The opinion of the court was delivered by: Glasser, District Judge:
Petitioners were members of a terrorist group which called
itself the United Freedom Front. In 1984, following a massive
manhunt for the members of the group, federal law enforcement
authorities closed in on a neighborhood at West 22nd Street in
Cleveland, Ohio, where they had followed petitioner Richard
Williams. Agents took up positions on the evening of November
3, 1984 and in the morning of November 4 determined that
Williams and possibly other persons were inside the house at
4248 West 22nd Street. After the occupants were notified by
loudspeaker of the police presence outside, Laaman, Curzi,
Williams and several children emerged. Shortly after they were
taken into custody, FBI SWAT team members entered the house to
ascertain whether there were other persons inside. During the
"protective sweeps" that ensued four weapons and a canister of
black powder were discovered in plain view. The weapons were
not touched by the agents pending the securing of a search
warrant. The canister was seized immediately.
Defendants Laaman and Curzi moved before trial to suppress
the weapons and canister on the ground that they were
discovered during an illegal warrantless search. Williams did
not join this motion. This court declined to suppress the
evidence holding that
[t]he conclusion that entering into the house was
necessary, indeed required, by a compelling
urgency is inescapable. * * * The intrusion upon
the premises being clearly lawful, the weapons
which were in plain view could properly have been
seized although, as has been indicated, they were
not until after the search warrant was obtained.
The seizure of the canister in the basement prior
to the issuance of the warrant was clearly
justified under the plain view doctrine.
United States v. Levasseur, 618 F. Supp. at 1392-93.
The admissibility of the evidence was also challenged on the
ground that the search warrant was invalid. The warrant
application was supported by the affidavit of special agent
Leonard Cross, dated November 5, 1984. Cross had been assigned
in February 1984 to coordinate the ongoing investigation into
defendants' terrorist activities. His affidavit, which was
detailed and extensive, set forth with precision the criminal
activities in which defendants were believed to be involved,
the evidence sought, and the nexus between the places to be
searched and the items to be seized. In particular, paragraph
53 of the affidavit described the weapons and black powder
canister as having been in plain view during the protective
sweep. Defendants moved under Franks v. Delaware, 438 U.S. 154,
98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) challenging the veracity
of material statements in the affidavit. This court concluded
with respect to paragraph 53 that it
does not knowingly and intentionally misrepresent
the facts in this regard. On the contrary, I find
that the statement is correct. I should add that
even if the statement were not accurate, . . .
there was more than enough lawfully obtained
information in the Cross affidavit amounting to
probable cause which would have justified the
issuance of the warrant and made admissible the
evidence seized pursuant to it.
United States v. Levasseur, 618 F. Supp. at 1393.
After other pretrial activity and a trial in which 160
witnesses were called and some 1500 exhibits were admitted,
petitioners Laaman, Curzi, and Williams were found guilty and
sentenced to 53 years, 45 years, and 15 years, respectively.
Petitioners now move pursuant to 28 U.S.C. § 2255 to vacate
their sentences on the grounds that (1) their convictions were
obtained by the use of evidence seized during searches which
violated the Fourth Amendment to the Constitution; (2) the
failure of Laaman and Curzi's attorneys to appeal the denial of
their suppression motion denied them the effective assistance
of appellate counsel in violation of the Sixth Amendment to the
Constitution; and (3) the failure of Williams' trial counsel to
join the suppression motion denied him the effective assistance
of trial counsel in violation of the Sixth Amendment to the
I. The Fourth Amendment Claim.
It is well-settled that a petitioner's failure to raise a
nonconstitutional or non-jurisdictional claim on direct review
precludes the assertion of the claim in a collateral
proceeding. Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct.
3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976); Sunal v. Large,
332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947).
A different rule applies to constitutional claims, however, and
in the Second Circuit, that rule has been explained as follows:
With respect to constitutional or jurisdictional
claims, we have adhered to the rule that a section
2255 petitioner may raise such claims even though
they were not raised on direct appeal, unless
there is some showing of deliberate delay or
Brennan v. United States, 867 F.2d 111, 117 (2d Cir.), cert.
denied, 490 U.S. 1022, 109 S.Ct. 1750, 104 L.Ed.2d 187 (1989).
See also Chin v. United States, 622 F.2d 1090, 1093 (2d Cir.
1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1375, 67 L.Ed.2d
353 (1981); Pacelli v. United States, 588 F.2d 360, 362 (2d
Cir. 1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60
L.Ed.2d 378 (1979); Williams v. United States, 463 F.2d 1183
(2d Cir.), cert. denied, 409 U.S. 967, 93 S.Ct. 299, 34
L.Ed.2d 232 (1972), all applying the "deliberate bypass"
standard to collateral review of constitutional claims not
raised on direct appeal. Cf. Cross v. United States,
893 F.2d 1287, 1289 (11th Cir.) (applying "cause and prejudice"
standard), cert. denied, ___ U.S. ___, 111 S.Ct. 138, 112
L.Ed.2d 105 (1990); Theodorou v. United States, 887 F.2d 1336,
1339 (7th Cir. 1989) (same).
Both Laaman and Curzi and their attorneys knew of the
existence of their Fourth Amendment claim when their direct
appeal was taken. They had, of course, unsuccessfully litigated
it in a pre-trial suppression motion. On appeal they claimed
with specificity other Fourth Amendment errors related to the
same search (the Franks v. Delaware motion) and to the search
of a codefendant's foot locker. Yet the instant claim was not
raised and petitioners do not claim they asked their attorneys
to do so. See United States v. Williams, 615 F.2d 585, 591 (3d