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September 13, 1991


The opinion of the court was delivered by: Glasser, District Judge:


Petitioners move pursuant to 28 U.S.C. § 2255 for an order vacating or setting aside their sentences. The factual background of this case has been set forth in detail in numerous published decisions. United States v. Levasseur, 618 F. Supp. 1390 (E.D.N.Y. 1985); United States v. Levasseur, 620 F. Supp. 624 (E.D.N.Y. 1985); United States v. Levasseur, 816 F.2d 37 (2d Cir. 1987); United States v. Levasseur, 699 F. Supp. 965 (D.Mass. 1988); United States v. Curzi, 867 F.2d 36 (1st Cir. 1989). Familiarity with those decisions is presumed; however, a synopsis of the events most relevant to the instant petition is presented, as follows.

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 Constitution.

I. The Fourth Amendment Claim.

A. Deliberate Bypass

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 Cir. 1980).

The conclusion that petitioners deliberately bypassed this claim on appeal is irresistible.*fn2 Their decision to present it now rests entirely on their changed perception of their likelihood of success in litigating it, inspired by the contrary decisions of the District Court of Massachusetts and the First Circuit Court of Appeals. However, a change of perception does not nullify the deliberate nature of a bypass. That argument was made and rejected in Williams v. United States, 731 F.2d 138 (2d Cir. 1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 956, 83 L.Ed.2d 963 (1985), where petitioner claimed that the reason he had not raised a constitutional claim on direct appeal or in his prior ยง 2255 petition was that his attorney had first advised him that the claim would probably be rejected "whereas more recently he has taken a more optimistic view of such a claim." Counsel conceded that there had been no change in the law governing the case. The Second Circuit concluded, ...

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