UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-20179
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MODESTO RIOS,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas (H-96-CV-1460)
August 5, 1999
Before JONES and WIENER, Circuit Judges, and WALTER,* District Judge.
PER CURIAM:**
Modesto Rios petitions this court for habeas relief
pursuant to 28 U.S.C. § 2255. Finding no error, we affirm the
district court’s grant of summary judgment in the government’s
favor.
I. CONVICTION
Rios was charged with aiding and abetting the possession
with intent to distribute more than five kilograms of cocaine,
conspiracy to possess with intent to distribute more than five
* District Judge of the Western District of Louisiana, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. kilograms of cocaine, and aiding and abetting the commission of
money laundering. At trial, Rios moved to suppress certain
evidence seized when the police entered and searched the Hillcroft
apartment in Houston during the course of the underlying criminal
investigation. When the district court denied his motion to
suppress, Rios entered a conditional guilty plea to the conspiracy
and money laundering counts. Under the plea agreement, Rios
preserved the right to appeal the denial of his motion to suppress.
Initially, Rios failed to file a timely notice of appeal.
Although the district court granted an extension of time to perfect
direct appeal, this court reversed the district court’s extension,
noting that 28 U.S.C. § 2255 provided the sole basis for Rios’s
relief.
II. HABEAS HISTORY
On April 15, 1991, Rios filed a motion under § 2255, and
the district court granted relief in the form of an out-of-time
appeal and dismissed the § 2255 motion. In his out-of-time appeal,
Rios challenged the police search of the apartment for lack of
probable cause. Rios’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967), informing the
court that its decision in United States v. Naboyan, 917 F.2d 562
(5th Cir. 1990) (table), controlled the case. Naboyan was Rios’s
co-conspirator and had argued unsuccessfully in his direct appeal
that no probable cause existed for the issuance of the warrant to
search the Hillcroft apartment. This court dismissed Rios’s
appeal.
2 On May 8, 1996, Rios filed another habeas petition in the
district court. Under In re Gasery, 116 F.3d 1051, 1052 (5th Cir.
1997), this petition constituted Rios’s first petition for habeas
relief. On November 25, 1997, the district court dismissed Rios’s
claims, granting the government’s motion for summary judgment. On
December 5, 1997, Rios placed his motion for reconsideration in the
prison mail system.1 This timely mailing suspended the time within
which Rios was required to file his notice of appeal. See Sonnier
v. Johnson, 161 F.3d 941, 945 (5th Cir. 1998) (citing Houston v.
Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988)).
Following the district court’s denial of reconsideration,
Rios timely appealed to this court. This court granted a
certificate of appealability (“COA”) to address Rios’s ineffective
assistance of counsel claim, based on counsel’s failure to object
at the suppression hearing to evidence seized allegedly in
violation of the Fourth Amendment’s and 18 U.S.C. § 3901’s “knock
and announce” rule. See Wilson v. Arkansas, 514 U.S. 927, 934, 115
S. Ct. 1914, 1918 (1995).
III. ANALYSIS
Because Rios’s appeal was filed timely, we review the
district court’s grant of summary judgment de novo, applying the
same standards as the district court. See United States v. Kimler,
167 F.3d 889, 892 (5th Cir. 1999). Under the Antiterrorism and
1 Even under the government’s theory that Rios placed his motion in the mail on December 8, 1997, his motion was timely filed. From November 25, 1997, excluding intermediate holidays (Thanksgiving, November 26, 1997) and weekends, Rios had until December 10, 1997 to file a timely motion for reconsideration under Fed. R. Civ. P. 59(e). See Fed. R. Civ. P. 6(a).
3 Effective Death Penalty Act (“AEDPA”), our review is limited to
issues for which a COA has been granted. See 28 U.S.C. § 2253.2
Accordingly, we review only Rios’s argument that his counsel’s
assistance was ineffective based on his failure to object to the
admission of evidence seized in alleged violation of the Fourth
Amendment’s and § 3901’s “knock and announce” rule.
A claim of ineffective assistance of counsel is governed
by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
To prevail on an ineffective assistance claim, a petitioner must
show both deficient performance by counsel and prejudice to the
defense as a result of the deficient performance. See id. at 687,
104 S. Ct. at 2064. Counsel’s performance is deficient if it falls
below an objective standard of reasonableness. See id. at 688, 104
S. Ct. at 2064. Our review of counsel’s performance is highly
deferential, with a strong presumption that the performance was
reasonable. See id. at 689, 104 S. Ct. at 2065. Deficient
performance is prejudicial only upon a showing that but for
counsel’s errors, there is a reasonable probability that the
ultimate result would have been different and that confidence in
the reliability of the verdict is undermined. See United States v.
Faubion, 19 F.3d 226, 228 (5th Cir. 1994). The effectiveness of
counsel is a mixed question of law and fact reviewed de novo by
2 Although Rios’s petition for habeas relief was signed on April 23, 1996, one day before AEDPA’s effective date, Rios has presented no evidence that the petition was placed in the prison mailing system prior to April 24, 1996.
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-20179
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MODESTO RIOS,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas (H-96-CV-1460)
August 5, 1999
Before JONES and WIENER, Circuit Judges, and WALTER,* District Judge.
PER CURIAM:**
Modesto Rios petitions this court for habeas relief
pursuant to 28 U.S.C. § 2255. Finding no error, we affirm the
district court’s grant of summary judgment in the government’s
favor.
I. CONVICTION
Rios was charged with aiding and abetting the possession
with intent to distribute more than five kilograms of cocaine,
conspiracy to possess with intent to distribute more than five
* District Judge of the Western District of Louisiana, sitting by designation. ** Pursuant to 5TH CIR. R. 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. R. 47.5.4. kilograms of cocaine, and aiding and abetting the commission of
money laundering. At trial, Rios moved to suppress certain
evidence seized when the police entered and searched the Hillcroft
apartment in Houston during the course of the underlying criminal
investigation. When the district court denied his motion to
suppress, Rios entered a conditional guilty plea to the conspiracy
and money laundering counts. Under the plea agreement, Rios
preserved the right to appeal the denial of his motion to suppress.
Initially, Rios failed to file a timely notice of appeal.
Although the district court granted an extension of time to perfect
direct appeal, this court reversed the district court’s extension,
noting that 28 U.S.C. § 2255 provided the sole basis for Rios’s
relief.
II. HABEAS HISTORY
On April 15, 1991, Rios filed a motion under § 2255, and
the district court granted relief in the form of an out-of-time
appeal and dismissed the § 2255 motion. In his out-of-time appeal,
Rios challenged the police search of the apartment for lack of
probable cause. Rios’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967), informing the
court that its decision in United States v. Naboyan, 917 F.2d 562
(5th Cir. 1990) (table), controlled the case. Naboyan was Rios’s
co-conspirator and had argued unsuccessfully in his direct appeal
that no probable cause existed for the issuance of the warrant to
search the Hillcroft apartment. This court dismissed Rios’s
appeal.
2 On May 8, 1996, Rios filed another habeas petition in the
district court. Under In re Gasery, 116 F.3d 1051, 1052 (5th Cir.
1997), this petition constituted Rios’s first petition for habeas
relief. On November 25, 1997, the district court dismissed Rios’s
claims, granting the government’s motion for summary judgment. On
December 5, 1997, Rios placed his motion for reconsideration in the
prison mail system.1 This timely mailing suspended the time within
which Rios was required to file his notice of appeal. See Sonnier
v. Johnson, 161 F.3d 941, 945 (5th Cir. 1998) (citing Houston v.
Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988)).
Following the district court’s denial of reconsideration,
Rios timely appealed to this court. This court granted a
certificate of appealability (“COA”) to address Rios’s ineffective
assistance of counsel claim, based on counsel’s failure to object
at the suppression hearing to evidence seized allegedly in
violation of the Fourth Amendment’s and 18 U.S.C. § 3901’s “knock
and announce” rule. See Wilson v. Arkansas, 514 U.S. 927, 934, 115
S. Ct. 1914, 1918 (1995).
III. ANALYSIS
Because Rios’s appeal was filed timely, we review the
district court’s grant of summary judgment de novo, applying the
same standards as the district court. See United States v. Kimler,
167 F.3d 889, 892 (5th Cir. 1999). Under the Antiterrorism and
1 Even under the government’s theory that Rios placed his motion in the mail on December 8, 1997, his motion was timely filed. From November 25, 1997, excluding intermediate holidays (Thanksgiving, November 26, 1997) and weekends, Rios had until December 10, 1997 to file a timely motion for reconsideration under Fed. R. Civ. P. 59(e). See Fed. R. Civ. P. 6(a).
3 Effective Death Penalty Act (“AEDPA”), our review is limited to
issues for which a COA has been granted. See 28 U.S.C. § 2253.2
Accordingly, we review only Rios’s argument that his counsel’s
assistance was ineffective based on his failure to object to the
admission of evidence seized in alleged violation of the Fourth
Amendment’s and § 3901’s “knock and announce” rule.
A claim of ineffective assistance of counsel is governed
by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
To prevail on an ineffective assistance claim, a petitioner must
show both deficient performance by counsel and prejudice to the
defense as a result of the deficient performance. See id. at 687,
104 S. Ct. at 2064. Counsel’s performance is deficient if it falls
below an objective standard of reasonableness. See id. at 688, 104
S. Ct. at 2064. Our review of counsel’s performance is highly
deferential, with a strong presumption that the performance was
reasonable. See id. at 689, 104 S. Ct. at 2065. Deficient
performance is prejudicial only upon a showing that but for
counsel’s errors, there is a reasonable probability that the
ultimate result would have been different and that confidence in
the reliability of the verdict is undermined. See United States v.
Faubion, 19 F.3d 226, 228 (5th Cir. 1994). The effectiveness of
counsel is a mixed question of law and fact reviewed de novo by
2 Although Rios’s petition for habeas relief was signed on April 23, 1996, one day before AEDPA’s effective date, Rios has presented no evidence that the petition was placed in the prison mailing system prior to April 24, 1996. Lacking such evidence, Rios’s petition is subject to AEDPA’s COA requirement as the petition was filed in the district court on May 8, 1996.
4 this court. See Moody v. Johnson, 139 F.3d 477, 483 (5th Cir.
1998).
Counsel’s failure to object to the admission of the
evidence seized from the apartment on Hillcroft did not prejudice
Rios’s defense. First, in his capacity as a social guest, Rios had
no legitimate expectation of privacy in the Hillcroft apartment.
See Minnesota v. Carter, ___ U.S. ___, ___, 119 S. Ct. 469, 472-74
(1998). Though Rios now claims that the Hillcroft apartment was
his residence and the district court apparently so found at the
suppression hearing, Rios subsequently admitted in his presentence
report that he did not actually reside at the Hillcroft apartment
and that he had only been at the apartment ten minutes before the
officers executed the search warrant. Cf. id. Second, even if
Rios had an expectation of privacy, he has offered no evidence
tending to establish that the officers who executed the search
warrant actually violated the “knock and announce” rule. The only
support for his claim is the suppression hearing testimony of
Naboyan who testified, (1) that the officers had a warrant when
they entered the apartment, (2) that he did not give the officers
permission to enter, and (3) that, without permission, the officers
effected a forcible entry. There is no evidence in Naboyan’s
testimony and, most importantly, Rios offers no other evidence to
support a finding that the “knock and announce” rule was actually
violated. See United States v. Moser, 123 F.3d 813, 824 (5th Cir.
1997) (placing burden on proponent to show that unannounced entry
actually occurred). While counsel’s failure to elicit “knock and
5 announce” testimony during the suppression hearing may have
constituted deficient performance, absent some evidentiary showing
regarding the potential prejudice of counsel’s error, beyond Rios’s
conjecture, no habeas relief is available. By resting on his
pleadings, Rios has failed to submit sufficient evidence to avoid
summary judgment.
AFFIRMED.