Opinion
Criminal No. 4-83-84(1) ADM.
February 26, 2003
Duane Wendall Larson, pro se.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Petitioner Duane W. Larson ("Petitioner") brings the instant matter before the undersigned United States District Judge pursuant to his Motion of Application for a Writ of Error Coram Nobis [Docket No. 225] in accordance with 28 U.S.C. § 1651. Petitioner seeks to vacate his conviction and sentence for aiding and abetting possession of cocaine with intent to distribute under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 [Docket Nos. 57, 71]. Petitioner argues that cocaine seized from his hotel room was obtained in violation of the Fourth Amendment because police allegedly seized cocaine from closed containers without a search warrant. Petitioner also claims his lawyers were ineffective for failing to raise the issue of the warrantless container search at trial. Petitioner believes these violations entitle him to coram nobis relief. For the reasons set forth below, Petitioner's Motion is denied.
II. BACKGROUND
On February 9, 1984, Petitioner was convicted of possessing with intent to distribute approximately three pounds of undiluted cocaine violation of 28 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 [Docket No. 57]. Petitioner was sentenced to ten years imprisonment and a $25,000 fine [Docket No. 71]. The Eighth Circuit Court of Appeals affirmed the conviction, finding that Petitioner did not have a legitimate expectation of privacy in the hotel room where the search took place and that the warrantless search was justified by the exigent circumstances exception. Larson, 760 F.2d at 854-56. The appellate decision affirmed the district court's denial of the motion to suppress the cocaine. Id. at 856.
For a complete explanation of the facts relating to Petitioner's offense and affirming his conviction see United States v. Larson, 760 F.2d 852 (8th Cir. 1985), cert. denied, 474 U.S. 849 (1985).
Following his direct appeal, Petitioner filed four 28 U.S.C. § 2255 petitions challenging his conviction and sentence. The first petition, filed in 1986, sought relief on various grounds, including an allegation that the cocaine was seized from the hotel room in violation of the Fourth Amendment and that Petitioner received ineffective assistance of counsel [Docket No. 116]. The petition was denied for several reasons, including a finding that at least some of the cocaine was in plain view at the time of the search [Docket No. 139]. The court also found that that Petitioner was not prejudiced by his counsel's actions. The Court of Appeals affirmed the dismissal of the first § 2255 petition in Larson v. United States, 833 F.2d 758, 759 (8th Cir. 1987).
The trial testimony indicated that the tops of at least some of the grocery bags where cocaine was found were open when the hotel manager looked inside and saw plastic bags filled with white powder. See Mem. Op. and Order of July 2, 1987 [Docket No. 139]. In addition, the court determined that Petitioner had been given a "full and fair opportunity" to raise Fourth Amendment arguments at his pretrial suppression motion, at trial, in a motion for a new trial, on appeal, and in his petition for writ of certiorari. Id.
In 1988 Petitioner filed a second § 2255 petition challenging the district court's finding that some of the cocaine was in plain view and repeating his ineffective assistance of counsel argument [Docket No. 146]. Petitioner presented what he characterized as new evidence, his own affidavit and an affidavit from a private investigator that had interviewed several witnesses. According to Petitioner, this evidence demonstrated that the cocaine was not in plain view. The court rejected Petitioner's arguments, however, and the second petition was denied on its merits [Docket No. 167]. The court found the claims would have failed even if all of the facts alleged by Petitioner were accepted as true. The Court of Appeals affirmed the dismissal in Larson v. United States, 905 F.2d 218, 220 (8th Cir. 1990).
Petitioner's third § 2255 petition, filed in 1991, again claimed that the seizure of the cocaine violated the Fourth Amendment and that he had received ineffective assistance of counsel [Docket No. 175]. This petition also raised a discovery claim that was denied as abusive. The ineffective assistance and Fourth Amendment claims were dismissed as successive [Docket No. 206] and the Court of Appeals affirmed in Larson v. United States, No. 92-2212MN (8th Cir. 1992).
Petitioner's fourth § 2255 petition raised arguments similar to those found in the previous three petitions. According to Petitioner, a determination on the merits of his case had not taken place since the files and records did not resolve whether or not the cocaine was in plain view at the time the hotel room was searched. Petitioner produced affidavits from officers who had conducted the search of the hotel room. Petitioner asserted that the affidavits proved the cocaine was not in plain view at the time of the search. Judge Diana E. Murphy, then District Court Chief Judge, found that "the new affidavits do not provide any information that has not already been considered" and, even if the evidence were new, it would not be grounds for habeas relief. Mem. Op. and Order of July 22, 1994 [Docket No. 217]. The petition, including the ineffective assistance claim, was denied as successive and the Court of Appeals affirmed [Docket No. 223]. In August, 1991, Petitioner completed his sentence. He brought this Motion in December, 2002, to have his conviction and sentence vacated through a writ or error coram nobis, again alleging ineffective assistance of counsel and Fourth Amendment violations [Docket No. 225].
III. DISCUSSION
Federal District Courts have power pursuant to 28 U.S.C. § 1651(a), the all-writs section of the Judicial Code, to vacate convictions and sentences in federal criminal cases through the issuance of a writ of error coram nobis. United States v. Morgan, 346 U.S. 502, 511 (1954). Such a writ is available in very limited situations; there must be a final judgment in the case and an "exhaustion or waiver" of all other statutory remedies. Id. Even if no other alternative exists, a writ of error coram nobis is an "extraordinary remedy" that is allowed "only under circumstances compelling such action to achieve justice." Id. (explaining that a federal trial without a competent and intelligent waiver of counsel may be an example of when conviction is inappropriate). To grant coram nobis relief an error must have occurred that is "of the most fundamental character." Id. at 512. See also Kandiel v. United States, 964 F.2d 794, 796-97 (8th Cir. 1992) (finding that Kandiel did not articulate fundamental errors or compelling circumstances to justify coram nobis relief). In this case, Petitioner fails to meet the heavy burden required to apply coram nobis relief.
Petitioner primarily asserts that cocaine taken from the hotel room was done so in violation of the Fourth Amendment since it was seized from closed containers without a warrant. Pet'r Mot. at 10-14. According to Petitioner, the July 2, 1987 Order is factually flawed in its holding that some of the cocaine was in plain view. Id. at 12. Petitioner claims that the finding focused only on what the hotel manager saw, which was white powder that turned out not to be cocaine, rather than determining whether or not the police viewed the cocaine in plain sight. Id. at 13. Petitioner also argues that affidavits from police officers involved in the search are new evidence that should be considered by this Court. The affidavits, Petitioner asserts, prove that all of the cocaine was found in closed containers. Id. at 11. Finally, Petitioner argues that his attorneys were ineffective for failing to raise the closed container argument at trial and for failing to interview the officers. Id. at 18-19.
Petitioner's Fourth Amendment argument does not warrant coram nobis relief. Petitioner's assertion, that all of the cocaine was in closed containers, has been considered and rejected numerous times, with various courts finding that at least some of the cocaine was in plain view. It was also determined by Petitioner's second and fourth § 2255 petitions that the police affidavits and the affidavits from Larson and the private investigator failed to provide any information that the court has not already considered. See Larson, 960 F.2d at 219-20; Mem. Op. and Order of July 22, 1994 [Docket No. 217]. Regardless, the affidavits from the police officers do not affirmatively prove that all of the cocaine was hidden from view. Officer Clark Holden's affidavit is illustrative:
a. Exhibit No. 1 was packaged as follows: The cocaine was inside three ziplock plastic bags. This in turn, was inside the brown paper grocery bag. Duane Larson contends that the ziplock bags were inside a manila envelope. I cannot recall whether Exhibit 1 included a manila envelope similar to Exhibits 2 and 3.
Aff. Clark Holden ¶ 13a (App. 4). Finally, even if the cocaine was hidden from view Petitioner no longer had an expectation of privacy in the hotel room where the search took place and the search was also justified under the exigent circumstances exception. Larson, 760 F.2d at 854-56. Thus, no fundamental error exists that would require this Court to issue a writ of coram nobis based on Fourth Amendment grounds.
There is usually no expectation of privacy in unsealed paper bags. See, e.g., United States v. Mefford, 658 F.2d 588, 591-92 (8th Cir. 1981).
Petitioner's ineffective assistance of counsel argument also fails to justify coram nobis relief. To prove ineffective assistance of counsel Petitioner must show that his counsel's performance fell below "an objective standard of reasonableness" and that he was prejudiced by the error. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Here, Petitioner had three attorneys working on his defense, including Raymond Smith who was successful in suppressing some of the cocaine and whose efforts resulted in dismissal of one count of the indictment. See Mem. Op. and Order of July 2, 1987 [Docket No. 139]. The prior determination that some of the cocaine was in plain view and that Petitioner's Fourth Amendment claim is without merit precludes the ineffective assistance of counsel argument. See United States v. Johnson, 707 F.2d 317, 323 (8th Cir. 1983). Petitioner has not shown that his conviction and sentence must be vacated to achieve justice. See United Sates v. Camacho-Bordes, 94 F.3d 1168, 1173 (8th Cir. 1996). Accordingly, Petitioner's Motion is denied.
IV. CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Petitioner's Motion of Application for a Writ of Error Coram Nobis in accordance with 28 U.S.C. § 1651 [Docket No. 225] is DENIED.