* After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The case therefore is ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 26 2003 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. LARRY SALAZAR, Defendant - Appellant. No. 02-8048

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING (D.C. Nos. 01-CV-73-D and 99-CR-136-D)

Submitted on the briefs: * Patrick J. Crank, Assistant United States Attorney (and Matthew H. Mead, United States Attorney, on the brief), Casper, Wyoming, fo r Plaintiff - Appellee. Thomas B. Jubin, Jubin & Zerga, L.L.C., Cheyenne, Wyoming, for Defendant - Appellant.

Before EBEL , KELLY , and MURPHY , Circuit Judges.

KELLY , Circuit Judge.- 2 -

Defendant-Appellant Larry Salazar appeals the distr ict court’s dismissal of his federal habeas petition brought pursuant to 28 U.S.C. § 2255. The district court granted a certificate of appealability (“COA” ), finding that Petitioner had made a “substantial showing of the denial of a cons titutional right” as required by 28 U.S.C. § 2253(c)(2). We have jurisdiction pursu ant to 28 U.S.C. § 1291, and we affirm.

Background Following wiretap surveillance by Wyoming authoriti es during late 1998 and early 1999 of suspected manufacturers and distr ibutors of methamphetamine, Mr. Salazar was charged with (1) conspiracy to poss ess with intent to distribute, and to distribute, methamphetamine, cocaine, and ma rijuana, (2) possession with the intent to distribute methamphetamine and aiding and abetting the same, and (3) use of a communication facility to facilitate afelony drug offense. II R. Doc. 26. In exchange for dismissal of counts two and th ree, Mr. Salazar pled guilty to count one (conspiracy to possess with the intent to distribute, and to distribute, methamphetamine, cocaine, and marijuana in violatio n of 18 U.S.C. §§ 841(a)(1) and (b)(1)(A)-(C)). II R. Doc. 58. Also in exchan ge for his guilty plea, Mr. Salazar avoided imposition of the 240 month minimummandatory sentence (based- 3 -

on a prior conviction) and received a sentence of 1 58 months imprisonment to be followed by a 5 year period of supervised release. II R. Doc. 131. Mr. Salazar subsequently learned that the Wyoming w iretap statute under which several warrants were obtained had expired in1995 pursuant to a sunset provision in the statute. The official publisher o f the Wyoming Statutes at the time of Mr. Salazar’s conviction, LEXIS Law Publish ing (formerly Michie), had deleted the annotation reference to the sunset prov ision and published the wiretap statute as if it were Wyoming law. In 2001, Mr. Salazar filed a motion pursuant to 18 U.S.C. § 2255 to vacate his conviction and sentence, alleging that both his indictment and conviction were based upon illegally obtained evidence. The distri ct court denied the motion on April 30, 2002, but granted a COA in July of 2002. On appeal, Mr. Salazar raises three issues: (1) the evidence obtained based upon an illegal wiretap must be suppressed, (2) his guilty plea does not waive his right to challenge the evidence, and (3) Defendant was deprived of his Sixth Amendme nt right to effective assistance of counsel.

Discussion Because the district court granted a COA, the merit s of Mr. Salazar’s appeal are properly before this court. See 28 U.S.C. § 2253(c)(1)(B) (providing- 4 -

that a defendant may not appeal the denial of a § 2 255 motion unless he first obtains a COA); Miller-El v. Cockrell , —S. Ct.—, 2003 WL 431659, at *13 (2003) (stating that “the Court of Appeals ha[s] no jurisdiction to resolve the merits of petitioner's constitutional claims” apartfrom a COA). This court reviews the district court's legal rulings on a § 2 255 motion de novo and its findings of fact for clear error. United States v. Wiseman , 297 F.3d 975, 978 (10th Cir. 2002). A. Suppression of Evidence The government recites a host of arguments for the view that the alleged violation of Mr. Salazar’s Fourth Amendment and fed eral statutory rights does not require that his indictment be dismissed and his co nviction and sentence be vacated, including novel applications of federal st atutory preemption of the wiretapping field and the exceptions for good faith reliance on a warrant and inevitable discovery. These arguments in the gover nment’s brief are unnecessary, however, for this case can be resolved on the strai ghtforward grounds that Mr. Salazar’s suppression claim is procedurally barred or, in the alternative, his unconditional guilty plea effectively waived any ch allenge to the legality of the wiretaps. As an initial matter, motions to suppress must be m ade prior to trial or they are waived, subject to a district court’s granting relief from the waiver for cause- 5 -

shown. Fed. R. Crim. P. 12(b)(3), (f). The failur e to raise this suppression issue before trial and on direct appeal means that Mr. Sa lazar must demonstrate cause excusing his procedural default and actual prejudic e resulting from the claimed error or a fundamental miscarriage of justice (the conviction of someone who is factually innocent). Bousley v. United States , 523 U.S. 614, 622-23 (1998); United States v. Frady , 456 U.S. 152, 167-68 (1982). Cause must be some objective factor external to the defense and not attributable to a defendant, such as interference by government officials making comp liance with the relevant procedural rules impracticable or a showing that th e factual or legal basis of the claim was not reasonably available to counsel. McC leskey v. Zant , 499 U.S. 467, 493-94 (1991). Of course, cause may be shown by in effective assistance of trial or appellate counsel. Murray v. Carrier , 477 U.S. 478, 491-92 (1986). Mr. Salazar argues that his suppression claim is no t procedurally barred because his counsel never informed him of the defec tive statute, and the defect came to light months after he had been sentenced. Aplt. Reply Br. at 8-9. He also argues that his ineffective assistance of coun sel claim and the resulting prejudice defeats the government’s procedural bar argument. Id. at 9. Essentially, Mr. Salazar’s claim is one of attorney error, but “[a]ttorney error short of ineffective assistance of counsel . . . do es not constitute cause and will not excuse a procedural default.” McCleskey , 499 U.S. at 494. We reject Mr.- 6 -

Salazar’s ineffective assistance of counsel claim b elow, and he has not shown factual innocence. This claim is procedurally barr ed. In the alternative, it is well established that a v oluntary and unconditional guilty plea waives all non-jurisdictional defenses. See United States v. Hawthorne , 316 F.3d 1140, 1145 (10th Cir. 2003); United Stat es v. Davis , 900 F.2d 1524, 1525-26 (10th Cir. 1990). As summarizedby the Supreme Court: [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defend ant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independentclaims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he recei ved from counsel was not [competent]. Tollett v. Henderson , 411 U.S. 258, 267 (1973). See also Mabry v. Johnson , 467 U.S. 504, 508 (1984) (“It is well settled that a vo luntary and intelligent plea of guilty made by an accused person, who has been advi sed by competent counsel, may not be collaterally attacked.”); United States v. Floyd , 108 F.3d 202, 204 (9th Cir. 1997) (“An unconditional guilty plea constitutes waiver of the right to app eal all non-jurisdictional antecedent rulings and cures all antecedent constitutional defects.”) (emphasis in original). The district co urt here found that Mr. Salazar’s plea was voluntary and intelligent, II R. Doc. 221 at 8, n.4, and Salazar did not–as he might have pursuant to Fed. R. Crim. P. 11(a)(2) –attempt to enter a conditional plea and thereby preserve his right to appeal.- 7 -

In addition to his inability to attack collaterally his conviction and sentence following a guilty plea, Mr. Salazar’s argument that the grand jury’s indictment must be dismissed based upon alleged defects in the evidence used by the grand jury is similarly unavailing. Whether the alleged defect in the grand jury’s indictment is a result of violation of the Fourth A mendment or of 18 U.S.C. § 2515 (“no part of the contents of such [intercepted wire or oral] communication and no evidence derived therefrom may be received i n evidence in any trial, hearing, or other proceeding in or before any court[or] grand jury . . . .”), “improper use of tainted evidence in the grand jury proceeding,” Aplt. Br. at 18, is not, contrary to Mr. Salazar’s assertion, a juri sdictional defense. The Supreme Court has squarely held that defects in an indictme nt are not “jurisdictional,” United States v. Cotton , 122 S. Ct. 1781, 1785 (2002) (“[D]efects in an indictment do not deprive a court of its power to a djudicate a case.”), and, regardless, the Fourth Amendment exclusionary rule does not apply to grand jury proceedings. United States v. Calandra , 414 U.S. 338, 349-52 (1974). Mr. Salazar also argues that the § 2515 admissibili ty prohibition is analogous to that found in 18 U.S.C. § 6002, concerning restrictions on immunized testimony or information, and requires th e government to prove that evidence it uses is not linked or tainted by immuni zed testimony or information. Aplt. Br. at 12 (citing United States v. Hubbell , 530 U.S. 27 (2000), and Kastigar- 8 -

v. United States , 406 U.S. 441 (1972)). Though important rights may be vindicated in a suppression hearing under § 2515, o r a Kastigarhearing under § 6002, neither statute imposes a jurisdictional ba r on prosecutions. B. Ineffective Assistance We turn, then, to Mr. Salazar’s claim of ineffectiv e assistance of counsel, which relates to his claim that his plea was not kn owing and voluntary, and he should be allowed to pursue his suppression claim. A claim of ineffective assistance of counsel is a mixed question of law an d fact which we review de novo. Fisher v. Gibson , 282 F.3d 1283, 1290 (10th Cir. 2002). Mr. Salazar must demonstrate deficient performance and prejudice. H e must show that his counsel made “errors so serious” that his performance couldnot be considered “reasonable[] under prevailing professional norms.” Strickland v. Washington , 466 U.S. 668, 687-88, 695 (1984). Prejudice in the guilty plea context requires Mr. Salazar to establish that “there is a reasonabl e probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52, 59 (1985). The district court was willing to assume that there was deficient performa nce on someone’s part, but concluded that Mr. Salazar could not prove prejudic e because the wiretap evidence would have been admitted under the good fa ith exception to the exclusionary rule. We resolve the claim on the abs ence of deficient performance.- 9 -

At first glance, Mr. Salazar’s counsel’s failure to note that the statute pursuant to which a warrant had been obtained that resulted in his client’s indictment had expired seems deficient. Nonetheles s, “[t]he reasonableness of counsel’s performance is to be evaluated from couns el’s perspective at the time of the alleged error and in light of all the circumsta nces.” Kimmelman v. Morrison , 477 U.S. 365, 381 (1986). In this case, it is diff icult to see how, as the government states it, one can allege ineffective as sistance of counsel based upon a failure to challenge the warrant when “the Wyomin g Attorney General’s Office, several state district court judges, the Wyoming Supreme Court, the United States District Court for the District of Wyoming, dozens of defense attorneys, the Wyoming Legislature, the United States Attorney’s O ffice, and the Natrona County District Attorney’s Office” also failed to n otice the expiration of the statute. Aplee. Br. at 48-49. Though it might be good practice after this case, we doubt that prevailing professional norms require a review of all session laws implicated in a prosecution. Thus, without even ad dressing the issue of prejudice (i.e., whether the evidence obtained would have bee n admitted even had the error been discovered), we are unable to find that Mr. Sa lazar’s counsel provided incompetent advice. Because Mr. Salazar’s counsel was not ineffective s o as to deprive Mr. Salazar of his Sixth Amendment rights and thereby r ender his guilty plea- 10 -

involuntary, our conclusion reached in Part A–that a voluntary and intelligent guilty plea waives all nonjurisdictional defenses–f ollows. For the foregoing reasons, the district court’s den ial of Mr. Salazar’s § 2255 petition by the district court is AFFIRMED.