United States v. Lee Vang Lor

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 5, 2013

Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
___________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 12-8024
LEE VANG LOR,

Defendant-Appellant.
___________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF WYOMING
(D.C. Nos. 2:09-CV-00247-ABJ and 2:07-CR-00102-ABJ-2)
____________________________________

Jonathan W. Rauchway (Eric C. Reese with him on the brief), Davis Graham & Stubbs
LLP, Denver, Colorado, for Defendant-Appellant.

David A. Kubichek, Assistant United States Attorney (Christopher A. Crofts, United
States Attorney, with him on the brief), Casper, Wyoming, for Plaintiff-Appellee.
____________________________________

Before HARTZ, BALDOCK, and MURPHY, Circuit Judges.*
____________________________________

BALDOCK, Circuit Judge.
____________________________________

A Wyoming Highway Patrol trooper stopped Defendant Lee Vang Lor for

speeding in March 2007. After gaining consent to search the vehicle, the trooper found

*
After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
methamphetamine. The district court denied Defendant’s motion to suppress the

methamphetamine, and Defendant entered a conditional guilty plea to one count of

possessing methamphetamine with intent to distribute and one count of conspiring to do

the same. The district court sentenced him to 121 months’ imprisonment. We affirmed

the district court’s denial of the suppression motion. United States v. Thao, 291 F. App’x

129 (10th Cir. 2008).

Defendant then filed a pro se petition to vacate his sentence under 28 U.S.C.

§ 2255 on the basis of newly discovered evidence. This new evidence was that the

Wyoming Highway Patrol terminated the trooper who stopped Defendant because the

trooper called in a false dispatch report in April 2007, after Defendant’s arrest but before

his suppression hearing. Defendant argued this evidence would have undermined the

trooper’s testimony at Defendant’s suppression hearing and that he is therefore entitled to

a new hearing. The district court denied Defendant’s § 2255 petition. Defendant

appealed. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district

court’s denial of his petition.

I.

Wyoming Highway Patrol trooper Ben Peech stopped an SUV driven by

Defendant for speeding on Interstate 80. Defendant and his passenger, Lee Thao, both

said they had been to Reno, Nevada, but gave inconsistent stories as to why they were

there. Trooper Peech also noted other suspicious circumstances. For example, the

vehicle had been rented in Minnesota by a third party who lived in Wisconsin. Peech

gave Defendant a speeding ticket, and then Thao consented to a search of the vehicle.

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After consenting, but before Peech began the search, Thao asked if he could have refused

consent. Peech said “yes” he could “absolutely refuse.” Thao then said he did not want

the car to be searched. Peech acknowledged the withdrawn consent, but said he was

going to detain the men pending the arrival of a drug dog. Thao and Defendant then gave

verbal and written consent to a search of the SUV. The search, conducted by Peech and

three other troopers, yielded approximately two pounds of crystal methamphetamine.

At the suppression hearing on May 31, 2007, Defendant and Thao testified that

while the search was in progress Thao yelled at the troopers to stop. Each of the four

troopers present during the search testified that neither Defendant nor Thao made any

attempt to revoke their consent to search. On appeal from the district court’s denial of

their motion to suppress, Defendant and Thao argued (1) Trooper Peech unreasonably

detained them and (2) their consent to search the vehicle was involuntary. Thao, 291 F.

App’x at 132. We held that Peech had reasonable suspicion to detain the men based on a

number of facts. Id. at 133. As to the consent issue, we relied on the district court’s

credibility determinations with respect to Defendant, Thao, and the four officers who

testified. Id. at 134. The district court observed in the suppression hearing, “I was more

impressed with the truthfulness and testimonies of the sworn peace officers than I am of

an individual who has had numerous encounters in a confrontational situation with peace

officers all over and who is a convicted felon . . . .” Id. The district court also noted it

had observed both Defendant and Thao’s demeanor during the testimony. Id.

Defendant outlined the factual basis for his § 2255 petition as follows:

On October 9, 2007, after I initiated my appeal, Mr. Peech was fired from

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 the Wyoming Highway Patrol for falsifying a dispatch report for a traffic
stop that occurred on April 7, 2007. Mr. Peech falsely told the dispatcher
that the driver of the vehicle was driving under the influence of alcohol in
order to justify a traffic stop of a vehicle that he suspected of carrying
illegal drugs and a large quantity of money. See Jared Miller, Patrol
Upholds Trooper Firing, CASPER-START TRIBUNE, Nov. 8, 2007.

Record on Appeal (ROA) at 12. The Government introduced the referenced newspaper

article, as well as Peech’s report of the stop, into the record. The article indicates

Trooper Peech was cooperating with the federal Drug Enforcement Agency, which

directed him to conduct a “wall stop” of a silver Dodge truck.1 ROA at 74–75. When he

realized he would not be on patrol after midnight because of state cost cuts, Trooper

Peech called Wyoming’s drunk driving hotline and falsely reported seeing a vehicle

driven by someone under the influence. Id. at 75. After being called on duty to respond

to his own false report, he stopped the Dodge pickup for driving four miles per hour over

the speed limit. Id. at 56. After gaining consent to search the pickup, he found $3.3

million in cash inside. Id. at 75.

Defendant argued in his § 2255 petition that because the “main issue during the

suppression hearing was one of credibility,” the district court “would have ruled

differently in light of this new evidence.” Id. at 14. The district court rejected this

argument, and held that Defendant had a full opportunity to litigate his claim. The court

said the “newly discovered evidence” concerning Trooper Peech was from an unrelated

incident and “[a]t best . . . might have provided a basis for impeaching Trooper Peech’s

1
As we have explained elsewhere, “In a wall stop, a patrol officer is asked to find
his own lawful reason to stop and search the vehicle and is not advised of the information
known by investigators in order to protect the secrecy of the ongoing investigation.”
United States v. Benard, 680 F.3d 1206, 1208–09 (10th Cir. 2012).
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credibility.” Defendant appealed, seeking a certificate of appealability, which the district

court had denied. Without granting the certificate, we ordered the Government to brief

the following questions: Whether evidence discovered after a Fourth Amendment claim

has been fully litigated can ever be the basis for relief under 28 U.S.C. § 2255, and if so,

under what standard that evidence should be assessed. After the Government submitted

its brief, we granted a certificate of appealability as to those questions, appointed

Defendant counsel, and ordered counsel to file supplemental briefing. The matter has

now been fully briefed.

II.

A federal prisoner is entitled to have his sentence vacated or corrected if it was

“imposed in violation of the Constitution or laws of the United States . . . or is otherwise

subject to collateral attack . . . .” 28 U.S.C. § 2255(a). Defendant makes two arguments

in support of his § 2255 motion. First, he argues that he had no full and fair opportunity

to litigate his Fourth Amendment claim because he did not have “crucial evidence needed

to impeach the Government’s sole witness to establish reasonable suspicion.” Aplt.’s

Supp. Br. at 19. Second, he argues he is entitled to an evidentiary hearing to determine

whether the Government violated Brady v. Maryland, 373 U.S. 83 (1963), which requires

the Government to disclose material exculpatory evidence prior to trial. We take these

arguments in reverse order.

A.

Defendant’s second argument is that the district court erred in not conducting an

evidentiary hearing to consider his Brady claim. But Defendant’s § 2255 petition did not

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mention Brady or request an evidentiary hearing. Defendant raised Brady only in his

reply brief before the district court. Accordingly, the district court did not discuss Brady,

but only mentioned it in passing. In civil cases, at least, a party waives an issue in the

district court if he waits to raise the argument until his reply brief. F.D.I.C. v. Noel, 177

F.3d 911, 915–16 (10th Cir. 1999) (concluding the appellant waived an issue by not

raising it until his reply brief in the district court). Section 2255 petitions are, admittedly,

“strange and slippery creatures” that defy “traditional ‘civil’ or ‘criminal’

characterization.” United States v. Simmonds, 111 F.3d 737, 742, 743 (10th Cir. 1997),

overruled on other grounds by United States v. Hurst, 322 F.3d 1256 (10th Cir. 2003).

But the same rule logically applies in a § 2255 proceeding, considering that plain error

review does not apply to forfeited errors on § 2255 review. United States v. Frady, 456

U.S. 152, 166 (1982). The Ninth Circuit reached exactly this conclusion. United States

v. Berry, 624 F.3d 1031, 1039 n.7 (9th Cir. 2010) (holding that a Brady claim raised by a

pro se § 2255 petitioner in his district court reply brief was too late and was not within

the certificate of appealability). Of course, we construe pro se pleadings liberally, United

States v. Tony, 637 F.3d 1153, 1155 n.1 (10th Cir. 2011), but even construed as liberally

as possible, Defendant’s § 2255 petition simply does not raise a Brady claim. Therefore,

we do not consider his second argument on appeal.2

2
Whether Brady’s disclosure requirements even apply at the motion to suppress
stage is an open question. See United States v. Stott, 245 F.3d 890, 901 (7th Cir. 2001)
(noting a split in the circuits). As the D.C. Circuit has noted, “Suppression hearings do
not determine a defendant’s guilt or punishment, yet Brady rests on the idea that due
process is violated when the withheld evidence is ‘material either to guilt or to
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 B.

Defendant’s first argument is that the newly discovered evidence of Trooper

Peech’s deception entitled him to § 2255 relief because it shows he was “denied the

opportunity for ‘full and fair litigation’ . . . of his Fourth Amendment claims in the trial

court or on direct appeal.” Aplt.’s Supp. Br. at 12. Defendant’s petition asked the district

court to grant him a new suppression hearing so he could present the newly discovered

evidence.3

The Fourth Amendment protects persons against unreasonable searches and

seizures. U.S. Const. amend. IV. The Supreme Court has enforced the Fourth

Amendment through the exclusionary rule, a “prudential doctrine created . . . to compel

respect for the constitutional guaranty.” Davis v. United States, 131 S. Ct. 2419, 2426

(2011) (internal quotation marks omitted). Suppression of evidence is not “a personal

constitutional right,” nor is it designed to “redress the injury to the privacy of the victim.”

Stone v. Powell, 428 U.S. 465, 486 (1976). Rather, the rule is a “prophylactic device

intended generally to deter Fourth Amendment violations by law enforcement officers.”

Id. at 479 (quoting Kaufman v. United States, 394 U.S. 217, 224 (1969)).

punishment.’” United States v. Bowie, 198 F.3d 905, 912 (D.C. Cir. 1999) (quoting
Brady, 373 U.S. at 87).
3
Defendant has not cited, nor have we found, any cases saying a new suppression
hearing is an appropriate form of relief under § 2255. The statute itself only says a
district court granting § 2255 relief “shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial or correct the sentence as
may appear appropriate.” 28 U.S.C. § 2255(b). Nevertheless, we assume without
deciding that § 2255 gives district courts leeway to grant a new suppression hearing if
§ 2255 relief is appropriate.
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 The exclusionary rule “has been restricted to those areas where its remedial

objectives are thought most efficaciously served.” Id. at 486–87 (quoting United States

v. Calandra, 414 U.S. 338, 348 (1974)). Thus, the Supreme Court in Stone v. Powell

declined to extend the exclusionary rule to habeas corpus proceedings by state prisoners

“where the State has provided an opportunity for full and fair litigation of a Fourth

Amendment claim.” Id. at 494. The Court concluded the costs of applying the

exclusionary rule on collateral review outweighed the rule’s deterrent effect. Id. at 493.

“The view that the deterrence of Fourth Amendment violations would be furthered rests

on the dubious assumption that law enforcement authorities would fear that federal

habeas review might reveal flaws in a search or seizure that went undetected at trial and

on appeal.” Id. And even if “some additional deterrent effect would be presented in

isolated cases,” the resulting protection to Fourth Amendment rights “would be

outweighed by the acknowledged costs to other values vital to a rational system of

criminal justice.” Id. at 494.

We have expanded the Stone bar to § 2255 petitions.4 United States v. Cook, 997

F.2d 1312, 1317 (10th Cir. 1993). Thus, “Fourth Amendment violations are not

reviewable in a § 2255 motion when the federal prisoner has had a full and fair

opportunity to litigate the Fourth Amendment claim at trial and present issues on direct

4
The Supreme Court thereafter implicitly endorsed this expansion, saying, “After
Stone v. Powell, the only cases raising Fourth Amendment challenges on collateral attack
are those federal habeas corpus cases in which the State has failed to provide a state
prisoner with an opportunity for full and fair litigation of his claim, analogous federal
cases under 28 U.S.C. § 2255, and collateral challenges by state prisoners” where state
statutes allow collateral attack on Fourth Amendment grounds. United States v. Johnson,
457 U.S. 537, 562 n.20 (1982) (emphasis added) (citation omitted).
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appeal.” Id. at 1317.

The Stone Court did not define a “full and fair opportunity to litigate,” but only

said in a footnote, “Cf. Townsend v. Sain, 372 U.S. 293 (1963).” Stone, 428 U.S. at 494

n.36. This citation to Townsend is not particularly illuminating because Townsend

described when a federal court in habeas corpus proceedings must hold an evidentiary

hearing to develop additional facts. That question turns on whether the “the habeas

applicant . . . receive[d] a full and fair evidentiary hearing in a state court.” Townsend,

372 U.S. at 312. Because Stone’s “single, oblique footnote” referencing Townsend is not

very helpful, we have concluded that “Townsend is not the sole measure of the meaning

of ‘opportunity for full and fair litigation.’” Gamble v. Oklahoma, 583 F.2d 1161, 1164

(10th Cir. 1978). Instead, we have focused on the “procedural ‘opportunity’ aspect of the

Stone standard.” Id. at 1165. An “opportunity” for full and fair consideration requires at

least “the procedural opportunity to raise or otherwise present a Fourth Amendment

claim,” a “full and fair evidentiary hearing,” and “recognition and at least colorable

application of the correct Fourth Amendment constitutional standards.” Id. at 1165.

Ineffective assistance of counsel may deny a defendant this opportunity. Cook, 997 F.2d

at 1318.

Defendant identifies no procedural deficiencies in this case and does not claim his

counsel was ineffective. Instead, he makes two arguments. First, he argues the existence

of newly discovered evidence indicates Defendant did not have a full and fair opportunity

to litigate his Fourth Amendment claim. He bases this argument on Stone’s enigmatic

reference to Townsend. Townsend said a federal court ought to grant an evidentiary

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hearing in a habeas case “[i]f . . . there is a substantial allegation of newly discovered

evidence.” Townsend, 372 U.S. at 313. Of course, Townsend did not address a Fourth

Amendment situation. In fact, it said the new evidence “must bear upon the

constitutionality of the applicant’s detention; the existence merely of newly discovered

evidence relevant to the guilt of a state prisoner is not a ground for relief on federal

habeas corpus.” Id. at 317. But new evidence related to a suppression motion bears upon

neither the habeas petitioner’s guilt or innocence nor the constitutionality of his detention

in federal custody. So we do not think the Stone Court, in citing Townsend, meant to

automatically require an evidentiary hearing whenever there was “newly discovered

evidence” related to a Fourth Amendment claim.

Defendant next argues the newly discovered evidence in this case establishes a

Brady violation, which, unlike a Fourth Amendment violation, is cognizable on collateral

review. Defendant says “If proved, [Defendant’s] newly discovered evidence would

establish a Brady violation that would allow the reexamination of his Fourth Amendment

claim through his § 2255 motion.” Aplt.’s Supp. Br. at 21. This argument goes a step

too far. As we discussed above, Defendant failed to raise Brady in the district court, and

he cannot bring it in through the back door. So the only way Defendant can prevail is if

his lack of access to the impeaching evidence deprived him of a full and fair opportunity

to litigate his Fourth Amendment claim. This is a question of law we review de novo.

Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir. 1992).

We have never considered whether evidence discovered after a suppression

hearing can circumvent the Stone bar. The Seventh Circuit, however, considered a

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similar situation in Brock v. United States, 573 F.3d 497, 501 (7th Cir. 2009). There, the

defendant brought a § 2255 motion after he located a witness who was previously

unavailable to testify at the defendant’s suppression hearing. Id. at 498. The witness’s

testimony would have potentially rendered the search warrant for the defendant’s

apartment invalid. Id. at 499. The court held that the later-discovered evidence did not

deprive the defendant of a full and fair opportunity to litigate. Id. at 501. The court said

the defendant’s arguments did not “bear[] upon the central issue in Stone and the one

which we must ultimately decide: whether the deterrent benefit of applying the

exclusionary rule in a particular situation outweighs the social costs of letting the guilty

go free, expending limited judicial resources, and disturbing finality in criminal trials.”

Id. at 501. The court reasoned that police were unlikely to be deterred by fear that Fourth

Amendment violations undiscovered during trial and direct appeal would surface in a

§ 2255 motion, “at least when there is no allegation that the officers prevented the

defendant from finding the evidence.” Id. The “additional incremental deterrent effect”

of applying the exclusionary rule to newly discovered evidence “would be outweighed by

the acknowledged costs to other values vital to a rational system of criminal justice.” Id.

(quoting Stone, 428 U.S. at 494). The court concluded, “Stone prevents [the defendant]

from bringing this § 2255 motion solely on the ground that newly discovered evidence

would have triggered the exclusionary rule if presented earlier.” Id.

We agree with the Seventh Circuit’s decision in Brock. A defendant is not

deprived of a full and fair opportunity to litigate simply because he does not discover all

potentially relevant evidence until after his suppression hearing. Under Stone, habeas

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corpus relief is unavailable as long as the Government afforded “an opportunity for full

and fair litigation of a Fourth Amendment claim.” Stone, 428 U.S. at 482 (emphasis

added). Absent ineffective assistance of counsel or government concealment, a

defendant cannot claim that the mere existence of undiscovered material evidence

deprived him of an opportunity to litigate his claim. As the Court said in Stone, “[W]here

the State has provided an opportunity for full and fair litigation of a Fourth Amendment

claim, the Constitution does not require that a state prisoner be granted federal habeas

corpus relief on the ground that evidence obtained in an unconstitutional search or seizure

was introduced at his trial.” Stone, 428 U.S. at 482.

Defendant says this case differs from Stone and Brock because the Government

withheld the impeaching evidence. Whether or not Brady applies at the suppression

stage, we can at least assume that Defendant might be deprived of a “full and fair

evidentiary hearing” if the Government withholds material evidence. Cook, 997 F.2d at

1318. But nothing suggests the Government covered up evidence. The Wyoming

Highway Patrol did not put Trooper Peech on paid leave until October 2007, four months

after Defendant’s suppression hearing. No one involved in this case, other than Peech

himself, apparently knew about the false dispatch report at the time of Defendant’s

suppression hearing.

Defendant cites our cases indicating that “[f]or purposes of Brady, knowledge by

police or investigators is imputed to the prosecution.” Smith v. Sec’y of N.M. Dep’t of

Corr., 50 F.3d 801, 824 (10th Cir. 1995) (internal quotation marks and alterations

omitted). But, even if this Brady authority applies, Trooper Peech’s knowledge of his

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own false dispatch report can hardly be imputed to the Government. The Supreme Court

has explained that “the individual prosecutor has a duty to learn of any favorable

evidence known to the others acting on the government’s behalf in the case, including the

police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). But Brady “does not require the

prosecution to divulge every possible shred of evidence that could conceivably benefit

the defendant.” Smith, 50 F.3d at 823. We do not think prosecutors have a duty to

investigate officers’ actions in entirely unrelated cases just in case some impeaching

evidence may show up. See Giglio v. United States, 405 U.S. 150, 150 (1972) (saying

prosecutors should establish procedures “to insure communication of all relevant

information on each case to every lawyer who deals with it” (emphasis added)). Nor

would Trooper Peech have thought he had a duty to disclose the information at the time

since it was part of an unrelated, secret DEA investigation. Of course, things might have

been different if the Wyoming Highway Patrol had begun investigating Peech for

possible misconduct before the suppression hearing. But nothing indicates that was the

case. So even assuming the Government has a Brady-like duty to disclose all material

evidence prior to a suppression hearing, that duty does not extend to discovering every

tidbit of information that is, or could ripen into, impeachment evidence.5

5
We are not even sure the evidence here would qualify as material under Brady.
The only disputed facts at the suppression hearing involved whether Defendant and Thao
withdrew their consent to the search. On that point, Officer Peech’s testimony was
backed up by the testimony of three other officers whom the district court found credible.
Because of the other testimony, we are not certain that “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceedings would
have been different.” United States v. Ahrensfield, 698 F.3d 1310, 1319 (10th Cir.
2012).
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 Even if the Government can be charged with knowledge of the evidence here, that

would not be a sufficient reason to afford Defendant a second suppression hearing. This

is because the policies behind the exclusionary rule do not support allowing this evidence

to circumvent the Stone bar. The exclusionary rule is designed to “deter[] . . . police

conduct that violates Fourth Amendment rights.” Stone, 428 U.S. at 487. But the new

evidence in this case was simply impeaching evidence that called into question Trooper

Peech’s credibility.6 So a new suppression hearing would only be appropriate if

suppressing the evidence would deter future Fourth Amendment violations. For a

number of reasons, we cannot say suppression would have this effect. First, evidence

that merely impeaches an officer’s credibility is not the same as direct evidence of a

Fourth Amendment violation. Allowing the introduction of impeaching evidence on

collateral review can only deter Fourth Amendment violations where (1) the district

court’s ruling on the suppression motion hinges entirely on credibility and (2) the

testifying officer could foresee at the time of the alleged Fourth Amendment violation

that the impeaching evidence might be discovered and damage his credibility at a second

suppression hearing.

Such a situation seems highly unlikely. The Supreme Court has said the

likelihood of additional impeaching evidence being discovered after the suppression

hearing but before collateral review is too small to affect police officers’ calculations. Id.

6
Nothing suggests that Trooper Peech violated the Constitution during the April
2007 wall stop. Trooper Peech did not use the dispatch report as a basis to stop the
vehicle, but only to get called on duty. He based the vehicle stop on his personal
observation of the vehicle driving four miles per hour over the speed limit.
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at 493. This is especially true when, as here, the impeaching evidence arose after the

alleged Fourth Amendment violation. At the time of the allegedly nonconsensual search

of Defendant’s vehicle, Trooper Peech had not yet falsified the drunk driver report. We

find it hard to believe officers will avoid violating the Fourth Amendment for fear that

some wrongful act they might commit in the future will come back to haunt them on

collateral review. Allowing impeachment evidence around the Stone bar might deter

some police misconduct that is useful for impeachment, such as evidence the officer

falsified reports. But the exclusionary rule is aimed only at a narrow class of police

misconduct—Fourth Amendment violations. In short, allowing evidence of Trooper

Peech’s false report to be introduced on collateral review would do little or nothing to

deter future Fourth Amendment violations. Allowing the evidence would therefore be

contrary to the purposes of the exclusionary rule and inconsistent with Stone v. Powell.

For the foregoing reasons, Defendant is not entitled to § 2255 relief.

AFFIRMED.

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