IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-60462
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROGER WILLIAM SIMS,
Defendant-Appellant.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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No. 95-60493
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JACQUELINE JAMES,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Mississippi
(3:93-CV-70-S & CRD91-21)
_________________________________________________________________
November 22, 1996
Before KING, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellants Roger William Sims and Jacqueline James appeal
the district court’s judgment denying their § 2255 motions to
vacate.
I. BACKGROUND
In 1991, a five-count superseding indictment charged Roger
William Sims and Jacqueline James, now federal prisoners, with
the following offenses: conspiracy to possess with intent to
distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
846 (Count 1); two counts of distribution of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (Counts 2 and 3); and use of a
firearm during and in relation to a drug-trafficking offense, in
violation of 18 U.S.C. § 924(c) (Count 4). In Count 5, Sims
alone was charged with being a felon in possession of a firearm
shipped in interstate commerce, in violation 18 U.S.C.
§§ 922(g)(1), 924. Both Sims and James were convicted of all
counts with which they were charged. The court sentenced Sims to
a total of 204 months in prison and 8 years of supervised release
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
2
and sentenced James to a total of 180 months in prison and 8
years of supervised release.
Sims and James together appealed their convictions and
sentences. They both argued that the district court failed to
suppress evidence seized pursuant to a warrant and that the
evidence of their use of a firearm during a drug-trafficking
offense was insufficient. Sims also argued that insufficient
evidence existed to prove his possession of the firearm. This
court affirmed, finding that even if the affidavit in support of
the search warrant was insufficient, “the evidence is clear that
the officers executing it were in good faith in their reliance on
its validity.” Moreover, the existence of a loaded pistol in a
dresser, in the same bedroom from which they conducted crack-
cocaine transactions, was ruled by this court sufficient to
establish the gun’s use in drug-trafficking crimes. This court
also found sufficient evidence to establish that Sims had
constructive possession of the gun.
In 1993, Sims and James filed § 2255 motions to vacate, each
alleging twelve nearly identical grounds of relief. The two then
added a thirteenth ground; in the amended pleading, Sims began
listing both himself and James as movants. Sims then filed an
amended § 2255 motion, purportedly on behalf of both himself and
James; he listed twenty grounds of relief.1 The movants then
1
The movants made the following arguments: (1) A charge
under 21 U.S.C. § 845(a), for distribution of drugs to person
3
added a twenty-first claim.2 The district court issued a one-
page order denying each motion. The court’s discussion reads as
follows:
Having duly considered all aspects of
petitioner’s motion, the court finds that the
claims of petitioner were previously disposed
of on direct appeal, or are procedurally
barred by failure to raise them at trial and
on direct appeal, or are beyond the
jurisdiction of the court, and otherwise are
totally without merit and should be and are
hereby OVERRULED.
Sims and James filed timely notices of appeal. This is a
consolidated appeal from the denial of 28 U.S.C. § 2255 motions
under 21, did not correlate with the language in the indictment;
(2) the search warrant was wrongfully issued to an unauthorized
state officer; (3) the seizure of a footlocker “without adding it
to the inventory list” made the footlocker inadmissible; (4) a
Mississippi judge was not authorized to issue a warrant
“authorizing a federal search”; (5) a Mississippi justice of the
peace (“JP”) should have fixed a return date on the search
warrant; (6) the JP should have kept a copy of the warrant and
affidavit; (7) the federal magistrate judge lacked authority to
issue “seizure warrants” arising from an illegal search of the
footlocker; (8) the DEA could not administratively forfeit
property that the state had initially seized; (9-13) the evidence
did not support any of the five counts of conviction; (14) Sims’s
felon-in-possession conviction was invalid because his rights had
been restored by the State of Mississippi; (15) the conviction
for use of a firearm during a drug-trafficking offense violated
the movants’ double jeopardy rights; (16) the imposition of a
fine upon Sims violated his Eighth Amendment rights; (17) the
court sentenced Sims upon an amount of cocaine that was not
reasonably foreseeable to him; (18) state and federal officers
conspired to encourage witnesses to give false statements against
the movants; (19) the movants were denied effective assistance of
counsel; and (20) the movants’ sentences, based on
disproportionate penalties for crack cocaine and powder cocaine
offenses, violated the rule of lenity.
2
They argued that the administrative forfeiture violated
their double jeopardy rights.
4
filed by Sims and James, who were convicted and sentenced at the
same trial. They raise thirteen points before the court in this
action.
II. DISCUSSION
Issue 1: Sufficiency of the evidence to support convictions for
“use” of a firearm
Sims and James argue that there is insufficient evidence to
support their convictions for “use” of a firearm during a drug-
trafficking offense under 18 U.S.C. § 924(c). The government
concedes that the convictions should be vacated as to this count.
Thus, as to Sims (No. 95-60462), we vacate the district court’s
Order Overruling Motion and Dismissing Cause insofar as it
dismissed Sims’s claim in his amended § 2255 motion to vacate his
§ 924(c) conviction (ground 12), and we remand with instructions
to vacate his § 924(c) conviction (Count 4) and to resentence him
accordingly. As to James (No. 95-60493), we vacate the district
court’s Order Overruling Motion and Dismissing Cause insofar as
it dismissed James’s claim in her amended § 2255 motion to vacate
her § 924(c) conviction (ground 12), and we remand with
instructions to vacate her § 924(c) conviction (Count 4) and to
resentence her accordingly. In all other respects, the district
court’s judgment is affirmed.3
3
Sims and James filed their notices of appeal prior to the
effective date of the Antiterrorism and Effective Death Penalty
Act of 1996. The Act amended 28 U.S.C. § 2253 to require a
certificate of appealability in an appeal from a final order in a
5
Issue 2: Double Jeopardy claim
Pursuant to 21 U.S.C. § 881, the government seized property
from the residence where drug activity occurred. The
administrative procedure was uncontested, and the property was
forfeited. Sims and James argue that the forfeited property
belonged to them, that the forfeiture constitutes punishment, and
that their convictions on drug-related charges violates the
Double Jeopardy Clause. This claim is without merit. The
Supreme Court recently held that a forfeiture under 21 U.S.C.
§ 881 is civil in nature and is an in rem proceeding; "in rem
civil forfeitures are neither `punishment’ nor criminal for
purposes of the Double Jeopardy Clause." See United States v.
Ursery, 116 S. Ct. 2135, 2147-49 (1996). Sims and James complain
that they received no notice of the proceeding. This is
irrelevant to a claim of double jeopardy because they were not
parties to the proceeding. See United States v. Arreola-Ramos,
60 F.3d 188, 190 (5th Cir. 1995). Finally, Sims and James
contend that because civil forfeiture is punishment and they were
punished again, “it also violates the Excessive Fine Clause under
the Eighth Amendment.” Having rejected their double jeopardy
arguments, this argument has no merit.
§ 2255 action. Assuming without deciding that such a certificate
is required in this appeal, in view of the government’s
concession regarding the convictions for use of a firearm, we
grant the certificate.
6
Issue 3: Seizure of footlocker
Sims and James argue that during the search of their
residence, the officers found a key in a jacket pocket to a
double-locked footlocker. The officers opened the footlocker and
seized its contents, including cash and jewelry. Sims and James
discovered after the trial that the footlocker was not put on the
inventory list of things seized from the premises. Sims and
James argue that the search of the footlocker was illegal and
thus its contents were inadmissible as “fruits of the poison
tree.” Sims and James also assert that their trial attorneys
were ineffective for failing to make this objection at trial.
The only authority Sims and James cite for their inventory
list claim is Vance v. United States, 676 F.2d 183 (5th Cir.
1982). In Vance, officers impounded and inventoried the contents
of a van. Id. at 184. Four days later, the van was searched
again, without a warrant. Id. at 185. This court held that the
second search was unlawful. Id. at 187. Sims and James’s
argument is without merit because Vance in no way supports the
proposition that every container inside a house searched pursuant
to a valid warrant must be included on an inventory list. At
most, this is a ministerial defect in the return of a warrant and
does not invalidate the search. See United States v. Diecidue,
603 F.2d 535, 562 (5th Cir. 1979), cert. denied, 445 U.S. 946,
and cert. denied, 446 U.S. 912 (1980); see also United States v.
7
Giwa, 831 F.2d 538, 543-44 (5th Cir. 1987) (noting that in
general, "any container situated within residential premises
which is the subject of a validly-issued warrant may be searched
if it is reasonable to believe that the container could conceal
items of the kind portrayed in the warrant" (quoting United
States v. Gray, 814 F.2d 49, 51 (1st Cir. 1987))).
To prevail on their claim for ineffective assistance of
counsel, Sims and James must show "that counsel's performance was
deficient" and "that the deficient performance prejudiced the
defense." Strickland v. Washington, 466 U.S. 668, 687 (1984).
Because the evidence was legally seized, trial counsels’
performance was not deficient.
Issue 4: Ineffective assistance of counsel for failure to file
motions for new trial based on perjured testimony
Sims and James contend that their attorneys were ineffective
by failing to object to the prosecution’s use of the testimony of
a confidential informant, Lucy Cook, that was “false and
contradictory” to that of another witness. They argue that Cook
falsely testified that she bought crack cocaine from Sims rather
than from a third defendant, Randy James, thus providing the only
basis for Sims’s cocaine-distribution convictions. They rely on
an affidavit completed by Cook. Although they do not
specifically state that the perjured testimony was given with
actual knowledge by the prosecutor, they argue that “the
8
prosecution knew or should have known about the fa[l]se
testimony.”
A conviction obtained by the knowing use of perjured
testimony is fundamentally unfair and must be set aside if there
is any reasonable likelihood that the testimony could have
affected the jury's judgment. Giglio v. United States, 405 U.S.
150, 153-54 (1972). To prevail on a claim that the prosecution
used perjured testimony, a movant must show that “(1) the
statements were actually false; (2) the state knew they were
false; and (3) the statements were material, i.e., a highly
significant factor reasonably likely to have affected the jury's
verdict.” Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir.), cert.
denied, 115 S. Ct. 671 (1994).
In Cooks’ affidavit, purportedly signed on May 5, 1993, she
attests that “at the time before and during trial, [she] was
mental[ly] incompetent due [to] the fact that [she] was heavy
[sic] addicted to cocaine,” that she would “mostly do anything”
to get money to satisfy her addiction, and that she lied at trial
about buying crack from Sims in return form $100. This court
recently reiterated that "recanting affidavits and witnesses are
viewed with extreme suspicion." Spence v. Johnson, 80 F.3d 989,
1003 (5th Cir. 1996) (internal quotation omitted), petition for
cert. filed (Aug. 5, 1996) (No. 96-5498).
9
The jury rendered its verdict on November 1, 1991. Sims and
James do not suggest that their attorneys actually knew that
Cook’s testimony was perjured at that time. Although a motion
for new trial based on newly discovered evidence may be made
“only before or within two years after final judgment,” FED. R.
CRIM. P. 33, the movants fail even to allege that the attorneys
should have known about Cook’s recantation within this period.
They have not established that the attorneys’ performance was
deficient in this respect.
Issue 5: Failure of federal judge to issue search warrant
Sims and James argue that the evidence seized from the James
home was inadmissible because the search warrant was issued by a
state justice of the peace, who was not a “court of record” under
FED. R. CRIM. P. 41(a). This argument is meritless. As we held
en banc in United States v. McKeever, 905 F.2d 829, 833 (5th Cir.
1990), Rule 41 “only applies to warrants issued ‘upon the request
of a federal law enforcement officer’” and thus the “‘state court
of record’ requirement . . . has no application to the warrant
issued in this case.” Because the warrant in this case was not
requested by federal law enforcement officers, Rule 41 does not
apply. Sims and James allege ineffective assistance of counsel
based on the failure to make this argument; however, because the
argument is without merit, trial counsels were not deficient for
failing to advance the argument.
10
Issue 6: Failure of state judge to affix return date on warrant
Sims and James contend that the warrant was invalid because
the state justice of the peace failed to affix a return date on
the face of the warrant, as is alleged to be required by a
Mississippi statute. The question, however, is not whether the
search is valid under state law, but whether it is valid under
the Fourth Amendment. United States v. Walker, 960 F.2d 409, 415
(5th Cir.), cert. denied, 113 S. Ct. 443 (1992). We have
previously held that defects in the return of a warrant are
ministerial and thus do not invalidate a search. Diecidue, 603
F.2d at 562. Thus, Sims and James’s claim is without merit.
Sims and James allege ineffective assistance of counsel based on
the failure to make this argument; however, because the argument
is meritless, their trial attorneys were not deficient for
failing to advance it.
Issue 7: Sufficiency of the evidence to support Sims’s firearms
convictions
Sims argues that the government failed to prove that he was
“in possession” of the gun found in the James house so as to
convict of him of the firearms counts. This claim was argued on
direct appeal and resolved against Sims. “[I]ssues raised and
disposed of in a previous appeal from an original judgment of
conviction are not considered in § 2255 Motions." United States
v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert. denied, 476 U.S.
1118 (1986).
11
Issue 8: Restoration of rights claim
Sims contends that his felon-in-possession conviction under
18 U.S.C. § 924(g) was invalid because his rights “to vote and
run for any public office was [sic] restored [to him] in 1987,”
upon his release from state prison. He argues that his right to
bear firearms was not explicitly revoked. He asserts that
counsel was ineffective for failing to raise this argument. At
trial, Sims, through counsel, stipulated that he had previously
been convicted of a felony at the time of the instant offense.
Section 922(g) makes it illegal for any person "who has been
convicted in any court of a crime punishable by imprisonment for
a term exceeding one year . . . to . . . possess in or affecting
commerce, any firearm . . . ." Section 921(a)(20) explains that
[w]hat constitutes a conviction of such a crime shall
be determined in accordance with the law of the
jurisdiction in which the proceedings were held. Any
conviction which has been expunged, or set aside or for
which a person has been pardoned or has had civil
rights restored shall not be considered a conviction
for purposes of this chapter, unless such pardon,
expungement, or restoration of civil rights expressly
provides that the person may not ship, transport,
possess, or receive firearms.
(emphasis added). In United States v. Thomas, 991 F.2d 206 (5th
Cir.), cert. denied, 510 U.S. 1014 (1993), this court adopted the
reasoning of the Seventh Circuit in concluding that
“[i]f the state sends the felon a piece of paper [or
certificate] implying that he is no longer ‘convicted’
and that all civil rights have been restored, a
reservation in the corner of the state’s penal code can
12
not be the basis of a federal prosecution. A state
must tell the felon that [firearms] are not kosher.”
Id. at 213 (alterations in original) (quoting United States v.
Erwin, 902 F.2d 510, 512-13 (7th Cir.), cert. denied, 498 U.S.
859 (1990)). In contrast to the situation described in Thomas,
Sims was not told that all or substantially all of his civil
rights had been restored. Instead, he was told that “[t]he right
of suffrage is hereby fully and completely restored to Roger
Sims.” Furthermore, Mississippi specifically prohibits a
convicted felon from possessing firearms without being granted a
certificate of rehabilitation after a court has determined, inter
alia, that the person is not “likely to act in a manner dangerous
to public safety.” MISS. CODE ANN. § 97-37-5. The record does not
indicate, and Sims does not allege, that he has ever even
requested such a certificate. Thus, Sims’s conviction for being
a felon in possession of a firearm was not erroneous, and his
attorney was not deficient for failing to object on this basis.
Issue 9: Seizure of property by the DEA
Sims and James contend that the DEA’s seizure (and
subsequent civil forfeiture) of property from them was illegal
because the State of Mississippi “never relinquished” the
property to the agency. This issue is not constitutional and
could have been raised on direct appeal, and thus it is outside
the scope of § 2255. See United States v. Vaughn, 955 F.2d 367,
368 (5th Cir. 1992); see also Dawkins v. United States, 883 F.
13
Supp. 83, 85 (E.D. Va.) (“[A] federal court may only consider a
§ 2255 petition that challenges custody under a federal criminal
conviction or sentence. Nowhere does the statute authorize
collateral attacks on civil administrative forfeitures . . . .
These proceedings . . . were entirely civil in nature . . .;
thus, the forfeitures fall outside the recognized scope of
[§ 2255].”), aff’d, 67 F.3d 297 (4th Cir. 1995) (table).
Issue 10: Eighth Amendment claim for imposition of fine
Sims contends that the trial court violated his Eighth
Amendment rights by fining him $15,000 without determining his
ability to pay. This claim is not cognizable in a § 2255 motion.
United States v. Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994).
Issue 11: Sentencing based upon allegedly unforeseeable amount of
cocaine
Sims contends that he was sentenced based upon an amount of
cocaine that was not “reasonably foreseeable” to him. Sims is
barred from raising this claim under § 2255 because it could have
been raised on direct appeal but was not. Vaughn, 955 F.2d at
368.4
Issue 12: Rule of lenity regarding penalty disparity between
crack cocaine and powder cocaine
4
In his reply brief, Sims asserts that his trial counsel
was ineffective for failing to make this argument at trial. We
do not consider arguments made for the first time in a reply
brief. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.), cert.
denied, 115 S. Ct. 189 (1994).
14
Sims and James contend that their sentences based on the
penalties for cocaine base were erroneous under the rule of
lenity, because cocaine base draws penalties that are 100 times
more stringent than powder cocaine, although the two are
essentially the same substance. This court has recently rejected
this very argument. See United States v. Flanagan, 87 F.3d 121,
123-24 (5th Cir. 1996). Thus, this contention is without merit.
Issue 13: Ineffective assistance of counsel
Sims and James allege that their respective attorneys
performed ineffectively “throughout their representation.” They
include a litany of alleged inadequacies, such as the attorneys’
alleged failure “to investigate and interview witnesses,” “to
request state preliminary hearing,” “to file a reply brief,” and
“to cross-examine the witnesses at the suppression hearings.”
They argue that the district court should have held an
evidentiary hearing on these claims.
As set forth in their appellate brief, Sims and James’s
ineffective-assistance claims are conclusional. Courts “must
indulge a strong presumption” that the challenged action of
counsel might be considered sound trial strategy. Strickland,
466 U.S. at 689. Sims and James have the burden to overcome that
presumption. Id. An ineffectiveness claim based on speculation
or conclusional rhetoric will not warrant relief. See Lincecum
v. Collins, 958 F.2d 1271, 1279-80 (5th Cir.), cert. denied, 506
15
U.S. 957 (1992). Sims and James’s ineffective-assistance claims
are little more than a laundry list of supposed misdeeds and
omissions, without explanation of how such misdeeds constituted
deficient performance or how they were prejudiced by them. Thus,
they have not met their burden of overcoming the strong
presumption that their attorneys were competent.
III. CONCLUSION
Thus, as to Sims (No. 95-60462), we VACATE the district
court’s Order Overruling Motion and Dismissing Cause insofar as
it dismissed Sims’s claim in his amended § 2255 motion to vacate
his § 924(c) conviction (ground 12), and we REMAND WITH
INSTRUCTIONS to vacate his § 924(c) conviction (Count 4) and to
resentence him accordingly. As to James (No. 95-60493), we
VACATE the district court’s Order Overruling Motion and
Dismissing Cause insofar as it dismissed James’s claim in her
amended § 2255 motion to vacate her § 924(c) conviction (ground
12), and we REMAND WITH INSTRUCTIONS to vacate her § 924(c)
conviction (Count 4) and to resentence her accordingly. In all
other aspects, the district court’s orders are AFFIRMED.
16