USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1374
STEPHEN TED KNIGHT,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
Arthur R. Silen for appellant.
_______________
Margaret D. McGaughey, Assistant United States Attorney, with
______________________
whom Jay P. McCloskey, United States Attorney, was on brief for the
________________
United States.
____________________
October 20, 1994
____________________
CAMPBELL, Senior Circuit Judge. Petitioner
______________________
Stephen Knight appeals from a district court order denying
his motion under 28 U.S.C. 22551 to correct his federal
sentence of 78 months in prison and his fine of $15,000. We
affirm.
I.
On May 25, 1990, Knight waived indictment and
pleaded guilty to a four-count federal information. The
information alleged that Knight had participated in a cocaine
conspiracy, had sold marijuana on two occasions, and had
possessed cocaine with intent to distribute.
The presentence investigation report (PSI),
prepared by a probation officer, provided information about
Knight's criminal history and financial status. The PSI
indicated that several months earlier Knight had pleaded
guilty to state drug violations, stemming from a June 1989
____________________
1. 28 U.S.C. 2255 provides:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right
to be released upon the ground that the sentence
was imposed in violation of the Constitution or
laws of the United States, or that the court was
without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the
sentence.
28 U.S.C.A. 2255 (1994).
-2-
2
arrest in Maine. For these offenses, Knight had been
sentenced in state court to five years in prison.
After a hearing, the federal district court
sentenced Knight on August 24, 1990 to 96 months in prison
and imposed a $15,000 fine. In calculating the sentence, the
court added three points to Knight's criminal history score
because of the prior state sentence, in accordance with
U.S.S.G. 4A1.1(a). The addition of these three points
raised the applicable sentencing range from 63-78 months to
78-97 months. The district court imposed a sentence near the
top of the latter range although, later, in August 1993, it
reduced the sentence to 78 months, on motion of the
government pursuant to Fed. R. Crim. P. 35(b). Knight did
not appeal from his federal sentence.
In October of 1992, Knight brought this separate
proceeding in the district court under 28 U.S.C. 2255,
collaterally attacking his federal sentence. Following an
evidentiary hearing, a magistrate judge recommended that
Knight's motion be denied. After considering the matter de
__
novo, the district court denied Knight's 2255 motion. This
____
appeal followed.
II.
A. Claims of Error under Sentencing Guidelines
___________________________________________
Knight argues that it was error for the sentencing
court to add three points to his criminal history score on
-3-
3
account of his prior state sentence. Under U.S.S.G.
4A1.1(a), a sentencing judge must add three points for each
prior sentence of imprisonment exceeding one year and one
month. U.S.S.G. 4A1.2(a)(1) defines a "prior sentence" as:
"any sentence previously imposed upon adjudication of guilt,
whether by guilty plea, trial, or plea of nolo contendere,
for conduct not part of the instant offense" (emphasis
____________________________________________
added). Knight argues that the state offenses for which he
was previously sentenced were "part of the instant offense,"
hence should not have been counted toward his criminal
history score. Knight says the state and federal offenses
were all part of a common scheme or plan involving the same
individuals and occurring over roughly the same time period.
Accordingly, he argues, the state sentence of imprisonment
should not have been counted in figuring his criminal history
score.2
____________________
2Knight did not specifically argue below, as he does
here, that the sentencing court committed error in failing to
find that the state and federal offenses were related.
Rather, Knight argued that his counsel at sentencing rendered
ineffective assistance by failing to point out that the
offenses were related. Both the magistrate and district
court found that counsel's conduct did not constitute
ineffective assistance, since Knight had not shown a
reasonable possibility that this argument would have
succeeded or result in a lower sentence. Knight now appears
to have abandoned the ineffective assistance aspect of the
claim, arguing simply that the district court erred.
Ordinarily, claims not raised below cannot be raised for the
first time on appeal, but as the government has not objected
on this ground, and as the claim fails in any event, we
overlook that it was not raised below.
-4-
4
Knight also argues that the sentencing court abused
its discretion in imposing a $15,000 fine in light of his
inability to pay. U.S.S.G. 5E1.2(a) provides that a
district court "shall impose a fine in all cases, except
where the defendant establishes that he is unable to pay and
is not likely to become able to pay any fine." U.S.S.G.
5E1.2(f) further states that if the defendant establishes
that he "is not able and, even with the use of a reasonable
installment schedule, is not likely to become able to pay all
or part of the fine . . . the court may impose a lesser fine
or waive the fine. Knight argues that the PSI clearly
indicated that he was unable to pay the $15,000 fine, even
under a reasonable installment schedule. Accordingly, he
argues, it was an abuse of discretion for the sentencing
court to have imposed the fine.
We do not reach the merits of either of the above
contentions. We hold that neither of them can now be raised
within a collateral proceeding under 28 U.S.C. 2255.
28 U.S.C. 2255 sets forth four grounds upon which
a federal prisoner may base a claim for relief: "(1) 'that
the sentence was imposed in violation of the Constitution or
laws of the United States;' (2) 'that the court was without
jurisdiction to impose such sentence;' (3) 'that the sentence
was in excess of the maximum authorized by law;' and (4) that
the sentence 'is otherwise subject to collateral attack.'"
-5-
5
Hill v. United States, 368 U.S. 424, 426-27, 82 S. Ct. 468,
____ _____________
470, 7 L.Ed 2.d 417 (1962) (quoting the statute). Neither of
Knight's present claims alleges a constitutional error or
lack of jurisdiction. Thus, the claims can only be properly
brought under 2255 if they allege that the sentence "was in
excess of the maximum authorized by law," "was imposed in
violation of the . . . laws of the United States," or "is
otherwise subject to collateral attack."
While the statutory language is rather general, the
Supreme Court has narrowly confined the scope and
availability of collateral attack for claims that do not
allege constitutional or jurisdictional errors. Such claims
are properly brought under 2255 only if the claimed error
is "a fundamental defect which inherently results in a
complete miscarriage of justice" or "an omission inconsistent
with the rudimentary demands of fair procedure." Hill, 368
____
U.S. at 428. The error must "present exceptional
circumstances where the need for the remedy afforded by the
writ of habeas corpus is apparent." Id. (quoting Bowen v.
_____________ ___ _____
Johnston, 306 U.S. 19, 27 (1939)); see Fasano v. Hall, 615
________ ___ ______ ____
F.2d 555, 557 (1st. Cir.), cert. denied, 449 U.S. 867 (1980).
____________
Errors warranting a reversal on direct appeal will not
necessarily support a collateral attack. See United States
___ _____________
v. Addonizio, 442 U.S. 178, 184-85, 99 S. Ct. 2235, 2239-40,
_________
60 L.Ed 2d 805 (1979). The reason for so sharply
-6-
6
limiting the availability of collateral attack for
nonconstitutional, nonjurisdictional errors is that direct
appeal provides criminal defendants with a regular and
orderly avenue for correcting such errors. The Supreme Court
has repeatedly emphasized that 2255 is not a substitute for
direct appeal. See, e.g., United States v. Frady, 456 U.S.
___ ____ _____________ _____
152, 165, 102 S. Ct. 1584, 1593 71 L.Ed 2d 816 (1982);
Addonizio, 442 U.S. at 184-85; Sunal v. Large, 332 U.S. 174,
_________ _____ _____
178, 67 S. Ct. 1588, 92 L.Ed 1982 (1947). A
nonconstitutional claim that could have been, but was not,
raised on appeal, may not be asserted by collateral attack
under 2255 absent exceptional circumstances. See Stone v.
___ _____
Powell, 428 U.S. 465, 177 n.10, 96 S. Ct. 3037, 3044 n.10, 49
______
L.Ed. 1067 (1976); Suveges v. United States, 7 F.3d 6, 10
_______ _____________
(1st Cir. 1993) (applying cause and prejudice standard to
procedural default of jurisdictional claim).
The Supreme Court has on four occasions considered
whether a particular nonconstitutional, nonjurisdictional
claim was properly brought under 2255. See Hill, 368 U.S.
___ ____
at 428 (denial of allocution at sentencing in violation of
Fed. R. Crim. P. 32(a) is not a "miscarriage of justice");
United States v. Timmreck, 441 U.S. 780, 784-85, 99 S. Ct.
______________ ________
2085, 60 L. Ed. 2d 805 (1979) (error under Fed. R. Crim. P. 11
in procedure for taking a guilty plea not a "miscarriage of
justice"); Addonizio, 442 U.S. at 184-90 (subsequent change
_________
-7-
7
in U.S. Parole Commission's parole policies not sufficient to
constitute basis for collateral attack). In one of these
cases, the Court found that the error did justify collateral
attack. Davis v. United States, 417 U.S. 333, 346, 94 S. Ct.
_____ _____________
2298, 2305, 41 L. Ed. 2d 109 (1974) (subsequent change in
substantive law making defendant's former behavior lawful
does constitute sufficient basis for collateral attack).
____
While the above cases are not on all fours, we
think it obvious that Knight's two claims fall far short of
the "miscarriage of justice" standard. Knight's first claim
is essentially that the district court made an erroneous
finding of fact which led to the misapplication of the
sentencing guidelines. Knight's second claim is that the
district court abused a discretion explicitly committed to it
by the sentencing guidelines. Neither claim is based upon an
"exceptional circumstance." Rather, each alleges ordinary
errors that could and should have been raised by Knight on
direct appeal. And even assuming error was committed,3 the
error would not amount to a "complete miscarriage of
justice." Knight's eventual sentence was 78 months, within
____________________
3 While we do not reach the merits of Knight's claims
of error, we note that they are questionable on their face.
At the evidentiary hearing, the magistrate judge found that
the state and federal offenses involved different individuals
and overlapped only very slightly in time. The only evidence
that Knight offers is his own testimony stating, in very
general terms, that the offenses were related. Similarly,
Knight offers scant evidence that the district court abused
its discretion in setting the fine.
-8-
8
the range that would have been imposed even if the district
court had not added three points to his criminal history
score. Similarly, Knight's $15,000 fine was at the very
bottom of the available range ($12,500 to $2 million).
Accordingly, even if error was committed, it would fall well
short of being a "complete miscarriage of justice."
Knight, moreover, who was fully aware of his right
to appeal, could have raised the purported error by direct
appeal. Although Knight's counsel at the time decided that
there were no issues worthy of appeal, he offered to direct
Knight to alternative counsel who could help Knight with his
appeal. Knight did not take advantage of this offer. Knight
does not allege that there have been any new legal or factual
developments justifying his failure to appeal. Allowing
Knight to bring his claim at this late date would essentially
be allowing him to use 2255 as a substitute for appeal.
See Sunal, 332 U.S. at 178. Having bypassed his opportunity
___ _____
to raise the claim on direct appeal, he cannot raise it now
on collateral attack. See Stone, 428 U.S. at 177 n.10;
___ _____
Singleton v. United States, 26 F.3d 233, 239 (1st Cir. 1994),
_________ _____________
petition for cert. filed, (July 22, 1994) (No. 94-5551)
__________________________
(failure to appeal claim of improper joinder bars raising
claim under 2255).
Several circuit courts have considered the
availability of collateral attack for various errors in the
-9-
9
application of the sentencing guidelines and have concluded
that such errors are not cognizable under 2255. See, e.g.,
___ ____
United States v. Faubion, 19 F.3d 226, 232-33 (5th Cir. 1994)
_____________ _______
(erroneous upward departure under sentencing guidelines not a
"miscarriage of justice"); Scott v. United States, 997 F.2d
_____ ______________
340, 341-42 (7th Cir. 1993) (erroneous criminal history score
under sentencing guidelines not subject to collateral
attack); United States v. Vaughn, 955 F.2d 367, 368 (5th
______________ ______
Cir. 1992) (error in technical application of sentencing
guidelines not subject to collateral attack).
While we do not hold that an error in the
application of the sentencing guidelines could never
constitute a "complete miscarriage of justice," Knight's
claims here do not meet that standard. The proper place for
Knight to raise these issues was on direct appeal. Knight
has failed to show cause for his failure to raise these two
issues on appeal. Having bypassed his opportunity to raise
these claims on direct appeal, he cannot raise them now on
collateral attack.
B. Ineffective Assistance Claim
____________________________
Unlike the two arguments asserted above, Knight's
claim of ineffective assistance of counsel is properly before
us under 28 U.S.C. 2255. The claim is a constitutional
one, and thus falls within the plain wording of 2255.
Moreover, Knight's failure to raise this claim on direct
-10-
10
appeal from his sentence does not bar his asserting it on
collateral attack. Normally, failure to raise a
constitutional issue on direct appeal will bar raising the
issue on collateral attack unless the defendant can show
cause for the failure and actual prejudice. See Coleman, 501
___ _______
U.S. at 750. However, the failure to bring a claim of
ineffective assistance of counsel on direct appeal is not
subject to the cause and prejudice standard. See Brien v.
___ _____
United States, 695 F.2d 10, 13 (1st Cir. 1982). In Brien, we
_____________ _____
held the cause and prejudice standard inapplicable, since a
criminal defendant may still have been represented on appeal
by the counsel whose assistance the defendant is now
challenging (as was the case here).4 Id. In fact, this
___
court has repeatedly held that collateral attack is the
preferred forum for such claims, since there is often no
_________
opportunity to develop the necessary evidence where the claim
is first raised on direct appeal. See United States v.
___ ______________
Jadusingh, 12 F.3d 1162, 1169-70 (1st Cir. 1994); United
_________ ______
States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), cert.
______ ____ _____
denied, 114 S. Ct. 1839 (1994); United States v. Latorre, 922
______ _____________ _______
F.2d 1, 9, (1st Cir. 1990), cert. denied, 112 S. Ct. 217
____________
(1991); United States v. Sanchez, 917 F.2d 607, 613, (1st
_______
Cir. 1990), cert. denied, 499 U.S. 977 (1991).
____________
____________________
4Although Brien held inapplicable the standard as
_____
articulated under Frady, the same reasoning applies to the
_____
standard as articulated in Coleman.
_______
-11-
11
The familiar two-part test for ineffective
assistance of counsel is laid out by the Supreme Court's
decision in Strickland v. Washington, 466 U.S. 668, 687, 104
__________ __________
S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Under the first
prong of the Strickland test, a defendant claiming
__________
ineffective assistance of counsel must first demonstrate that
counsel's performance fell below an objective standard of
reasonableness. This means that the defendant must show that
counsel's advice was not "within the range of competence
demanded of attorneys in criminal cases." Hill v. Lockhart,
____ ________
474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203 (1985)
(citation omitted). A court must review counsel's actions
deferentially. Strickland, 466 U.S. at 689; Burger v. Kemp,
__________ ______ ____
483 U.S. 776, 789, 107 S. Ct. 3114, 3123, 97 L. Ed. 2d 638
(1987). Under the second prong of Strickland, the defendant
__________
must prove that he or she was prejudiced by the errors. That
is, the defendant must prove that there is a reasonable
probability that, but for counsel's errors, the result of the
proceeding would have been different. Strickland, 466 U.S.
__________
at 687.
Knight complains that his counsel in both the state
and the previous federal proceedings, James LaLiberty, failed
to tell him about the impact that his state sentence would
have on his federal sentence, thereby misrepresenting the
likely federal sentence.
-12-
12
However, assuming for the moment that Knight could
satisfy the first prong of the Strickland test, Knight has
__________
failed to show that he was prejudiced by the alleged error.
Knight has not asserted that he would not have pleaded guilty
to the federal indictment had he known of the effect the
state sentence would have on his federal sentence. See Hill,
___ ____
474 U.S. at 59 (no ineffective assistance of counsel absent
showing that, but for error, defendant would not have pleaded
guilty); Lopez-Nieves v. United States, 917 F.2d 645, 650
____________ _____________
(1st Cir. 1990). Rather, Knight appears to argue that the
knowledge might have affected his guilty plea to the state
_____
offenses. It is difficult, however, to see how this is
relevant to the current federal proceeding. (Knight admitted
at the evidentiary hearing that, even had he known of the
impact his state sentence would have on his federal sentence,
he might still have pleaded guilty to the state offenses.)
Knight has not established, moreover, that his
federal sentence would have been any shorter had he known.
Although he now suggests that he might have been able to
garner a better plea bargain, he has provided no basis for
this proposition. What evidence there is suggests exactly
the opposite: that if Knight had refused the agreement, he
might have been subject to consecutive sentences which would
have greatly prolonged his prison time. Moreover,
LaLiberty's overall prediction, that Knight would receive
-13-
13
between five and eight years in the federal sentencing,
proved to be accurate. Knight's sentence was first set at 96
months, and then reduced to 78 months. Both of these figures
were within the predicted range. Thus, it is difficult to
see how Knight could have been prejudiced by the errors
alleged.
Even if the prediction had been inaccurate, an
inaccurate prediction about sentencing will generally not
alone be sufficient to sustain a claim of ineffective
assistance of counsel. See United States v. Arvanitis, 902
___ _____________ _________
F.2d 489, 494-95 (7th Cir. 1990) (no ineffective assistance
where claim based only on inaccurate prediction of sentence);
United States v. Turner, 881 F.2d 684, 687 (9th Cir.), cert.
______________ ______ _____
denied, 493 U.S. 871 (1989) (same); United States v. Sweeney,
______ _____________ _______
878 F.2d 68, 69 (2d Cir. 1989) (same); cf. Calabrese v.
___ _________
United States, 507 F.2d 259, 260 (1st Cir. 1974)
_______________
(voluntariness of plea not subject to attack under 2255
where sentence exceeded that predicted by counsel).
Since Knight has not satisfied the second prong of
Strickland, we need not address the first prong. We hold
__________
that the district court was correct in finding that Knight's
assistance of counsel was not constitutionally defective.5
____________________
5 In addition to the above argument, Knight makes
several claims that could be construed as asserting other
bases for ineffective assistance. Knight appears to argue:
that LaLiberty somehow erred in failing to warn Knight that
his cooperation with state officials might result in a
-14-
14
III.
We hold that Knight's two claims of error in the
application of the sentencing guidelines cannot presently be
maintained in a proceeding under 28 U.S.C. 2255. We also
find that the district court did not err in finding that
Knight did not receive constitutionally ineffective
assistance of counsel.
Affirmed.
________
____________________
subsequent federal prosecution; that LaLiberty erred in
failing to negotiate immunity from federal prosecutors prior
to having Knight speak with them; that LaLiberty erred in
failing to argue that Knight's state and federal offenses
were related for the purpose of sentencing. Knight, however,
does not provide any support for these allegations.
Moreover, he did not make these arguments at either of the
proceedings below. We find them to be without merit. See
___
United States v. Panitz, 907 F.2d 1267, 1272 n.4 (1st Cir.
______________ ______
1990).
-15-
15
