                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           FEB 21 2002
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,

    v.                                                    No. 01-5027
                                                    (D.C. No. 99-CV-273-K,
    STEPHEN W. WILSON, also known                       96-CR-114-K)
    as Stephen Johnson, also known as                     (N.D. Okla.)
    Stephen W. Bailey,

                  Defendant-Appellant.


                              ORDER AND JUDGMENT          *




Before MURPHY , McKAY , and BALDOCK , 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      This order and judgment is not binding precedent, except under the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.
       Defendant-appellant seeks a certificate of appealability (COA) in order for

this court to review the denial of his motion to vacate his sentence brought under

28 U.S.C. § 2255. In order to obtain a COA, defendant must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where,

as here, the district court rejected defendant’s constitutional claims on the merits,

“[defendant] must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.”    Slack v.

McDaniel , 529 U.S. 473, 484 (2000).

       Defendant was convicted of manufacturing marijuana by production in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and of aiding and abetting in

violation of 18 U.S.C. § 2. Following the partial grant/partial denial of his

motion to suppress evidence, he entered a conditional guilty plea and was

sentenced to the statutory minimum sentence of sixty months’ imprisonment,

followed by four years’ supervised release. He also received a $10,000 fine, the

mandatory special monetary assessment, and was directed to participate in

substance abuse treatment.

       On appeal, defendant claimed that the search warrant, which netted the

evidence seized, was obtained by an affidavit containing false and misleading

statements, as well as omissions, and that probable cause remained lacking even

after several statements were redacted.    He also challenged the district court’s


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determination that he was not eligible for a sentence reduction pursuant to USSG

§ 5C1.2. We upheld the district court’s determination that the corrected affidavit,

which was based on an aerial flyover of the property on which the marijuana

plants were growing, supplied sufficient probable cause for the search warrant.

We also upheld the sentence.

       In his § 2255 motion, he alleged that the search warrant was illegally

obtained in violation of the Fourth Amendment because of an earlier “illegal

observation/entry/search of defendant’s property” by then-Undersheriff Stinnett, a

fact allegedly concealed from the issuing state judge. Aplt. App. at 28. Because

defendant did not raise this issue on direct appeal, it was necessary to frame the

issue as the denial of ineffective assistance of trial or appellate counsel in order to

avoid procedural bar.      Id. at 29. Defendant also claims his trial counsel was

ineffective for failing to pursue other issues concerning the flyover that preceded

issuance of the warrant.     Id. Finally, he claimed ineffectiveness of appellate

counsel for failing to raise the above issues on appeal.    Id.

       The district court determined that an evidentiary hearing was unnecessary

because the § 2255 motion lacked merit. The court held that the Fourth

Amendment claim was not cognizable in a post-conviction proceeding under

Stone v. Powell , 428 U.S. 465 (1976), because he had had a full and fair




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opportunity to litigate the issue at trial and on appeal.   See United States v. Cook ,

997 F.2d 1312, 1317 (10th Cir. 1993).

       The court next considered defendant’s claim of ineffective assistance of

trial counsel based on counsel’s failure to pursue the alleged initial illegality of

Undersheriff Stinnett’s search and several issues concerning the aerial flyover

preceding the issuance of the warrant. The court applied the analysis of

Strickland v. Washington , 466 U.S. 668, 687-88 (1984), which requires the

defendant to show both that counsel’s performance was deficient and that

deficient performance caused prejudice. The court ruled that defendant had failed

to show that counsel’s failure to develop the Fourth Amendment claim fell outside

the range of reasonable professional assistance because the claim itself lacked

merit, i.e., that Undersheriff Stinnett’s visual observation of the marijuana was

not obtained by an unconstitutional search.      1



       The court next determined, based on the strength of testimony at the

hearing on the motion to suppress evidence, that trial counsel’s abandonment of




1
       The court found, based on the record, that Undersheriff Stinnett had
crossed a chain gate and a livestock gate on commercially leased property
adjacent to that of defendant and stood on a tank battery to overlook the fence
surrounding the subject property and view the marijuana. The court defined this
as standing “outside the curtilage of the house and in the open fields.” Aplt. App.
at 164 (footnote omitted).

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the claim that the flyover pilot had failed to maintain the proper altitude was not

deficient performance under     Strickland . Aplt. App. at 165-66.

       Finally the court ruled that defendant was not denied the effective

assistance of appellate counsel because this court would have declined to hear the

Fourth Amendment claim based on waiver and because ineffective assistance of

trial counsel claims cannot be brought on direct appeal, but rather by way of a

§ 2255 motion. See United States v. Galloway , 56 F.3d 1239, 1242 (10th Cir.

1995) (ineffectiveness of counsel should be raised in § 2255 proceedings, not

direct appeal).

       On appeal, defendant raises four issues: (1) he was denied due process

because the district court ruled against him on an “open fields” theory not raised

by the government, thereby denying him the opportunity to argue the point and

that, in any event, the district court’s ruling is wrong; (2) the district court erred

in denying him a hearing on the alleged illegal actions of Undersheriff Stinnett;

(3) trial counsel was ineffective for not adequately pursuing the issue of

Undersheriff Stinnett’s illegal actions; and (4) appellate counsel provided

ineffective assistance by failing to raise issue No. 3. Aplt. Br. at 2-3. We review

de novo the legal rulings underlying the court’s denial of defendant’s § 2255

motion and the court’s factual findings for clear error.   United States v. Kennedy ,

225 F.3d 1187, 1193 (10th Cir. 2000),      cert. denied, 121 S. Ct. 1406 (2001).


                                             -5-
      According to defendant, the government relied on an “independent origin”

for the searches and seizures following the initial viewing of the property by

Undersheriff Stinnett. Aplt. Br. at 4. However, he has failed to support this

argument by including the government’s response in his appendix, as is his

obligation. See 10th Cir. R. 10.3(B), (D). Moreover, to the extent defendant

appears to be attacking the search warrant itself, he is barred from raising in a

§ 2255 motion issues raised on direct appeal.     United States v. Warner , 23 F.3d

287, 291 (10th Cir. 1994).

      To assess the prejudice prong of     Strickland , we must determine whether the

visual observation by Undersheriff Stinnett of defendant’s marijuana plants

constituted a Fourth Amendment violation. We need go no further than        California

v. Ciraolo , 476 U.S. 207 (1986), and    Oliver v. United States , 466 U.S. 170

(1984), to hold it did not. Had the aerial flyover occurred without the benefit of

Undersheriff Stinnett’s visual observations (but simply based on his suspicions),

we would have the factual situation of    Ciraolo , in which a flyover was conducted

in a “physically nonintrusive manner.” The Court held it irrelevant that the

“observation from the aircraft was directed at identifying the plants [as

marijuana].” Ciraolo , 476 U.S. at 213.    The question was not whether defendant

manifested a desire and intent to keep his garden private and protected from

observation, but whether that expectation was one “society is prepared to honor.”


                                            -6-
Id. at 214. Defendant does not argue that Undersheriff Stinnett was within the

curtilage 2 of his home when he viewed the marijuana plants.         See Aplt. Br. at 33

(“The oil tank battery was 20 feet from the curtilage yard fence. . . .”).

       We have held that surrounding one’s property “with an eight-foot fence,

locked gates, and numerous signs reading ‘No Trespassing’ and ‘Private Game

Shelter’” is not a sufficient expectation of privacy the government is required to

respect. United States v. Lewis , 240 F.3d 866, 871 (10th Cir. 2001). In doing so,

we relied on Oliver , in which the Court held that the Fourth Amendment protects

not “the merely subjective expectation of privacy, but only those expectation[s]

that society is prepared to recognize as ‘reasonable.’” 466 U.S. at 177 (quotation

omitted). The Court found unworkable a case-by-case approach requiring police

officers “to guess before every search whether landowners had erected fences

sufficiently high, posted a sufficient number of warning signs, or located

contraband in an area sufficiently secluded to establish a right of privacy.”      Id. at

181. The Court also noted that “the general rights of property protected by the

common law of trespass have little or no relevance to the applicability of the

Fourth Amendment.”       Id. at 183-84.



2
       The curtilage encompasses “the area around the home to which the activity
of home life extends,” Oliver , 466 U.S. at 182 n.12, and “associated with the
sanctity of a man’s home and the privacies of life.”  Id. at 180 (quotation
omitted).

                                             -7-
       Moreover, an “open field” does not need to be either open or a field as

those terms are commonly used.        United States v. Dunn , 480 U.S. 294, 304 (1987)

(holding no constitutional violation occurred when officers crossed ranch-style

perimeter fence and similar interior fences before stopping at locked front gate of

barn). And, even Undersheriff Stinnett’s trespass onto private property does not

transform his actions into a search under the Fourth Amendment.        See United

States v. Pinter , 984 F.2d 376, 379 (10th Cir. 1993) (citing   Oliver , 466 U.S.

at 183-84 & n.15). Undersheriff Stinnett’s “method of observation was not so

invasive, extraordinary, or unexpected that the observations invaded any

legitimate expectation of privacy.”     United States v. Hendrickson , 940 F.2d 320,

323 (8th Cir. 1991) (climbing ladder from adjacent commercial storage unit and

cutting chicken wire ceiling to look into defendant’s unit did not infringe

legitimate privacy expectation).

       For these and substantially the reasons stated by the district court, we agree

that defendant has failed to demonstrate a Fourth Amendment violation




                                             -8-
cognizable in a post-conviction proceeding. Accordingly, we DENY the

application for a certificate of appealability and DISMISS the appeal.



                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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