                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT



                                 No. 98-50581


                         UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                       VERSUS

                             GREGORY C. NIEMANN,

                                                       Defendant-Appellant.


             Appeal from the United States District Court
                   for the Western District of Texas
                                 (W-97-CA-14)


                              December 14, 1999
Before KING, Chief Judge, STEWART, Circuit Judge, and ROSENTHAL,
District Judge.*
PER CURIAM:**

             Gregory    C.   Niemann    pleaded   guilty    to   an   indictment

charging possession of firearms by a convicted felon and possession
of methamphetamine with the intent to distribute. He appeals from

the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence.          Niemann claims that his trial counsel



         *
              District Judge of the Southern District of Texas,
sitting by designation.
    **
          Pursuant to 5th Cir. Rule 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. Rule
47.5.4.
provided ineffective assistance by failing to recognize and raise

grounds to suppress evidence seized in a search of his house under

a federal search warrant.            The district court held that Niemann

could prove neither the reasonableness nor prejudice prong of an

ineffective assistance claim.              We reverse and remand for further

proceedings.

                      I.    FACTS AND PROCEDURAL HISTORY

              On March 31, 1992, upon application by an agent of the

Bureau   of    Alcohol,      Tobacco,      and   Firearms   (“ATF”),        a   federal

magistrate judge issued a warrant to search Niemann’s house for

firearms.     That night, ATF agents, assisted by Texas Department of

Public   Safety      (“DPS”)    officers        and   Hamilton   County     Sheriff’s

Department deputies, executed the search warrant and seized eleven

firearms      and   several    rounds      of    ammunition.          The   state      law

enforcement officers also seized a disassembled methamphetamine

laboratory, precursor chemicals for manufacturing methamphetamine,

415.93 grams of methamphetamine, and $2,500 in cash.

              Niemann pleaded guilty on July 31, 1992 to one count of

possession of a firearm by a felon, in violation of 18 U.S.C.

§§   922(g)(1)      and    924(a),   and    to    one   count    of    possession       of

methamphetamine       with     intent      to    distribute,     in    violation        of

21   U.S.C.    §    841(a)(1).       At    the    sentencing     hearing        held    on

November 25, 1992, Niemann’s attorney moved to withdraw. The trial

court granted the motion and reset the hearing.                   Niemann retained

new counsel.        On February 17, 1993, the trial court sentenced

Niemann to concurrent terms of 120 months of imprisonment for the


                                            2
firearms conviction and 150 months of imprisonment for the drug

conviction.        On direct appeal, Niemann raised two sentencing

guideline issues.           This court affirmed.         See United States v.

Niemann,     No.    93-8130      (5th   Cir.   October   1,    1993)(unpublished

disposition).

             On January 17, 1997, Niemann filed this section 2255

motion, alleging that his first attorney provided ineffective

assistance because he did not even attempt to suppress the evidence

seized from Niemann’s house and advised Niemann that there was no

ground on which a court would suppress the evidence.                The district

court denied Niemann’s section 2255 motion without an evidentiary

hearing and denied his request for a certificate of appealability

(“COA”).     This court granted Niemann a COA as to the ineffective

assistance of counsel claim.

             On this appeal, Niemann asserts that his first counsel

provided deficient performance by failing to recognize and raise

the following grounds for suppressing the evidence: (1) the search

warrant for Niemann’s house was executed at night in violation of

Rule 41(c)(1) of the Federal Rules of Criminal Procedure; (2) the

officers executing the search violated the “knock and announce”

rule, 18 U.S.C. § 3109; and (3) the officers seized evidence beyond

the scope of the search warrant, in violation of the Fourth

Amendment to the United States Constitution.                  The district court

ruled   as   a     matter   of    law   that   Niemann   could    not   prove   an

ineffective assistance claim based on his attorney’s failure to

recognize and raise these challenges to the search and seizure.


                                          3
The district court held that Niemann had no basis on which to move

to suppress the evidence seized because the federal search warrant

was validly issued.       Niemann argues that even if the warrant was

properly issued, the defects in the manner of execution provided

valid grounds for suppression, which his first attorney failed to

pursue.   We reverse and remand to permit the district court to

consider fully the asserted grounds for suppression, in order to

resolve Neimann’s ineffective assistance claim.

  II.   THE STANDARD FOR REVIEWING INEFFECTIVE ASSISTANCE CLAIMS

           On appeal from a denial of a section 2255 motion, this

court reviews the district court’s factual findings for clear error

and its conclusions of law de novo.        See United States v. Faubion,

19 F.3d 226, 228 (5th Cir. 1994).            Ineffective assistance of

counsel claims raise mixed questions of law and fact and are

subject to de novo review.      See id.

           This   court    applies   the   two-part   test   set   out   in

Strickland v. Washington, 466 U.S. 668 (1984), to challenges to

guilty pleas based on ineffective assistance of counsel.           See Hill

v. Lockhart, 474 U.S. 52, 58 (1985).       To prevail on his ineffective

assistance of counsel claim, Niemann must show that: (1) his

counsel’s performance, judged on the facts of the case, viewed as

of the time of counsel’s conduct, fell below an objective standard

of reasonableness; and (2) there is a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.       See Strickland, 466 U.S. at

687-694; Hill, 474 U.S. at 59.


                                     4
         III.   THE REASONABLENESS OF COUNSEL’S PERFORMANCE

            Niemann asserts that his first counsel was deficient in

failing to assert that the agents wrongfully executed the search

warrant at night, violated the “knock and announce” rule, and

seized evidence beyond the scope of the search warrant.       In an

affidavit submitted with his section 2255 motion, Niemann described

his attorney’s performance as follows:

            I [] asked [my lawyer] how could the agents
            search my entire house and take things that
            were not on the search warrant, how the D.P.S.
            agent could break open my safe without a
            warrant, how I could be arrested by the state
            for drugs when there was a federal search
            warrant for guns, and how the state could
            return to my house two days after I was
            arrested with a warrant to search for and
            seize money, motor vehicles and personal
            property and take additional incriminating
            evidence.

Niemann stated that, in response, his attorney “said you can not

beat a federal search warrant and the government would just lie

about when and where they found those things and he couldn’t stop

them.”

            On July 30, 1992, according to Niemann’s affidavit, his

attorney told Niemann that he must plead guilty the next day or

face 35 years in jail.   Niemann again asked the attorney about the

execution of the search warrant and told the attorney he “wanted

copies of the search warrants because [he] wanted a friend to look

at them.”   The attorney “told [Niemann] he did not have the search

warrants and you can’t beat a federal search warrant and that the

warrants and search were entirely legal.”    The attorney also “told



                                  5
[Niemann] he had a deal with the prosecutor that if [Niemann] would

plead guilty, they would only charge [Niemann] with the guns and

drugs they found.”

           Niemann pleaded guilty on July 31, 1992. At a sentencing

hearing on November 25, 1992, both Niemann and the attorney asked

that the court allow the attorney to withdraw.    The court granted

the request.    Niemann then retained a second attorney.     The trial

court held another sentencing hearing on February 17, 1993.         At

that hearing, the newly retained attorney asked Niemann several

questions about his decision not to ask the court to allow him to

withdraw his guilty plea.    Niemann responded to the questions as

follows:

           Q:    Mr Niemann, both you and I have been
                 through quite a bit since you retained me
                 in this case --
           A:    Yes, sir.
           Q:    -- and I wanted to clarify a few things
                 on the record, at this point.     It was
                 your decision today to come and plead
                 guilty is that correct, sir?
           A:    Yes, sir.
           Q:    And you’re aware of all the consequences
                 that have taken place by your entry of
                 this sentence, is that correct?
           A:    Yes, sir.
           Q:    And do you understand that you had many
                 search and seizure questions when you
                 first retained me in this case, is that
                 correct?
           A:    Yes, sir.
           Q:    And that you understand by that not being
                 able to withdraw your plea, at this time,
                 and entering the sentence, has waived all
                 of your search and seizure questions for
                 appeal purposes, is that correct?
           A:    Yes, sir.
           Q:    And that was your decision, is that
                 correct?



                                  6
           A:    Yes, sir. My decision was based on, I
                 asked you to check on the search warrants
                 and be sure they were valid. You told me
                 they were both valid, even the dates
                 after it was executed, three days after I
                 had been in jail, you said it was still
                 valid, so I was going on your word. Yes,
                 sir, I think what I am doing is right.
           Q:    Okay. And you understand that you had a
                 right to withdraw your plea in this case
                 – you had a right to ask the Court to
                 withdraw your plea in this case, is that
                 correct?
           A:    Yes, sir.
           Q:    And it was your decision to decide
                 against making that motion, is that
                 correct?
           A:    Yes, sir.

           The quoted excerpt from Niemann’s sentencing, although it

does not relate directly to his initial guilty plea, supports his

affidavit testimony that he had questioned from the outset whether

the March 31, 1992 search was legal and that he had decided to

plead guilty based on assurances that there was no ground to move

to suppress the evidence seized in the search of his house.

Niemann argues that the legal assistance rendered fell below an

objective standard of reasonableness.

           The   current     record,       although   not   fully   developed,

discloses facts that support Niemann’s claims that the search and

seizure violated statutory and constitutional provisions.             Niemann

contends that the nighttime search of his house violated Rule

41(c)(1) of the Federal Rules of Criminal Procedure. Rule 41(c)(1)

provides that a federal search warrant “shall be served in the

daytime, unless the issuing authority, by appropriate provision in

the   warrant,   and   for   reasonable      cause    shown,   authorizes   its



                                       7
execution at times other than daytime.”      “Daytime” is defined in

Rule 41(h) as “the hours between 6:00 a.m. and 10:00 p.m. according

to local time.”     The government admitted that the search began at

11:18 p.m.    The record reveals no finding of reasonable cause, and

the warrant did not authorize a nighttime search. To the contrary,

preprinted language on the warrant that could authorize a search

“at any time in the day or night” was struck through by a hand-

drawn line.

             Niemann also maintains that the law enforcement officers

executing the search warrant violated the “knock and announce”

rule, 18 U.S.C. § 3109.     Section 3109 provides:

             The officer may break open any outer or inner
             door or window of a house, or any part of a
             house, or anything therein, to execute a
             search warrant if, after notice of his
             authority   and   purpose,  he   is   refused
             admittance or when necessary to liberate
             himself or a person aiding him in the
             execution of the warrant.

Niemann and another person who claimed to witness the search

submitted affidavits stating that officers broke down Niemann’s

door without first knocking or announcing their presence and

without being refused admittance.

             Niemann also claims that officers seized evidence beyond

the scope of the federal warrant, in violation of the warrant

requirement of the Fourth Amendment.    The government admitted that

in the search, the officers seized evidence relating to the drug




                                   8
count, despite the fact that the federal search warrant described

only firearms.1

              The government submitted no evidence to controvert the

affidavit and other record evidence concerning the execution of the

search warrant and the quality of counsel performance. The current

record   is    insufficient    to   determine    the   merits    of   Niemann’s

constitutional and statutory suppression arguments.

              The district court denied Niemann’s section 2255 motion,

holding as a matter of law that the first attorney’s performance

was not deficient because “a Fourth Amendment challenge to the

evidence seized would have failed.”            The district court reasoned

that no basis existed to suppress the evidence seized in the March

31, 1992 search because “[t]he seizure was based on a federal

search warrant issued after a neutral and detached determination of

probable cause by a” magistrate judge. Therefore, “[c]ounsel could

not have performed any additional investigation that would have

resulted in suppression of the firearms seized.”

              The   district   court       treated   Niemann’s    ineffective

assistance claim as if it relied solely on counsel’s failure to

challenge the validity of the warrant.           However, Niemann contended

not only that his attorney should have challenged the issuance of

the warrant, but also that the attorney should have challenged the


     1
           In its submissions, the government made reference to a
state warrant that described drug-related evidence. However, the
record — though it does show that a state warrant describing drug-
related evidence issued several days after the March 31, 1992
search — does not show that any such warrant existed at the time of
the challenged search and seizure.

                                       9
manner of its execution.    Niemann argued that his first attorney

erred in advising him that a motion to suppress challenging the

manner of execution would fail and in failing to pursue such

challenges.   The district court’s holding, based on the fact that

magistrate judge made a neutral and detached determination of

probable cause in issuing the warrant, simply does not address

Niemann’s challenges to the execution of the search warrant.    See

United States v. Heldt, 668 F. 2d 1238, 1256–1257 (D.C. Cir. 1981).

          The district court erred in holding that the magistrate

judge’s neutral and detached finding of probable cause made any

motion to suppress futile.       The district court also erred in

holding, on that basis, that Niemann’s first attorney performed at

a level within the “range of competence demanded of attorneys in

criminal cases” in deciding not even to attempt a motion to

suppress the evidence seized.    Strickland, 466 U.S. at 687.

                           IV.   PREJUDICE

          The Supreme Court has described the prejudice inquiry in

guilty plea cases, stating that the inquiry often

          will closely resemble the inquiry engaged in
          by courts reviewing ineffective-assistance
          challenges to convictions obtained through a
          trial. For example, where the alleged error
          of counsel is a failure to investigate or
          discover potentially exculpatory evidence, the
          determination whether the error “prejudiced”
          the defendant by causing him to plead guilty
          rather than go to trial will depend on the
          likelihood that discovery of the evidence
          would   have   led   counsel   to    change  his
          recommendation    as   to  the    plea.     This
          assessment, in turn, will depend in large part
          on a prediction whether the evidence likely
          would have changed the outcome of the trial.


                                  10
           Similarly, where the alleged error of counsel
           is a failure to advise the defendant of a
           potential affirmative defense to the crime
           charged, the resolution of the “prejudice”
           inquiry will depend largely on whether the
           affirmative   defense   likely   would   have
           succeeded at trial.

Hill, 474 U.S. at 59.          As with the “reasonableness” prong of the

Strickland inquiry, the merits of Niemann’s underlying suppression

claims are critical to the “prejudice” prong.2                         The connection is

particularly      close   in     this    case       because      the     evidence   seized

provided virtually conclusive proof of the two alleged offenses,

unlawful   possession       of    a     firearm      by     a    convicted      felon   and

possession   of    methamphetamine         with       the       intent    to   distribute.

Suppression of the evidence would have considerably weakened the

case against Niemann.

           The     record      discloses        a   reasonable         probability      that

Niemann would not have pleaded guilty and would have insisted on

going to trial if his first attorney had moved for suppression of

the evidence and if that motion had succeeded.                         Hill, 474 U.S. at

59.   Proof of valid grounds for suppression of the evidence seized

would likely be sufficient to show prejudice under Strickland.3


      2
          However, the court must apply different legal standards
to the two stages of the Strickland analysis.              On the
“reasonableness” prong, the court must assess the attorney’s
performance in light of the law existing at the time the attorney
made the challenged decisions. See Lockhart v. Fretwell, 506 U.S.
364, 371–372 (1993).    On the “prejudice” prong, the court must
apply the current law to determine whether “the result of the
[initial] proceeding was fundamentally unfair or unreliable.” See
id. at 368–370.
      3
           If the district court were to conclude on remand that
law enforcement agents violated Rule 41(c) or 18 U.S.C. § 3109 when

                                           11
           The district court did not articulate the reasons for its

holding that Niemann could not, as a matter of law, show prejudice

from any errors his first attorney made.               However, as noted

earlier, the district court erred in holding that the magistrate

judge’s “detached and neutral determination of probable cause”

would have made a motion to suppress futile.         An examination of the

merits of the suppression claims is necessary to determine the

prejudice prong of the ineffective assistance claim.            The district

court erred in holding that Niemann could not show prejudice

without first addressing the asserted defects in the execution of

the search warrant.

           This court remands in order to permit the district court

to   determine   whether   Neimann’s     attorneys   rendered   ineffective

assistance in failing to move to suppress the evidence based on the

execution of the search warrant.

                             V.   CONCLUSION

           We reverse the district court’s denial of Niemann’s

section 2255 motion and remand this case for further proceedings

consistent with this opinion.

           REVERSED AND REMANDED.




they executed the warrant and that suppression would have been the
required remedy, Niemann could show prejudice on both the firearm
possession and drug possession counts. If the district court were
to conclude that the only ground for suppression was that the
agents violated the warrant requirement of the Fourth Amendment by
seizing drug evidence not described in the federal warrant, Niemann
could show prejudice on the drug possession count only.

                                    12
