Knight v. United States

• Court: Court of Appeals for the First Circuit
• Decided: October 24, 1994
• Docket: 94-1374
• Status: Published

Opinion

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).

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                                          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

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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.'"

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                                          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

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                                          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
                       _________

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                                          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

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                                          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

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                                          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.
                                       _______

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                                          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. 

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                                          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

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                                          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).  

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