Eddie Keeper v. United States ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3484
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Eddie Keeper, *
*
Appellant, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
United States of America, * [UNPUBLISHED]
*
Appellee. *
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Submitted: October 21, 2002
Filed: November 4, 2002
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Before WOLLMAN, FAGG, and BEAM, Circuit Judges.
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PER CURIAM.
In 1993, Eddie Keeper was convicted of possession of heroin with the intent
to distribute and conspiracy to distribute heroin in violation of 21 U.S.C. §§ 841 and
846 (2000). He was sentenced to 240 months in prison. Keeper now appeals the
district court’s* denial of his 28 U.S.C. § 2255 petition for habeas relief, raising five
claims.
*
The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
Before reviewing Keeper’s claims, we first address the state’s motion to
dismiss because this case lacks a certificate of appealability. Because Keeper first
filed his habeas claim in 1995 before the Antiterrorism and Effective Death Penalty
Act (AEDPA) was enacted, his appeal is not subject to the certificate of appealability
requirement. United States v. Navin, 172 F.3d 537, 539 (8th Cir. 1999). Having
resolved this threshold issue, we now turn to Keeper’s arguments.
Because Keeper’s first four claims for habeas relief were not raised on direct
appeal, we will grant habeas relief only if we find both cause for Keeper’s failure to
raise the defaulted arguments on direct appeal and actual prejudice resulting from this
procedural default. Swedzinski v. United States, 160 F.3d 498, 500-01 (8th Cir.
1998). First, Keeper argues the government failed to properly indict him. Second,
Keeper contends the superseding indictment violated the Speedy Trial Act, 18 U.S.C.
§ 3161 (2000). Third, Keeper asserts the government presented evidence at trial
which violated the Fourth Amendment because the evidence was derived from an
illegal search and arrest. Fourth, Keeper argues the government failed to disclose
favorable evidence in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963).
Having reviewed the record, we reject these procedurally defaulted claims based on
Keeper’s failure to assert habeas-based cause and prejudice in the district court, or
before our court. Even if Keeper could show cause, though, his claims would fail
because he has not suffered actual prejudice.
Finally, we turn to Keeper’s ineffective assistance argument. Because this
argument is properly raised in a habeas petition and is not subject to procedural
default, we review the district court’s findings of fact for clear error, and its
conclusions of law de novo. Collins v. Dormire, 240 F.3d 724, 727 (8th Cir. 2001)
(standard of review). To prevail on an ineffective assistance claim, Keeper must
establish both cause and prejudice resulting from his attorney’s actions under the
standard established in Strickland v. Washington, 466 U.S. 668, 687 (1984). Having
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reviewed the record and the district court’s opinion, we conclude Keeper has
established neither cause nor prejudice resulting from his attorney’s alleged errors.
For the reasons stated above, we deny the government’s motion to dismiss the
habeas petition, and having concluded the district court properly denied Keeper’s
petition for habeas relief, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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