                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               JAN 7 2003
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                      No. 02-4061
                                                      (D.C. No. 2:01-CV-309-S)
    AHMAD R. SHAYESTEH,                                       (D. Utah)

                Defendant-Appellant.


                             ORDER AND JUDGMENT              *




Before KELLY , BALDOCK , and LUCERO , Circuit Judges.


         Ahmad R. Shayesteh, a federal prisoner convicted of drug possession

charges proceeding pro se, appeals the district court’s order denying his 28 U.S.C.

§ 2255 petition for a writ of habeas corpus.   1
                                                   On application to this court,

Shayesteh obtained a certificate of appealability (“COA”) with regard to the

constitutionality of the police roadblock at which the contraband in his car was


*
      This order and judgment is not binding precedent, except under the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.
1
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G).
discovered. He now seeks relief on the merits of his unconstitutional-roadblock

argument, as well as a COA on his claims that the police officer’s questions at the

roadblock were unconstitutionally intrusive and that his attorney provided

ineffective assistance of counsel. We exercise jurisdiction under 28 U.S.C.

§ 2253(a), and affirm the district court on the merits of the roadblock claim and

deny COA on the remaining claims.

                                            I

       The facts underlying Shayesteh’s conviction are set out in this court’s order

and judgment affirming his conviction.      United States v. Shayesteh   , No. 97-4111,

1998 WL 694500 (10th Cir. Oct. 6, 1998)         . Briefly, the Utah Highway Patrol had

established a roadblock to check drivers’ licenses and registrations and to look for

impaired drivers. On May 29, 1995, Shayesteh was stopped at this roadblock and

after a brief interaction with the trooper, Shayesteh offered the trooper a search of

his trunk. During the search, a drug-detection dog alerted on his luggage, which

contained the cocaine and methamphetamine for which he was convicted. Before

trial and on direct appeal, Shayesteh sought to suppress the evidence on the

grounds that he was detained in violation of the order authorizing the roadblock,

his consent to the search was tainted by the illegal detention, and he did not

consent and the dog alert did not provide probable cause for a search.      Id. at **2.

After a pre-trial suppression hearing, a magistrate judge made findings of fact and


                                            -2-
recommended that the suppression motion be denied. The district court adopted

this recommendation without modification.         Id. at **3-5.

       A jury convicted Shayesteh of two counts of possessing a controlled

substance with intent to distribute. The district court sentenced him to

262 months’ imprisonment. On appeal, this court affirmed both the conviction

and the sentence.   United States v. Shayesteh , No. 97-4111, 1998 WL 694500

(10th Cir. Oct. 6, 1998),   on reh’g , 1998 WL 839083 (10th Cir. Nov. 24, 1998),

aff’d after remand , No. 99-4032, 2000 WL 121498 (10th Cir. Feb. 1, 2000).

Shayesteh then filed a § 2255 motion, arguing that his conviction was obtained in

violation of the Constitution, but the district court denied relief.

       On appeal from this denial, Shayesteh raises the following claims: (1) the

police roadblock had an unlawful purpose, (2) the trooper’s questioning after he

was cleared to leave but before he could merge into traffic was unconstitutional

and so intrusive as to obviate his consent, and (3) his trial and appellate counsel

provided ineffective assistance. He also complains that the district court

improperly denied him leave to file a traverse to the government’s response.

                                            II

       As noted above, Shayesteh obtained a COA on the question of the

constitutionality of the police roadblock. Where a COA is granted, we review the

district court’s findings of fact for clear error and its conclusions of law de novo.


                                            -3-
United States v. Mora , 293 F.3d 1213, 1216 (10th Cir.),       cert. denied , 123 S. Ct.

388 (2002). Because Shayesteh appears pro se on appeal, we construe his

pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). Shayesteh

claims the roadblock was unconstitutional because its purpose was general crime

control, in violation of the Fourth Amendment, as announced in         City of

Indianapolis v. Edmond , 531 U.S. 32 (2000).         Edmond was announced after

Shayesteh’s conviction became final, but before he filed his § 2255 motion.

       The government argues that the Fourth Amendment claim is procedurally

barred because Shayesteh had a full and fair opportunity to raise it on direct

review but failed to do so.   Shayesteh contends that he did not have a full and fair

opportunity to raise the challenge previously, as it would have been futile until

Edmond was subsequently announced. Assuming without deciding that                Edmond

announced a new rule of law, however, Shayesteh could not avail himself of it

here because his conviction became final before the new rule was announced.

“Unless they fall within an exception to the general rule, new constitutional rules

of criminal procedure will not be applicable to those cases which have become

final before the new rules are announced.”         Teague v. Lane , 489 U.S. 288, 310

(1989). Teague sets forth two exceptions: A new rule will apply retroactively if it

places “certain kinds of primary, private individual conduct beyond the power of

the criminal law-making authority to proscribe” or if it involves a “watershed rule


                                             -4-
of criminal procedure.”        Id. at 311. The first exception does not apply to the

Edmond rule , which prohibits roadblocks whose purposes are general crime

control, because it does not involve protected private conduct. The second

exception does not apply because        Edmond does not announce a watershed rule of

criminal procedure.      In Mora , this court clarified the meaning of the watershed

exception by stating, “[t]o qualify as a watershed rule of criminal procedure, the

rule must not only improve the accuracy with which defendants are convicted or

acquitted, but also . . . .”    Mora , 293 F.3d at 1218-19 (quotations omitted).   The

exclusionary rule — excluding evidence drawn from searches found to violate the

Fourth Amendment — does not improve the accuracy with which defendants are

convicted or acquitted, and thus does not fall within the second exception. Thus,

even if we accepted Shayesteh’s position that the Fourth Amendment claim is not

procedurally barred because it was not available until after       Edmond was decided,

the Edmond rule would not apply retroactively to Shayesteh’s conviction.

       In the alternative, Shayesteh claims that if     Edmond did not announce a new

rule, his attorney provided ineffective assistance of counsel by failing to

challenge the constitutionality of the roadblock on direct review.        See United

States v. Cook , 997 F.2d 1312, 1318 (10th Cir. 1993) (holding that a Fourth

Amendment claim is not procedurally barred if the failure to raise it on direct

appeal is attributable to ineffective assistance of counsel). An ineffective


                                               -5-
assistance of counsel claim is not procedurally barred if it was not raised on direct

appeal. United States v. Galloway , 56 F.3d 1239, 1242-43 (10th Cir. 1995). To

establish that counsel provided ineffective assistance, a defendant must show both

that his attorney’s representation was deficient and that the attorney’s substandard

performance prejudiced him.    Strickland v. Washington , 466 U.S. 668, 687

(1984). “When a defendant alleges his appellate counsel rendered ineffective

assistance by failing to raise an issue on appeal, we examine the merits of the

omitted issue.”   United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). We

conclude that Shayesteh’s attorney was reasonable in declining to raise the Fourth

Amendment challenge because the district court found that the primary purpose of

the roadblock was not general crime control, which would have defeated the claim

under the law as it stood during Shayesteh’s trial and direct appeal.

      Even before Edmond was announced, the law in this circuit      recognized that

a roadblock established to check drivers’ licenses and registrations would not

withstand a constitutional challenge where the primary purpose was to search for

drugs. United States v. Morales-Zamora    , 974 F.2d 149, 151 (10th Cir. 1992).   2




2
      Mr. Shayesteh is incorrect in claiming that Morales-Zamora was no longer
good law at the time of his trial because it was overruled by United States v.
Botero-Ospina, 71 F.3d 783 (10th Cir. 1995) (en banc). He asserts that because
Botero-Ospina overruled United States v. Guzman, 864 F.2d 1512 (10th Cir.
1988), and because Morales-Zamora cited Guzman, Morales-Zamora was
overruled. Botero-Ospina specifically had to do with traffic stops and is
                                                                      (continued...)

                                         -6-
Shayesteh persists in arguing that, contrary to the stated purposes of the

roadblock, the real purpose of the roadblock was general crime control, including

the interdiction of illicit drugs. He points to statements made by the police

officers who were working at the roadblock admitting that the officers were

looking for criminal activity in addition to checking drivers’ licenses. Moreover,

he argues that the presence of the drug-detection dog contributes to the showing

of pretext.

      At the suppression hearing, the magistrate judge applied   Morales-Zamora

and found that there was no evidence indicating that the primary purpose of the

roadblock was for general law enforcement or for the interdiction of drugs. (R.

Doc. 18, Att. 1 at 22.) The magistrate also concluded that the drug-detection dog

was not being used to check vehicles, but instead, was in the vicinity of

Shayesteh’s car merely because it was taking exercise in an area near the

roadblock. ( Id. at 19.) In denying Shayesteh’s motion to suppress the evidence,

the district court adopted the magistrate judge’s findings of fact and conclusions

of law. In light of these findings, it was reasonable for Shayesteh’s attorney to

decline to raise the Fourth Amendment challenge at trial and on direct review,

given the deferential standard with which this court would have reviewed the



2
 (...continued)
inapplicable to roadblocks. 71 F.3d at 786–87.

                                          -7-
district court’s findings.   See United States v. Callwood , 66 F.3d 1110, 1112

(10th Cir. 1995) (holding that on an appeal from an order denying suppression,

this court will review a district court’s findings of fact for clear error and

consider the evidence in the light most favorable to the government).

       Shayesteh has failed to demonstrate that his counsel’s performance fell

below an objective standard of reasonableness. Therefore, we need not address

the prejudice prong.     Strickland , 466 U.S. at 697. We hold that Shayesteh is not

entitled to relief under § 2255 on his claim that the police roadblock was

unconstitutional.

                                           III

       Shayesteh raises additional claims on appeal for which a COA was not

granted. First, he asserts that the district court erred in refusing to let him file a

traverse to the government’s pleading. Second, he maintains that the intrusive

nature of the trooper’s questions at the roadblock violated the Fourth Amendment.

Finally, he asserts that his trial counsel was ineffective for various reasons

unrelated to the roadblock issue, and that the cumulative effect of his counsel’s

errors deprived him of a fair trial.

       We will not grant a COA unless the petitioner makes a “substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He must do so

“by demonstrating ‘reasonable jurists could debate whether (or, for that matter,


                                            -8-
agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.’”

United States v. Espinoza-Saenz        , 235 F.3d 501, 502 (10th Cir. 2000) (quoting

Slack v. McDaniel , 529 U.S. 473, 483-84 (2000)) (further quotation omitted).

                                               A

       We first dispose of the claim of error in refusing Shayesteh leave to file a

traverse. We review the district court’s decision to deny a reply brief for

an abuse of discretion.    See Beaird v. Seagate Tech., Inc.    , 145 F.3d 1159, 1164

(10th Cir. 1998). The proffered traverse was substantially cumulative to

Shayesteh’s eighty-two-page brief in support of his § 2255 motion, and the

district court did not abuse its discretion in refusing the traverse.

                                               B

       Mr. Shayesteh seeks a COA on his claim that his Fourth Amendment rights

were violated by the intrusive nature of the questions the trooper asked him as he

waited to merge safely into traffic after he had been cleared to proceed. The

questions pertained to travel plans.       See Shayesteh , 1998 WL 694500, at **1.

Shayesteh argues that under     United States v. Holt , 264 F.3d 1215 (10th Cir.

2001), police questioning may be unconstitutionally intrusive even if it does not

extend the length of an otherwise lawful detention. Moreover, he argues that this

claim is not procedurally barred because it relies on an intervening change in the


                                              -9-
law. United States v. Prichard , 875 F.2d 789, 791 (10th Cir. 1989) (“Absent an

intervening change in the law of a circuit, issues disposed of on direct appeal

generally will not be considered on a collateral attack by a motion pursuant to §

2255.”). Even if Holt applies retroactively on collateral review, which we do not

address, Holt does not apply to the present case because it involved questioning

about a loaded weapon while the defendant was not free to go.       Holt , 264 F.3d at

1218-19.

       Shayesteh also alleges that he made this claim on direct appeal, but this

court reviewed it under an incorrect standard of review. In fact, the direct appeal

did not include the claim that the trooper’s questions were impermissibly

intrusive. Rather, the issue raised on appeal he claims was improperly reviewed

was whether the trooper’s questioning exceeded the scope of the roadblock

authorization by detaining him after he was cleared to proceed.      See Shayesteh ,

1998 WL 694500, at **3. Therefore, we deny a COA because “[s]ection 2255

motions are not available to test the legality of matters which should have been

raised on direct appeal,” and Shayesteh has not shown cause and prejudice

for failing to raise the issue there.   United States v. Warner , 23 F.3d 287, 291

(10th Cir. 1994). The appeal is dismissed as to this claim.

                                             C

       Finally, we consider Shayesteh’s allegations that his trial counsel provided


                                            -10-
ineffective assistance for failing to discuss a plea bargain, for continuing the trial

for no good reason, for failing to investigate and prepare for trial, and for failure

to object to the admission of evidence. He also claims that the cumulative effect

of his counsel’s errors deprived him of a fair trial. We have carefully reviewed

the briefs and the record, and we have applied the   Strickland standard set forth

above. For substantially the same reasons underlying the district court’s January

25, 2002 order denying relief under § 2255, we conclude that Shayesteh is not

entitled to a COA because he has not “made a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). The appeal is dismissed as to this

claim.

                                           IV

         Shayesteh’s request to proceed without prepayment of costs or fees

is GRANTED . His motion to reconsider his request for a COA is         DENIED . The

judgment of the United States District Court for the District of Utah is

AFFIRMED as to the roadblock claim. The appeal is         DISMISSED as to the

remaining claims. The mandate shall issue forthwith.


                                                      Entered for the Court



                                                      Carlos F. Lucero
                                                      Circuit Judge


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