RAYMOND RICHARDS, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE
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A statutory argument challenging a warrantless search, if not raised on direct appeal, cannot be considered in a motion for collateral relief under 28 U.S.C. § 2255 unless it involves a constitutional transgression or a miscarriage of justice. Furthermore, the search was permissible under the extended border search doctrine.
Heroin was discovered in a sealed parcel during a border search by Customs officers. The parcel was resealed and subjected to a controlled delivery, a…
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PER CURIAM:
Raymond Richards was convicted of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). His conviction was affirmed on appeal. United States v. Rickards, 638 F. 2d 765 (5th Cir.) cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981).1 Richards then filed a motion for collateral relief under 28 U.S. C. § 2255 on the ground that the heroin was seized by agents of the Drug Enforcement Administration (DEA) from a sealed mailed package without legal authority. The district court denied relief. We affirm.
On March 2, 1978, a sealed parcel addressed to Mehling Arts & Crafts at a Miami Springs, Florida post office box arrived at the Foreign Mail Center in New York City. Suspicious Customs officers opened the parcel and discovered cigarette packages. Tests revealed the presence of heroin inside the packages. The Customs officers reassembled and resealed the parcel for controlled delivery to the Miami Springs post office box. The Miami Springs post office put a notice of arrival in the box, and DEA agents waited for someone to request the parcel. Eventually Richards claimed the parcel and was arrested after accepting delivery. While Richards was being booked at a police station, the DEA agents opened the sealed parcel without a warrant outside Richards’ presence. Chemical analysis disclosed the presence of 27.4 grams of 93% heroin hydrochloride, or enough for 12,000 street level doses.
Richards has never challenged the legality of the search of the parcel in New York. Rather, he argues that DEA had no authority to make a warrantless “border search” of the package in Miami Springs. Conceding that Customs officers have authority to make warrantless searches of incoming international mail, see United States v. Ramsey, 431 U.S. 606, 611-16, 97 S.Ct. 1972, 1976-78, 52 L.Ed.2d 617 (1977); 19 U.S.C. § 482; 19 C.F.R. § 145.2 (1987), Richards contends that no statute gives DEA agents such power.
We conclude that Richards may not make this statutory argument in his § 2255 motion. Although Richards could have made this argument on direct appeal from his conviction, failure to raise a nonconsti-tutional ground on direct appeal generally precludes consideration of that argument in a § 2255 motion. Relief under 28 U.S.C. § 2255 “is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Capua, 656 F. 2d 1033, 1037 (5th Cir. Unit A Sept.1981). Richards’ argument that DEA agents have no authority under statute or regulation to conduct warrantless border searches does not fit this description.
Moreover, to the extent that Richards' claim is a constitutional one, it has no merit. The panel that affirmed Richards’ conviction concluded that the opening of Richards’ parcel in Miami comported with the fourth amendment under an “extended border search” theory. See United States v. Richards, 638 F. 2d at 770-73. More recent case law has further demonstrated the soundness of Judge Gee’s concurring opinion, id. at 774, that the legal warrant-less border search of the parcel by Customs Agents in New York City obviated the need for a search warrant after the controlled delivery to Miami. In Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983), the Supreme Court held that the warrantless reopening of a sealed package after a legal warrantless border search followed by a controlled delivery was not a “search” at all within the meaning of the fourth amendment. Id. at 772.
The Andreas Court explained that the recipient’s expectation of privacy in the contents of a container diminishes once law enforcement authorities lawfully open the container and discover illicit drugs therein. Id. at 771.
Moreover, “[rjesealing the container to enable the police to make a controlled delivery does not operate to revive or restore the lawfully invaded privacy right.” Id.
Finally, as in Andreas, in this case there was no “significant likelihood” that the contents of the container were changed during any gap in surveillance. Id. at 773.
Accordingly, the order of the district court denying Richards’ motion for relief under 28 U.S.C. § 2255 is
AFFIRMED.
. The Eleventh Circuit, in the in banc decision Bonner v. City of Prichard, 661 F. 2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
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Lynn v. United States, 365 F.3d 1225 (11th Cir. 2004)…‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.’ ” Richards v. United States, 837 F. 2d 965, 966 (11th Cir.1988) (quoting United States v. Capua, 656 F. 2d 1033, 1037 (5th Cir. Unit A Sep. 1981)). Accordingly, a non-constitutional error that may justify reversal on direct appeal does not generally support a collateral attack on a final ju…
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Greene v. United States, 880 F.2d 1299 (11th Cir. 1989)…ng the issue in a section 2255 proceeding, see, e.g., Sanchez v. United States, 782 F. 2d 928, 935 n. 3 (11th Cir.1986), providing the issue is among that narrow range of issues reviewable under section 2255. See generally Richards v. United States, 837 F. 2d 965, 966 (11th Cir.1988). A defendant can avoid this procedural bar only by showing both cause for the failure to raise the claim on direct appeal and actual prejudice arising from that failure. Parks, 832 F. 2d at 1245 (citing United States v. Frady,…
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United States v. Fiallo-Jacome, 874 F.2d 1479 (11th Cir. 1989)…ant should raise all trial errors “in his appeal of the judgment and sentence.” Parks v. United States, 832 F. 2d 1244, 1246 (11th Cir.1987). See United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Richards v. United States, 837 F. 2d 965, 967 (11th Cir.1988). Those last cited cases arose in the context of quests for collateral relief under 28 U.S.C. § 2255 in which “a convicted defendant must show both cause excusing his failure to raise the issues at a proper earlier review stage a…
Previewing 3 of 38 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bonner v. City OF Prichard, 661 F.2d 1206 (11th Cir. 1981)
- United States v. Ramsey, 431 U.S. 606 (U.S. 1977)
- Illinois v. Andreas, 463 U.S. 765 (U.S. 1983)
- United States v. Richards, 638 F.2d 765 (5th Cir. 1981)
- United States v. Capua, 656 F.2d 1033 (5th Cir. 1981)
- In re Beachboard, 454 U.S. 1097 (U.S. 1981)
- Moeller v. United States, 454 U.S. 1097 (U.S. 1981)