                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3565
                                    ___________

Bruce Kelly Evans,                         *
                                           *
             Appellant,                    *
                                           *   Appeal from the United States
      v.                                   *   District Court for the Southern
                                           *   District of Iowa.
United States of America,                  *
                                           *
             Appellee.
                                    ___________

                              Submitted: September 14, 1999

                                   Filed: January 6, 2000
                                    ___________

Before WOLLMAN, Chief Judge, HEANEY, and BEAM, Circuit Judges.
                             ___________

BEAM, Circuit Judge.

      Bruce Kelly Evans appeals the district court's1 denial of his motion for an
evidentiary hearing on his claim of ineffective assistance of counsel in this action for
habeas corpus relief under 28 U.S.C. § 2255. We affirm.




      1
        The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
I.    BACKGROUND

       Evans was shot in the the face by his wife at their home. When the police
arrived to investigate the shooting, they noticed marijuana residue on the kitchen table.
The police later obtained a warrant to search the house for, among other things, drugs
and drug paraphernalia. While conducting the search, the officers found and seized
several photographs and two rolls of undeveloped film. The photographs depicted
Evans's marijuana growing operation, including a picture of Evans sitting at a table that
is covered with marijuana. Evans was arrested and indicted on one count of conspiring
to manufacture and distribute marijuana, one count of using a firearm in relation to a
drug trafficking crime, and two counts of being a felon in possession of a firearm.

       Evans challenged the search and seizure of the photographs and undeveloped
rolls of film at a suppression hearing, claiming that these items were not within the
scope of the warrant. At the suppression hearing, the Assistant United States Attorney
told the district court that the rolls of undeveloped film contained "family pictures" and
that these "family pictures" would not be presented at trial. This statement ended any
further argument regarding the undeveloped rolls. The district court denied Evans's
motion to suppress the photographs that had been seized from the house because the
photographs fell within the plain view exception to the warrant requirement. The
photographs were introduced at trial where Evans, who was tried jointly with several
co-conspirators, was convicted of conspiracy, use of a firearm in drug trafficking, and
being a felon in possession of a firearm. We upheld the denial of the motion to
suppress on appeal, agreeing with the district court's plain view analysis. See United
States v. Evans, 966 F.2d 398 (8th Cir. 1992).

       Evans now says that there was evidence available before the suppression hearing
showing that the photographs admitted at trial actually came from the undeveloped rolls
of film. He contends that if the photographs came from the undeveloped rolls, his
Fourth Amendment rights were violated because the undeveloped rolls were not within

                                           -2-
the plain view exception. He claims that an evidentiary hearing would allow him to
conclusively establish that the photographs came from the undeveloped rolls and that
his counsel was ineffective for failing to raise this issue at the suppression hearing.

II.   DISCUSSION

       A section 2255 petition can be dismissed without an evidentiary hearing if (1)
the petitioner's allegations, accepted as true, would not entitle the petitioner to relief,
or (2) the allegations cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusory. See Delgado v. United States, 162 F.3d
981, 983 (8th Cir. 1998). We review the denial of a motion for an evidentiary hearing
for abuse of discretion. See id. We find that even if we were to accept Evans's
contentions as true, he would not be entitled to relief.

      To establish an ineffective assistance of counsel claim, Evans must prove that
counsel's performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687
(1984). Evans must also prove prejudice by demonstrating that absent counsel's errors,
there is a reasonable probability that the result of the proceeding would have been
different. See id. at 694.

       Evans argues that his counsel's performance was deficient because his counsel
did not properly review all of the government's evidence prior to the suppression
hearing. Evans says that if his counsel had reviewed the evidence, he would have noted
that: (1) in an interview of Evans's wife, Cynthia, a police officer told her that the
photographs "were undeveloped" and that "[t]hey had the film developed"; and (2)
during grand jury testimony, Evans's wife stated that she saw the photographs when she
spoke with the police officers.

     We question whether Evans can show deficient performance by his counsel.
Assuming that his counsel had not reviewed all of the evidence, we are not convinced

                                           -3-
that careful scrutiny of the government's materials would have led counsel to conclude
that the photographs at issue came from the undeveloped rolls of film.2 However, we
need not decide whether counsel's performance was inadequate because we find that
Evans was not prejudiced by any claimed deficient performance. See Strickland, 466
U.S. at 697 (noting that a court need not determine whether counsel's performance was
deficient before determining whether defendant was prejudiced).

      We find that Evans cannot demonstrate prejudice because a review of the record
from the six-day trial shows that there was significant evidence against him.3 At trial,
Dwight Stowe, a co-conspirator, testified that Evans helped him start a marijuana
growing operation. Evans provided grow lights and delivered marijuana plants to
Stowe. Evans also advised Stowe on treating a fungus that had attacked Stowe's
marijuana plants. Stowe also testified that after growing, cutting, trimming, drying, and
bagging the plants, he sold marijuana to Evans.

      The government presented numerous other witnesses who aided Evans's
marijuana operation or were solicited by Evans to grow marijuana. Robert Bechtol also

      2
        We think it is a stretch to conclude that an isolated statement by the police
officer would have given counsel reason to think the police developed the rolls of film.
Moreover, the grand jury testimony proves only that Cynthia Evans saw the
photographs at the police interview–not that the photographs came from the
undeveloped rolls of film.
      3
        Furthermore, there has been no showing that the photographs would have been
suppressed even if Evans had shown that they came from the undeveloped rolls.
Photographs from the undeveloped rolls may have been admissible as within the scope
of the warrant. See United States v. Williams, 623 F.2d 535 (8th Cir. 1980) (denying
motion to suppress photgraphs seized based on warrant that authorized cocaine, talwin,
and heroin as the items to be seized); State v. Petrone, 468 N.W.2d 676 (Wisc. 1991)
(denying motion to suppress because police do not need additional warrant to develop
rolls of film that were properly seized based on warrant that authorized search of
home). However, we need not reach this question.

                                          -4-
testified that Evans helped him set up a growing operation. Evans provided Bechtol
with growing lights, buckets, drip pans, and marijuana seeds, and Evans took some of
the marijuana that Bechtol produced. Ronald Dukes testified that Evans solicited him
about growing marijuana. While Dukes declined to become a grower for Evans, Dukes
did help Evans clean marijuana on 50 to 100 occasions and helped Evans sell bags of
marijuana once or twice a week for a period of about two years. Nathan Ward also
testified that Evans asked him to start a marijuana growing operation. Evans told Ward
that he would provide the lights, marijuana plants, and fertilizer. Cynthia Evans
testified that she drove Evans around while he sold marijuana and that Evans carried
marijuana in plastic bags. Cynthia also helped Evans, Ron Dukes, and Evans's brother,
Jack Evans, dry marijuana. She testified that she heard conversations between Evans
and his brother about how to divide proceeds from the marijuana sales. In view of the
substantial amount of other evidence against Evans, we find no prejudice from the
introduction of the photographs at trial.

        To prove prejudice, Evans points only to a statement at the sentencing hearing
that the pictures were "overwhelming to them [the jury] in their deliberations" and that
the jury found the photographs corroborative of Cynthia Evans's testimony. However,
this statement was made by counsel for Rhonda DeWitt, one of Evans' co-defendants,
in arguing for a lesser sentence for DeWitt. The evidence against DeWitt was thin, and
she was largely convicted on the strength of the photographs because Cynthia Evans
testified that the photographs were taken in DeWitt's kitchen. Thus, the photographs
may have been a substantial factor in corroborating the testimony of Cynthia Evans to
obtain the conviction of DeWitt, but they were not a substantial factor in the conviction
of Bruce Kelly Evans.




                                          -5-
III.   CONCLUSION

       For the foregoing reasons, the decision of the district court is affirmed.

HEANEY, Circuit Judge, dissenting.

      Nothing is more important to the public and to law enforcement than the integrity
of law enforcement officers. Their integrity should only be questioned if there is a
sound basis for so doing. Such a basis clearly exists here.

        At a hearing on defendant Bruce Kelly Evans' motion to suppress evidence, a law
enforcement officer, Sheriff Larry G. Jones, testified that in executing a search warrant
on Evans' home he found developed photographs that showed Evans with what
appeared to be illegal substances. On the basis of this testimony, the district court
denied Evans' motion to suppress these pictures and we affirmed. See United States
v. Evans, 966 F.2d 398 (8th Cir. 1992). Substantial evidence has now been presented
which indicates that the photographs were not developed until after the search. If this
is true, the bases of the opinions of the district court and this court would be obviated.
Thus, I believe we have no alternative–both for the public's protection and to preserve
the integrity of law enforcement–but to remand this case for an evidentiary hearing to
resolve the question of whether Evans' trial counsel was ineffective for failing to
investigate Evans' claim that the pictures introduced at trial were undeveloped at the
time of the search. For this reason, I respectfully dissent.

       On May 4, 1989, Jones executed a search warrant on Bruce and Cynthia Evans'
home. The warrant authorized officers to search for and seize one .22 caliber handgun,
marijuana residue, one spent bullet, any and all weapons, drug paraphernalia, and
illegal drugs. It also authorized the officers to search for and seize property that was
relevant and material as evidence in a criminal prosecution. While searching an
upstairs bedroom closet, Jones found a box of photographs. According to Jones, in this

                                           -6-
box he observed four incriminating photographs in plain view. One photograph
features a large number of marijuana plants. Another shows Evans sitting at a table
covered with marijuana plants. The other two photographs depict Evans at the same
table, displaying what the government believed to be a controlled substance.

       An inventory of items seized indicates that Jones and his fellow officers also
seized two rolls of undeveloped film. The government concedes that law enforcement
officers subsequently developed these rolls of film. Nothing in this record indicates
that the officers believed the undeveloped film would be relevant and material as
evidence in a criminal prosecution when they seized the film.

        Evans moved to suppress the incriminating photographs. At the suppression
hearing, the prosecutor advised the court that the undeveloped film contained only
family photographs, which would not be introduced at trial. The prosecutor further
stated that the incriminating photographs were developed and in plain view at the time
of the search. Evans' counsel did not challenge the government's claim, nor did he
accept the prosecutor's invitation to review evidence in the government's file. Jones
testified consistently with the prosecutor's theory of the discovery of the photographs.
On the basis of Jones' testimony, the district court denied Evans' motion, finding that
the incriminating photographs were in plain view and properly seized. Evans
subsequently was convicted. Relying on Jones' testimony, we affirmed the admission
of the photographs and Evans' conviction. See United States v. Evans, 966 F.2d 398
(8th Cir. 1992).

      In this § 2255 action, Evans argues that his trial counsel was deficient for not
accepting the prosecutor's invitation to review the government's file of evidence. Evans
contends that if counsel had done so, he would have recognized that the incriminating
photographs introduced at trial were unconstitutionally seized and thus inadmissible.




                                          -7-
       Evans argues that a June 5, 1989 interview of Evans' wife, Cynthia, by Officers
Jim Cullen and Donnie Powell, and Ms. Evans' grand jury testimony tend to show that
the incriminating photographs were in fact undeveloped at the time of the search and
were subsequently developed by the government.

       On June 5, 1989, Cullen and Powell interviewed Cynthia Evans. While showing
her some photographs, Cullen said, "[t]hese here Cindy. They was evidently, they were
undeveloped. They had the film developed. Can you tell us where them's taken?"
(Appellant's App. at 98.) Ms. Evans replied that the photographs were taken at Rhonda
Dewitt's house. At that point, Cullen noted that the photographs show a porcelain
table, and he asked Ms. Evans whether Dewitt had such a table. Ms. Evans replied that
Dewitt did.

        The incriminating photographs introduced at trial show Bruce Evans at Dewitt's
house. Three of the photographs depict Evans behind what appears to be a porcelain
table. Based on the similarities between the pictures that Cullen describes in his
interview with Ms. Evans and the incriminating photographs introduced at trial, it
appears that they are one and the same–that is, the photographs introduced at trial were
undeveloped when seized. Thus, the photographs could not have been in plain view
at the time of the search.

       Cynthia Evans' grand jury testimony further convinces me that the photographs
introduced at trial were the ones Cullen stated were undeveloped when seized. While
testifying, Ms. Evans was shown a photograph. The following exchange occurred:

      Q:     Okay. I show you what we've marked as Grand Jury Exhibit 4 and
      ask if you can identify that.
      A:     That's Bruce at Ronda's [sic] house.
      Q:     Okay. Were you there when that picture was taken?
      A:     No.
      Q:     Okay. How do you know it's Ronda's [sic] house?

                                          -8-
      A:     I can tell it's her house. I've seen it.
      Q:     Okay.
      A:     I seen the picture after it was taken.
      Q:     Where did you see the picture after it was taken?
      A:     When I talked to Donnie Powell and Jim Cullen last summer.

(Appellant's App. at 150-51.)

       It appears from Ms. Evans' testimony that Grand Jury Exhibit 4 was one of the
photographs shown to her by Cullen on June 5th. It is clear that when Ms. Evans states
she was shown Exhibit 4 while talking with Cullen and Powell that she is talking about
her June 5 interview. The only photographs she was shown during the interview were
the ones Cullen stated were undeveloped. Moreover, it appears that this same
photograph was one of the incriminating photographs introduced against Evans at trial,
as the prosecutor's description of Exhibit 4 closely matches the description of one of
the photographs introduced at trial.4

       At the very least, there is more than sufficient evidence to entitle Evans to an
evidentiary hearing on whether the photographs introduced at trial were undeveloped
when seized. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995) ("A
prisoner is entitled to an evidentiary hearing on a section 2255 motion unless the
motion, files and records of the case conclusively show that the prisoner is not entitled
to relief."). Because the records here do not conclusively show that Evans is not
entitled to relief, Evans must receive an evidentiary hearing.




      4
      Specifically, the prosecutor, referencing the photograph, asks Ms. Evans,
“Okay. That's Bruce? . . . Would he wear disguises from time to time, or was he just
clowning around?” (Appellant's App. at 151.) Similarly, one of the incriminating
photographs introduced at trial shows Evans disguising his face with a bandana.

                                          -9-
       The majority apparently does not contest the fact that the photographs may have
been undeveloped when seized. Rather, they question whether Evans' counsel was
deficient by failing to review the government's evidence, and conclude that even if
counsel was deficient, Evans was not prejudiced because “there was significant
evidence against him.” Ante at 4. I disagree.

       It is clear to me that Evans' counsel was deficient if he did not take advantage
of the government's offer to view the evidence in its file, because even a cursory review
of that evidence would have raised serious questions as to whether the incriminating
photographs were undeveloped when seized. The majority considers it “a stretch to
conclude that an isolated statement by the police officer would have given counsel
reason to think the police developed the rolls of film.” Ante at 4 n.2. I disagree. The
officer's statement is quite clear: “These here Cindy. They was evidently, they were
undeveloped. They had the film developed.” (Appellant's App. at 98.) Moreover,
these statements by Officer Cullen are not buried deep within some obscure document.
Rather, they are in the first transcribed paragraph on the first page of the Cynthia Evans
interview, making them quite easy to find if counsel would have taken the time to
review the government's evidence.

       As to prejudice, if the incriminating photographs were undeveloped at the time
of the search and developed later by the government, in my view Evans would be
entitled to relief. The admission of the photographs at trial was based on the plain view
exception to the warrant requirement. See Evans, 966 F.2d at 400. The plain view
exception also served as our basis for affirming the admission of these photographs.
See id. However, if the incriminating photographs were undeveloped at the time of the
search, their incriminating nature would not have been apparent, let alone immediately
so. See Horton v. California, 496 U.S. 128, 136 (1990) (“[N]ot only must the item be
in plain view; its incriminating nature must also be immediately apparent.” (internal




                                          -10-
quotation omitted)). Thus, the plain view exception would have been inapplicable, and
no basis would have existed for admitting the incriminating photographs.5


      5
         In dicta, the majority opines that the photographs, even if not in plain view, may
still have been admissible. For authority, the majority cites two cases, one from our
circuit, United States v. Williams, 623 F.2d 535 (8th Cir. 1980) (per curiam), and one
from the Supreme Court of Wisconsin, State v. Petrone, 468 N.W.2d 676 (Wis. 1991).
Neither supports its proposition.
        In Williams, the photographs in question were already developed and in plain
view at the time of seizure. They depicted the defendant wearing jewelry that was
found in a box along with cocaine. Thus, the photographs tended to associate the
defendant with the cocaine because in them he was wearing jewelry found with the
contraband. We held that the photographs, although not enumerated as items to be
seized in the warrant, were admissible because there was a logical nexus between the
photographs and the defendant's criminal behavior. See Williams, 623 F.2d at 536.
        In Petrone, the warrant specifically authorized the seizure of “all camera, film,
or photographic equipment used in the taking, processing and development of
photographic pictures.” 468 N.W.2d at 678. The Wisconsin Supreme Court held that
undeveloped film was included in this warrant, and thus the seizure of undeveloped film
was not beyond the scope of the warrant. See id. at 679-80.
        Evans' case cannot be analogized to either Williams or Petrone. The government
has not argued, and no case to my knowledge has ever held, that a sufficient nexus
exists between criminal drug activity and undeveloped film to allow officers, without
a warrant's authority, to seize undeveloped film as evidence of criminal activity.
Moreover, unlike the warrant in Petrone, the warrant here did not expressly authorize
the seizure of film.
        Thus, I adhere to the well-grounded proposition that if law enforcement officers,
without a warrant's authorization, seize undeveloped film and subsequently develop the
photographs, they would be inadmissible at the defendant's trial. See Walter v. United
States, 447 U.S. 649, 656 (1980) (plurality opinion) (“When an official search is
properly authorized–whether by consent or by the issuance of a valid warrant–the
scope of the search is limited by the terms of its authorization.” (footnote omitted));
Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 394 n.7
(1971) (“[T]he Fourth Amendment confines an officer executing a search warrant
strictly within the bounds set by the warrant . . . .”); Marron v. United States, 275 U.S.
192, 196 (1927) (“The requirement that warrants shall particularly describe the things

                                           -11-
        I disagree with the majority's suggestion that constitutionally deficient
representation of a defendant is rendered nonprejudicial where there is other
“significant evidence against him.” Ante at 4. In concluding that Evans would have
been convicted even without the admission of the incriminating photographs, the
majority engages in speculation unsupported by the record or the law of this circuit.
To prevail on an ineffective assistance of counsel claim, Evans “need not show that he
could not have been convicted. Instead, he need only undermine our confidence in the
trial's outcome.” Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir. 1993). If, but for
counsel's deficient performance, there is a reasonable probability that the result of the
proceeding might have been different, Evans is entitled to relief. See Voytik v. United
States, 778 F.2d 1306, 1310 (8th Cir. 1985). As the above cases demonstrate, our
court recognizes when we find some evidence to have been inadmissible, often other
evidence remains against a defendant. Therefore, we do not require a defendant to
completely exonerate himself in order to prevail in a collateral challenge to a
conviction. I know of no case in our circuit holding that a §2255 movant will be denied
relief any time there is other “significant evidence” against him, and am troubled by the
majority's failure to cite any authority for this broad proposition.

       Although other evidence was introduced against Evans at trial, the record
indicates that the photographs were the most damaging. The prosecutor referenced the
pictures as evidence of guilt in both his opening statement and his summation. At the
sentencing hearing, an attorney who polled the jurors stated, "I know from talking to
the jurors that the pictures were overwhelming to them in their deliberations . . . ."
(Appellant's App. at 227.) Even the district court agreed that the pictures corroborated


to be seized makes general searches under them impossible and prevents the seizure
of one thing under a warrant describing another. As to what is to be taken, nothing is
left to the discretion of the officer executing the warrant.”); United States v. Robbins,
21 F.3d 297, 300 (8th Cir. 1994) (“The general rule, of course, is that police may only
seize items described in the search warrant, absent an exception to the warrant
requirement.”).

                                          -12-
Cynthia Evans' damaging testimony. This is noteworthy because Ms. Evans' credibility
was in question: all charges against her for her involvement in the conspiracy and for
her attempted murder of Bruce Evans were either dismissed by the government or never
filed. Accordingly, if Evans' claims are true, the introduction of the incriminating
photographs clearly prejudiced his defense.

      It seems clear to me that this dispute could be resolved quite efficiently through
an evidentiary hearing. At that hearing, the government could simply produce the
negatives from the rolls of film it developed. Because the government will only have
negatives for the rolls of film that it developed, and not for previously developed
photographs, such a hearing could indisputably put to rest this issue. If those negatives
show the family pictures that the government claims it developed, then Evans has not
been prejudiced by his counsel's performance and his ineffective assistance of counsel
claim would fail. However, if the negatives depict, as Evans claims, the same
photographs introduced against him at trial, he is entitled to relief. The matter is
especially important because the integrity of law enforcement officers is at issue. The
prosecutors should be as interested in resolving the question of whether the
photographs were undeveloped when seized (and accordingly, whether law
enforcement officers lied to the courts) as the defendant. I would remand to district
court with instructions to conduct an evidentiary hearing.

      A true copy.

             Attest.

                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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