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Lowry v. Lewis

filed: April 7, 1994.

BRUCE FOY LOWRY, PETITIONER-APPELLANT,
v.
SAMUEL LEWIS, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the District of Arizona. D.C. No. CV-90-00927-CAM. C. A. Muecke, District Judge, Presiding.

Before: Cecil F. Poole, Robert R. Beezer and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Kleinfeld.

Author: Kleinfeld

KLEINFELD, Circuit Judge:

Lowry claims ineffective assistance of counsel because his lawyer did not move to suppress evidence. We reject his claim.

I. Facts

An Arizona state prisoner told the prison warden that a number of his fellow inmates in cell block 6, the administrative segregation unit, planned a violent riot. The plan was to stab an inmate in order to lure a number of guards into the unit. The guards would then be deluged with bombs made from blasting caps, shrapnel, and about a pound of explosives. The informant claimed the inmates kept contraband "keestered" in their rectums. He had decided to "snitch" and request a transfer when he learned "through the vent" that he was to be the inmate stabbed. He corroborated his story by expelling from his own rectum a balloon filled with gun powder.

The prison authorities arranged for searches of prisoners' rectums in the cell block. Fifteen inmates were taken from their cells. A medical assistant (wearing a new lubricated glove for each inmate) stuck his finger in each inmate's rectum. Then each inmate was moved to the medical facility in the unit and probed again, this time by a doctor. The doctor felt something in Lowry's rectum, had him x-rayed, and confirmed that a foreign object was there. Lowry was ordered to expel it, and he removed from his rectum a syringe wrapped in cellophane. The doctor probed him again, decided there was more, and Lowry expelled a red balloon filled with methamphetamine.

Lowry was convicted in state court of promoting prison contraband and possessing dangerous drugs. This case is his appeal of the denial of his habeas corpus petition. He claims that he was denied effective assistance of counsel because his lawyer in the state contraband case did not file a motion to suppress the syringe and methamphetamine. Lowry contends that the evidence would have been suppressed because the manner in which the search was conducted violated his constitutional rights.

The ACLU had filed a lawsuit on behalf of the prisoners under 42 U.S.C. § 1983, claiming that the searches of their rectums violated the prisoners' civil rights.*fn1 Counsel for Lowry knew about the suit, and knew his client was claiming in the civil suit that the manner of the search violated his constitutional rights.

Lowry's attorney did not file a motion to suppress the evidence from the rectal search in the criminal case. He had done legal research in other cases on the issues upon which his motion to suppress in this case would depend. He also talked to lawyers representing inmates in the other criminal cases based on evidence found in their rectums from the same cell-block search. Seven of the fifteen inmates searched had contraband in their rectums, including gun powder and blasting caps. See State v. Bloomer, 156 Ariz. 276, 751 P.2d 592, 594 (Ariz. Ct. App. 1987); State v. Palmer, 156 Ariz. 315, 751 P.2d 975, 976 (Ariz. Ct. App. 1987). Lawyers for the other inmates told Lowry's attorney that the motions to suppress filed in the other cases had all lost. Lowry's lawyer decided that a suppression motion would have no reasonable probability of success, so he did not prepare and file one.

II. Analysis

We have jurisdiction pursuant to 28 U.S.C. § 2254. The magistrate's findings of fact, adopted by the district court, have not been put at issue. We review the legal issues on denial of habeas corpus petitions de novo. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir. 1992) (en banc).

To demonstrate ineffective assistance of counsel, Lowry must establish deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 688-93, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); United States v. Garcia, 997 F.2d 1273, 1283 (9th Cir. 1993). He did not, so we affirm.

Lowry has not demonstrated that his lawyer's performance fell below the Strickland standard of "reasonable professional judgment," or that the lawyer's decision not to file a motion to suppress was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. The lawyer's judgment was vindicated by the results in related cases. All the motions to suppress lost, and all the appeals challenging the denials of the motions to suppress lost. See State v. Palmer, 156 ...


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