                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 28 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 96-2293
    v.                                             (D.C. No. CIV-96-101-SC)
                                                           (D. N.M.)
    PHILLIP LEE,

                Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before BRORBY, BARRETT, and BRISCOE, 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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 appeals the district court’s denial of his motion to set aside his

sentence pursuant to 28 U.S.C. § 2255. Defendant was convicted after a jury trial

of conspiracy to commit bank robbery, bank robbery, and use of a firearm during

a crime of violence. Judgment was entered on February 8, 1995, and defendant

did not pursue a direct appeal. In November 1995, it came to light that the U.S.

Attorney’s Office in New Mexico had issued at least fifty-three subpoenas to

witnesses under Fed. R. Crim. P. 17(a) to compel their attendance at ex parte

pretrial interviews with the prosecution in at least eleven cases. After defendant

received a copy of the letter from the U.S. Attorney’s Office advising the court

that the government had issued twenty-one such subpoenas in his case, defendant

filed the present § 2255 motion.

      Defendant argued that the government’s misuse of the court’s subpoena

power violated the Fifth and Sixth Amendments, as well as Fed. R. Crim. P. 16,

and that it constituted prosecutorial misconduct. Defendant also contended that

the government may have violated the Jencks Act, 18 U.S.C. § 3500, if it obtained

statements from witnesses who later testified at trial and did not disclose those

statements to defendant, and that the government may have violated its duties

under Brady v. Maryland, 373 U.S. 83 (1963), if it obtained exculpatory

information during those interviews which it failed to disclose to defendant. In

light of the government’s allegedly unconstitutional conduct, defendant requested


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that his conviction be set aside and the indictment be dismissed, or that he be

granted a new trial. Defendant also requested an evidentiary hearing on his

claims.

      The district court adopted the report and recommendation of the magistrate

judge, after considering the lengthy objections filed by defendant, and denied

relief. Because defendant had not brought his claims on direct appeal, the district

court held that he would have to establish either cause and prejudice for his

default, or that a fundamental miscarriage of justice would occur if his claims

were not addressed. See United States v. Allen, 16 F.3d 377, 378 (10th Cir.

1994). The court concluded that defendant had established cause, because he did

not learn of the government’s improper use of the court’s subpoena power until

the time for appeal had passed. The court then considered whether defendant

could establish actual prejudice.

      In considering the prejudice prong, the court applied the harmless error

standard under Brecht v. Abrahamson, 507 U.S. 619, 638-39 (1993), and

Kotteakos v. United States, 328 U.S. 750, 765-66 (1946). Accordingly, the court

considered whether it had a “grave doubt about whether a trial error of federal

law had substantial and injurious effect or influence in determining the jury's

verdict.” Tuttle v. Utah, 57 F.3d 879, 884 (10th Cir. 1995) (quotation and

emphasis omitted). The court concluded that defendant’s conclusory allegations


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were not sufficient to meet this standard, and that the government’s improper use

of Rule 17 subpoena power was harmless error. Because defendant had failed to

establish both cause and prejudice, the court held that his claims were

procedurally barred.

      Defendant raises three challenges to the district court’s order on appeal:

(1) the court erred in applying the cause and prejudice standard because

defendant’s failure to raise the claims on direct appeal did not constitute a

procedural default; (2) the court did not give defendant a sufficient opportunity to

respond after sua sponte raising the issue of procedural default; and (3) the court

erred in concluding that defendant did not make a sufficient showing of prejudice.

We address each of defendant’s arguments in turn.

      Defendant maintains that he did not procedurally default his claims by

failing to raise them on direct appeal because, like claims of ineffective assistance

of counsel, his claims were not amenable to being raised on direct appeal. Twice

before, we have addressed the misuse of the district court’s subpoena power by

the U.S. Attorney’s Office in New Mexico. In each of these cases, the defendant

raised the challenge on direct appeal. See United States v. Villa-Chaparro, 115

F.3d 797, 798, 804-05 (10th Cir. 1997); United States v. Ventura, No. 96-2148,

1997 WL 774750, at **1, **3-**4 (10th Cir. Dec. 17, 1997). Likewise, other

courts have addressed challenges to the government’s misuse of Rule 17 subpoena


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power on direct appeal. See, e.g., United States v. Keen, 509 F.2d 1273, 1274-75

(6th Cir. 1975); United States v. Hedge, 462 F.2d 220, 221, 222-23 (5th Cir.

1972); United States v. Standard Oil Co., 316 F.2d 884, 886-87, 897 (7th Cir.

1963). Therefore, we are not persuaded by defendant’s argument that claims such

as those raised in his § 2255 motion are not of the type that can be adequately

raised on direct appeal.

      Turning to defendant’s second challenge, we begin with the

well-established premise that a court may sua sponte raise the defense of

procedural default when a § 2255 movant has failed to raise an issue on direct

appeal. See Hines v. United States, 971 F.2d 506, 507-09 (10th Cir. 1992). If the

court chooses to raise the defense sua sponte, however, it “must generally afford

the movant an opportunity to respond to the defense.” Id. at 509. Here, the

magistrate judge raised the defense sua sponte in his report and recommendation.

The district court then gave defendant forty days to file objections to the

magistrate judge’s report, which defendant did. Included in defendant’s

objections was a discussion of how he had demonstrated prejudice arising from

the government’s misuse of the Rule 17 subpoena power. Thus, the district court

gave defendant ample opportunity to respond to the procedural default defense

before dismissing his § 2255 petition. See id. at 507, 509 (affirming dismissal




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where magistrate judge sua sponte raised procedural default and district court

gave defendant opportunity to respond).

      Finally, defendant contends that the district court erred in concluding that

he had not demonstrated actual prejudice and, therefore, could not overcome the

procedural default. We agree with the district court that defendant’s conclusory

statements are not enough to establish prejudice. The evidence was

overwhelming that defendant participated in the bank robbery, and defendant has

not made any specific allegations which, if true, would create a grave doubt about

whether the prosecution’s misuse of the court’s subpoena power “had substantial

and injurious effect or influence in determining the jury’s verdict.” Tuttle, 57

F.3d at 884 (quotation and emphasis omitted).

      The judgment of the district court is AFFIRMED. All outstanding motions

are DENIED.



                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




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