Dennis Wayne Williams v. United States

805 F.2d 1301, 1986 U.S. App. LEXIS 34091, 55 U.S.L.W. 2332
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 24, 1986
Docket86-1087
StatusPublished
Cited by71 cases

This text of 805 F.2d 1301 (Dennis Wayne Williams v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dennis Wayne Williams v. United States, 805 F.2d 1301, 1986 U.S. App. LEXIS 34091, 55 U.S.L.W. 2332 (7th Cir. 1986).

Opinions

HARLINGTON WOOD, Jr., Circuit Judge.

Petitioner-appellant Dennis Wayne Williams appeals the district court’s denial of his motion for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2255 (1982).1 Williams alleges that he was denied effective assistance of counsel when his court-appointed trial attorney failed to advise him that he would be required to serve at least 100 months in jail if he pleaded guilty and when his attorney failed to assist him in filing a motion for a sentence reduction pursuant to Fed.R.Crim.P. 35(b). Williams also claims that he is entitled to habeas relief on grounds that his due process rights were violated by the presence of errors in his presentence report, that his sentence is violative of the eighth amendment, and that his conviction violates the prohibition against double jeopardy. We affirm.

I.

Pursuant to a plea agreement, Williams pled guilty to three counts of a four-count indictment. Williams was indicted as a result of an offer he and a codefendant made to sell a machine gun and silencer to federal undercover agents. Count I charged Williams with conspiracy to engage in the business of dealing in firearms without having registered to do so and without having paid the special occupational tax as required by law in violation of 18 U.S.C. § 371 (1982); Count II involved a charge of possession of an unregistered machine gun [1303]*1303in contravention of 26 U.S.C. § 5861(d) (1982); and Count IV charged Williams with possession of a firearm by a convicted felon in violation of 18 U.S.C.App. § 1202(a)(1) (1982 & Supp. II 1984). Count III of the indictment was dismissed in accordance with the plea agreement. On September 14,1983, Williams, who was represented by counsel prior to and at the time of sentencing, was sentenced to three years on Count I, ten years on Count II to run consecutively to the three years on Count I, and two years on Count IV to run concurrently with the sentence on Count II. Williams received, in effect, a sentence of thirteen years which was well within the maximum seventeen-year sentence the district court could have imposed.

On January 16, 1984, 124 days after sentencing, Williams, who claims that his trial counsel ended his representation after the imposition of sentence, filed a pro se motion pursuant to Fed.R.Crim.P. 35(b) seeking a reduction in his sentence alleging that it was “unduly harsh and severe” and that new circumstances “would greatly mitigate the punishment in this case.” On February 7, 1984, the district court denied Williams’s Rule 35(b) motion concluding that not only was the sentence initially imposed appropriate but also that the court lacked jurisdiction to consider the motion since it was not filed within the 120-day period specified by Rule 35(b).2 After new counsel was appointed for Williams, he appealed the trial court’s decision and we affirmed in an unpublished order. Apart from his Rule 35(b) motion, Williams presented no other direct challenge to his sentence.

Williams subsequently sought relief pursuant to 28 U.S.C. § 2255 alleging various constitutional infirmities. The district court denied the motion for habeas relief on the merits and Williams appeals.

II.

The government contends that our decision in Norris v. United States, 687 F.2d 899 (7th Cir.1982) (Cudahy, J., concurring, and Wood, Jr., J., with whom Bauer, J., joins dissenting from decision not to hear the case en banc), is dispositive of the issues Williams raises. Cf. United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc). In Norris, we ruled that a failure to raise constitutional challenges to a conviction on direct appeal would bar a petitioner from raising the same issues in a section 2255 proceeding, absent a showing of good cause for and prejudice from the failure to appeal. 687 F.2d at 903-04.3 In so doing, Judge Pos-[1304]*1304ner, writing for the court, rejected the argument that the deliberate bypass test was still applicable in such cases. In Kaufman v. United States, 394 U.S. 217, 220 n. 3, 89 S.Ct. 1068, 1070 n. 3, 22 L.Ed.2d 227 (1969), the Supreme Court had noted that a failure to raise a constitutional issue on direct appeal was not fatal to a subsequent section 2255 action unless the petitioner had deliberately bypassed the appellate process.

Relying upon, among other cases, United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), the Norris court concluded that the Supreme Court had subsequently departed from the deliberate bypass test and had adopted the less stringent cause and prejudice standard. 687 F.2d at 903-04. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Frady, the Supreme Court held that a defendant’s failure to object to an erroneous jury instruction either at trial or on direct appeal barred him from raising the issue in a section 2255 petition absent a showing of good cause and prejudice. 456 U.S. at 167, 102 S.Ct. at 1594. The Court noted that the defendant in that case had failed to object at trial even though under Fed.R.Crim.P. 304 he was required to raise a contemporaneous objection to any erroneous jury instruction. Id. at 162, 102 S.Ct. at 159. Moreover, the Court rejected the defendant’s argument that the “plain error” standard of Fed.R. Crim.P. 52(b)5 was applicable in his case as opposed to the cause and prejudice standard. Id. at 164, 102 S.Ct. at 1592. As the Court noted, “[bjecause it was intended for use on direct appeal ... the ‘plain error’ standard is out of place when a prisoner launches a collateral attack against a criminal conviction after society’s legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal.” Id.

In the present case, with the decisions in Frady and Norris in mind, we must determine whether the government is correct in arguing that Williams has waived the issues he now raises. The context of this case requires that we look at two different opportunities Williams had to challenge his sentence. One opportunity was the Rule 35 proceeding. As noted above, Williams filed a Rule 35(b) motion

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Farmer v. United States
N.D. Indiana, 2024
United States v. Kennedy
29 F. Supp. 2d 662 (D. Colorado, 1998)
Worthington v. United States
936 F. Supp. 586 (E.D. Wisconsin, 1996)
Diaz v. United States
924 F. Supp. 898 (C.D. Illinois, 1996)
Valona v. United States
919 F. Supp. 1260 (E.D. Wisconsin, 1996)
Toliver v. McCaughtry
910 F. Supp. 1366 (E.D. Wisconsin, 1995)
United States v. Richardson
914 F. Supp. 212 (N.D. Illinois, 1995)
Barker v. United States
891 F. Supp. 478 (E.D. Wisconsin, 1995)
United States v. Seybold
876 F. Supp. 991 (N.D. Illinois, 1995)
Elmer Velasquez v. United States
48 F.3d 1222 (Seventh Circuit, 1995)
Samuel Lechuga v. United States
48 F.3d 1221 (Seventh Circuit, 1995)
United States v. Hernandez
863 F. Supp. 691 (N.D. Illinois, 1994)
United States v. Dennis Freligh
35 F.3d 569 (Seventh Circuit, 1994)
Michael E. Bischel v. United States
32 F.3d 259 (Seventh Circuit, 1994)
United States v. Thomas John Maybeck
23 F.3d 888 (Fourth Circuit, 1994)
United States v. James A. Essig
10 F.3d 968 (Third Circuit, 1994)
United States v. James E. Simpson
8 F.3d 546 (Seventh Circuit, 1993)
United States v. Leventopoulos
834 F. Supp. 989 (N.D. Illinois, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
805 F.2d 1301, 1986 U.S. App. LEXIS 34091, 55 U.S.L.W. 2332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-wayne-williams-v-united-states-ca7-1986.