Long v. Jordan, 10th Cir. (2005)
Long v. Jordan, 10th Cir. (2005)
FEB 11 2005
PATRICK FISHER
Clerk
No. 03-6230
(D.C. No. 02-CV-1713-F)
(W.D. Okla.)
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, KELLY, and McCONNELL, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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Recommendation filed June 23, 2003, and the district courts order filed August
19, 2003.
The magistrate judges report did not address petitioners claim that his
counsel rendered ineffective assistance by failing to file a motion to suppress
based on the affidavit used to procure the search warrant. Although under Stone
v. Powell, 428 U.S. 465, 494 (1976), petitioner may not raise a Fourth
Amendment claim on collateral review if he had a full and fair opportunity to
litigate those issues in state court, he may raise the issue to support an ineffective
assistance of counsel claim. Kimmelman v. Morrison, 477 U.S. 365, 375, 382-83
(1986).
Petitioners ineffective assistance claim fails because he was not prejudiced
by his trial counsels failure to challenge the use of the anonymous informant, the
warrantless search of the trash cans, or whether the affidavit supported a probable
cause finding. First, [w]hen there is sufficient independent corroboration of an
informants information, there is no need to establish the veracity of the
informant. United States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004)
(quotation omitted). Second, the Fourth Amendment does not prohibit a
warrantless search and seizure of garbage left at the curb outside a home.
California v. Greenwood, 486 U.S. 35, 39-40 (1988). Third, discovery of drug
residue in a suspects trash can provide a basis for crediting an anonymous
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informants assertions. See United States v. Le, 173 F.3d 1258, 1266 (10th Cir.
1999). Contrary to petitioners contentions, the anonymous tip was sufficiently
corroborated, the warrantless search of the city-issued trash cans outside his home
did not violate the Fourth Amendment, and there was sufficient probable cause to
obtain a search warrant. He has therefore failed to establish an ineffective
assistance claim based on his counsels failure to raise this issue on a suppression
motion.
In sum, we AFFIRM the judgment of the district court.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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