MEMORANDUM AND ORDER

KATHRYN H. VRATIL, United States District Judge

On February 2, 2000, a grand jury returned a two-count indictment which charged Robert Ray Charles with knowingly possessing cocaine base and a firearm after having been convicted of a felony, in violation of 21 U.S.C. § 844(a) and 18 U.S.C. § 922(g)(1). Police discovered the contraband during a search of defendant's vehicle. Defendant challenged the validity of the search. The Court overruled his motion to suppress and on June 19, 2000, defendant entered a conditional guilty plea to possession of a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1). Defendant preserved his right to appeal the Court's ruling on his motion to suppress, and he did appeal. The Tenth Circuit affirmed his conviction, however, and the matter is now before the Court on defendant's Petition For Writ Of Habeas Corpus Pursuant To 28 United States Code, § 2255 (Doc. #58) filed April 17, 2002. For reasons set forth below, defendant's motion is overruled.

Factual Background

On August 24, 1999, a customer at Circuit City in Lenexa, Kansas asked a store clerk for a stereo and camcorder. The store clerk presented one of each item, and the customer agreed to take them — no questions asked. The customer attempted to purchase the items with a check but William VonWolf, a Circuit City employee, believed that the customer had forged the signature on the check and he declined to accept it. VonWolf later told officers that he was certain that the customer was not the individual who was pictured on the identification which he presented. The customer took the check and identification and left the store. VonWolf observed that the customer carried the check and identification in a white envelope and that he left in a Lincoln automobile with Missouri license plate 614 FXW. VonWolf called the Lenexa Police Department and reported the description of the customer, the car he had left in, and the license plate number. VonWolf also told police that the customer had signed the check in the name of Shannon Watkins and presented a drivers license for the same individual.

Shortly thereafter, police discovered a Lincoln automobile with the same license plate at a nearby Best Buy in Lenexa. Officer James Rader asked VonWolf to go to Best Buy to identify the individual who had attempted to pass the check at Circuit City. Inside Best Buy, Officer Pat Hinkle of the Lenexa Police Department saw defendant, who matched the description of the Circuit City customer, pass a $1,840.00 check to an employee at Best Buy. Officer Hinkle observed that defendant signed the check in the name of Shannon Watkins. Officer Hinkle relayed this information to officers outside the store. As defendant left the store, VonWolf positively identified him as the customer who had attempted to pass the check at Circuit City.

Officers Rader and David Ogilvie approached defendant and asked him to identify himself. Defendant identified himself as Calvin Stallings but indicated that he did not have any identification. The officers asked defendant if he had signed a check at Circuit City in the name of Shannon Watkins. Defendant denied that he had tried to purchase goods at Circuit City.

Officers Rader and Ogilvie saw several Best Buy receipts inside a white envelope on the driver's seat of defendant's car. Neither officer had seen defendant place the envelope in the car. Officer Ogilvie grabbed the envelope and found a Missouri driver's license for Calvin Stallings and a check with Circuit City as payee. Shortly after Officer Ogilvie grabbed the envelope, Officer Redding obtained defendant's consent to search the vehicle. Defendant told Officer Redding that he could search the vehicle but that it did not belong to him. Officer Ogilvie then handed the envelope and its contents to Officer Redding, who handed them to Officer Rader, who looked at the checks and placed defendant under arrest. During the search of defendant's car, officers discovered a black briefcase which contained a firearm and cocaine base.

In his underlying criminal case, defendant sought to suppress the firearm and cocaine base on the following grounds: (1) officers did not have reasonable suspicion of wrongdoing to justify stopping him in the Best Buy parking lot and (2) officers unlawfully seized the briefcase from his car. On May 1, 2000, the Court overruled defendant's motion to suppress. See United States v. Charles, 2000 WL 575043 (D.Kan. May 1, 2000). In particular, the Court held that officers had reasonable suspicion to stop defendant and that he had voluntarily consented to the car search. Id. at *2-3. In light of this ruling, defendant entered a conditional plea of guilty as to the weapons count, preserving his right to appeal the Court's ruling on his motion to suppress. Defendant appealed his conviction and the Tenth Circuit affirmed. See United States v. Charles, 13 Fed. Appx. 815 (10th Cir. 2001). On appeal, defendant did not challenge the factual findings in the Court's suppression order. His sole contention was that his initial stop outside of the store was not supported by reasonable suspicion. See id. at 817.

On April 17, 2002, defendant filed the instant motion pursuant to 28 U.S.C. § 2255. Defendant claims that his conviction should be vacated because (1) his consent to the car search was not voluntary, (2) his attorney provided ineffective assistance and (3) Title 18 of the United States Code has not been enacted into positive law.

Analysis

The standard of review of Section 2255 petitions is quite stringent. The court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).

I. Search Of Defendant's Car

Defendant argues that officers searched the car he was driving without his consent, and that the search was therefore unlawful. The Court previously addressed this precise issue on defendant's motion to suppress. The Court stated:

The government bears the burden to show that defendant's consent was voluntary. See United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996). To establish that defendant's consent was voluntary, the government must (1) "proffer clear and positive testimony that consent was unequivocal and specific and freely and intelligently given" and (2) "prove that this consent was given without implied or express duress or coercion." Id. at 719 (quoting United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996)). "Consent to search may be voluntary even though the consenting party is being detained at the time consent is given." United States v. Doyle, 129 F.3d 1372, 1377 (10th Cir. 1997). Whether a consent to search is voluntary is a question of fact to be determined from the totality of the circumstances. See United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993). Relevant factors include "the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged retention of a person's personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed place; and absence of other members of the public." United States v. Hill, 199 F.3d 1143, 1148 (10th Cir. 1999) (in context of consensual encounter); see Soto, 988 F.2d at 1557-58 (evaluating similar factors in context of investigative detention). No one factor is dispositive. See id. at 1557.

Here, the evidence is uncontested that officers confronted defendant in a parking lot of a retail store, that the officers did not brandish any weapons and that the officers did not use aggressive language or tone of voice. Other than the mere presence of the officers, defendant has not shown that the officers attempted to coerce him to consent. Rather, defendant asserts that he did not give consent to search. Officer Redding testified that defendant stated that the car did not belong to him but that Officer Redding could search it. On the other hand, defendant testified that he never consented to the search. Based on the credibility of the witnesses, the Court finds that defendant voluntarily consented to the search of the car. Accordingly, the Court overrules defendant's motion to suppress based on the search of his car.

United States v. Charles, 2000 WL 575043, at *3. For these reasons, defendant is not entitled to habeas relief based on his challenge to the car search.

Procedurally, defendant's claim is also barred because he failed to raise it on direct appeal. See Charles, 13 Fed. Appx. at 817 (defendant's sole contention is that initial stop outside store was not supported by reasonable suspicion). "[Section] 2255 is not available to test the legality of matters which should have been raised on appeal." United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir. 1992)). Defendant is precluded from raising issues in a Section 2255 petition which were not raised on direct appeal "unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed." Allen, 16 F.3d at 378. Defendant has not satisfied any of these exceptions.

II. Ineffective Assistance Of Counsel

Defendant argues that his counsel — Michael L. Harris, an attorney in the Federal Public Defender's office — was ineffective because he did not inform defendant of the potential conflict arising out of the fact that counsel is paid by the government. To establish ineffective assistance of counsel, defendant must show that the performance of counsel fell below an objective standard of reasonableness, and that the deficient performance was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the prejudice prong, defendant must show an actual conflict that adversely affected his representation, because he did not object to the purported conflict during the underlying proceedings. See Solomon, 2002 WL 827593, at *2 (citing Mickens v. Taylor, 122 S.Ct. 1237, 1243-44 (2002)).

Defendant has not shown an actual conflict. The Supreme Court has noted that inherent dangers "arise when a criminal defendant is represented by a lawyer hired and paid by a third party." Wood v. Georgia, 450 U.S. 261, 268-69 (1981) (footnote omitted). Such dangers ordinarily arise in the criminal context when the third party is a co-defendant who is a leader of or significantly more involved in the alleged criminal enterprise. See, e.g., id.; United States v. Shaughnessy, 782 F.2d 118 (8th Cir. 1986). Such dangers do not arise by the government's payment of an attorney in the Federal Public Defender's office. See United States v. Tronson, 215 F.3d 1328, 2000 WL 658073, at *3 (6th Cir. 2000) (alleged conflict based on government's payment of public defender is merely hypothetical and insufficient to establish violation of defendant's right). The Federal Public Defender and his or her legal staff owe their duty of loyalty to the client, not to the government. See Polk County v. Dodson, 454 U.S. 312, 321 (1981) (defense lawyer is not and by nature of his function cannot be servant of administrative superior; public defender is held to same standards of competence and integrity as private lawyer and works under canons of professional responsibility that mandate exercise of independent judgment on behalf of client). Thus no conflict arises from the fact that Mr. Harris' salary is paid by the government. See United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998) (absent showing of inconsistent interests, alleged conflict remains hypothetical and does not constitute ineffective assistance). Even if defendant could establish an actual conflict, he has not alleged that the conflict adversely affected his representation. Accordingly, defendant is not entitled to relief on his claim of ineffective assistance of counsel.

III. Validity Of Title 18 United States Code

Defendant argues that his conviction should be overturned because Title 18 of the United States Code was never properly enacted into positive law. Defendant asserts that Congress was not in session on June 25, 1948, the date Title 18 was purportedly enacted. Even if the Court assumes that Title 18 was not properly enacted, defendant's claim is without merit because he has not challenged the validity of the underlying legislation. See Wilson v. United States, 946 F.2d 902, 1991 WL 216477, at *1 (10th Cir. Oct. 23, 1991) (fact that Title 21 has not yet been revised, codified and enacted into positive law does not render substantive law it records a nullity); Ryan v. Bilby, 764 F.2d 1325, 1328 (9th Cir. 1985) ("Congress's failure to enact a title [of the United States Code] into positive law has only evidentiary significance and does not render the underlying enactment invalid or unenforceable"); Reid v. Internal Revenue Serv., 1993 WL 655028, at *1 (D.Colo. Nov. 8, 1993) (same).

IV. Conclusion

The files and records in this case conclusively show that defendant is not entitled to any relief. Accordingly, no evidentiary hearing or response by the government is required. No hearing is required where the factual matters raised by defendant's Section 2255 petition may be resolved on the record before the Court. See United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988).

IT IS THEREFORE ORDERED that defendant's Petition For Writ Of Habeas Corpus Pursuant To 28 United States Code, § 2255 (Doc. #58) filed April 17, 2002, be and hereby is OVERRULED. The Clerk is directed to send a copy of this Memorandum And Order to the United States Attorney; the United States Probation Office; defendant; and Michael L. Harris.