v. Evans, 469 F.

Supp. 2d 893 (D. Mont. 2007). In Evans, a law enforcement agent appeared before a

federal magistrate judge seeking a search warrant for a residence belonging to the

defendants. The agent presented the magistrate judge “with an affidavit summarizing the

investigation of Defendants for possession, receipt, and distribution of child

. The magistrate judge placed the agent “under

oath and had him sign the search warrant application and affidavit.” 

       5
         In this case, Cruz does not seriously dispute that probable cause, based upon the
facts outlined in the affidavit, existed for the issuance of the search warrant for his
residence.
       6
         At issue in Groh was the validity of a search warrant that, “[i]n the portion of the
form that called for a description of the ‘person or property’ to be seized,” erroneously
listed “a description of [the] two-story blue house” that was to be searched, “rather than
the” contraband that was sought by law enforcement, i.e., an “alleged stockpile of

. The search warrant in Groh also failed to “incorporate by
reference the itemized list [of contraband] contained in the application.” 

                                             17
judge “then read and signed the application and affidavit himself in two separate places.”

judge did not, however, “sign the search warrant itself or indicate on

the warrant the date before which it had to be executed.” 

judge later

“testified his failure to sign the warrant was an oversight.” 

indicated it was

his usual practice to sign a search warrant application and affidavit only when he also

intended to issue a warrant.” 

subsequent search of defendants’ residence, “officers seized various

computer equipment later found to contain images of child pornography.” 

waived their Miranda rights and “admitted to using their computers to

view child pornography.” 

search was completed, the law enforcement agent

who signed the affidavit and obtained the search warrant “went to his vehicle to obtain a

copy of the search warrant to leave with Defendants” and “[o]nly then . . . notice[d] [that]

the search warrant was unsigned.” 

The agent “called the U.S. Attorney’s

office and was advised to do nothing about the deficiency on the theory that the harm was

done.” 

The agent then “left a copy of the search application and affidavit”

with defendants. 

       After being indicted for distribution, receipt, and possession of child pornography,

defendants moved to suppress the evidence seized during the search. One of the

defendants also moved to suppress the statements she made to officers during the search.

The district court granted defendants’ motions, holding that “[a]n unsigned warrant . . . is

not a warrant within the meaning of the Fourth Amendment,” and that “officers cannot

                                             18
reasonably rely on such a glaring deficiency as authorization to search.” 

       In arriving at this conclusion, the court in Evans purported to rely on Groh. The

court explained that, like “the particularly [sic] requirement in Groh, the text of the Fourth

Amendment demands that a warrant be ‘issue[d].’” 

(quoting U.S. Const.,

amend. IV) (brackets in original). “Issuance,” the court explained, “serves to demonstrate

that a neutral and detached magistrate has reviewed the warrant application and affidavit

and made an independent and objective determination that probable cause exists to justify

the search.” 

Fourth Amendment’s issuance requirement may not

necessitate a magistrate’s signature on the warrant,” the court stated, “[i]t does . . .

demand that the warrant contain some indication that the search is officially authorized.”

Law Dictionary 850 (8th ed. 2004) (defining “issue” as “[t]o be put

forth officially”). Because the search warrant at issue “was not signed by the magistrate,”

“did not indicate the date before which the search had to be conducted,” and “did not

contain a case number or stamp indicating it had been filed with the Clerk of Court,” the

court concluded that it “lacked any indication that it was officially authorized.” 

in Evans rejected the government’s suggestion that “the warrant [at

issue] was officially authorized because [the magistrate judge] signed the search warrant

application and affidavit.” 

the court stated that “[a] magistrate’s signature

on the search warrant application and affidavit . . . merely indicates the document was

signed and sworn to by the requesting officer in the magistrate’s presence,” 

whereas “[a] magistrate’s signature on a search warrant indicates the search warrant

                                               19
application and affidavit presented to him contain probable cause to justify the search

requested,” 

In the court’s view, “if a magistrate’s signature on a search

warrant application and affidavit was sufficient to satisfy the Fourth Amendment, the

language of that Amendment, which requires issuance of a ‘warrant,’ would become

meaningless.” 

In sum, the district court concluded that, “[b]ecause [the

magistrate judge’s] signature on the search warrant application and affidavit provide[d]

no assurance he found probable cause and officially authorized the search, it d[id] not

satisfy the Fourth Amendment’s issuance requirement.” 

540 U.S. at

557-561).

       The court in Evans also rejected the government’s argument that the search

warrant should be deemed valid “because [the magistrate judge] intended to issue the

warrant.” 

The court stated that it was “unwilling to accept the potential

repercussions of adopting the forgiving interpretation of the Fourth Amendment urged by

the government.” 

“Absent an exception,” the court stated, “the Fourth

Amendment requires a probable cause determination to be made and issued by a

magistrate before officers invade a person’s privacy.” 

thus concluded that,

“[b]ecause the warrant [at issue] did not provide any indication that it was officially

authorized, the search of Defendants’ residence was warrantless in violation of the Fourth

Amendment.” 

court in Evans rejected the government’s reliance on the good faith

exception to the exclusionary rule outlined in United States v. Leon, 

, 922

                                             20
(1984). The court explained that “[t]he Leon good faith exception may possibly excuse a

deficiency in the language of a warrant, but it does not apply to excuse the absence of a

. And, the court stated, “[e]ven if the search of

Defendants’ residence was not warrantless, the Leon good faith exception d[id] not

apply” because “[a]n unsigned warrant is so patently defective that it is objectively

unreasonable for officers to rely on it.” 

Groh,” the court stated, “a cursory

glance at the warrant would have revealed the absence of the magistrate’s signature,” and,

“[u]nder the circumstances, [the ICE agent] could have attempted to contact [the

magistrate judge] to obtain a properly issued warrant.” 

In sum, the court held

that “[b]ecause the unsigned warrant was patently deficient, the officers’ reliance on it to

justify the search of Defendants’ residence was not objectively reasonable.” 

that the Evans court’s interpretation of the Fourth Amendment is

erroneous and thus decline to adopt it. To be sure the text of the Fourth Amendment

states, in pertinent part, that “no Warrants shall issue, but upon probable cause, supported

by oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const. amend. IV (emphasis added). But, contrary

to the conclusion reached by the Evans court, the term “issue,” as used in the Fourth

Amendment, does not impose a specific “issuance” requirement, i.e., as the Evans court

described it, some type of “indication [on the face of the warrant] that [the warrant] was

officially 

. Instead, we conclude that the language of

the Fourth Amendment was intended to outline what requirements must be satisfied

                                             21
before a warrant “shall issue.” In other words, we conclude that the term “issue” does not

itself impose any requirements that must be satisfied by a warrant; instead, the specific

requirements that must be imposed for a warrant to “issue” are outlined in the language of

the Fourth Amendment that immediately follows the term “issue.” Cf. United States v.

Turner, 

, 50 (2d Cir. 1977) (“As long as the magistrate in fact performs the

substantive tasks of determining probable cause and authorizing the issuance of the

warrant, the amendment is satisfied.”).

       Indeed, the Supreme Court’s decision in Groh supports our conclusion that the

term “issue,” as employed in the Fourth Amendment, does not itself impose any specific

requirements on a warrant. As previously discussed, the Court in Groh quoted the

relevant language of the Fourth Amendment and immediately proceeded to indicate that

this language imposes four requirements: (1) the warrant must be based “upon probable

cause”; (2) the warrant must be “supported by Oath or affirmation,” e.g., an affidavit; (3)

the warrant must “particularly describ[e] the place to be searched”; and (4) the warrant

must “particularly describ[e] the . . . things to be 

. Noticeably

absent from this list is the requirement of a “magistrate’s signature, or other indication of

authorization, on the face of the warrant.” 

. To be sure, the

warrant at issue in Groh was signed by the issuing magistrate judge and thus its

authorization was not at issue. 

(“The Magistrate signed the warrant form.”).

But, had this detail carried constitutional significance, the Court surely would have said

so, particularly since it made a point to emphasize the “requirements” that were imposed

                                             22
by the language of the Fourth Amendment and to specify which of those requirements

were satisfied or not satisfied by the warrant in question. 

(“The warrant in this

case complied with the first three of these [four] requirements”). Thus, Groh, rather than

supporting the decision in Evans, undercuts it.

       In addition, an examination of the ordinary meaning of the term “issue” calls into

question, and thus makes us hesitant to rely on, the decision in Evans. The term “issue” is

commonly defined as “[t]he action of going, passing, or flowing out,” Oxford English

Dictionary Online, http://www.oed.com/view/Entry/100216?rskey=Za1fbR&result=1#eid

(last visited on Dec. 4, 2014), or “[t]o ‘come out’ or be sent forth officially or publicly,”

visited on

Dec. 4, 2014). This common and simple definition fits perfectly within the framework of

the complete text of the Fourth Amendment. In other words, if we were to replace the

term “issue” with this definition, the text of the Fourth Amendment would read: “no

Warrants shall [go out or be sent forth officially], but upon probable cause, supported by

oath or affirmation, and particularly describing the place to be searched, and the persons

or things to be seized.”7 U.S. Const. amend. IV. This definition, in our view, is

consistent with Groh’s interpretation of the Fourth Amendment which, as we have

discussed, does not read into the term “issue” any specific technical requirements.

       Finally, even assuming, for purposes of argument, that there was merit to the


       7
        And, so interpreted, it is undisputed that Judge Martinez intended to authorize the
search of Cruz’s residence and officially “sent forth” the search warrant to be executed.

                                              23
position outlined in Evans and that the search warrant in this case failed to satisfy the

requirements of the Fourth Amendment, that would still leave the question of whether the

Leon good faith exception would apply and effectively prevent the suppression of the

seized evidence. In Leon, the Supreme Court noted that the Fourth Amendment’s

“exclusionary rule is designed to deter police misconduct rather than to punish the errors

of judges and 

. Consequently, the Court “conclude[d] that

suppression of evidence obtained pursuant to a warrant should be ordered only on a case-

by-case basis and only in those unusual cases in which exclusion will further the purposes

of the exclusionary rule.” 

Notably, the Court stated that “a warrant issued by

a magistrate normally suffices to establish that a law enforcement officer has acted in

good faith in conducting the search.” 

(internal quotation marks omitted). But

the Court did concede that the executing “officer’s reliance on the magistrate’s probable-

cause determination and on the technical sufficiency of the warrant he issues must be

objectively reasonable.” 

Court stated, “[s]uppression . . . remains an

appropriate remedy” in at least four circumstances: (1) “if the magistrate or judge in

issuing a warrant was misled by information in an affidavit that the affiant knew was false

or would have known was false except for his reckless disregard of the truth”; (2) “in

cases where the issuing magistrate wholly abandoned his judicial role”; (3) in cases in

which the “warrant [was] based on an affidavit so lacking in indicia of probable cause as

to render official belief in its existence entirely unreasonable”; and (4) in circumstances

where the “warrant [is] so facially deficient—i.e., in failing to particularize the place to be

                                              24
searched or the things to be seized—that the executing officers cannot reasonably

presume it to be valid.” 

marks omitted).

       The presence of the warrant alone in this case carries significant weight in terms of

establishing the executing officers’ good faith. Further, there is no evidence that Judge

Martinez was misled, that he wholly abandoned his judicial role, that the affidavit in

support of the warrant was wholly lacking in indicia of probable cause, or that the warrant

failed to particularize the place to be searched or the things to be seized. Indeed, the only

potentially unusual aspect of the warrant was the absence of Judge Martinez’s signature

on the face of the warrant. And, because Judge Martinez actually signed the affidavit for

the warrant and effectively indicated that he found the existence of probable cause and

intended for the warrant to issue, it was objectively reasonable for the agent who obtained

the warrant, as well as the other officers who assisted in executing the warrant, to believe

that the warrant was valid. See United States v. Kelley, 

, 603 (5th Cir. 1998)

(holding, in case involving unsigned warrant, that Leon good-faith exception applied).

Indeed, as the Supreme Court stated in Massachusetts v. Sheppard, 

, 989-90

(1984), “we refuse to rule that an officer is required to disbelieve a judge who has just

advised him, by word and by action, that the warrant he possesses authorizes him to

conduct the search he has requested.” As a result, the Leon good faith exception applies

and would operate to prevent the suppression of the seized evidence.

       For all of these reasons, we conclude that Cruz cannot “show that there is a

reasonable probability that . . . the result of [his criminal] proceeding would have been

                                             25
different” had Kennedy filed a motion to 

.

                                              IV

       We conclude that the district court properly denied Cruz’s § 2255 motion to the

extent it claimed that Cruz’s trial counsel was ineffective for failing to file a motion to

suppress evidence. Consequently, we AFFIRM the judgment of the district court.




                                              26