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FERNANDEZ v. UNITED STATES

December 16, 1982

ANTONIO FERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent



The opinion of the court was delivered by: TENNEY

MEMORANDUM and ORDER

 TENNEY, J.

 Petitioner Antonio Fernandez has moved pursuant to 28 U.S.C. § 2255 to vacate the sentence imposed upon him by this Court. He presents four alternate claims as a basis for relief. For the reasons described below, the motion is denied.

 Background

 On March 24, 1980 a Federal Grand Jury empaneled in the Southern District of Florida filed a six-count indictment against Fernandez and four others. The first and second count charged them with conspiring to import and distribute heroin in violation of 21 U.S.C. §§ 846 and 963. The other counts did not involve Fernandez. On September 24, 1980, Judge Alcee L. Hasting entered an order pursuant to Federal Rule of Criminal Procedure ("Rule") 21(b) transferring so much of the indictment as concerned Fernandez to the Southern District of New York.

 Subsequently, after a one-and-a-half day bench trial, the Court convicted the defendant on both counts and sentenced him to serve two consecutive three year terms of imprisonment. The Court later suspended the second sentence, ordering Fernandez to be placed on probation during the period of that sentence. Notwithstanding the fact that he signed a written waiver, Fernandez thereafter appealed his conviction on the ground that he did not knowingly and intelligently waive his right to a jury trial. His conviction was affirmed. United States v. Fernandez, 661 F.2d 911 (2d Cir. 1981).

 Fernandez now moves pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence on the grounds that: (1) the government used illegally seized evidence at his trial in violation of his Fourth Amendment rights; (2) the government failed to produce evidence in accordance with a Court directive, thus violating his Fifth Amendment rights, as set out in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); (3) his counsel provided ineffective assistance, in violation of his Sixth Amendment rights, and (4) the Court improperly considered a prior conviction to enhance punishment.

 Discussion

 A. Fourth Amendment Claim

 Evidence seized in violation of the warrant requirement of the Fourth Amendment must be suppressed. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L. Ed. 319, 40 S. Ct. 182 (1920); Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341 (1914), unless the seizure falls within one of the traditional exceptions to this rule. See, e.g., United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982) (search of packages found during warrantless automobile search is an exception); United States v. Robinson, 414 U.S. 218, 224, 38 L. Ed. 2d 427, 94 S. Ct. 467 (1973) (search incident to a lawful arrest is a traditional exception).

 Fernandez concedes that his arrest was lawful. Memorandum of Law in Support of Motion to Vacate Sentence ("Petitioner's Memorandum") at 4. But now, for the first time in this post conviction motion for relief, he claims that an exhibit *fn1" used to link him with one of the coconspirators was not seized from his person or from an area within his immediate control, but was taken from his personal locker, which was not near the arrest site. Citing United States v. Robinson, supra, he argues that since the search was not incident to a lawful arrest the evidence should have been suppressed.

 The trial record, however, indicates that the evidence was taken from Fernandez's person. Trial Transcript at 88. His attorneys did not object to this testimony at trial nor did they bring up this point on appeal. Petitioner has, therefore, erected a number of insurmountable hurdles that prevent the Court from entertaining his Fourth Amendment claim.

 First, petitioner does not present a colorable claim that the Drug Enforcement Administration ("DEA") agents took the exhibit from any other place but his person. No evidence supports his claim. Second, and more important, assuming arguendo that the government found the exhibit in his locker and an agent testified to this at trial, Fernandez waived his right to complain about the alleged illegal seizure in his § 2255 petition by not raising this point in a pretrial motion pursuant to the requirements of Rule 12. *fn2" The Rule clearly states that motions to suppress evidence must be raised before trial or they will be deemed waived. United States v. Natale, 526 F.2d 1160, 1172-73 (2d Cir. 1975), cert. denied, 425 U.S. 950, 48 L. Ed. 2d 193, 96 S. Ct. 1724 (1976) (appellants may not, for first time on appeal, raise claim that material ought to have been suppressed since motion to suppress under Rules 12(b) and 41(f) must be made prior to trial); United States v. Rollins, 522 F.2d 160, 165 (2d Cir. 1975), cert. denied, 424 U.S. 918, 47 L. Ed. 2d 324, 96 S. Ct. 1122 (1976) (claim raised after trial was clearly waived by defendant's failure to move for suppression prior to trial).

 Section 2255 does not have a waiver provision, nor does it incorporate Rule 12 by reference. However, in Davis v. United States, 411 U.S. 233, 36 L. Ed. 2d 216, 93 S. Ct. 1577 (1973), the Supreme Court, discussing Rule 12(b)(2) (predecessor to 12(f) ...


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