United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 7, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30812
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
CALVIN BROWN, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
(No. 02-CV-3825-B)
(No. 98-CR-194-3)
Before WIENER and PRADO, Circuit Judges, and LITTLE*, District
Judge.
PER CURIAM:**
Plaintiff-Appellant Calvin Brown, Jr., federal inmate no.
26239-034, was convicted by a jury for possession and conspiracy to
possess with the intent to distribute cocaine and was sentenced to
130 months of imprisonment. We granted Brown a certificate of
*
District Judge, Western District of Louisiana, sitting by
designation.
**
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opinion should not be published and is not precedent except under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.
appealability (COA) to appeal the district court’s denial of his 28
U.S.C. § 2255 motion to vacate, set aside or correct his sentence.
Brown contends that the district court erred in denying his claim
that his trial counsel was ineffective. Brown asserts that a
Louisiana court’s authorization for law-enforcement officials to
gather evidence using a wiretap was granted in contravention of
that state’s law, so the wiretap evidence should have been
suppressed before trial. Brown’s counsel erred, he charges, for
failing to challenge the admission of the wiretap evidence on this
ground and thereby failing to preserve the issue for appeal.
Under 18 U.S.C. § 2516(2), a state court may authorize a
wiretap in conformity with 18 U.S.C. § 2518 and with the applicable
state wiretap authorization statute. The Louisiana Electronic
Surveillance Act requires judges to question an informant before
granting a wiretap authorization if the application relies on the
informant’s statements to establish probable cause.1 On direct
appeal to us, we agreed with Brown’s argument that (1) the
Louisiana court failed to examine the confidential informants
before granting the wiretap authorization, and (2) the confidential
informants’ information was essential to the required finding of
1
LA. REV. STAT. ANN. § 15.1310 (West 1992). See also Louisiana
v. Neisler, 666 So. 2d 1064, 1067-69 (La. 1996) (refusing to
require suppression of evidence gained through a wiretap despite
the authorizing court’s failure to examine confidential
informants whose statements were used in support of the
application because other evidence supported the issuing court’s
finding of probable cause).
2
probable cause.2 We did not reverse Brown’s conviction, however,
because the wiretap authorization was supported by probable cause
and was valid under all federal law except for the provision making
the Louisiana statute applicable. In the absence of a timely
objection, our review was for plain error, which we concluded the
district court had not committed in admitting the wiretap
evidence.3
To prevail on a § 2255 claim for ineffective assistance of
counsel, a petitioner must demonstrate that his counsel committed
errors so grave as to deprive him of his Sixth Amendment right to
a fair trial and that his counsel’s deficient performance actually
prejudiced the proceedings.4 Counsel’s deficient performance must
fall below the standard for reasonably effective assistance.5
Judicial scrutiny of counsel’s performance is highly deferential;
the court must judge the reasonableness of counsel’s performance in
light of all the circumstances at the time.6 We conclude that
Brown has not shown that his counsel’s mistake rises to the level
of constitutionally deficient assistance.
The attorney whose performance is at issue in this petition
2
U.S. v. Brown, No. 00-30356 at 15 (June 7, 2001)(unpublished).
3
Id. at 16.
4
Strickland v. Washington, 466 U.S. 668, 687 (1984).
5
Id. at 688.
6
Id. at 690.
3
was third in a succession of attorneys who represented Brown during
his criminal trial and appeal.7 The trial court appointed counsel
in question approximately seven weeks before Brown’s trial. Before
this counsel was appointed, Brown’s second attorney had filed, and
the magistrate judge had ruled on, a detailed motion to suppress
the wiretap evidence. The motion raised four arguments that the
wiretap authorization did not comply with state law and charged
that the authorization was unsupported by probable cause. The
motion did not, however, specifically allege that the issuing state
judge had relied on the statements of confidential informants whom
the judge had not examined. The magistrate judge rejected Brown’s
arguments and refused to exclude the evidence, noting that, even if
the motion was unsupported by probable cause, the officers’ good
faith reliance on the wiretap authorization would also justify
admitting the evidence.8
Under these circumstances, we cannot agree that Brown’s
subsequent counsel provided ineffective assistance. Counsel’s
predecessor had made lengthy and detailed arguments for suppressing
the wiretap evidence, each of which was rejected by the court.
7
Brown’s first attorney was the Hon. Jay Zainey, United States
District Court Judge for the Eastern District of Louisiana,
formerly panel attorney for the Federal Public Defender’s Office.
8
The magistrate judge apparently mistakenly believed that only
federal law governed the admissibility of wiretap evidence in
federal court and therefore considered Brown’s state law attacks
under parallel provisions of federal electronic surveillance law.
4
Further, the court offered the separate, additional ground of good
faith, on which it would uphold the wiretap evidence regardless of
the authorization’s validity. Without any controlling precedent
requiring suppression of the evidence because of the state judge’s
failure to examine police informants, Brown’s next lawyer was not
unreasonable in not filing yet another attack on the wiretap
evidence.9 Indeed, we ruled on direct appeal that “the error was
not apparent on the face of the wiretap authorization” because it
was supported by probable cause and was valid under federal law.
We do not require appellate counsel to raise every possible
nonfrivolous claim on appeal; neither do we second-guess trial
counsel’s decision not to revisit an issue previously briefed
extensively and decided adversely to the client.10
Brown also seeks to raise an ineffective-assistance-of-counsel
issue that was not raised in his 28 U.S.C. § 2255 motion.
Specifically, he argues that his counsel should have challenged the
jurisdiction of the Louisiana state judge who approved the wiretap
authorizations, because not all of the phone numbers under
surveillance were located within St. Tammany Parish. We will not
9
The Neisler court refused to create a categorical rule
requiring exclusion of evidence when a state judge did not
examine confidential informants in contravention of LA. REV. STAT.
ANN. § 15.1310. 666 So. 2d at 1065. “[E]ven when there is a
clear violation of the statutory requirements of Section
1310B(1), the necessity for suppressing evidence under the
exclusionary rule of Section 1307 is an entirely separate
question.” Id. at 1068.
10
See Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998).
5
entertain this claim because our review is restricted to the issue
or issues for which a COA was granted. 28 U.S.C. § 2253(c)(3);
Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
AFFIRMED.
6