                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2566
                         ___________________________

                            Aaron William Anderson, Jr.,

                        lllllllllllllllllllllPetitioner - Appellant,

                                            v.

                              United States of America,

                       lllllllllllllllllllllRespondent - Appellee.
                                       ____________

                      Appeal from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                              Submitted: April 16, 2014
                                Filed: August 8, 2014
                                   ____________

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
                           ____________

COLLOTON, Circuit Judge.

      A jury found Aaron Anderson guilty of possession with intent to distribute
crack cocaine. Anderson filed a motion for post-conviction relief pursuant to
28 U.S.C. § 2255, alleging that his trial counsel was ineffective in failing to move to
suppress evidence and to seek a hearing based on alleged false statements by a police
officer in a search warrant affidavit. The district court1 dismissed Anderson’s motion
without a hearing. Anderson then filed a motion to reopen the judgment, which the
district court also denied. Anderson appeals, and we affirm.

                                           I.

       In the underlying criminal case, law enforcement officers suspected that
Anderson was dealing crack cocaine out of his residence in Davenport, Iowa, and
began to investigate him. As part of that investigation, officers performed two trash
pulls at Anderson’s residence, a house converted into an apartment building at 1214
Bridge Avenue. The first occurred on January 21, 2008, and the second on February
4, 2008.

       Based on evidence of drug dealing that officers found during the trash pulls, the
police obtained a search warrant for Anderson’s residence. Officer John Hutcheson’s
affidavit in support of the warrant specified:

      4. On 01/21/08 your affiant and Cpl Behning seized three bags of trash
      from three City of Davenport trash receptacles left out for collection
      along the curb in front of 1214 Bridge Ave. . . .

      On your affiant and Cpl Behning going through the three bags of trash
      seized from 1214 Bridge Ave. the following items were found:

      Indicia of occupancy for Aaron Anderson, being a Burke Cleaners
      receipt with a PBX of 563-676-6179 and a[n] address of 1402 Harrison
      St. . . .

      Several baggies with the corners twisted or cut off.



      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.

                                          -2-
      Baggies with suspected cocaine residue, . . . which tested positive for the
      possible presence of cocaine.

      Several ends of suspected marijuana cigars, . . . which tested positive for
      the possible presence of marijuana.

      A razor blade with suspected cocaine residue, . . . which tested positive
      for the possible presence of cocaine. . . .

      6. On 02/04/08 your affiant and Sgt Smull seized three bags of trash
      from three City of Davenport trash receptacles left out for collection
      along the curb in front of 1214 Bridge Ave.

      On your affiant and Sgt Smull going through the three bags of trash
      seized from 1214 Bridge Ave. the following items were found:

      Indicia for 1214 Bridge Ave. apartment #1, being a Domino’s Pizza box.

      Baggies with the corners missing and a corner of a baggie.

      Baggies with suspected marijuana residue, . . . which tested positive for
      the possible presence of marijuana.

      Ends of suspected marijuana cigars and suspected marijuana stems, . . .
      which tested positive for the possible presence of marijuana.

      A box for a Pro Scale LC 300 digital scale, which contained pieces of the
      scale and a pack of Zig Zag rolling papers.

      A broken Pro Scale LC 300 digital scale.

       At trial, Officer Hutcheson testified that both trash pulls were performed at 1:30
a.m. from three trash cans that he said were “located on Bridge Street by the driveway,
sitting on the curb” and “out on the sidewalk.”




                                          -3-
      Items seized during the trash pulls and execution of the search warrant were
received in evidence at Anderson’s trial, and a jury found Anderson guilty of
possession with intent to distribute crack cocaine, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The district court sentenced Anderson to
360 months in prison. Anderson appealed, this court affirmed, United States v.
Anderson, 618 F.3d 873 (8th Cir. 2010), and the Supreme Court denied certiorari.
Anderson v. United States, 131 S. Ct. 1550 (2011).

       On February 23, 2012, pursuant to 28 U.S.C. § 2255, Anderson filed a pro se
motion to vacate his sentence, alleging that Officer Hutcheson lied in his affidavit in
support of the search warrant and that trial counsel was ineffective in “failing to
follow [Anderson’s] express instructions to file a suppression motion.” He also
asserted that counsel should have moved for a hearing to consider whether Hutcheson
provided false information to procure the search warrant. Anderson specifically
challenged paragraph four of Hutcheson’s affidavit:

      The three garbage bags that Ofc. Hutcheson . . . stated in the affidavit
      were from three City of Davenport trash receptacles left outside for
      collection along the c[ur]b in front of 1212 [sic] Bridge Ave, is a blatant
      lie. These trash bags were within the curt[]ilage of my private property.
      This is indeed true because on January 21, 2008 there was an
      abu[n]dan[ce] of snow and there was nowhere on ‘the c[ur]b’ to place the
      trash receptacles. . . . My home sat on the corner of 13th St & Bridge
      Ave., and my drive way, which is approximately 30-feet from the c[ur]b
      of Bridge Ave is private property, and there is a fence, where the trash
      in question was, that separated my home from my neighbors[’] home.



     Anderson attached to his § 2255 motion only the first page of Officer
Hutcheson’s warrant affidavit; the second page was included for the first time with
Anderson’s submission on appeal. Anderson asserted in the § 2255 motion that he



                                         -4-
would “be forwarding pictures of the lay out of the property” to the court, but
proffered no other evidence regarding his claim of ineffective assistance.

       On March 7, 2012, the district court dismissed Anderson’s ineffective-
assistance claim without a hearing. The court concluded: “The information provided
by [Anderson] is insufficient to call for an evidentiary hearing. The allegations are
therefore also insufficient to support this claim of ineffective assistance of counsel.”

        On April 3, 2012, Anderson moved to alter or amend the judgment pursuant to
Rule 59(e) or, alternatively, to reopen the judgment under Rule 60(b). He asked the
court to “allot [Anderson] enough time in which he can procure the ‘material
evidence’ he needs to prove his [ineffective assistance of counsel] claim.” Anderson
stated that his § 2255 motion “specifically apprised the Court that he would be
promptly forwarding photos and other evidence,” but “the Court did not give [him]
enough time or an opportunity to procure all of the . . . evidence.” Anderson insisted
he was “currently seeking” various documents to prove his claim, namely (1)
photographs showing where he normally keeps his trash cans, the fence surrounding
his residence, and the driveway “on [his] private property”; (2) weather reports and
a letter from the supervisor of the Iowa Department of Sanitation verifying that there
was snow on the curb during January and February of 2008; and (3) an affidavit from
Tina DeBerry attesting that Anderson never put his trash cans on the curb until trash
pick-up day. But Anderson did not submit any evidence with his motion to reopen.

       The district court denied Anderson’s motion under Rule 59(e) and Rule 60(b)
on May 9, 2012. The court acknowledged that Anderson had “provide[d] some
additional factual support” for his ineffective-assistance claim, but determined that
Anderson’s “additional allegations and argument do not change this court’s
conclusions.”




                                          -5-
       In April 2013, Anderson filed in this court what he called a “Motion/Letter
Pursuant to Fed. R. App. P. 28(j).” With that filing, Anderson submitted several
exhibits—namely, according to Anderson, (1) photographs showing that his trash cans
have lids and are kept “within the curtilage” his residence and “all of the apartments
on th[e] property,” (2) photographs depicting a fence on the property that includes
Anderson’s residence, (3) an affidavit from Tina DeBerry, attesting that on “numerous
occasions” she “tried to place[] the trash on the c[ur]b . . . before the scheduled time,
and Aaron would stren[u]ously object, and instruct [her] to wait for the scheduled day
to put the trash out on the curb,” (4) Officer Hutcheson’s warrant affidavit; and (5)
photographs of the street and Anderson’s driveway that “show[] easy access for the
police to come upon the property ‘undetected’ to search the trash recept[a]cles.” On
June 21, 2013, this court granted a certificate of appealability as to Anderson’s
ineffective-assistance-of-counsel claim.

                                           II.

        Section 2255 provides that a district court may deny a motion without a hearing
if the files and records of the case conclusively show that the prisoner is entitled to no
relief. 28 U.S.C. § 2255(b). The standard set forth in Strickland v. Washington, 466
U.S. 668 (1984), provides the framework for evaluating Anderson’s ineffective-
assistance-of-counsel claim. To establish a violation of the Sixth Amendment,
Anderson must show that his counsel’s performance was deficient and that Anderson
suffered prejudice as a result. Id. at 687. Reviewing the district court’s decision de
novo, we conclude that the court did not err in dismissing Anderson’s § 2255 motion
without a hearing because even accepting his allegations as true, counsel’s
performance did not fall below an objective standard of reasonableness.




                                           -6-
                                          A.

       There are two steps to Anderson’s argument. First, he contends that counsel
should have moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978), alleging that Officer Hutcheson stated falsely in his affidavit that Anderson’s
trash cans were located at the curb when Hutcheson pulled trash from the cans.
Second, once it is established that the trash cans were instead located within the
curtilage of the residence, he contends that counsel deficiently failed to move to
suppress evidence seized from the cans on the ground that police unconstitutionally
searched them without a warrant. We conclude that the argument fails at both steps.

       To obtain an evidentiary hearing based on Franks in the underlying criminal
case, Anderson was required to make a substantial preliminary showing that
Hutcheson knowingly and intentionally included a false statement in his affidavit, or
that he did so with reckless disregard for the truth. Anderson also was required to
establish that the allegedly false statement was necessary to the finding of probable
cause. Id. at 155-56. A conclusory allegation of falsity is insufficient: “There must
be allegations of deliberate falsehood or of reckless disregard for the truth, and those
allegations must be accompanied by an offer of proof.” United States v. Williams, 669
F.3d 903, 905 (8th Cir. 2012) (internal quotation omitted).

      The record in the district court on the § 2255 motion did not necessitate an
evidentiary hearing for several reasons. First, Anderson did not allege that he
provided his attorney with factual information that would have led counsel reasonably
to conclude that a Franks motion was warranted. Cf. Cox v. Wyrick, 642 F.2d 222,
226 (8th Cir. 1981). Although the motion asserts that Anderson expressly instructed
counsel to file such a motion, he did not allege that he told counsel where the trash
cans were located when they were searched by Officer Hutcheson or what evidence
supported his assertion.



                                          -7-
       Second, even if we presume that Anderson gave counsel the information that
is alleged in the § 2255 motion, Anderson still did not definitively assert personal
knowledge that the trash cans were located within the curtilage of his residence when
Officer Hutcheson searched them. He relied instead on the weather, stating that it was
“indeed true” that the cans were in the curtilage of his residence, “because on January
21, 2008 there was an abu[n]dan[ce] of snow and there was nowhere on ‘the c[ur]b’
to place the trash receptacles.” A reasonable trial counsel, knowing the tradition of
trash collection in Iowa during the winter, could have concluded that evidence of
snowfall was not sufficient to establish a substantial preliminary showing that
Hutcheson made false statements in his affidavit.

       Third, even if we assume that Anderson now alleges personal knowledge that
the trash cans were located within the curtilage, counsel reasonably could have
concluded that Anderson’s allegations were insufficient to make the “substantial
preliminary showing” that would trigger a Franks hearing. Anderson’s allegation that
Officer Hutcheson lied in the warrant affidavit about the location of the trash cans
during the first trash pull was conclusory and unsupported by any offer of proof.
Anderson did not proffer with his § 2255 motion any other evidence showing that the
trash was not at the curb at the time of the first trash pull. At most, Anderson “set up
a swearing contest,” United States v. Southard, 700 F.2d 1, 10 (1st Cir. 1983), and
counsel reasonably could have concluded that such a showing would fail to meet the
Franks threshold. See also United States v. Figueroa, 750 F.2d 232, 237 (2d Cir.
1984). Counsel therefore was not deficient for declining to file a Franks motion even
under these assumptions.

        Fourth, the statements of Officer Hutcheson that Anderson challenged in his §
2255 motion were not essential to the finding of probable cause to search Anderson’s
residence. Anderson’s motion challenged only Hutcheson’s statements regarding the
first trash pull on January 21, 2008. See R. Doc. 1, at 7-8. But during a second trash
pull on February 4, 2008, officers found indicia of Anderson’s occupancy, baggies

                                          -8-
with corners missing, marijuana cigars and stems, rolling papers, a box for a scale, and
a broken scale in the trash. T. Tr. 27-30. The discovery of drugs or drug
paraphernalia in a suspect’s trash contributes significantly to establishing probable
cause to search the suspect’s residence, and can even be sufficient by itself under
certain circumstances. United States v. Briscoe, 317 F.3d 906, 908-09 (8th Cir. 2003).
A trial counsel presented with the allegations of Anderson’s § 2255 motion and
Officer Hutcheson’s affidavit reasonably could have concluded that even if Anderson
were successful in disputing Hutcheson’s claim about the discovery of evidence on
January 21, the unchallenged evidence discovered on February 4 was independently
sufficient to support the search warrant, and a Franks motion would have been
fruitless. See Franks, 438 U.S. at 171-72; Payne v. United States, 78 F.3d 343, 348
(8th Cir. 1996).

       Fifth, even if we entertain Anderson’s present suggestion that Officer
Hutcheson stated falsely in his affidavit that the trash cans were located at curbside
during both trash pulls, and if we assume that Anderson provided counsel with
sufficient information to prove the alleged falsehoods, counsel still reasonably could
have concluded that a motion to suppress was unwarranted. This court ruled in United
States v. Comeaux, 955 F.2d 586 (8th Cir. 1992), that there is no reasonable
expectation of privacy in the contents of a garbage can that is readily accessible to the
public, even when the receptacle is located within the curtilage of a residence. Id. at
589 (citing California v. Greenwood, 486 U.S. 35, 37 (1988)); see United States v.
Hedrick, 922 F.2d 396, 400 (7th Cir. 1991); cf. United States v. Michaels, 726 F.2d
1307, 1312-13 (8th Cir. 1984) (discussing expectation of privacy in “an outdoor
communal trash container serving an apartment building”). Anderson did not allege
facts in his § 2255 motion tending to show that the cans were inaccessible to members
of the public, including co-tenants and their visitors, and he acknowledged in his brief
on appeal that Comeaux says “garbage may be searched within the curtilage of a
home.” Counsel is not ineffective for failing to pursue a motion to suppress that he
reasonably believes would be futile. See United States v. Luke, 686 F.3d 600, 606 (8th

                                          -9-
Cir. 2012); Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994) (per curiam);
Williams v. Kelly, 816 F.2d 939, 950 (4th Cir. 1987).

       Anderson argues that counsel was ineffective in failing to preserve for further
review the Fourth Amendment issue decided in Comeaux, because there was a conflict
in the circuits regarding the constitutionality of searches of trash cans located within
the curtilage of a residence. We rejected a comparable argument in Hamberg v.
United States, 675 F.3d 1170 (8th Cir. 2012), holding that despite a conflict in
authority, it is not “professionally unreasonable for counsel to fail to object to the
correct application of settled law within our circuit.” Id. at 1172-73. Anderson also
argues that Florida v. Jardines, 133 S. Ct. 1409 (2013), “provides a solid argument
that Comeaux . . . was improperly decided.” But Jardines was decided well after
Anderson’s trial, and even if Jardines undermined Comeaux, counsel’s failure to
anticipate a change in the law does not establish that counsel’s performance was
deficient. Hamberg, 675 F.3d at 1173; Jackson v. Herring, 42 F.3d 1350, 1359 (11th
Cir. 1995).

                                          B.

       The district court did not abuse its discretion in denying Anderson’s motion to
alter or amend the judgment, or to reopen the judgment, under Civil Rules 59(e) and
60(b), respectively. To prevail on this motion, Anderson was required to
show—among other things—that the evidence proffered with the motion was
discovered after the court’s order and that he exercised diligence to obtain the
evidence before entry of the order. Williams v. Hobbs, 658 F.3d 842, 853-54 (8th Cir.
2011); Miller v. Baker Implement Co., 439 F.3d 407, 414 (8th Cir. 2006). The new
evidence and argument cited by Anderson in his post-judgment motion reasonably
could have been offered prior to the district court’s entry of the March 2012 order.
Anderson argues that the court did not give him time to procure and submit the
evidence. But the § 2255 motion was filed more than four years after the disputed

                                         -10-
trash pulls and nearly three years after the judgment in the criminal case. Yet
Anderson did not proffer his new materials to this court until more than one year after
he filed the § 2255 motion. Anderson’s argument that he had insufficient time to
prepare the motion is unpersuasive.

                                   *      *       *

       The judgment of the district court is affirmed. Anderson’s motion to
supplement the evidentiary record on appeal is denied, see Von Kahl v. United States,
242 F.3d 783, 788 (8th Cir. 2001), except that we receive Officer Hutcheson’s
complete warrant affidavit under the rule of completeness. See Beech Aircraft Corp.
v. Rainey, 488 U.S. 153, 171-72 (1988); cf. Dakota Indus., Inc. v. Dakota Sportswear,
Inc., 988 F.2d 61, 63-64 (8th Cir. 1993). Anderson’s pro se motion for the production
of or subpoena of material documents, pro se request for judicial notice, and pro se
petition for writ of mandamus are denied, consistent with Eighth Circuit policy not to
consider pro se filings when an appellant is represented by counsel. See United States
v. Martin, 59 F.3d 767, 768 n.2 (8th Cir. 1995).
                        ______________________________




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