* District Judge of the Western District of Louisiana, sitting by

designation.

 

** Pursuant to 5TH CIR. R. 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opinion should not be published and is not precedent except under the limited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. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-20179

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MODESTO RIOS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CV-1460)

August 5, 1999

Before JONES and WIENER, Circuit Judges, and WALTER,* District

Judge.

PER CURIAM:**

Modesto Rios petitions this court for habeas relief

pursuant to 28 U.S.C. § 2255. Finding no error, we affirm the

district court’s grant of summary judgment in the government’s

favor.

I. CONVICTION

Rios was charged with aiding and abetting the possession

with intent to distribute more than five kilograms of cocaine,

conspiracy to possess with intent to distribute more than five
2

kilograms of cocaine, and aiding and abetting the commission of

money laundering. At trial, Rios moved to suppress certain

evidence seized when the police entered and searched the Hillcroft

apartment in Houston during the course of the underlying criminal

investigation. When the district court denied his motion to

suppress, Rios entered a conditional guilty plea to the conspiracy

and money laundering counts. Under the plea agreement, Rios

preserved the right to appeal the denial of his motion to suppress.

Initially, Rios failed to file a timely notice of appeal.

Although the district court granted an extension of time to perfect

direct appeal, this court reversed the district court’s extension,

noting that 28 U.S.C. § 2255 provided the sole basis for Rios’s

relief.

II. HABEAS HISTORY

On April 15, 1991, Rios filed a motion under § 2255, and

the district court granted relief in the form of an out-of-time

appeal and dismissed the § 2255 motion. In his out-of-time appeal,

Rios challenged the police search of the apartment for lack of

probable cause. Rios’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396 (1967), informing the

court that its decision in United States v. Naboyan, 917 F.2d 562

(5th Cir. 1990) (table), controlled the case. Naboyan was Rios’s

co-conspirator and had argued unsuccessfully in his direct appeal

that no probable cause existed for the issuance of the warrant to

search the Hillcroft apartment. This court dismissed Rios’s

appeal.
 

1 Even under the government’s theory that Rios placed his motion in the

mail on December 8, 1997, his motion was timely filed. From November 25, 1997,

excluding intermediate holidays (Thanksgiving, November 26, 1997) and weekends,

Rios had until December 10, 1997 to file a timely motion for reconsideration

under Fed. R. Civ. P. 59(e). See Fed. R. Civ. P. 6(a).

3

On May 8, 1996, Rios filed another habeas petition in the

district court. Under In re Gasery, 116 F.3d 1051, 1052 (5th Cir.

1997), this petition constituted Rios’s first petition for habeas

relief. On November 25, 1997, the district court dismissed Rios’s

claims, granting the government’s motion for summary judgment. On

December 5, 1997, Rios placed his motion for reconsideration in the

prison mail system.1 This timely mailing suspended the time within

which Rios was required to file his notice of appeal. See Sonnier

v. Johnson, 161 F.3d 941, 945 (5th Cir. 1998) (citing Houston v.

Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988)).

Following the district court’s denial of reconsideration,

Rios timely appealed to this court. This court granted a

certificate of appealability (“COA”) to address Rios’s ineffective

assistance of counsel claim, based on counsel’s failure to object

at the suppression hearing to evidence seized allegedly in

violation of the Fourth Amendment’s and 18 U.S.C. § 3901’s “knock

and announce” rule. See Wilson v. Arkansas, 514 U.S. 927, 934, 115

S. Ct. 1914, 1918 (1995).

III. ANALYSIS

Because Rios’s appeal was filed timely, we review the

district court’s grant of summary judgment de novo, applying the

same standards as the district court. See United States v. Kimler,

167 F.3d 889, 892 (5th Cir. 1999). Under the Antiterrorism and
 

2 Although Rios’s petition for habeas relief was signed on April 23,

1996, one day before AEDPA’s effective date, Rios has presented no evidence that

the petition was placed in the prison mailing system prior to April 24, 1996.

Lacking such evidence, Rios’s petition is subject to AEDPA’s COA requirement as

the petition was filed in the district court on May 8, 1996.

4

Effective Death Penalty Act (“AEDPA”), our review is limited to

issues for which a COA has been granted. See 28 U.S.C. § 2253.2

Accordingly, we review only Rios’s argument that his counsel’s

assistance was ineffective based on his failure to object to the

admission of evidence seized in alleged violation of the Fourth

Amendment’s and § 3901’s “knock and announce” rule.

A claim of ineffective assistance of counsel is governed

by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

To prevail on an ineffective assistance claim, a petitioner must

show both deficient performance by counsel and prejudice to the

defense as a result of the deficient performance. See id. at 687,

104 S. Ct. at 2064. Counsel’s performance is deficient if it falls

below an objective standard of reasonableness. See id. at 688, 104

S. Ct. at 2064. Our review of counsel’s performance is highly

deferential, with a strong presumption that the performance was

reasonable. See id. at 689, 104 S. Ct. at 2065. Deficient

performance is prejudicial only upon a showing that but for

counsel’s errors, there is a reasonable probability that the

ultimate result would have been different and that confidence in

the reliability of the verdict is undermined. See United States v.

Faubion, 19 F.3d 226, 228 (5th Cir. 1994). The effectiveness of

counsel is a mixed question of law and fact reviewed de novo by
5

this court. See Moody v. Johnson, 139 F.3d 477, 483 (5th Cir.

1998).

Counsel’s failure to object to the admission of the

evidence seized from the apartment on Hillcroft did not prejudice

Rios’s defense. First, in his capacity as a social guest, Rios had

no legitimate expectation of privacy in the Hillcroft apartment.

See Minnesota v. Carter, ___ U.S. ___, ___, 119 S. Ct. 469, 472-74

(1998). Though Rios now claims that the Hillcroft apartment was

his residence and the district court apparently so found at the

suppression hearing, Rios subsequently admitted in his presentence

report that he did not actually reside at the Hillcroft apartment

and that he had only been at the apartment ten minutes before the

officers executed the search warrant. Cf. id. Second, even if

Rios had an expectation of privacy, he has offered no evidence

tending to establish that the officers who executed the search

warrant actually violated the “knock and announce” rule. The only

support for his claim is the suppression hearing testimony of

Naboyan who testified, (1) that the officers had a warrant when

they entered the apartment, (2) that he did not give the officers

permission to enter, and (3) that, without permission, the officers

effected a forcible entry. There is no evidence in Naboyan’s

testimony and, most importantly, Rios offers no other evidence to

support a finding that the “knock and announce” rule was actually

violated. See United States v. Moser, 123 F.3d 813, 824 (5th Cir.

1997) (placing burden on proponent to show that unannounced entry

actually occurred). While counsel’s failure to elicit “knock and
6

announce” testimony during the suppression hearing may have

constituted deficient performance, absent some evidentiary showing

regarding the potential prejudice of counsel’s error, beyond Rios’s

conjecture, no habeas relief is available. By resting on his

pleadings, Rios has failed to submit sufficient evidence to avoid

summary judgment.

AFFIRMED.