Filed: Dec. 01, 1995
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-30685 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS STEVE DISMORE, Defendant-Appellant. _ Appeal from the United States District Court for the Eastern District of Louisiana _ December 21, 1995 Before KING, SMITH, and BENAVIDES, Circuit Judges. PER CURIAM:* * Local Rule 47.5.1 provides: “The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-s
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-30685 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS STEVE DISMORE, Defendant-Appellant. _ Appeal from the United States District Court for the Eastern District of Louisiana _ December 21, 1995 Before KING, SMITH, and BENAVIDES, Circuit Judges. PER CURIAM:* * Local Rule 47.5.1 provides: “The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-se..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 95-30685
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEVE DISMORE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
December 21, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
*
Local Rule 47.5.1 provides: “The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession.”
Pursuant to that rule, the court has determined that this opinion
should not be published.
I.
In April 1984, the grand jury indicted Steve Dismore for three
counts of distribution of cocaine, but Dismore was not arrested
until October 2, 1991. He pleaded guilty pursuant to a plea
agreement. On February 26, 1992, the district court sentenced him
to a one-year term of imprisonment and a three-year term of special
parole for count 1 and imposed suspended, concurrent, three-year
terms of special parole and a five-year term of active probation
for counts 2 and 3. The term of probation was to commence upon the
expiration of the sentence of imprisonment pursuant to count 1.
On June 17, 1992, the district court granted Dismore’s FED. R.
CRIM. P. 35 motion and suspended six months of his one-year prison
term plus all three terms of special parole. The court placed
Dismore on concurrent five-year terms of inactive probation as to
all three counts. Dismore quickly violated numerous terms of his
probation. On August 3, 1992, the district court revoked the order
of probation and sentenced Dismore as follows: Count 1——a one-year
term of imprisonment, with credit for time served, followed by a
three-year term of special parole; counts 2 and 3——eighteen-month
terms of imprisonment followed by three-year terms of special
parole. All of the sentences were imposed concurrently.
In November 1992, the district court granted Dismore’s second
rule 35 motion and reduced his sentence to concurrent five-month
terms of imprisonment on each count, subject to sentence credit for
time served since July 1, 1992, and concurrent three-year terms of
special parole. Once again, Dismore rapidly violated the terms of
2
his parole. He pleaded guilty to state charges of possession of
cocaine and was remanded to federal custody.
Dismore filed a § 2255 motion to vacate his federal sentence,
arguing that the government had violated his Speedy Trial rights by
failing to prosecute him in a timely manner and that his attorney
had been ineffective for failing to raise this issue. On May 2,
1994, the district court determined that Dismore was not entitled
to habeas relief and denied the motion, but it did not enter a
separate judgment as required by FED. R. CIV. P. 58. Dismore filed
an untimely notice of appeal. We dismissed the appeal and directed
Dismore to move the district court for entry of a rule 58 judgment
which could serve as the basis for a timely appeal. On June 16,
1995, the district court entered judgment denying Dismore’s § 2255
motion for the reasons set forth in its May 1994 order. Dismore
has appeal that judgment.1
II.
Dismore argues that his criminal prosecution violated his
Sixth Amendment right to a speedy trial and that his attorney
provided ineffective assistance.
Section 2255 identifies four specific grounds upon which a
federal prisoner may move to vacate, set aside, or correct his
sentence: the sentence was imposed in violation of the Constitution
or laws of the United States; the court was without jurisdiction to
1
Dismore has written several letters to the district court which the
court construed as sounding under § 2255 and denied. Dismore has not appealed
the denial of these motions.
3
impose the sentence; the sentence exceeds the statutory maximum
sentence; or the sentence is “otherwise subject to collateral
attack.” 28 U.S.C. § 2255; see United States v. Cates, 952 F.2d
149, 151 (5th Cir.), cert. denied,
504 U.S. 962 (1992).
A defendant who has been convicted and has exhausted or waived
his right to appeal is presumed to have been “‘fairly and finally
convicted.” United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.
1991) (en banc) (citation omitted), cert. denied,
502 U.S. 1076
(1992). “[A] ‘collateral challenge may not do service for an
appeal.’”
Id. at 231 (quoting United States v. Frady,
456 U.S. 152,
165 (1982). Therefore, a defendant who raises a constitutional or
jurisdictional issue for the first time on collateral review must
show “both ‘cause’ for his procedural default, and ‘actual
prejudice’ resulting from the error.”
Id. at 232 (quoting
Frady,
456 U.S. at 168). The only exception to the cause and prejudice
test is the “extraordinary case . . . in which a constitutional
violation has probably resulted in the conviction of one who is
actually innocent.”
Id. at 232 (internal quotations and citation
omitted). The government must invoke the procedural bar in the
district court, however. United States v. Drobny,
955 F.2d 990,
994-95 (5th Cir. 1992). The government did so in this case.
A.
Dismore urges that the government violated his constitutional
right to a speedy trial by failing to apprehend him and commence
prosecution at an earlier date. He has not suggested that his
4
guilty plea was involuntary.
A speedy trial violation is a nonjurisdictional defect waived
by a guilty plea. United States v. Bell, 966 F.2d 914, 915 (5th
Cir. 1992). Dismore waived his speedy-trial claim when he entered
an unconditional guilty plea.
Bell, 966 F.2d at 915; United States
v. Smallwood,
920 F.2d 1231, 2240 (5th Cir.), cert. denied,
501
U.S. 1238 (1991). Furthermore, he has provided no explanation why
he could not have raised this issue on direct appeal. Shaid,
937
F.2d 228, 231-32.
B.
To obtain § 2255 relief based upon ineffective assistance of
counsel, a defendant must show not only that his attorney’s
performance was deficient, but that the deficiencies prejudiced the
defense. United States v. Smith, 915 F.2d 959, 963 (5th Cir.
1990). In evaluating such claims, the court indulges in “a strong
presumption” that counsel’s representation fell “within the wide
range of reasonable professional competence.” Bridge v. Lynaugh,
838 F.2d 770, 773 (5th Cir. 1988). To prove deficient representa-
tion, a defendant must show that his attorney’s conduct “fell below
an objective standard of reasonableness.” Strickland v. Washing-
ton,
466 U.S. 668, 688 (1984). In the context of guilty pleas, the
“prejudice” requirement “focuses on whether counsel’s constitution-
ally ineffective performance affected the outcome of the plea
process.” Hill v. Lockhard,
474 U.S. 52, 59 (1985). Dismore “must
show that there is a reasonable probability that, but for counsel’s
5
errors, he would not have pleaded guilty and would have insisted on
going to trial. Id.
Dismore suggests that this attorney was ineffective for
allowing him to plead guilty without challenging the indictment
based upon Barker v. Wingo2 and Doggett v. United States.3
Counsel’s decision not to present an argument based upon Barker was
reasonable because Barker is factually distinguishable from
Dismore’s case. In Barker, the state obtained sixteen continuances
which delayed Barker’s trial for five years. During this time,
Barker was either in custody or free on bond.
Barker, 407 U.S. at
516-18. By contrast, Dismore’s trial was delayed because he was a
fugitive. Dismore’s suggestion that counsel was ineffective for
failing to argue Doggett is even more tenuous because the Supreme
Court did not issue its opinion in Doggett until several months
after Dismore pleaded guilty.
Id. at 50; see
Doggett, 112 S. Ct.
at 2686.
Dismore suggests in conclusional terms that counsel was
ineffective for failing to preserve Dismore’s right to appeal and
advising him that he could plead nolo contendere. Dismore did not
raise either issue in the district court.
“[I]ssues raised for the first time on appeal are not
reviewable by this [court] unless they involve purely legal
questions and failure to consider them would result in manifest
injustice.” Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991)
2
407 U.S. 515 (1972).
3
112 S. Ct. 2686 (1992).
6
(internal quotations omitted). The “nolo contendere” argument does
not involve a purely legal issue; therefore, the court may decline
to consider it. Id. Although counsel did not file an appeal,
less than four months after Dismore was sentenced, counsel filed a
rule 35 motion which resulted in a substantial reduction in
Dismore’s sentence. See
id. at 91. Dismore has failed to show
that this performance was objectively unreasonable.
Strickland,
466 U.S. at 688. Dismore’s continued incarceration has been
caused, not by counsel’s performance, but by Dismore’s inability to
abide with the terms of his probation. No manifest injustice will
result if the court refuses to consider this issue.
Varnado, 920
F.2d at 321.
Dismore’s motions for appointment of counsel and an eviden-
tiary hearing should be denied.
AFFIRM.
7
