USA v. Mace McGrew

Filing

UNPUBLISHED OPINION FILED. [09-50328 Affirmed in Part, Reversed in Part and Remanded.] Judge: PEH , Judge: EBC , Judge: PRO. Mandate pull date is 11/29/2010 [09-50328]

USA v. Mace McGrew

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 6, 2010 N o . 09-50328 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M A C E MCGREW, also known as Mace Lee McGrew, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court for the Western District of Texas U S D C No. 5:07-CV-259

B e fo r e HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* M a c e McGrew was convicted under 18 U.S.C. § 922(g)(1) of being a felon in possession of a firearm. He timely appealed and his conviction was affirmed. T h e district court denied McGrew's 28 U.S.C. § 2255 motion for post-conviction r e lie f and this court granted McGrew a certificate of appealability. For the fo llo w in g reasons, the district court's judgment is AFFIRMED as to McGrew's in e ffe c t iv e assistance of appellate counsel claim and REVERSED as to McGrew's F ifth Amendment and ineffective assistance of trial counsel claims. This case is
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 09-50328 R E M A N D E D for an evidentiary hearing on McGrew's Fifth Amendment and in e ffe c t iv e assistance of trial counsel claims. FACTS AND PROCEEDINGS A jury convicted McGrew of being a felon in possession of a firearm, and t h e district court sentenced him to a fifty-one-month prison term to be followed b y three years of supervised release. His codefendant, William Tutt, was a c q u it t e d of the same charge. Because the rifle was found in a bedroom of a h o u s e that McGrew often shared with his girlfriend, Renee Chapman, the key is s u e at McGrew's trial was whether he constructively possessed the rifle, s p e c ific a lly whether he knew that the rifle was in the bedroom and whether he h a d access to it. United States v. McGrew, 165 F. App'x 308, 311 (5th Cir. 2006); s e e also United States v. Hinojosa, 349 F.3d 200, 203-04 (5th Cir. 2003).1 M c G r e w 's defense was that he had allowed his friend, Tutt, who did not live at t h e house, to store some items in Chapman's bedroom, but that McGrew did not k n o w that one of the items was a rifle. Tutt testified at trial that he told McGrew t h a t he had a rifle that he wanted to get rid of and that McGrew said that he w o u ld take the rifle. Tutt testified that McGrew told him to put the rifle under C h a p m a n 's bed because McGrew did not want Chapman to know it was in the h ouse. Witnesses at trial testified regarding the search for and the discovery of t h e rifle. Chapman stated that she consented to a search of her home by two

"Ordinarily, constructive possession may be found if the defendant had (1) ownership, dominion or control over the item itself or (2) dominion or control over the premises in which the item is found." McGrew, 165 F. App'x at 311 (citing United States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999); Hinojosa, 349 F.3d at 203). Where two or more persons jointly occupy the premises where a firearm is found, mere control or dominion over the premises is insufficient to establish constructive possession; the evidence must support at least a "plausible inference that the defendant had knowledge of and access to the weapon or contraband." McGrew, 165 F. App'x at 311 (quoting United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993)).

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No. 09-50328 p o lic e officers and two probation officers. Chapman testified that she lived at the h o u s e and that McGrew stayed there several nights a week. During the search, w h ile McGrew tended to the couple's child in the living room, a police officer was s t a t io n e d at the door to ensure that no one entered or left the house. Probation o ffic e r s found a rifle, body armor, and a lock box under the bed where Chapman a n d McGrew slept. They also recovered marijuana and some ammunition from t h e bedroom. McGrew admitted that the marijuana was his and volunteered to c a ll Tutt, who McGrew said had a key to the lockbox. Tutt came to the house w it h a key and opened the box, which contained money, a cell phone, and a m m u n it io n . One of the police officers questioned McGrew about the ownership o f the rifle. McGrew denied that the rifle belonged to him. The officer testified, h o w e v e r , that McGrew admitted that he knew the rifle was under the bed. M c G r e w was arrested for possessing the rifle and the marijuana. There was no t e s t im o n y at the trial indicating that McGrew received warnings as required by M ir a n d a v. Arizona, 384 U.S. 436 (1966), at any time. I n his § 2255 motion for post-conviction relief, McGrew asserted numerous c la im s including: (1) that he was unlawfully arrested; (2) that he was convicted b a s e d on incriminating statements he made during a custodial interrogation w it h o u t receiving Miranda warnings; (3) that he received ineffective assistance o f trial counsel when his lawyer failed to file a motion to suppress these s t a t e m e n t s ; and (4) that his appellate counsel was ineffective for failing to argue t h e Miranda violation on appeal. The district court denied McGrew's § 2255 motion without an evidentiary h e a r in g . It held that McGrew did not undergo a custodial interrogation and that t r ia l counsel was not ineffective for failing to file a motion to suppress McGrew's s t a t e m e n t s . The district court reasoned that McGrew had failed to show that his c o u n s e l's decision not to file a motion to suppress was not a sound trial strategy a n d that he suffered prejudice from that decision. The trial court also denied 3

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No. 09-50328 M c G r e w 's claim that appellate counsel was ineffective. The court dismissed M c G r e w 's unlawful arrest claim, reasoning that it had been procedurally d e fa u lt e d and that Stone v. Powell, 428 U.S. 465 (1976), barred the court from r e v ie w in g McGrew's Fourth Amendment claims. S T A N D A R D OF REVIEW AND APPLICABLE LAW I n the context of a motion for relief pursuant to 28 U.S.C. § 2255, the court o f appeals reviews a district court's factual findings for clear error and its legal c o n c lu s io n s de novo. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008) (c it in g United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006)). The review o f a district court's refusal to grant an evidentiary hearing on a § 2255 motion is for abuse of discretion; the district court should conduct an evidentiary h e a r in g only if the appellant produced "independent indicia of the likely merit o f [his] allegations." Edwards, 442 F.3d at 264 (quoting United States v.

C e r v a n te s , 132 F.3d 1106, 1110 (5th Cir. 1998)); see also United States v. Auten, 6 3 2 F.2d 478, 480 (5th Cir. 1980) (holding that mere conclusory allegations are n o t sufficient to support a request for an evidentiary hearing). Once such in d e p e n d e n t evidence is presented, "`[a] motion brought under 28 U.S.C. § 2255 c a n be denied without a hearing only if the motion, files, and records of the case c o n c lu s iv e ly show that the prisoner is entitled to no relief.'" Cavitt, 550 F.3d at 4 4 2 (quoting United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)) (a lt e r a t io n in original). DISCUSSION T h is court granted McGrew a certificate of appealability ("COA") as to the fo llo w in g issues: (1) whether the district court erred in determining that Stone b a r s McGrew's claim that he was convicted based on incriminating statements h e made during a custodial interrogation without receiving Miranda warnings in violation of his Fifth Amendment right against self-incrimination; (2) whether M c G r e w procedurally defaulted his Miranda claim; (3) if McGrew's Miranda 4

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No. 09-50328 c la im is not procedurally defaulted, whether he established a Fifth Amendment v io la t io n ; (4) whether trial and appellate counsel were ineffective for failing to r a is e the alleged Fifth Amendment violation; and (5) whether the district court s h o u ld have granted McGrew an evidentiary hearing on the Miranda claim. Each issue is addressed in turn. A. Stone v. Powell I n Stone, the Supreme Court held that a state prisoner cannot raise a F o u r t h Amendment challenge in a collateral attack if the prisoner had a full and fa ir opportunity to litigate that issue in the state courts. 458 U.S. at 494-95 & n .3 7 ; see also United States v. Ishmael, 343 F.3d 741, 742 (5th Cir. 2003) (e x te n d in g the Stone rule to federal prisoners bringing § 2255 claims). The S u p r e m e Court has refused to apply Stone to bar collateral attacks based on M ir a n d a violations. Withrow v. Williams, 507 U.S. 680, 688 (1993). In his § 2255 motion, McGrew grouped two claims--his Miranda claim and h is claim that he was illegally arrested--under the heading of "unlawful arrest." I n denying relief for "unlawful arrest," the district court explained that "because d e fe n d a n t s in federal court have an opportunity to litigate Fourth Amendment c la im s , collateral review of those claims is . . . barred by Stone v. Powell." (e m p h a s is added). The district court, therefore, did not hold that Stone barred M c G r e w 's Fifth Amendment claim. B. Procedural Default The government's brief before the district court did not address McGrew's c la im that the statements he made without receiving Miranda warnings were e r r o n e o u s ly introduced at trial, much less argue that this claim was procedurally d e fa u lt e d . Instead, the district court sua sponte held that McGrew's Miranda c la im was procedurally defaulted. Although a district court may raise the issue o f procedural default sua sponte, it must afford the movant notice and an o p p o r t u n it y to respond. Fisher v. State of Texas, 169 F.3d 295, 301-02 (5th Cir. 5

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No. 09-50328 1 9 9 9 ). The district court failed to give such notice and failed to provide the o p p o r t u n it y to respond. In appropriate circumstances, this court may apply the procedural bar sua s p o n te . See Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000); see also U n ite d States v. Willis, 273 F.3d 592, 596 (5th Cir. 2001). The relevant concerns a r e whether the petitioner has been given notice and an opportunity to respond a n d whether the government has waived the defense intentionally. Smith, 216 F .3 d at 524; Willis, 273 F.3d at 596. This court's grant of a COA on the p r o c e d u r a l bar issue provided McGrew with notice and an opportunity to r e s p o n d . The record does not reflect that the government intentionally waived t h e procedural default defense because it did not even address McGrew's M ir a n d a claim in its briefing before the district court. See Willis, 273 F.3d at 5 9 6 -9 7 . Accordingly, this court will consider whether McGrew defaulted his M ir a n d a claim. A § 2255 motion is not a substitute for a direct appeal. A prisoner may not r a is e a claim for the first time in a collateral attack unless he shows cause for his p r o c e d u r a l default and actual prejudice resulting from the error. United States v . Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (en banc); see also United States v . Frady, 456 U.S. 152, 167 (1982). Although McGrew does not directly address w h y his procedural default should be excused, he does argue that his trial and a p p e lla te counsel were ineffective for failing to raise the Miranda issue. A p e t it io n e r can establish cause and prejudice by showing that counsel rendered c o n s t it u t io n a lly -in e ffe c t iv e assistance. See United States v. Patten, 40 F.3d 774, 7 7 6 (5th Cir. 1994). Because the analysis of whether McGrew's counsel was in e ffe c t iv e for failing to raise his Fifth Amendment claim is intertwined with the m e r it s of that claim, McGrew's Fifth Amendment claim is addressed first. C. Alleged Fifth Amendment Violation

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No. 09-50328 M c G r e w argues that his counsel rendered ineffective assistance by failing t o raise his Miranda claim at trial. He maintains that the claim would have been s u c c e s s fu l and that counsel's failure to raise it was prejudicial. Incriminating s t a t e m e n t s made during a custodial interrogation by a suspect who has not first r e c e iv e d Miranda warnings are generally inadmissible. Missouri v. Seibert, 542 U .S . 600, 608 (2004). A suspect is "in custody" when he is placed under arrest o r when a reasonable person in the position of the suspect would understand t h a t the restriction on his freedom of movement is tantamount to a formal a r r e s t . United States v. Stevens, 487 F.3d 232, 241 (5th Cir. 2007). This court has c o n s id e r e d a number of factors in determining whether a suspect is "in custody," in c lu d in g how long the questioning lasts, at what point the incriminating in fo r m a t io n is provided, the location of the questioning, whether the questioning t a k e s place in public, and the number of questioners. See United States v. H a r r e ll , 894 F.2d 120, 124 (5th Cir. 1990). An "interrogation" occurs where "a p e r s o n in custody is subjected to either express questioning or its functional e q u iv a le n t ," i.e., words or actions "that the police should know are reasonably lik e ly to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 3 0 0 -0 1 (1980)). Voluntary statements made by a suspect are admissible, r e g a r d le s s of whether the suspect has been advised of his Miranda rights. See id . at 299-300. M c G r e w states in his sworn declaration that he was subjected to custodial in t e r r o g a t io n when, over the course of an hour and without receiving Miranda w a r n in g s , he was questioned about the rifle. He further explains that an officer s t a t i o n e d at the door would not let him leave, that he was not free to leave b e c a u s e the officers decided to arrest him when they found the rifle, and that at s o m e point during the interrogation he was handcuffed. If the district court were to find the allegations in McGrew's declaration c r e d ib le , McGrew may be able to demonstrate that he was in custody at the time 7

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No. 09-50328 t h e incriminating statements were made. Evidence presented at trial

c o r r o b o r a t e s some of McGrew's allegations. For example, a police officer testified t h a t he was stationed at the door during the search to prevent anyone from le a v in g . It is not clear on this record whether, at the time of the search, a r e a s o n a b le person in McGrew's position would have understood that the officers w o u ld not have allowed him to leave. McGrew alleges in his sworn declaration t h a t he was "ordered to sit down and remain seated" and that he was placed in h a n d c u ffs while he was being questioned, although he does not specify on appeal w h e t h e r he made any incriminating statements while handcuffed. Even if M c G r e w was not in custody at the beginning of the search, it is arguable that a r e a s o n a b le person in McGrew's position would not believe that he was free to le a v e once he admitted to possessing the marijuana. See United States v. B e n g iv e n g a , 845 F.2d 593, 597 & n.16 (5th Cir. 1988) (en banc). McGrew's a lle g a t io n that he was questioned for "at least a[n] hour" "raises considerable s u s p ic io n " that a custodial interrogation has occurred, although it does not c o n c lu s iv e ly establish that he was in custody. See Harrell, 894 F.2d at 124 & n.1. McGrew does not state when he admitted that he knew that the gun was under t h e bed. Certainly, several factors also support the inference that McGrew may not h a v e been "in custody." McGrew was questioned in his girlfriend's home, where h e lived at least some of the time. See id. at 125 ("A reasonable person, q u e s t io n e d within his own home, would not suffer `a restraint on freedom of m o v e m e n t of the degree which the law associates with formal arrest.'"). The p r e s e n c e of only two police officers and two probation officers also suggests that t h e questioning was not police dominated. See Bengivenga, 845 F.2d at 598. McGrew's sworn declaration and the record also suggest that he might be a b le to establish that he underwent interrogation. The trial record shows that a police officer asked him whether he owned the rifle, why it was in the room, 8

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No. 09-50328 a n d why it was under the bed--statements that the police may have known were lik e ly to elicit an incriminating answer. In fact, a police officer testified at trial t h a t , as soon as the rifle was found, he suspected McGrew of possessing it. It is possible that McGrew's sworn statements, if credited and considered a lo n g with the evidence presented at trial, could establish that McGrew was s u b je c t to a custodial interrogation. McGrew has produced "independent indicia o f the likely merit of [his] allegations," see Edwards, 442 F.3d at 264, and "the m o t io n , files, and records of the case [do not] conclusively show that [he] is e n tit le d to no relief,'" Cavitt, 550 F.3d at 442 (citation omitted). Before d e t e r m in in g whether the district court abused its discretion in denying McGrew a n evidentiary hearing with respect to his Fifth Amendment claim, this court m u s t consider the district court's holding that his counsel did not render in e ffe c t iv e assistance. D. Alleged Ineffective Assistance of Counsel A federal habeas petitioner who alleges ineffective assistance of counsel m u s t show that his counsel's performance was deficient and that this deficient p e r fo r m a n c e resulted in actual prejudice. Strickland v. Washington, 466 U.S. 6 6 8 , 687 (1984). To establish deficient performance, a petitioner must "show that c o u n s e l's representation fell below an objective standard of reasonableness." Id. a t 688. Judicial scrutiny of counsel's performance must be "highly deferential," a n d the court must make every effort "to eliminate the distorting effects of h in d s ig h t , to reconstruct the circumstances of counsel's alleged conduct, and to e v a lu a te the conduct from counsel's perspective at the time." Id. at 689. The c o u r t must "indulge a strong presumption that counsel's conduct falls within the w id e range of reasonable professional assistance; that is, the defendant must o v e r c o m e the presumption that, under the circumstances, the challenged action m ig h t be considered sound trial strategy." Id. (quoting Michael v. Louisiana, 350 U .S . 91, 101 (1985)) (internal quotation marks omitted). If a tactical decision 9

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No. 09-50328 is "`conscious and informed . . . [it] cannot be the basis for constitutionally in e ffe c t iv e assistance of counsel unless it is so ill chosen that it permeates the e n tir e trial with obvious unfairness.'" Cavitt, 550 F.3d at 440 (quoting Crane v. J o h n s o n , 178 F.3d 309, 314 (5th Cir. 1999)) (alteration in original). i. Deficient Performance McGrew argues that counsel was deficient in failing to file a motion to s u p p r e s s statements illegally obtained during an alleged custodial interrogation. T h e district court held that McGrew's trial counsel's failure to file a motion to s u p p r e s s was sound trial strategy because McGrew made statements that were h e lp fu l to his defense during McGrew's conversation with the officers. Namely, M c G r e w stated that, although Tutt brought over some items to the house, he did n o t know what the items were. McGrew also volunteered that he possessed the m a r iju a n a ; his counsel argued at trial that this demonstrated that his other s t a t e m e n t s to the police were also true. However, those statements are mildly h e lp fu l at best2 and do not outweigh McGrew's incriminating statement that he k n e w the rifle was under the bed. See McGrew, 165 F. App'x at 312-13. There is n o sworn testimony by McGrew's counsel explaining the strategy behind the d e c is io n not to file a motion to suppress. Given the devastating impact of that s t a t e m e n t , it is impossible to conclude without further factual development that M c G r e w 's trial counsel's decision not to file a motion to suppress was "strategic, c o n s c io u s , and informed." See Strickland, 466 U.S. at 689. ii. Prejudice It is also possible that McGrew suffered prejudice under Strickland due t o trial counsel's failure to file a motion to suppress McGrew's statement to the p o lic e that he knew that the rifle was under the bed. McGrew's admission was
Assuming that McGrew's statement that the marijuana was his supports the veracity of his other statements to the police, by the same logic, it would also support the government's contention that McGrew was telling the truth when he said that he knew the rifle was under the bed.
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No. 09-50328 c e r t a in ly probative evidence of his guilt. See McGrew, 165 F. App'x at 311-12; s e e also United States v. Avants, 278 F.3d 510, 522 (5th Cir. 2002) (explaining t h a t the defendant's confession was "powerful evidence of guilt, the admission o r exclusion of which would be highly likely to affect the outcome of the trial"); P y le s v. Johnson, 136 F.3d 986, 996 (5th Cir. 1998) (explaining that a d e fe n d a n t 's confession is "probably the most probative and damaging evidence" a g a in s t him). Although the government introduced other evidence at trial s u p p o r t i n g the inference that McGrew had knowledge of the rifle, no evidence w a s as damaging as McGrew's admission. Tutt testified that he told McGrew t h a t he wanted to get rid of a firearm and that McGrew expressed interest in the fir e a r m . Tutt also testified that when he came to Chapman's house, McGrew was in the bedroom. Tutt testified that he showed McGrew the rifle and that McGrew in s t r u c t e d Tutt to put the rifle underneath the bed so that Chapman would not k n o w that it was in the house. However, Tutt's trial testimony was somewhat c o n t r a d ic t o r y because he also acknowledged that McGrew told him that he could s t o r e certain items at Chapman's house, so long as the items were not illegal. Tutt presumably knew that it was illegal for McGrew to possess a firearm: Tutt t e s t ifie d that Tutt was a convicted felon, that Tutt knew that it was illegal for h im to possess a firearm, and that he knew that McGrew was also a convicted fe lo n . The jury may have viewed Tutt's testimony, as McGrew's co-defendant a n d a convicted felon, to be not credible. Additionally, the police told Tutt that M c G r e w was the primary target of the prosecution, which could lead a rational ju r o r to question whether Tutt's testimony was calculated to direct the blame to M c G r e w . Assuming that a motion to suppress would have been successful, "there is a reasonable probability that, but for counsel's unprofessional errors, the r e s u lt of the proceeding would have been different." United States v. R o s a le z -O r o z c o , 8 F.3d 198, 199 (5th Cir. 1993) (internal quotation marks

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No. 09-50328 o m it t e d ).3 Because "the motion, files, and records of the case [do not]

c o n c lu s iv e ly show that the prisoner is entitled to no relief," Cavitt, 550 F.3d at 4 4 2 , the district court abused its discretion in denying McGrew an evidentiary h e a r in g with respect to his Fifth Amendment claim and his claim that his trial c o u n s e l was ineffective for failing to file a motion based on his Fifth Amendment c la im . The district court's denial of McGrew's Fifth Amendment claim and his in e ffe c t iv e assistance of trial counsel claim is reversed and remanded for an e v id e n t ia r y hearing. However, McGrew has not shown that his appellate counsel was in e ffe c t iv e . Appellate counsel could not have established that, on the record b e fo r e the district court, the decision to admit the testimony was plainly e r r o n e o u s . Assuming that this court would have applied a plain-error standard o n direct appeal because McGrew did not raise the issue at trial, United States v. Baker, 538 F.3d 324, 328-29 & n.1 (5th Cir. 2008), an appeal would have not b e e n successful and the judgment of the district court as to this claim is a ffir m e d . CONCLUSION For the foregoing reasons, the district court's judgment on McGrew's in e ffe c t iv e assistance of appellate counsel claim is AFFIRMED. The district

McGrew argues that his statement to the police officer that he lived with Chapman at the house was obtained in violation of Miranda. Although McGrew presented this argument in his briefing before the district court, the court's opinion did not address it. However, McGrew is not entitled to relief on this claim because McGrew cannot show prejudice. The overwhelming evidence introduced at trial supports that McGrew had domination or control over the premises. See McGrew, 165 F. App'x at 311-12. Chapman testified at trial that McGrew stayed at the residence at least a few nights per week, and testimony by a probation officer revealed that McGrew had been staying there more often at the time of the search. Id. at 312. The presence of McGrew's marijuana and clothing in the closet supports the conclusion that he was more than a casual visitor. Id. "Moreover, the fact that McGrew allowed another person [Tutt] to keep items at the house without Chapman's knowledge or permission indiciates that he indeed had control over the residence." Id.

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No. 09-50328 c o u r t's judgment on McGrew's Fifth Amendment and ineffective assistance of t r ia l counsel claims is REVERSED and this case is REMANDED to the district c o u r t for an evidentiary hearing on these claims.

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