USCA1 Opinion
June 13, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2011
RANDY S. LAPLANTE,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Randy S. Laplante on brief pro se.
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Donald K. Stern, United States Attorney, and Mark W. Pearlstein,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Randy LaPlante appeals a district court
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order that denied his 28 U.S.C. 2255 motion to vacate a
sentence that was imposed as a result of LaPlante's
violations of the terms of his supervised release. We
affirm.
As the district court's order summarizes LaPlante's
history and claims, we will not repeat them here. After
thoroughly reviewing the record and the parties briefs on
appeal, we are persuaded that the district court correctly
denied relief on LaPlante's claim that he did not receive
adequate notice of the conditions of his supervised release
and his claim that his reentry into the United States did not
violate one of those conditions. LaPlante has failed to show
cause for failing to raise these claims at his supervised
release revocation (SRR) hearing or on direct appeal, and
absent such a showing, review on the merits under 28 U.S.C.
2255 is barred. See Knight v. Miller, 37 F.2d 769, 774 (1st
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Cir. 1994); Campino v. United States, 968 F.2d 187, 190 (2d
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Cir. 1990). While LaPlante argues that he could not have
raised these claims sooner because, inter alia, the
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prosecutor erroneously stated that the district judge had
announced the conditions of LaPlante's supervised release
when, in fact, the clerk had made this announcement, none of
LaPlante's reasons constitute the "cause" required to obtain
relief on these claims under 28 U.S.C. 2255. See Murray v.
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Carrier, 477 U.S. 478, 488 (1986); Magee v. Harshbarger, 16
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F.3d 469, 472 (1st Cir. 1994).1
However, we note that LaPlante at least arguably had
cause for not previously raising his claim that his sentence
is unlawfully based on certain invalid Massachusetts
convictions. It appears that, at the time of the SRR
hearing, LaPlante was not aware that one of those convictions
(i.e., the Brookline district court conviction) had been
vacated one week earlier. Thus, LaPlante was not able to
bring this to the district court's attention at the SRR
hearing. Nevertheless, this claim fails on its merits. Even
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1. Moreover, while we need not decide the merits of these
claims, we note that both have serious flaws. It is
undisputed that LaPlante received oral notice of the
conditions of his supervised release at his initial
sentencing hearing. Those conditions were not complicated.
LaPlante later received written notice that his reentry was
prohibited absent the Attorney General's permission when he
signed a "Notice of Country to which Deportation has been
Directed and Penalty for Reentry" (hereafter "Notice"). Yet
at the SRR hearing, LaPlante conceded that he violated the
special conditions that prohibited his reentry absent the
Attorney General's permission and his use of a false drivers
license. These circumstances indicate that LaPlante received
adequate notice of the special conditions that governed his
supervised release. See United States v. Felix, 994 F.2d 550,
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552 (8th Cir. 1993); United States v. Johnson, 763 F. Supp.
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900, 903 (W.D. Texas 1991). We also note that in signing the
foregoing "Notice," LaPlante expressly waived his right not
to be deported until 72 hours after the service of the final
order of deportation and requested deportation as soon as
possible. But 8 C.F.R. 3.4 provides that an alien's
departure from the United States subsequent to the taking of
an appeal but before a decision thereon "shall constitute a
withdrawal of the appeal...." It thus appears that LaPlante
withdrew his appeal of the deportation order when he signed
the "Notice" requesting immediate deportation.
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if the district court had ignored this conviction, this would
only have resulted in a one point deduction from LaPlante's
criminal history score. His criminal history category would
not have changed. It is undisputed that the second conviction
that LaPlante says is invalid is the subject of a motion to
vacate that is pending in the West Roxbury district court.
While LaPlante contends that we should hold that this
conviction is "presumptively void" and deduct an additional
two points from his criminal history score, we have no basis
for so holding.2 Accordingly, the judgment of the district
court is affirmed.
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2. Contrary to LaPlante's argument on appeal, neither United
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States v. Isaacs, 14 F.3d 106 (1st Cir. 1994), nor Custis v.
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United States, 114 S. Ct. 1732, 1734 (1994), authorizes this
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court to hold that the West Roxbury district court conviction
is "presumptively void" simply because LaPlante may not have
been warned that he could be deported as a result of his
guilty plea. Rather, Custis "significantly restricted" the
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circumstances under which a prior conviction may be held to
be void. See United States v. Cordero, 42 F.3d 697, 701 (1st
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Cir. 1994)(noting that Custis prohibits collateral attacks on
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prior state-court convictions unless conviction was obtained
in violation of the right to counsel). Those circumstances
are not present here.
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