United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 10, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-21135
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
SERGIO ALANIS, also known as Sergio Alaniz, also known as La
Paca
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
No. H-97-CR-153-9
_________________________________________________________________
Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.
PER CURIAM:*
Sergio Alanis, a federal prisoner, appeals the district
court’s dismissal of his § 2255 motion. He attacks his
convictions and sentences on several grounds, including
ineffective assistance of counsel, prosecutorial misconduct, and
violations of Apprendi v. New Jersey, 530 U.S. 466 (2000). We
affirm in part, vacate in part, and remand to the district court
*
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that this opinion should not be published and is not precedent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.
1
for further factual development on Alanis’s ineffective-
assistance-of-trial-counsel claim.
I. Background
In February 1999, a federal jury convicted Sergio Alanis of
(1) conducting a continuing criminal enterprise (“CCE”), (2) two
counts of aiding and abetting possession with intent to
distribute marijuana, (3) money laundering, and (4) conspiracy to
launder money. Later that spring, the district court sentenced
him to, inter alia, 240 months in prison on each count and
ordered that the sentences be served concurrently. In September
2001, after unsuccessfully appealing his convictions, Alanis
filed a motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. The district court denied Alanis’s
§ 2255 motion without holding a hearing on any of his claims.
Following the district court’s refusal to grant Alanis a
certificate of appealability (a “COA”), we granted Alanis a COA
regarding the following issues: (1) whether his trial counsel
rendered ineffective assistance by failing to file a motion to
suppress the evidence obtained during the warrantless search of
Alanis’s house in light of David Pena-Garcia’s affidavit
regarding that search; (2) whether his trial counsel’s alleged
ineffectiveness concerning the Fourth Amendment claim suffices to
overcome Alanis’s procedural default on that claim; (3) whether
the sworn affidavit from Jose Garcia is newly discovered evidence
2
that proves that the prosecution knowingly used perjured
testimony at Alanis’s trial; (4) whether the district court
should have conducted an evidentiary hearing to consider whether
the prosecution knowingly used perjured testimony at Alanis’s
trial; (5) whether Alanis’s convictions for aiding and abetting
possession with intent to distribute marijuana are invalid under
Apprendi because a drug quantity was not alleged in the
indictment or submitted to the jury; and (6) whether his
appellate counsel was ineffective for failing to raise the
Apprendi issue on direct appeal.
II. Standard of Review
When considering a district court’s denial of a § 2255
motion, we review factual findings for clear error and
conclusions of law de novo. See United States v. Stricklin, 290
F.3d 748, 750 (5th Cir. 2002). A district court’s conclusions
regarding a claim of ineffective assistance of counsel involve
mixed questions of law and fact, which we review de novo. See
United States v. Bass, 310 F.3d 321, 325 (5th Cir. 2002).
Further, we review for abuse of discretion the district court’s
decision not to hold a hearing. See United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).
III. Discussion
A. Trial Counsel’s Failure to Pursue the Fourth Amendment Claim
3
We granted a COA regarding whether Alanis’s trial counsel
rendered ineffective assistance by failing to file a motion to
suppress the evidence obtained during the warrantless search of
Alanis’s house in light of David Pena-Garcia’s affidavit
regarding that search.1 To obtain relief on his ineffective-
assistance-of-counsel claim, Alanis must show both that his
counsel’s performance was deficient (i.e., that it “fell below an
objective standard of reasonableness”) and that he was prejudiced
by his counsel’s deficient performance. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). Regarding the first
prong, we must be “highly deferential” when evaluating counsel’s
performance; a strong presumption exists that the representation
was reasonable. Id. at 689. “[T]he defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. (citation and
internal quotation marks omitted). If Alanis shows that his
1
Alanis contended on direct appeal that his trial
counsel rendered constitutionally ineffective assistance. We
declined to consider the claim, citing the general rule “that a
claim of ineffective assistance of counsel cannot be resolved on
direct appeal when the claim has not been raised before the
district court since no opportunity existed to develop the record
on the merits of the allegations.” United States v. Alanis, No.
99-20153, slip op. at 4 (5th Cir. Sept. 25, 2000) (per curiam)
(citing United States v. Navejar, 963 F.2d 732, 735 (5th Cir.
1992)); cf. Massaro v. United States, 123 S. Ct. 1690, 1696
(2003) (holding “that failure to raise an ineffective-
assistance-of-counsel claim on direct appeal does not bar the
claim from being brought in a later, appropriate proceeding under
§ 2255”).
4
counsel’s performance was deficient, he then must demonstrate
prejudice. See id. at 691, 693-94. To do so, he “must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
Further, the Supreme Court has refined the prejudice inquiry in
the context of ineffective-assistance claims based on counsel’s
failure to file a motion to suppress:
Where defense counsel’s failure to litigate a Fourth
Amendment claim competently is the principal allegation
of ineffectiveness, the defendant must also prove that
his Fourth Amendment claim is meritorious and that there
is a reasonable probability that the verdict would have
been different absent the excludable evidence in order to
demonstrate actual prejudice.
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
At trial, a police officer testified that Pena-Garcia,
Alanis’s father-in-law, informed the officer that he was in
control of Alanis’s residence and verbally consented to a search
of the premises, during which officers seized $40,970 in
currency. But, when Alanis filed his § 2255 motion in the
district court, Alanis submitted a sworn, post-conviction
affidavit from Pena-Garcia stating that he neither consented to
the search nor informed the officer that he was in control of the
premises. Alanis contends that his trial counsel rendered
ineffective assistance because the lawyer failed to file a motion
5
to suppress the evidence obtained during the warrantless search
of Alanis’s house. He further asserts that his trial counsel was
ineffective for failing to investigate the validity of that
warrantless search.
“A defendant who alleges a failure to investigate on the
part of his counsel must allege with specificity what the
investigation would have revealed and how it would have altered
the outcome of the trial.” United States v. Green, 882 F.2d 999,
1003 (5th Cir. 1989). Although Alanis fails to allege
specifically that Pena-Garcia was willing to testify on behalf of
Alanis during a suppression hearing, we liberally construe the
pleadings of those who proceed pro se. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972). Alanis’s brief does assert that his
trial counsel’s decision not to file a suppression motion could
not have been the product of either a considered trial strategy
or a reasonable investigation. According to Alanis, a non-
deficient lawyer would have explored the circumstances
surrounding the search, since it was conducted without a warrant
and the individual who allegedly consented to the search (Pena-
Garcia) refused to sign a written consent form. Moreover, both
Alanis and Pena-Garcia allege that the search of Alanis’s house
was conducted without consent, and the record does not indicate
that Pena-Garcia would have testified otherwise if called for a
suppression hearing.
6
The district court concluded, however, that Alanis had not
satisfied either prong of the Strickland test. First, defense
counsel’s performance was not deficient, according to the
district court, since——considering the officer’s testimony that
Pena-Garcia consented to the search and the substantial evidence
of money laundering——the decision not to file a motion to
suppress “can reasonably be attributed to trial strategy.”
Second, the court, assuming for the sake of argument that
counsel’s performance fell below an objective standard of
reasonableness, also concluded that Alanis had not shown that
counsel’s failure to move to suppress the currency prejudiced his
defense. In the district court’s view, Alanis failed to prove
that he would have been found not guilty of money laundering,
since the government introduced substantial evidence at trial
regarding the money-laundering count.2 The district court’s
2
But the district court failed to consider that the
count of money laundering with which Alanis was charged and
convicted accused him of laundering the very currency found
during the now-disputed search. Specifically, count nine of the
second superceding indictment states the following:
On or about January 26, 1994, in the Southern
District of Texas and elsewhere, and within the
jurisdiction of this Court,
SERGIO ALANI[S], a/k/a Sergio Alaniz and La Paca,
defendant herein . . . did knowingly and willfully
conduct and attempt to conduct a financial transaction
affecting interstate and foreign commerce, to wit, the
transfer, delivery or other disposition of U.S. Currency,
which involved the proceeds of a specified unlawful
activity, namely, a violation of Title 21, United States
Code, Sections 841, 846 and 848, with the intent to
promote the carrying on of said specified unlawful
7
opinion does not explicitly consider whether Alanis is entitled
to a hearing on this Sixth Amendment claim.
A § 2255 motion “can be denied without a hearing only if the
motion, files, and records of the case conclusively show that the
prisoner is entitled to no relief.” Bartholomew, 974 F.2d at 41;
accord Friedman v. United States, 588 F.2d 1010, 1014-15 (5th
Cir. 1979); see also 28 U.S.C. § 2255 (2000). See generally
Machibroda v. United States, 368 U.S. 487, 494-96 (1962). The
determination of whether to conduct a hearing on a § 2255 motion
involves two steps. See Friedman, 588 F.2d at 1015. First, the
court examines whether the record conclusively negates the
factual predicates asserted in support of the motion. Id. If
not, the court next determines whether the movant would be
entitled to relief if his factual allegations are true. Id. If
he would be entitled to relief, then the district court must
conduct a hearing to ascertain the validity of the movant’s
factual assertions. On the state of this record, we conclude
activity and knowing that the transaction was designed in
whole and in part to conceal and disguise the nature, the
location, the source, the ownership and the control of
the proceeds of the specified unlawful activity, and that
while conducting and attempting to conduct such financial
transaction knew that the property involved in the
financial transaction, that is, funds, amounting to
approximately $40,970.00, represented the proceeds of
some form of unlawful activity.
In violation of Title 18, United States Code,
Sections 2, 1956(a)(1)(A)(i) and 1956(a)(1)((B)(i).
(emphasis added).
8
that further factual development is required (which may include a
hearing) regarding Alanis’s ineffective-assistance-of-trial-
counsel claim.
Regarding the first step in the Friedman analysis, we find
that the record does not conclusively negate Alanis’s allegation
that his counsel’s decision not to file a motion to suppress was
the product of the lawyer’s failure to conduct a reasonable
investigation into the circumstances surrounding the search.
While “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable,” “strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690-91. In rejecting
Alanis’s claim, the district court determined that defense
counsel’s failure to file a motion to suppress was based on sound
trial strategy. But the basis for this conclusion is not readily
apparent from the record. If the testimony of the officer
conducting the search were uncontroverted, the district court’s
conclusion would certainly be warranted. But the district court
failed to address (1) the conflict between Pena-Garcia’s
affidavit and the officer’s testimony, (2) whether that conflict
existed before trial, or (3) whether trial counsel was aware of,
or should have been aware of, the existence of that conflict.
9
Thus, we know little about what, if any, investigation Alanis’s
trial counsel took before deciding not to file a motion to
suppress the seized currency, and thus, we cannot say that the
record conclusively negates Alanis’s factual allegations.
Additionally, the record does not conclusively negate Pena-
Garcia’s allegation that he did not consent to the search. The
affidavit conflicts with the officer’s trial testimony.
Consequently, further factual development is required to
determine who is telling the truth. See Friedman, 588 F.2d at
1015 (stating “that contested fact issues in § 2255 cases cannot
be resolved on the basis of affidavits”); see also Taylor v.
United States, 287 F.3d 658, 660 (7th Cir. 2002) (stating, in the
context of a § 2255 motion, that “if the record contains an
evidentiary conflict on a material issue of fact, a judge must
hold an evidentiary hearing to decide who is telling the truth”).
The resolution of this factual question will determine the
validity of Alanis’s Fourth Amendment claim, which is an element
of the Strickland prejudice inquiry in these circumstances.
We now turn to the second step of the Friedman
analysis——whether Alanis’s factual allegations would entitle him
to relief if true. The government relies on United States v.
Chavez-Valencia, 116 F.3d 127, 134 (5th Cir. 1997), to support
the district court’s assertion that Alanis’s claim is facially
invalid because he “fails to demonstrate that [his lawyer’s]
10
election not to file a motion to suppress was not based on a
conscious or informed trial tactic.” But the defendant in
Chavez-Valencia attempted to raise his ineffective-assistance-of-
counsel claim on direct appeal. See id. at 128. Because the
record was not sufficiently developed to allow us to review the
claim, we denied it without prejudice to collateral review,
stating that “[w]ithout knowing the reason for failing to file a
pretrial motion, this court is not positioned to review the
competency of representation Chavez received.” Id. at 134. We
are in a similar position here. While we recognize “the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy,” Strickland, 466 U.S.
at 689 (internal quotation marks omitted), we also note that
“counsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations
unnecessary,” id. at 691. Again, at this stage, we do not know
what investigation Alanis’s trial counsel conducted regarding
whether to file a motion to suppress the currency. Thus, we
cannot, without the benefit of further factual development, agree
that the attorney’s performance was not deficient.
In addition, Alanis’s attack on his conviction for money
laundering cannot be rejected on the prejudice prong of
Strickland. If it is determined that Pena-Garcia did not consent
to the search, exclusion of the currency would be appropriate,
11
since the officers who searched Alanis’s residence did not obtain
a warrant. Further, Alanis was convicted of laundering the very
currency found during the now-disputed search of his residence.3
A reasonable probability therefore exists that the suppression of
that currency would have prevented Alanis’s conviction for
laundering it.4 Consequently, if Alanis’s assertion that his
trial counsel failed to conduct a reasonable investigation before
deciding not to file a motion to suppress the currency proves
true, he will be entitled to relief.
Considering Pena-Garcia’s affidavit, we cannot conclude that
Alanis’s “§ 2255 motion, together with the files and records of
the case, conclusively show that under no circumstances would
[Alanis] be entitled to relief” from his conviction for money
laundering. Friedman, 588 F.2d at 1017. As we stated in
Friedman,
We do not, of course, pretend to prejudge
this . . . issue . . . . Nor do we predict or intimate
the legal consequences of any findings or holdings on the
matter[] remanded for further hearing. The point is that
3
See supra note 2.
4
Alanis also contends that the admission of the currency
significantly influenced the results concerning his other counts
of conviction. The district court did not explicitly find that
Alanis had failed to satisfy Strickland’s prejudice requirement
regarding his convictions on the other counts. Nevertheless, our
review of the record reveals that substantial evidence, besides
the seized currency, supports the other counts of conviction.
Accordingly, we affirm the district court’s rejection of Alanis’s
Sixth Amendment claim insofar as it relates to his other counts
of conviction.
12
we do not know, nor does the District Court know, whether
[Defendant]’s allegations are indeed true and whether, as
a consequence, he was unconstitutionally deprived
of . . . effective assistance of counsel when he was
convicted and sentenced.
Id. Accordingly, we remand for further factual development on
this claim.
B. Unconstitutional Search and Seizure
In his § 2255 motion, Alanis contends that his conviction
was obtained through the use of evidence (namely, the currency
discussed above) seized during an unconstitutional search.
Because Alanis raised this claim for the first time in his § 2255
motion, his claim is procedurally barred unless he can show “both
‘cause’ for his procedural default, and ‘actual prejudice’
resulting from the error.” United States v. Shaid, 937 F.2d 228,
232 (5th Cir. 1991) (en banc). “[A]bsent unusual circumstances,
ineffective assistance of counsel, if shown, is sufficient to
establish the cause and prejudice necessary to overcome a
procedural default.” United States v. Walker, 68 F.3d 931, 934
(5th Cir. 1995). Thus, we granted a COA concerning whether
Alanis’s trial counsel’s alleged ineffectiveness constitutes both
cause for Alanis’s failure to challenge the search and seizure
during his criminal proceedings and actual prejudice due to
counsel’s alleged error.
Even if he can show ineffective assistance and thereby
overcome the procedural bar, Alanis’s Fourth Amendment claim
13
probably is not cognizable in this § 2255 proceeding. The
Supreme Court held in Stone v. Powell, 428 U.S. 465, 494-95 &
n.37 (1976), that state prisoners collaterally attacking their
convictions under § 2254 cannot obtain relief for violations of
the Fourth Amendment exclusionary rule when the prisoner was
provided a full and fair opportunity to litigate the Fourth
Amendment issue in the state courts. Interpreting the “full-and-
fair-opportunity” requirement in the § 2254 context, we have
stated that when a defendant fails to raise his Fourth Amendment
claim at trial (as occurred here), then Stone precludes habeas
relief on Fourth Amendment grounds, even though no state hearing
was held on the claim. See Caver v. Alabama, 577 F.2d 1188, 1192
(5th Cir. 1978) (“An ‘opportunity for full and fair litigation’
means just that: an opportunity. If a state provides the
processes whereby a defendant can obtain full and fair litigation
of a fourth amendment claim, Stone v. Powell bars federal habeas
corpus consideration of that claim whether or not the defendant
employs those processes.”).5 We have also held that the Stone
rule can be raised by a court sua sponte. See Davis v.
Blackburn, 803 F.2d 1371, 1372-73 (5th Cir. 1986) (“[W]e are
obliged to apply Stone as a prudential limitation on the exercise
of our jurisdiction . . . , even if it must be raised sua
5
Alanis fails to allege that the district court would
not have provided a full and fair opportunity for him to litigate
his Fourth Amendment claim had he raised it.
14
sponte.”). Thus, it would appear that the government’s failure
to assert the Stone bar does not prevent us from applying it to
Alanis’s claim. But the applicability of Stone in § 2255
proceedings is somewhat unclear. While the Supreme Court has not
definitively resolved the question, dicta in United States v.
Johnson, 457 U.S. 537, 562 n.20 (1982), indicates that the
doctrine does apply here.6
In light of our disposition of the ineffective-assistance-
of-trial-counsel claim, however, we do not need either to
consider the merits of Alanis’s Fourth Amendment claim or to
decide whether Stone would preclude it. If the district court
determines that Alanis’s trial counsel rendered constitutionally
ineffective assistance due to the lawyer’s failure to file a
motion to suppress, Alanis will have satisfied the cause-and-
prejudice standard, see Walker, 68 F.3d at 934, which would allow
him to pursue his Fourth Amendment claim. In other words,
Alanis’s Fourth Amendment claim is procedurally barred unless he
first succeeds on his Sixth Amendment claim. Further, if he
succeeds on his Sixth Amendment claim, he will have established
the validity of his Fourth Amendment claim because the merits of
his Fourth Amendment claim are an element of his ineffective-
6
Regardless whether the rule precludes his Fourth
Amendment claim, Stone does not bar Alanis’s Sixth Amendment
claim that his trial counsel’s failure to file a motion to
suppress the currency amounted to constitutionally ineffective
assistance. See Kimmelman, 477 U.S. at 382-83.
15
assistance-of-trial-counsel claim. See Kimmelman, 477 U.S. at
375, 382.7 Finally, the relief sought in Alanis’s Fourth
Amendment claim is identical to the relief sought in his
ineffective-assistance-of-trial-counsel claim. Accordingly,
since (1) Alanis cannot pursue his Fourth Amendment claim unless
he prevails on his Sixth Amendment claim8 and (2) if he prevails
on his Sixth Amendment claim he will be entitled to all relief
that would be available to him if he succeeded on his Fourth
Amendment claim, we need not concern ourselves further with
Alanis’s Fourth Amendment claim.
C. Prosecutorial Misconduct
Alanis contends that the government prosecutor knowingly
elicited false trial testimony from government witness Jose
Garcia. He attached to his § 2255 motion a sworn, post-
conviction affidavit from Jose Garcia supporting his assertion.
Due process is violated when the prosecution knowingly offers
false testimony to obtain a conviction and fails to correct such
testimony. Tucker v. Johnson, 242 F.3d 617, 625-26 (5th Cir.
7
Note also that if Alanis can show——as required by
Strickland——that there is a reasonable probability that, but for
counsel’s failure to file a motion to suppress, he would not have
been convicted on one or more of the counts, he will have
conclusively shown that the admission of the currency was not
harmless regarding such count(s). See Kyles v. Whitley, 514 U.S.
419, 435-36 (1995).
8
Even then, Stone probably precludes Alanis from
litigating his Fourth Amendment exclusionary-rule claim in this
§ 2255 proceeding.
16
2001); see also Burton v. United States, 237 F.3d 490, 493 (5th
Cir. 2000). To obtain relief, Alanis must prove (1) that the
statements in question are false; (2) that the government knew of
their falsity; and (3) that the statements were material.
Tucker, 242 F.3d at 626.
Because Alanis failed to raise this contention either at
trial or on direct appeal, he must first show “both ‘cause’ for
his procedural default, and ‘actual prejudice’ resulting from the
error.” Shaid, 937 F.2d at 232. If Garcia’s affidavit was not
available to Alanis until after his direct appeal was decided,
this would establish cause for his failure to raise this claim
earlier. See Murray v. Carrier, 477 U.S. 478, 488 (1986)
(stating “that a showing that the factual or legal basis for a
claim was not reasonably available to counsel” satisfies the
cause requirement for overcoming a procedural default). Whether
Alanis can establish actual prejudice will depend on the validity
of his prosecutorial-misconduct claim, for the Supreme Court has
treated the materiality element of such a claim “as coterminous
with the ‘prejudice’ prong of the procedural default doctrine.”
2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND
PROCEDURE § 26.3c, at 1221-22 (4th ed. 2001) (citing cases).
Alanis’s assertion that the government knowingly elicited
false testimony was one of several allegations of government
misconduct presented in his § 2255 motion. In its opinion, the
17
district court did not mention the affidavit from Garcia.
Nevertheless, the court rejected Alanis’s government-misconduct
claim in its entirety, stating that the claim was unsupported and
procedurally barred. Thus, it implicitly concluded that each of
Alanis’s allegations of misconduct lacks merit. We affirm the
district court’s ruling on this issue because we find that, even
if Alanis’s allegations concerning the Garcia affidavit are true,
Alanis would not be entitled to relief. This is because, as the
government shows in its brief, Garcia’s testimony was not
material.
Garcia’s testimony was relevant to the CCE count and one of
the counts for aiding and abetting possession with intent to
distribute marijuana (i.e., the count charging Alanis with aiding
and abetting the possession with intent to distribute marijuana
on or about November 14, 1996, which was one of the predicate
acts that formed the basis of his CCE conviction). On November
14, 1996, Texas state troopers arrested Garcia, who was driving a
truck loaded with 597 pounds of marijuana. Garcia testified at
trial that Alanis hired him to drive the truck containing the
marijuana. In his subsequent affidavit, however, Garcia stated
that, when he testified at trial, he knew nothing about Alanis’s
involvement with the shipment of marijuana. Instead, Garcia
asserted in the affidavit that the prosecutor instructed him to
implicate Alanis and that Garcia did so in return for leniency.
18
Perjured testimony is material “if there is any reasonable
likelihood that the false testimony could have affected the
judgment of the jury.” Creel v. Johnson, 162 F.3d 385, 391 (5th
Cir. 1998) (citations and internal quotation marks omitted).
Garcia’s allegedly false trial testimony concerning Alanis’s
involvement with the November 1996 shipment of marijuana is not
material because at trial the government introduced substantial
additional evidence connecting Alanis both to the shipment and to
Garcia. For example, at trial, an FBI agent testified about
several electronically intercepted telephone conversations
between Garcia and Alanis during which the two men discussed the
November 1996 shipment of drugs. Moreover, in his closing
argument, the prosecutor did not once mention Garcia’s testimony
in connection with the November 1996 aiding and abetting
possession with intent to distribute count.9 Accordingly,
because Garcia’s allegedly false testimony was not material to
the jury’s verdicts, we affirm the district court’s judgment
regarding Alanis’s prosecutorial misconduct claim.10
D. Apprendi Violation and Ineffective Assistance of Counsel on
Appeal
9
And he only referenced Garcia’s testimony twice,
briefly, in discussing the CCE count.
10
As we find that Alanis’s prosecutorial misconduct
allegation is without merit, we consequently reject Alanis’s
contention that he should be allowed an evidentiary hearing on
this issue.
19
We also granted a COA regarding Alanis’s contention that his
convictions for aiding and abetting possession with intent to
distribute marijuana are invalid under Apprendi v. New Jersey,
530 U.S. 466 (2000), because a drug quantity was not alleged in
the indictment or submitted to the jury.11 Because Apprendi was
issued approximately three months before Alanis’s direct appeal
was decided, the decision was applicable to Alanis’s judgment of
conviction. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987)
(holding that new rules are retroactively applicable to cases
“pending on direct review or not yet final”). But, as this issue
is raised for the first time in his § 2255 motion, Alanis is
required to show both cause and prejudice for failing to raise
this contention on direct appeal. See Shaid, 937 F.2d at 232.
Although the government’s brief to this court does not mention
Alanis’s procedural default regarding the Apprendi issue, we can
raise the issue sua sponte because Alanis was given a reasonable
opportunity to argue against imposition of the bar in district
court.12 See United States v. Willis, 273 F.3d 592, 596-97 (5th
Cir. 2001).
11
In Apprendi, the Supreme Court held that due process
requires that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” 530 U.S. at 490.
12
In its motion to dismiss, the government asserted that
Alanis had defaulted on his Apprendi claim.
20
Alanis contended in district court that his appellate
counsel was ineffective for failing to raise the Apprendi issue
on direct appeal and that such ineffectiveness overcomes the
procedural bar.13 The Strickland standard also applies to the
effectiveness of appellate counsel. See Teague v. Scott, 60 F.3d
1167, 1173-74 (5th Cir. 1995). Alanis was sentenced on the CCE
count to a concurrent sentence of equal length to the sentences
challenged under Apprendi, and we have rejected each of Alanis’s
attacks on his CCE conviction and sentence. Consequently, he
cannot show prejudice under Strickland. See United States v.
Tolliver, 61 F.3d 1189, 1223 & n.54 (5th Cir. 1995) (holding that
“dual sentencing is of no real consequence,” and thus is not
prejudicial under Strickland, when a defendant is serving a life
sentence on an unchallenged count of conviction), vacated on
other grounds sub. nom., Sterling v. United States, 516 U.S. 1105
(1996). Alanis’s claim of ineffective-assistance-of-appellate-
counsel therefore fails, and thus, his Apprendi challenge is
procedurally barred.
IV. Conclusion
Accordingly, we VACATE the district court’s judgment insofar
as it denied relief on Alanis’s claim of ineffective assistance
of trial counsel regarding counsel’s alleged failure to
investigate and to challenge the warrantless search and REMAND
13
Thus, we granted him a COA on this issue as well.
21
this case to the district court for further factual development
concerning that claim. The district court’s judgment regarding
Alanis’s remaining claims is AFFIRMED.
AFFIRMED IN PART; VACATED and REMANDED IN PART.
22