*2 12(b) аccordance with WATERMAN, Fed.R.Crim.P. Before FEINBERG and principles of Davis MANSFIELD, v. United Judges. Circuit WATERMAN, Judge: Circuit that, (1973); Powell, light Stone petitioner, The Indiviglio, appeals John (1976), Fourth Amendment claims are not from an order January 8, 1979, entered on cognizable in 28 proceedings. U.S.C. 2255 § in the United States District Court for the We affirm the district court’s order. Eastern District of (Mishler, New York Judge) dismissing petition brought The culminating in the con- pursuant to 28 U.S.C. 2255 to § vacate his viction of which he now chal- conviction and to set aside his sentence. lenges were initiated an indictment judgment The of conviction was entered on brought against Indiviglio charging him August 16, 1974, after by jury. co-defendants, Indi- and his Frank Breene and viglio was guilty found participating Matteo, having Thomas conspired with narcotics conspiracy, in violation of 21 Aguiar one Frank and others to violate the and was sentenced to a term federal laws. 1. The district cordingly, court below found unnecessary this claim to we find it to address wholly merit, petitioner appears without this claim. appeal. have abandoned it Ac- Tyler from received heroin both Somas together; were tried case
Breene McCormick, latter indicat- James with the Matteo was severed. ing had received Aguiar that he in turn witness called at prosecution The first Indiviglio. heroin Somas, Tyler an Indiviglio’s trial was ad- addition, prosecution with a introduced co-conspirator mitted criminal record *3 evidence, in items special physical who consideration return trial numerous of received cooperation. consisting primarily pieces of of chemical for his testified that he Somas and ad- equipment at documents letters employed Indiviglio’s had been auto and of these parts Indiviglio.2 in dressеd to All items beginning store fur- Somas during during Indiviglio’s of of period ther testified that the his were seized a search residence, was Indiviglio Long search employment with he had become Island which by by County operated prompted indirectly involved narcotics business a Suffolk Matteo; Matteo, Indiviglio Indiviglio discovery and that Thomas police had of officer’s armed, wounded, possession set up laboratory equipment severely in a downstairs and owned, storage building containing of approximate- area he which an case of attache equipment Indivigliо $350,000, was dis- employed by ly premises. We will on heroin; synthetic manufacture surrounding that Somas cuss the circumstances believed that he storage was in this search of and the sei- residence Indiviglio area on one give fully occasion and saw zure of the more physical evidence Matteo; drugs Indiviglio that met with our connection with treatment claims, Matteo and financing Somas to discuss the lio’s Sixth Amendment infra. of a trip Indiviglio towas make to France Finally, re- part prosecution’s as supplier; meet and heroin Breene, pair buttal evidence Mattеo had instructed Somas to obtain her- Drug (DEA) Enforcement Administration oin Indiviglio. agents Indiviglio saw they testified Finally, May and Breene in Beth’s Bar Grill on regarding Somas testified & certain Indiviglio conversations he had had with Long latter’s Island residence In petition, Indiviglio his claimed that his early part of 1971. Somas related that by rights were Sixth Amendment violated Indiviglio’s drug money business and incompetence his alleged egregious Matteo owed Indiviglio principal were the counsel, Ludwig Abruzzo. United topics portion of discussion. This of So- (2d 1949), Wight, F.2d 376 Cir. testimony mas’s partially was corroborated denied, cеrt. wife, Fay his Somas. Mrs. testi- Somas (1950), first L.Ed. 586 enunciated the stan fied that she was present at employed dard in this for Circuit determin Long Island residence one of these occa- ing the adequacy representation by coun sions and heard her Indiviglio husband and sel: discussing Matteo, the millions of dollars representation purported [UJnless Indiviglio claimed to have made from his by counsel was such as make the trial a business, drug use of foreign cars to mockery justice, farce mere and a alle- smuggle heroin country. into the gations incompetency inefficiency рrosecution
The Aguiar, also called Frank ordinarily counsel as will suffice persons indictment, one of the grounds named in the of a for issuance writ Aguiar a witness. he testified that had habeas . corpus County police dresses,” phrase, type ap- 2. The Suffolk who officer had “H&C during physi- peared conducted the search which this several the documents and letters residence, pros- cal evidence was seized called seized from the the officer expert ecution an witness at tri- testified “H” could be an abbreviation for heroin, equipment cocaine, al. He testified that the chemical “C” an for abbreviation heating, weighing seized could be commonly used for that the term “dresses” awas used cutting response questions posed expression heroin. in the narcotics trade and referred prosecution concerning meaning quantity to a of narcotics. equip- on the chemical was found counsel A lack of effective assistance premises. Abruzzo to shock the from the of such a kind as ment seized must be make the who testified to Indi- conscience of the Court three witnesses сalled jus- mockery of integrity honesty a farce viglio’s reputation tice. community. Abruzzo testify witness to that she called an alibi (footnote and citations omit- Id. at 379 Bayside at his home had seen ted). agents time when the DEA had to this has continued to adhere This Court Beth’s Bar & Grill with placed him at See, g., three decades. e. Cur standard for remaining information that Breene. The' (2d ci v. Abruzzo failed to elicit is Indiviglio claims Bubar, 1978); F.2d United States peripheral to the part for the most either Cir.), value, only slight impeaching issues and of *4 Finally, Abruzzo’s wholly implausible.3 acts and Indiviglio points to sevеral a witness is Indiviglio to call as failure trial, dem at which he contends omissions viewpoint, from counsel’s understandable (1) incompetence: inade onstrate Abruzzo’s testify to that he Indiviglio because wanted Tyler of witnesses quate cross-examination cash, $350,000 in discover- had amassed the (2) Aguiar; Frank re Fay and Somas Indiviglio’s possession in Matteo’s ed Indiviglio testify to in his permit fusal residence, real estate Long Island behalf; to elicit certain ex own failure transactions, kept it hidden in a and had information; impeaching culpatory and As Chief in his basement.4 barrel object to the introduction of failure to with reference to this Mishler noted below pursuant to an unlawful items seized tough pretty would be for a story, “[T]hat search. jury to believe.” However, Tyl- cross-examine Abruzzo did Indiviglio’s There remains claim that Somas, long er out their Fay pointing Fourth counsel’s failure to raise certain criminal their involvement records and conclusively arguments estab- Amendment dealings suggesting exist- A brief fac- incompetence. counsel’s lishes ence with federal authori- of “deals” made background necessary tual order to exchаnge cooperating ties in with the the merits of this claim. assess similarly prosecution. Aguiar Frank was T. September Lt. John On cross-examined. Abruzzo’s cross-examina- County Police De- Thomsen of the Suffolk police tion of the officer who conducted reporting a call partment responded to Indiviglio’s Long search of Island residence trace of fired at an address subse- important revealed the fact that no shots had been instance, fact, testimony 3. For faults Abruzzo for his established son, family had failure to evidence that several such lio’s did own Tyler nоt had a heart attack in vehicles. testified, recovering Fay Somas had but was ailment time. Further- from a different at that strategy, topic With reference to the of trial more, Indiviglio complains that Abruzzo failed previously has observed: this Court might prove, had he done the as he have place a defendant on The decision whether foreign necessary investigation, cars that small always a diffi- the stand in a criminal case is Indiviglio’s have been stored behind could not indeed, probably the most difficult cult one — parts Bayside Tyler auto store in Somas had fоr a and his counsel decision defendant Indiviglio’s Assuming testified. assertions are Experienced will make. trial counsel often true, slight such “evidence” would have been of differ as to the wisdom of such a course in a importance to the of the case. The outcome particular case bearing true nature of has no illness Garguilo, damaging testimony States on the elements of finding 1963). Somas, e., (i. We also note Mr. and Mrs. the substance of 1971). not to Like- decision “[t]he their conversations with him district court below wise, Abruzzo, foreign testify, suggested by cars could not was made the fact that small while by Indiviglio.” be stored in the lot behind business way the more relevant in no would controvert equip- The chemical
quently determined to be warrant issued. Indiviglio’s Long into evidence Upon Island ment and documents offered residence. Thomsen’s arrival Indiviglio’s trial were government he looked in the back window of the house of this search pair during and saw obtained the execution legs sticking out from September warrant on refrigerator. behind a Thomsen broke the window, house, entered the and found and con Indiviglio’s trial Subsequent to Thomas lying Matteo faсe down on the viction, civil action his wife initiated a floor with five bullet wounds his back. for the the United District Court holding Matteo was a loaded revolver in his. York Eastern District of New hand, right and an attache case containing the searches police officers who conducted $350,000 approximately was on the floor Indiviglio’s Long Island residence. See next to him. Indiviglio Blomberg, Docket No. 75 — C— action, Judge (E.D.N.Y.1978). In that
Shortly thereafter, another Suffolk Coun-
the initial warrantless
Bartels ruled
ty police
(Gentles)
officer
arrived on the
limits,
police
permissible
intrusion exceeded
investigate
scene to
shooting.
onWhile
consequently
both search
invalidated
premises
he
appeared
observed what
subsequently
po
obtained
warrants
be gambling papers,
receipts.
records and
lice.
observations,
On the basis of these
Gentles
then obtained a search warrant from the
challenged
Abruzzo
At
Suffolk County District Court to continue
during
the admission of evidence seized
*5
his search
premises
of the
for similar items.
grounds
these searches on the
that the sei-
process
In the
warrant,
of executing this
place
took
before the
zure
evidence
Gentles discovered items similar to those
issued,
were
applicable warrants
commonly used in
testing
the
and dilution
rejected
challenge properly
was
the dis-
of narcotic drugs. This information was
point
trict court. Abruzzo at no
attacked
conveyed to another member of the police
admissibility
of the evidence seized dur-
(Thompson),
force
who
examining the
ing
grounds
these searches on the
that the
paraphernalia on
premises,
determined
search warrants themselves were invalid.
that a narcоtics manufacturing operation
note, however,
appellate
We
that
counsel
might
involved,
be
accordingly
and
sought
(who
counsel)
was different from trial
also
procure
to
a second
validity
search warrant from made no attack on the
of the search
County
Suffolk
Indiviglio’s present
District Court.
warrants. Nor did
argument
counsel set forth this
in his 28
warrant,
To justify
request
for a
petition.
This issue was
Thompson prepared an affidavit setting
raised
the first time
the district court
above,
forth the facts outlined
and addition-
hearing
Indiviglio’s petition only
on
after
ally stating that infоrmation obtained from
Judge Bartels had ruled the search war-
the Bureau
Dangerous
of Narcotics &
rants
civil
invalid in the aforementioned
Drugs
revealed that
“prior
had a
proceeding.
substantial
illegal
involvement in
narcotics
situation,
traffic.”5 On the basis of the information
In this
where the initial
affidavit,
contained in this
a
search police
response
second
intrusion was made in
to a
response
Thompson’s request
Thompson’s
any
to
for infor-
sion in
affidavit was
Officer
concerning
thing
good
mation
either John or Charles Indi-
mistake.
other
than a
faith
Cf.
viglio (pеtitioner
names),
Delaware,
was known
both
Franks v.
98 S:Ct.
438 U.S.
(1978)
Dangerous Drugs’
(upon
the Bureau of Narcotics &
substantial
system
preliminary
showing
“Sounder”
returned information on one
false statement
a
“Poops” Indiviglia.
knowingly
intentionally,
Although Indivig-
Charles
reckless
disregard
truth,
lio contends that
for the
was included
an
absence of this incor-
affidavit,
indicating
rect
if
information
a
affiant
search warrant
allegedly
necessary
proba-
involvement
there
false statement
would have been no
is
to
cause,
support
probable
finding
ble cause to
search
the Fourth Amend
issuance
a
warrant,
requires
evidentiary hearing
he does not claim that
this
ment
that an
informa-
request).
deliberately
tion was falsified
or that
its inclu-
held at defendant’s
shock
required
would
genuine emergency situation
conscience of the court.8
attention,6
Mishler,
subsequently-is-
Judge
and the
who
prompt
ob-
Indiviglio’s
obtained
served the
sued
were
both at
search warrants
petition,
trial and at
on
proper
appeared
hearing
valid
through
channels
face,7
prepared
pretty good
to
commented
“did
on
we are not
con-
that Abruzzo
a
their
job”
Abruzzo,
Indiviglio’s
сonducting
Indiviglio’s
clude
as well as
defense.9
We
displayed
incompe-
judge’s
are convinced that
attorneys,
two
the district
other
conclusion as to the
counsel
failing
spot
adequacy
this intricate issue or
is
tence in
to
not erroneous and
anticipate
Judge
Bartels’
we hold that
neglecting to
Thus,
case,
has
ruling.
in this
Abruzzo’s failure
not established his claim of ineffective
pre-trial
presumably
a
meritorious
make
assistance
counsel.
suppression
automatically
motion does not
As to
claim that his low
lead
that he was either
conclusion
intelligence
incompetence
and mental
incompetent
representing
ineffective or
stand trial exacerbated the ineffective
as
Indiviglio at trial.
counsel,
sistance of
we observe that Chief
above,
Accordingly,
light
psychiatric
Mishler ordered a
exami
having
carefully examined
record
a
nation
assess
ability
stand
whole,
cannot conclude
hearing
thereafter
conducted a
on
justice,
a
or mockery
trial was
farce
listening
this issue. After
to the testimony
representation
nor
counsel such
psychiatrists
two
lay
number of
area,
Wayne
reevaluating
position
U.S.App.
g.,
6. See
v. United
our
in this
see e.
234, 241,
(D.C.Cir. 1963)
Rickenbacker, supra,
D.C.
550 F.2d at
we do not
(opinion
J.).
Arizona,
Burger,
Mincey
so,
appropriate
Cf.
feel that this
an
to do
time
find,
inasmuch as we
as did the Rickenbacker
(fact
court,
that homicide occurred
performance
that counsel’s
in the case at
itself,
premises
not,
give
searched
did
rise to
pre-
bar
meets even
more liberal standards
exigent
justify
such
day
as to
circumstances
four-
vailing in other Circuits.
premises);
warrantless search of the
Mich
Tyler,
igan v.
step
еvaluating
9. A first
a claim of ineffec
officials,
(municipal
L.Ed.2d 486
though
al
tive
assistance
counsel is to examine the
*6
justified
making
entry
in
a warrantless
prosecution’s
strength of the
case. See LiPu
fire,
building
fight
may
into a
only
a
remain there
Comm’r,
Corrections,
Dep’t
ma v.
560 F.2d
investigate
for a reasonable time to
the
84,
(2d Cir.),
denied,
861,
91
cert.
98
proceeding
cause
the blaze
in the
without
189,
(1977).
S.Ct.
witnesses,
court concluded
the district
party to raise defenses
average
was below
that “Failure
although Indivigliо
requests which must
had the mental
make
intelligence,
objections
he nevertheless
or to
against
charges
con
capacity to understand
.
.
. shall
prior
made
to trial
him
him,
the evidence
thereof,
to discuss
court for
but
stitute waiver
court
trial. The district
prepare
and to
for
from the
grant
relief
may
cause shown
Indiviglio’s mental defi-
further found that
interpreted Rule
has
waiver.” This Circuit
substantially affect the abili-
ciency did not
to assert before
12(b)
that a failure
to mean
render effective service.
ty of counsel to
for a motion to
particular ground
triаl a
the hear-
Having
transcript
reviewed
operates as a
evidence
suppress certain
below,
Judge
ing
we conclude
Chief
challenge the admis
right
waiver
matter are
findings
Mishler’s
of fact on this
ground.11
on that
sibility of the evidence
clearly erroneous.
Braunig,
v.
553 F.2d
See United States
denied,
Cir.),
(2d
cert.
U.S.
Finally, we
address
claim,
(1977);
L.Ed.2d 277
see
previously
Fourth Amendment
raised
97 S.Ct.
Rollins,
assistance
in connection with his ineffective
cause —that
trial counsel
ineffec- We
the order of the district court.
affirm
possibility
12. We
it is shown
defendant’s trial
exclude the
that counsel’s
counsel ren-
ground
assistance)
failure to include
in his
motion to
dered ineffective
with United States
suppress
Underwood,
F.Supp.
(D.R.I.
intended
deliberate strate-
maneuver,
gic
perceive
1977) (“Without
goes
guilt
for we can
no tactical
a claim that error
advantage
gained thereby.
petitioner
to be
or that
was denied free choice
.
counsel no cause exists for
2255 relief from
alleged
12(f).”).
Because we find here that
errors
Rule
of counsel do not constitute ineffective assist
counsel,
Rickenbacker,
supra
ance of
we need
and do
reach
not
14. As
observed in
note
question
incompetence
guarantee
of whether
of coun
errorless
courts
cannot
“[t]he
sel ever will suffice to establish cause for fail
be made to
counsel
counsel who cannot
by hindsight.”
ure to assert
claima
such as would relieve the
seem ineffective
F.2d
*8
consequences
client of the
of that
normal
fail
See,
Henderson,
g.,
emphasize
ure.
e.
Gates v.
we
our
568 F.2d
15. We wish
base
830,
(2d
1977) (en banc),
denied,
840
of
Cir.
cert.
affirmance of the district court’s dismissal
1017,
737,
solely
434 U.S.
98
S.Ct.
ring): competent (“reasonably (1979) 793 L.Ed.2d character I concur in Waterman’s effective”). carefully-considered istically thorough and it However, holds that opinion. insofar have 9 circuits In of the fact that view effective assist Indiviglio was not denied along the lines of test adopted a different counsel, merely not be I concur ance only leaving competence,” “reasonаble meets the attorney’s his assistance cause adhering to the Tenth Circuits Second and mockery “shock conscience —farce appropriate rule, in an old I believe crite that remains the justice” standard the stan should re-evaluate case this court Circuit, v. in this see United States rion suggested Rick applied, dard to be 627, page Wight and cited decisions Warden, Auburn Correctional v. enbacker satisfies the more it also supra, but because 62, 1976), 66, (2d Cir. 67 Facility, 550 F.2d by 9 adopted standards liberal and lenient 826, 103, 54 denied, 434 U.S. 98 S.Ct. cert. United of the 10 other circuits. States out However, not an L.Ed.2d 85 331, DeCoster, 326, U.S.App.D.C. 487 v. 159 reason that case for the appropriate 1197, 1202 1973) (“reasonably (D.C. F.2d Cir. satisfied all Indiviglio’s counsel conduct of v. assistance”); United competent States above tests. 1978) Bosch, 1113, 1120-21 (1st F.2d Cir. 584 assistance”); Moore (“reasonably competent 730, States, 432 F.2d 736 Cir.
v. United
1970) (en banc) (“customary skill 561
knowledge”); Maryland, v. Marzullo 540, 1977), (4th cert. de
F.2d 543-44 Cir.
nied, 1011, 1885, 98 56 435 U.S. S.Ct. (1978) (“normal competency”); 394
L.Ed.2d America, Appellee, UNITED STATES 881, 887 Gray, 565 F.2d United States v. v. 955, (5th Cir.), cert. 435 98 S.Ct. 1587, (1978) (“reasonably DICHNE, Defendant-Appellant. Zeev counsel”); Toney, v. effective United States 243, No. 79-1230. Docket 716, (6th 1975), cert. de 527 F.2d 720 Cir. sub nom. v. United nied Pruitt Appeаls, States Court of United 107, Second Circuit. (“reasonably assistance”); effective Argued 1979. Sept. F.2d Twoney, ex rel. v. Williams (7th Cir.), cert. denied sub nom. Decided Nov. 1979. Williams, Sielaff Certiorari Denied March (“minimum stan See 100 professional representation”); Mor dard of Parratt, (8th F.2d row 1978) (“customary skills and dili
Cir. Fitzharris, Cooper v.
gence”); (1977), may appli- we have found here Stone decide the extent to which requisite showing proceedings. make has failed to cable to Fourth Amend- in either Sixth or “cause” addition, although cognizant of we are claims, not we need address and therefore ment involving suggestions рrocedural defaults categorical position. merits of such ought never to be Fourth Amendment claims Finally, disposition of this case in view our excused for collateral attack be “cause” on “cause,” not we do reach go on the element cause such to basic issues claims do question integ guilt impugn of whether could have suc- do not innocence and establishing nec- rity fact-finding process, generally second element ceeded see 11; essary application provi- Friendly, supra avoid the waiver see United States note but Easter, 1976), (8th prejudice. v. denied, F.2d sions —actual