UNITED STATES of America, Plaintiff-Appellee, v. Raul CRUZ, Defendant-Appellant.
No. 14-2017.
United States Court of Appeals, Tenth Circuit.
Dec. 22, 2014.
Based on the facts and circumstances of this case, we conclude the district court did not abuse its discretion in concluding Seneca waived attorney-client privilege as to the Isbell and Abowitz correspondence.
II. “At-Issue” Waiver Of Work-Product Protection
Although attorney-client privilege and work-product doctrine are separate and distinct concepts, neither the parties nor the district court distinguished between the two for purposes of determining at-issue waiver. Like the attorney-client privilege, “a litigant cannot use the work product doctrine as both a sword and shield by selectively using the privileged documents to prove a point but then invok[e] the privilege to prevent an opponent from challenging the assertion.” Frontier, 136 F.3d at 704. For the reasons stated above, Seneca waived work-product protection by putting the correspondence at issue.
CONCLUSION
The district court‘s judgment is affirmed.
Damon P. Martinez, United States Attorney; Laura Fashing, Assistant United States Attorney, Albuquerque, NM, for Plaintiff-Appellee.
Before BRISCOE, Chief Judge, HOLMES and BACHARACH, Circuit Judges.
BRISCOE, Chief Judge.
Defendant Raul Cruz was convicted by a jury of knowingly and intentionally pos-
I
Factual background
In March 2010, a law enforcement agent employed by the Middle Rio Grande Valley Task Force prepared an affidavit for a search warrant for Cruz‘s residence in Albuquerque, New Mexico. On the face of the affidavit, the officer swore “upon his oath” that he “ha[d] reason to believe that” Cruz had concealed at his residence a variety of contraband, including “[m]ethamphetamine and other controlled substances of unknown quantity,” “[p]araphernalia for weighing, packaging, ingestion, injection, transportation and sales of controlled substances,” and “U.S. Currency used in narcotics transactions.” ROA, Vol. 2 at 122. In the subsequent pages of the affidavit, the officer explained the factual basis for his suspicions. This included the officer‘s statement that he “was advised by a confidential source” that Cruz was “involved in the distribution of large quantities of methamphetamine in Albuquerque,” and that the confidential source was present inside Cruz‘s residence when Cruz was “supplying unidentified individuals with large quantities of methamphetamine.” Id. at 124. The officer also stated that he had conducted a controlled purchase of methamphetamine from Cruz‘s residence with the assistance of the confidential source.
The last page of the affidavit included the concluding paragraphs of the officer‘s factual description, followed by a paragraph that stated: “Based on the above facts and circumstances, Affiant has probable cause to believe the items sought and described within this affidavit would be found inside [the residence], on the person of Cruz and in [Cruz‘s vehicle].” Id. Immediately below this final paragraph was: (1) a date line that read “THIS ___ DAY of ___, 2010“; (2) separate signature lines for “JUDGE” and “AFFIANT,” along with accompanying lines for the “TITLE” of the judge and the affiant; and (3) a line that read “APPROVED BY ASSISTANT DISTRICT ATTORNEY,” followed by a blank signature line and a blank date line. Id.
The affidavit was signed and dated by an assistant district attorney on March 26, 2010. On that same day, the officer/affiant presented the affidavit to New Mexico District Judge Kenneth Martinez. Judge Martinez signed the last page of the affidavit in the blank signature line entitled “JUDGE,” and also handwrote “District Judge” in the accompanying line entitled “TITLE.” Id. at 125. The officer/affiant
The search warrant form itself listed Cruz‘s address, stated that “[a] copy of the Affidavit is attached and made a part of this Search Warrant,” and incorporated by reference the affidavit‘s list of property to be seized. Id. The search warrant also included a date and signature line. Judge Martinez did not, however, contemporaneously sign or date the search warrant.
Law enforcement officers executed the search warrant three days later, on March 29, 2010, and found inside of Cruz‘s residence “baggies with 34.1 grams of methamphetamine (about 90-100 doses), along with horse steroids (a cutting agent), cash, and false identification.” Cruz I, 680 F.3d at 1262. “Detectives saw no evidence of drug use in the home or by Mr. Cruz.” Id. Cruz admitted “possession of the drug but not intent to distribute it.” Id.
Approximately a month later, on April 23, 2010, Judge Martinez signed and dated the search warrant.1 ROA, Vol. 2 at 119. In doing so, Judge Martinez indicated that the warrant was “DATED THIS 26th DAY OF March, 2010 AT 10:00 HOURS.” Id. Immediately below this date line, Judge Martinez hand-wrote: “Nunc Pro Tunc on this April 23, 2010.” Id.
Procedural background
a) Cruz‘s trial proceedings and direct appeal
On April 13, 2010, a criminal complaint was filed against Cruz in federal district court charging him with a single count of manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a controlled substance, in violation of
The case against Cruz proceeded to trial in September 2010, and Cruz was found guilty of the charge alleged in the indictment. In June 2011, the district court sentenced Cruz to a term of imprisonment of 63 months, to be followed by three years’ supervised release. The district court noted that Cruz, who was born in Mexico and granted permanent residency in the United States in 1990, was subject to removal during his sentence.
This court affirmed Cruz‘s conviction and sentence on direct appeal. Cruz I, 680 F.3d at 1262, 1264.
b) Cruz‘s § 2255 proceedings
On October 23, 2012, Cruz filed a motion to vacate, set aside, or correct sentence pursuant to
Cruz‘s claims were first addressed by a magistrate judge. After holding an evidentiary hearing, the magistrate judge concluded there was merit to both of Cruz‘s ineffective assistance claims and recommended that the district court grant Cruz‘s § 2255 motion and vacate his conviction. The government filed written objections to the magistrate judge‘s proposed findings and recommendations.
On October 22, 2013, the district court issued a written order amending in part and adopting in part the magistrate judge‘s proposed findings and recommended disposition. The district court first addressed the validity of the search warrant and Kennedy‘s failure to move to suppress on that ground, and rejected the magistrate judge‘s conclusion that the search warrant was “not properly issued ... because ... there was no signature on the warrant by the judge, ... no date that the warrant was allegedly issued, or any other indication on the face of the warrant that the judge had approved the warrant.” Id. at 184. In the district court‘s view, “Judge Martinez‘s signature on the search warrant affidavit provided assurance that he found probable cause and officially authorized the search,” and “Judge Martinez‘s nunc pro tunc signature on the warrant [wa]s additional evidence that Judge Martinez made the probable cause determination and issued the warrant on March 26, 2010, at the time he signed the affidavit.” Id. at 185. In short, the district court “conclude[d] that the warrant to search [Cruz‘s] person and property was issued within the meaning of the Fourth Amendment and was valid.” Id. at 189. The district court also agreed with the government‘s alternative argument “that the officers who searched [Cruz‘s] home would have been entitled to the [Leon] good faith exception to the exclusionary rule.” Id. The district court thus concluded that, “had a motion to suppress been filed,” the evidence seized from Cruz‘s residence, as well as his admissions to the police, “would not have been suppressed.” Id. at 192. And it in turn concluded that Kennedy‘s “failure to file a motion to suppress did not prejudice [Cruz].” Id. at 193. The district court “therefore sustain[ed] the Government‘s Objections to the [magistrate judge‘s] finding that [Cruz] suffered prejudice[] from his counsel‘s failure to file a motion to suppress,” and it stated that it “w[ould] not vacate [Cruz‘s] conviction.” Id. at 194.
As for Kennedy‘s pretrial advice to Cruz regarding whether or not to plead guilty, the district court agreed with the magistrate judge that Kennedy “failed to look into whether” a prior conviction sustained by Cruz in 1994 “might affect his immigration status,” id. at 195, and in turn “did not fully advise [Cruz] ... that he was eligible for deportation even if acquitted on the 2010 drug charge,” id. at 196. The district court also found support for the magistrate judge‘s finding that Kennedy “did not adequately discuss with [Cruz] that the Government had a very strong case against him.” Id. at 197. And, based upon these findings, the district court “agree[d] with the magistrate judge‘s conclusion that ... Kennedy‘s representation was constitutionally ineffective.” Id. The district court further determined that “[t]he evidence support[ed] the conclusion that there [wa]s
Thus, in sum, the district court granted Cruz‘s § 2255 motion “as to the request to set aside the sentence” and ordered that Cruz “w[ould] be [granted] a new sentencing hearing,” but denied the § 2255 motion “as to the request to vacate [Cruz‘s] conviction.” Id. at 200. On the same date that the district court issued its order granting in part and denying in part Cruz‘s § 2255 motion (October 22, 2013), it purported to enter final judgment.
On January 2, 2014, the district court resentenced Cruz to a term of imprisonment of 46 months, to be followed by a three-year term of supervised release, and it again noted that Cruz was subject to removal during his sentence.
On January 4, 2014, Cruz filed a motion for certificate of appealability seeking to challenge the district court‘s partial denial of his § 2255 motion. The district court granted that motion on February 4, 2014. Cruz filed a notice of appeal the following day.
II
At our request, the parties filed supplemental briefs addressing whether Cruz‘s notice of appeal, which was filed more than three months after the district court‘s purported entry of final judgment, was timely. The parties agree, as do we, that Cruz filed a timely notice of appeal and that, as a result, we have jurisdiction over this appeal.
As the parties correctly note in their supplemental briefs, a § 2255 motion is a “hybrid type[] of case[].” Sloan v. Pugh, 351 F.3d 1319, 1323 (10th Cir. 2003) (internal quotation marks omitted); see also United States v. Jones, 215 F.3d 467, 468 (4th Cir. 2000) (noting “that habeas actions are a unique hybrid of civil and criminal“). Although it relates to the original criminal proceeding, it is generally treated as an independent civil suit. Andrews v. United States, 373 U.S. 334, 338 (1963) (“An action under
The hybrid nature of a § 2255 proceeding impacts when an appeal may be taken in such a proceeding. In Andrews, the Supreme Court held that a district court order granting a § 2255 motion and ordering that the defendant be resentenced is not a final appealable order. 373 U.S. at 339-340. More specifically, the Court held that until the defendant in such a case is actually resentenced, the
Applying Andrews to the case at hand, it is clear that the “final judgment” that was purportedly entered by the district court on October 22, 2013, was not, in fact, a final, appealable order because Cruz had not yet been resentenced. Under Andrews, Cruz‘s § 2255 proceeding (i.e., the civil case that was precipitated by the filing of Cruz‘s § 2255 motion) did not become “final,” and therefore appealable, until at least January 2, 2014, when the district court resentenced Cruz. As a result, the notice of appeal filed by Cruz in the § 2255 proceeding on February 5, 2014, was timely. See
III
We now turn to the merits of Cruz‘s appellate arguments. According to Cruz, the district court erred in rejecting his claim that Kennedy was ineffective for failing to move to suppress the evidence obtained during and following the execution of the search warrant at Cruz‘s residence. Cruz in turn argues that the district court should have, on the basis of that claim, granted his § 2255 motion in full and vacated his conviction.
Because this appeal arises from “the denial of a § 2255 motion for post-conviction relief, we review the district court‘s findings of fact for clear error and its conclusions of law de novo.” United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011).
The Strickland standards
To prevail on his claim that Kennedy was ineffective for failing to move to suppress evidence, Cruz must satisfy the twopart burden outlined by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Specifically, Cruz must establish that (1) Kennedy‘s “performance was deficient,” and (2) that “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. “[T]he ultimate focus of [this] inquiry [is] on the fundamental fairness of the proceeding whose result is being challenged.” Id. at 696.
Was Cruz prejudiced by Kennedy‘s failure to file a motion to suppress?
We begin and end our analysis with Strickland‘s prejudice prong. See id. at 697 (“a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.“). To satisfy the prejudice prong, Cruz “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the re-
According to Cruz, Kennedy should have moved to suppress the evidence seized during the search of Cruz‘s residence, as well as his subsequent statements to police regarding the fruits of the search, on the grounds that the search warrant was invalid because it was not signed or dated, and thus had not been “issued” by a judge, at the time of its execution. ROA, Vol. 2 at 90. Cruz in turn asserts, with respect to Strickland‘s prejudice prong, that such a motion would have been meritorious, would have resulted in the suppression of the evidence seized from his residence and his statements to police, and ultimately would have led to either the dismissal of charges against him or his acquittal at trial.
The text of the Fourth Amendment expressly prohibits “unreasonable searches and seizures,”
The First Circuit recently concluded, and we agree, that “nothing in the [text of] the Fourth Amendment [expressly] conditions the validity of a warrant on its being signed.” United States v. Lyons, 740 F.3d 702, 724 (1st Cir. 2014), cert. denied, 134 S. Ct. 2743, 189 L. Ed. 2d 777 (2014). Instead, the text of the Fourth Amendment refers only to “probable cause” and a particular description of “the place to be searched, and the persons or things to be seized.”
In Lyons, which involved strikingly similar facts, the First Circuit dealt with this precise question. The police in Lyons “completed a written application to search [the defendant‘s home] and swore in support of that application.” Id. at 724. “The application recited facts establishing probable cause.” Id. “The state judge reviewed the application, determined that probable cause existed, signed the application, and signed the accompanying affidavit.” Id. Although “[t]he warrant described particularly the place to be searched, and the persons or things to be seized,” “[t]he judge unintentionally forgot to sign the warrant itself before the
The defendant in Lyons argued, in pertinent part, “that the warrant was invalid precisely because it was not signed until after the search.” Id. The First Circuit rejected that argument, concluding, in pertinent part, that there was “no convincing reason to find implicit in the Fourth Amendment a constitutional mandate that the magistrate who has made a probable cause determination also sign the warrant.” Id. at 725. The First Circuit noted that its “conclusion [wa]s strengthened by the consistent rejection of formalistic approaches to signatures in warrants by federal appellate courts in other contexts.”4 Id. Such cases, the First Circuit concluded, “show a consistent unwillingness to find a constitutional violation when the express mandates of both constitution and rule have been satisfied.” Id. at 726. Thus, “[g]iven the clear and contemporaneous evidence that the state justice made a proper probable cause determination and approved the issuance of a warrant for execution,” the First Circuit “decline[d] to find in the lack of a signature a reason for suppression.” Id.
We agree with and adopt the First Circuit‘s reasoning in Lyons, subject to the following “note of caution“:
The presence of a signature provides easy and reliable proof that a warrant was in fact issued. An officer who observes that a warrant is unsigned might not be assured that it was actually issued, and might execute it at his peril if he has no other good reason to believe the warrant was issued. And when, as here, the warrant is not signed, proof of issuance becomes more involved and less certain. In many circumstances, the magistrate or judge may not recall reviewing or issuing the warrant by the time his belated signature is sought. For these reasons, we are confident that police will continue to have ample incentive to secure signatures. In any event, we find no sufficient reason to read a signature requirement into the Fourth Amendment, and we leave to any future revisers of
Federal Rule of Criminal Procedure 41(e) whether to adopt such a presently-omitted requirement for search warrants.
Cruz argues, however, that Lyons “ha[s] no import because [it did not] address[] the issue of whether the warrant was facially valid in light of Groh v. Ramirez, 540 U.S. 551 (2004).” Aplt. Br. at 18 n. 8. According to Cruz, Groh held that “[b]efore a search warrant may issue under the Fourth Amendment, it must: (1) include a finding of probable cause; (2) be supported by oath or affirmation; (3) particularly describe what is to be searched; and (4) particularly describe what is to be seized.” Aplt. Br. at 10. Cruz in turn argues that “[a]lthough the purported warrant in this case may have met the second, third, and fourth requirements, it was facially deficient at the time of the search
Cruz‘s arguments are only partially correct. To be sure, Groh recognized that the text of the Fourth Amendment imposes four requirements on every warrant: (1) the warrant must be “based on probable cause“; (2) the warrant must be “supported by Oath or affirmation“; (3) the warrant must describe particularly the place to be searched; and (4) the warrant must describe particularly the persons or things to be seized. 540 U.S. at 557. But Cruz erroneously interprets this first requirement as requiring the face of the warrant itself to “contain[] markings,” preferably a signature, “indicating that a neutral and detached magistrate ... actually” made a finding of probable cause. Aplt. Br. at 11. Nothing in Groh, however, let alone the text of the Fourth Amendment itself, imposes such a facial requirement. Rather, the Fourth Amendment, as Groh recognized, imposes a substantive requirement that every warrant issue only “upon probable cause.” See Lyons, 740 F.3d at 725 (concluding that the Fourth Amendment‘s probable cause requirement is established “by an oath or affirmation and a neutral or detached magistrate mak[ing] a probable cause determination“). Indeed, in concluding that the warrant at issue in Groh satisfied this requirement, the Supreme Court stated simply that the warrant “was based on probable cause“; it did not dis-
Cruz makes no other attempt to directly challenge Lyons. Instead, consistent with his argument that a warrant must include on its face the issuing judge‘s signature, he suggests that we should adopt the reasoning outlined in United States v. Evans, 469 F. Supp. 2d 893 (D. Mont. 2007). In Evans, a law enforcement agent appeared before a federal magistrate judge seeking a search warrant for a residence belonging to the defendants. The agent presented the magistrate judge “with an affidavit summarizing the investigation of Defendants for possession, receipt, and distribution of child pornography.” Id. at 895. The magistrate judge placed the agent “under oath and had him sign the search warrant application and affidavit.” Id. The magistrate judge “then read and signed the application and affidavit himself in two separate places.” Id. The magistrate judge did not, however, “sign the search warrant itself or indicate on the warrant the date before which it had to be executed.” Id. The magistrate judge later
During the subsequent search of defendants’ residence, “officers seized various computer equipment later found to contain images of child pornography.” Id. Defendants also waived their Miranda rights and “admitted to using their computers to view child pornography.” Id. After the search was completed, the law enforcement agent who signed the affidavit and obtained the search warrant “went to his vehicle to obtain a copy of the search warrant to leave with Defendants” and “[o]nly then ... notice[d] [that] the search warrant was unsigned.” Id. at 895-96. The agent “called the U.S. Attorney‘s office and was advised to do nothing about the deficiency on the theory that the harm was done.” Id. at 901. The agent then “left a copy of the search application and affidavit” with defendants. Id. at 896.
After being indicted for distribution, receipt, and possession of child pornography, defendants moved to suppress the evidence seized during the search. One of the defendants also moved to suppress the statements she made to officers during the search. The district court granted defendants’ motions, holding that “[a]n unsigned warrant ... is not a warrant within the meaning of the Fourth Amendment,” and that “officers cannot reasonably rely on such a glaring deficiency as authorization to search.” Id. at 895.
In arriving at this conclusion, the court in Evans purported to rely on Groh. The court explained that, like “the particularly [sic] requirement in Groh, the text of the Fourth Amendment demands that a warrant be ‘issue[d].‘” Id. at 897 (quoting
The court in Evans rejected the government‘s suggestion that “the warrant [at issue] was officially authorized because [the magistrate judge] signed the search warrant application and affidavit.” Id. In support, the court stated that “[a] magistrate‘s signature on the search warrant application and affidavit ... merely indicates the document was signed and sworn to by the requesting officer in the magistrate‘s presence,” id. at 898, whereas “[a] magistrate‘s signature on a search warrant indicates the search warrant application and affidavit presented to him contain probable cause to justify the search requested,” id. at 897-98. In the court‘s view, “if a magistrate‘s signature on a search warrant application and affidavit was sufficient to satisfy the Fourth Amendment, the language of that Amendment, which requires issuance of a ‘warrant,’ would become meaningless.” Id. at 898. In sum, the district court concluded
The court in Evans also rejected the government‘s argument that the search warrant should be deemed valid “because [the magistrate judge] intended to issue the warrant.” Id. at 898. The court stated that it was “unwilling to accept the potential repercussions of adopting the forgiving interpretation of the Fourth Amendment urged by the government.” Id. at 899. “Absent an exception,” the court stated, “the Fourth Amendment requires a probable cause determination to be made and issued by a magistrate before officers invade a person‘s privacy.” Id. The court thus concluded that, “[b]ecause the warrant [at issue] did not provide any indication that it was officially authorized, the search of Defendants’ residence was warrantless in violation of the Fourth Amendment.” Id.
Finally, the court in Evans rejected the government‘s reliance on the good faith exception to the exclusionary rule outlined in United States v. Leon, 468 U.S. 897 (1984). The court explained that “[t]he Leon good faith exception may possibly excuse a deficiency in the language of a warrant, but it does not apply to excuse the absence of a warrant.” Id. at 900. And, the court stated, “[e]ven if the search of Defendants’ residence was not warrantless, the Leon good faith exception d[id] not apply” because “[a]n unsigned warrant is so patently defective that it is objectively unreasonable for officers to rely on it.” Id. “[A]s in Groh,” the court stated, “a cursory glance at the warrant would have revealed the absence of the magistrate‘s signature,” and, “[u]nder the circumstances, [the ICE agent] could have attempted to contact [the magistrate judge] to obtain a properly issued warrant.” Id. at 901. In sum, the court held that “[b]ecause the unsigned warrant was patently deficient, the officers’ reliance on it to justify the search of Defendants’ residence was not objectively reasonable.” Id.
We conclude that the Evans court‘s interpretation of the Fourth Amendment is erroneous and thus decline to adopt it. To be sure the text of the Fourth Amendment states, in pertinent part, that “no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In addition, an examination of the ordinary meaning of the term “issue” calls into question, and thus makes us hesitant to rely on, the decision in Evans. The term “issue” is commonly defined as “[t]he action of going, passing, or flowing out,” Oxford English Dictionary Online, http://www.oed.com/view/Entry/100216?rskey=ZalfbR & result=1# eid (last visited on Dec. 4, 2014), or “[t]o ‘come out’ or be sent forth officially or publicly,” id., http://www.oed.com/view/Entry/100217?rskey=ZalfbR & result=2# eid (last visited on Dec. 4, 2014). This common and simple definition fits perfectly within the framework of the complete text of the Fourth Amendment. In other words, if we were to replace the term “issue” with this definition, the text of the Fourth Amendment would read: “no Warrants shall [go out or be sent forth officially], but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”7 This definition, in our view, is consistent with Groh‘s interpretation of the Fourth Amendment which, as we have discussed, does not read into the term “issue” any specific technical requirements.
Finally, even assuming, for purposes of argument, that there was merit to the position outlined in Evans and that the search warrant in this case failed to satisfy the requirements of the Fourth Amendment, that would still leave the question of whether the Leon good faith exception would apply and effectively prevent the suppression of the seized evidence. In Leon, the Supreme Court noted that the Fourth Amendment‘s “exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” 468 U.S. at 916. Consequently, the Court “conclude[d] that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclu-
The presence of the warrant alone in this case carries significant weight in terms of establishing the executing officers’ good faith. Further, there is no evidence that Judge Martinez was misled, that he wholly abandoned his judicial role, that the affidavit in support of the warrant was wholly lacking in indicia of probable cause, or that the warrant failed to particularize the place to be searched or the things to be seized. Indeed, the only potentially unusual aspect of the warrant was the absence of Judge Martinez‘s signature on the face of the warrant. And, because Judge Martinez actually signed the affidavit for the warrant and effectively indicated that he found the existence of probable cause and intended for the warrant to issue, it was objectively reasonable for the agent who obtained the warrant, as well as the other officers who assisted in executing the warrant, to believe that the warrant was valid. See United States v. Kelley, 140 F.3d 596, 603 (5th Cir. 1998) (holding, in case involving unsigned warrant, that Leon good-faith exception applied). Indeed, as the Supreme Court stated in Massachusetts v. Sheppard, 468 U.S. 981, 989-90 (1984), “we refuse to rule that an officer is required to disbelieve a judge who has just advised him, by word and by action, that the warrant he possesses authorizes him to conduct the search he has requested.” As a result, the Leon good faith exception applies and would operate to prevent the suppression of the seized evidence.
For all of these reasons, we conclude that Cruz cannot “show that there is a reasonable probability that ... the result of [his criminal] proceeding would have been different” had Kennedy filed a motion to suppress. 466 U.S. at 694.
IV
We conclude that the district court properly denied Cruz‘s § 2255 motion to the extent it claimed that Cruz‘s trial counsel was ineffective for failing to file a motion to suppress evidence. Consequently, we AFFIRM the judgment of the district court.
MARY BECK BRISCOE
CHIEF JUDGE