Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit
1-27-1995
USA v Cleary Precedential or Non-Precedential:
Docket 94-3290
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation "USA v Cleary" (1995). 1995 Decisions. Paper 26. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/26
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 94-3290
UNITED STATES OF AMERICA,
v.
THOMAS J. CLEARY,
THOMAS JAMES CLEARY,
Appellant
Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 82-cr-00133)
Submitted Under Third Circuit LAR 34.1(a) September 9, 1994
Before: BECKER, COWEN AND ROTH, Circuit Judges
(Opinion filed January 27, 1995)
Frederick W. Thieman United States Attorney Michael L. Ivory Assistant United States Attorney 633 United States Post Office & Courthouse Pittsburgh, PA 15219 Attorney for Appellee
Thomas James Cleary, #01475-068 San Diego M.C.C. 808 Union Street San Diego, CA 92101 Appellant, Pro Se OPINION OF THE COURT
ROTH, Circuit Judge:
I. INTRODUCTION
Thomas James Cleary ("Cleary") appeals from an order of
the district court entered on May 24, 1994, denying Cleary's
motion to vacate or correct an illegal sentence pursuant to 28
U.S.C. § 2255. Cleary asserts that the district court violated
Rule 11(c)(1) of the Federal Rules of Criminal Procedure by
failing, at his change of plea hearing, to adequately inform him
and determine that he understood the maximum penalty he could
receive. In particular, Cleary contends that the court erred by
failing to explain the effects of a term of special parole.
Because of the court's alleged error, Cleary seeks a reduction of
his special parole term from ten years to two, or, in the
alternative, a vacatur of his guilty plea. For the reasons
stated herein, we find that the district court's error did not
rise to the level required to permit collateral relief under
section 2255. II. BACKGROUND AND FACTS
On September 8, 1982, a grand jury sitting in the
Western District of Pennsylvania returned a two count indictment
against Cleary, charging him with: (1) Count One - conspiracy to violate federal narcotics laws in violation of 21 U.S.C. § 846;
and (2) Count Two - manufacturing and distributing
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2. On December 7, 1982, pursuant to an oral plea
agreement, Cleary pled guilty to Count Two of the indictment. In
exchange, the Government agreed to dismiss Count One of the
indictment. On January 10, 1983, the district court judge
sentenced Cleary to three years imprisonment to be followed by a
special parole term of ten years on Count Two. Count One was
dismissed. Cleary appealed his sentence, but because he became a
fugitive pending appeal, this Court dismissed his appeal. See
United States v. Cleary, No. 83-5044 (3d Cir. June 6, 1983).
On June 24, 1985, Cleary filed his first habeas motion
to vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255. Acting pro se, Cleary advanced several arguments
in support of his motion, including: (1) the presentence
investigation report was factually inaccurate;1 (2) the
government illegally searched his car without a warrant and
illegally seized money therefrom; (3) the prosecution withheld
information favorable to the defense; and (4) the district court
denied him the opportunity to present evidence on his behalf.
1 Specifically, Cleary claimed that the presentence investigation report erroneously stated that he had filed for bankruptcy, when he did no such thing; that he had loaned his father $12,000, when in actuality his father had loaned him that amount of money; and that he had 35,750 dosage units of methamphetamine, when he really had only 2,405 dosage units. The court appointed counsel for Cleary and, with the assistance
of that counsel, Cleary amended his habeas motion to allege that
the district court had violated Federal Rule of Criminal
Procedure 32 by failing to: (1) determine whether or not the
defendant and his counsel had an opportunity to read and discuss
the presentence report; (2) afford counsel an opportunity to
speak on behalf of the defendant prior to the imposition of
sentence; and (3) address the defendant personally and ask him if
he wished to make a statement on his own behalf and present
information in mitigation of punishment.
By order dated January 17, 1986, the district court
denied Cleary's motion. Cleary appealed, and on August 19, 1986,
this Court affirmed the decision of the district court. See
United States v. Cleary, Nos. 86-3083 and 86-3097 (3d Cir. August
19, 1986). Cleary subsequently petitioned the United States
Supreme Court for a writ of certiorari, which was denied on
November 3, 1986.
Cleary was released from prison on February 2, 1987,
after serving his original three year sentence plus an additional
year on an escape charge. He began serving his special parole
term on January 14, 1989, after finishing a term of regular
parole, and was to remain on special parole for ten years, until
January 13, 1999. Supplemental Appendix ("S. App.") 9. However,
on April 15, 1993, the United States Parole Commission ("Parole
Commission") revoked Cleary's special parole term because Cleary, while on special parole, had been indicted for: (1) conspiracy
to manufacture methamphetamine; (2) possession of methamphetamine
for sale; and (3) manufacture of methamphetamine. S. App. 2. In
addition, Cleary had been charged with reckless driving and
associating with a person engaged in criminal activity. Id. The
Parole Commission directed that Cleary was to be imprisoned until
the expiration of his ten-year special parole term without credit
for the time that he had already spent on special parole. Id.
Cleary appealed the decision of the Parole Commission. The
Commission, however, affirmed its prior decision.
On January 12, 1994, Cleary filed the present motion to
correct or vacate his sentence pursuant to 28 U.S.C. § 2255. In
this motion, Cleary asserts that his sentence is illegal and
should be reduced or vacated because at his change of plea
hearing the district court failed to properly explain to him the
effects of special parole as required by Federal Rule of Criminal
Procedure 11(c)(1). The following exchange, at Cleary's change
of plea hearing on December 7, 1982, is central to his present
allegations: ASSISTANT UNITED STATES ATTORNEY ("AUSA"): . . . The penalty is five years and/or $15,000, with a special parole term of two years.
COURT: All right. Now, that means by entering this guilty plea you could be sentenced to prison for up to five years and/or fined up to $15,000. And if the Judge decides that you are to go to jail for any period of time, he must also place you on special parole for a minimum of two years and for whatever maximum period the Judge believes to be appropriate. That means if I decide to send you to jail for any period of time, when you are released from that institution you will be on a special parole term of at least two years and for whatever maximum I think is appropriate. And you will be supervised by people such as this man seated in the jury box who works for the Probation Office, and you will be required to adhere to certain rather stringent requirements: That is, to stay out of difficulty with the law; your right to own a weapon is abrogated without permission otherwise; and certain reporting requirements to a probation officer. Do you understand that?
CLEARY: Yes, I do.
App. 16.
In particular, Cleary alleges that the AUSA's statement
regarding the penalty misled Cleary into believing that "the
special parole term was with the five (5) year penalty."
Cleary's Opening Brief at 5. We interpret Cleary's argument to
mean that he believed that the special parole term was included
within, the five year maximum length of imprisonment. Cleary
further asserts that the district court's statements after the
AUSA's comment did not dispel his mistaken belief. In addition,
Cleary claims that the district court failed to explain that:
his special parole term would begin only after he had finished his regular parole and that he could end up serving more than the
five-year maximum sentence revealed to him at his change of plea
hearing because, if he were to violate his special parole, he
could be imprisoned for the entire length of the special parole
term, without any credit for the time he had already spent on
special parole.
After receiving the government's response to Cleary's
motion, the district court, on March 31, 1994, denied that motion without explanation. Cleary filed additional documents with the
district court in support of his motion, including: (1) an
affidavit stating that he would not have pled guilty if he had
been adequately instructed on the nature and possible
consequences of special parole, on April 14, 1994 (App. 9-10);
(2) a supplemental memorandum, on April 18, 1994; (3) a motion
for reconsideration, on May 6, 1994; and (4) an addendum to the
motion for reconsideration, on May 24, 1994.
On May 24, 1994, the district court denied Cleary's
motion to reconsider, finding that: "(1) the court explained the
provisions of special parole in complete and adequate terms
during the guilty plea colloquy; (2) the contentions of
petitioner are foreclosed by the holding of United States v.
Timmreck, 441 U.S. 780 (1979); and (3) the petitioner has failed
to exhaust administrative remedies." Appendix ("App.") 2
(citation omitted). Cleary filed the instant appeal on May 29,
1994. III. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction under 28 U.S.C. §
2255. We have jurisdiction under 28 U.S.C. § 2255 and 28 U.S.C.
§ 1291. The decision whether to grant or deny a habeas corpus
petition is reviewed de novo. See United States v. DeLuca, 889
F.2d 503, 505-508 (3d Cir. 1989). IV. DISCUSSION Rule 11(c) of the Federal Rules of Criminal Procedure
requires that before a district court may accept a guilty plea,
the court must "inform the defendant of, and determine that the
defendant understands," a laundry list of information regarding
the defendant's rights and the consequences of his or her plea.
Fed. R. Crim. P. 11(c). In particular, Rule 11(c)(1) requires
the court to inform the defendant of, and make sure he or she
understands, "the maximum possible penalty provided by law,
including the effect of any special parole or supervised release
term."2 The Notes of the Advisory Committee on Rules regarding
the 1982 amendment of Rule 11(c)(1) recommends that a judge
inform the defendant, and determine that he or she understands,
the four following items in a case involving special parole or
supervised release: (1) that a special parole term will be added to any prison sentence he [or she] receives; (2) the minimum length of the special parole term that must be imposed and the absence of a statutory maximum; (3) that special parole is entirely different from -- and in addition to -- ordinary parole; and (4) that if the special parole is violated, the defendant can be returned to prison for the remainder of his [or her] sentence and the full length of his [or her] special parole term.
2 At the time of Cleary's guilty plea, Rule 11(c)(1) required the court to advise the defendant of "the effect of any special parole term." The Rule was subsequently amended in 1989 to include supervised release. 1982 Amendment Advisory Committee Note, Fed. R. Crim. P. 11(c)(1)
(quoting Moore v. United States, 592 F.2d 753, 755 (4th Cir.
1979)).
In the present case, Cleary asserts that the court
presiding over his change of plea hearing violated Rule 11(c)(1).
We agree in that the district court failed to explain to Cleary
the effects of special parole, including the consequences of a
violation, and that special parole is different from and in
addition to regular parole. United States v. Baylin, 696 F.2d
1030, 1037 n.18 (3d Cir. 1982) ("Rule 11 explicitly requires that
courts explain any `special parole' consequences . . . because
they are cumulative to any prison term imposed, and therefore
effectively expand the maximum possible sentence for the
offense."); see also United States v. Osment, 13 F.3d 1240, 1242
(8th Cir. 1994); United States v. Tuangmaneeratmun, 925 F.2d 797,
803 (5th Cir. 1991).
Because the district court violated Rule 11 in failing
to make an adequate explanation, we must determine whether this
violation rises to a level that would justify a collateral attack
on the judgment of conviction. It is well established that "to
obtain collateral relief a prisoner must clear a significantly
higher hurdle than would exist on direct appeal."3 United States
3 Accordingly, the cases cited by the parties regarding relief for Rule 11 violations on direct appeal, while instructive as to what constitutes a Rule 11 violation, are not on point regarding whether habeas relief for such a violation is appropriate. v. Frady, 456 U.S. 152, 165 (1982). Because of the great
interest in finality of judgments, an error which may "justify
reversal on direct appeal will not necessarily support a
collateral attack on a final judgment." United States v.
Addonizio, 442 U.S. 178, 184 (1979); Frady, 456 U.S. at 164.
Indeed, "the concern with finality served by the limitation on
collateral attack has special force with respect to convictions
based on guilty pleas." Timmreck, 441 U.S. at 784 (footnote
omitted). This is because "'the concern that unfair procedures
may have resulted in the conviction of an innocent defendant is
only rarely raised by a petition to set aside a guilty plea.'"
Id. (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th
Cir. 1971) (Stevens, J., dissenting)).
To be entitled to habeas corpus relief under section
2255, Cleary must show that the Rule 11 error amounted to "a
fundamental defect which inherently result[ed] in a complete
miscarriage of justice or an omission inconsistent with the
rudimentary demands of fair procedure." United States v. DeLuca,
889 F.2d 503, 506 (3d Cir. 1989), cert. denied, 496 U.S. 939
(1990). Not only must Cleary demonstrate an error of
constitutional magnitude, but he also must show that he was
prejudiced by that error, i.e., that he did not understand the consequences of his plea or that, if he had been properly advised
about the effect of special parole, he would not have pled
guilty. See Lucas v. United States, 963 F.2d 8, 13 (2d Cir.), cert. denied, 113 S. Ct. 270 (1992). We find that the district
court's Rule 11 violation did not rise to that level.
In United States v. Timmreck, the Supreme Court made it
clear that "'collateral relief is not available when all that is
shown is a failure to comply with the formal requirements of'"
Rule 11. Id. at 785 (quoting Hill v. United States, 368 U.S.
424, 429 (1962)). This Court, in United States v. DeLuca, 889
F.2d at 507, went beyond Timmreck to hold that "a petitioner who
has been advised of the possibility of a given sentence but
receives instead a sentence of equal or less time in which
special parole time is substituted for prison time has not
alleged a fundamental defect resulting in a complete miscarriage
of justice as is required to sustain a habeas action."4
The most factually similar case to the present case,
however, is the Second Circuit's Lucas, 963 F.2d 8. In Lucas,
the defendant, Lucas, brought a section 2255 habeas motion to
have his judgment of conviction vacated, based on the district
court's failure to inform him of the maximum possible penalty
during his guilty plea. Although the court had advised Lucas of
4 This case is distinguishable from DeLuca in one extremely important respect: the district court advised Cleary that he faced a mandatory term of special parole whereas the district court in DeLuca completely failed to mention the possibility of a term of special parole. Indeed, in the present case the district court advised Cleary that the special parole term would be in addition to his term of imprisonment and could range from a minimum of two years to "whatever maximum" the court deemed appropriate. Thus, we are not faced with a total failure to advise of a special parole term, as in DeLuca. a five-year maximum term of imprisonment, it failed to explain
that Lucas was also subject to a $15,000 fine and a mandatory
two-year term of special parole. At sentencing, Lucas received
four years of imprisonment, a two-year term of special parole,
and a fine of $10,000. Id. at 10. In his habeas motion, Lucas
asserted that he would not have pled guilty if he had been
properly advised about the maximum possible penalty. The
district court found that Lucas had suffered a constitutional
violation entitling him to collateral relief. Instead of
vacating his conviction, however, the court excised the parts of
Lucas' sentence which offended Rule 11 -- the special parole term
and the fine. Both Lucas and the Government appealed.
The Second Circuit found that the district court had
violated Rule 11(c)(1) by failing to fully advise Lucas, at his
change of plea hearing, of the maximum possible penalty for the
crime of conviction. However, it determined that Lucas should
not be granted collateral relief: because he acknowledged that he had reviewed the presentence report before sentencing, a report that contained the maximum penalties he faced, including the fine and special parole term; because he failed to object to the sentence; because he failed to attempt to withdraw his plea at sentencing, even when invited by the judge to speak; because he failed to pursue a direct appeal on the issue; because he failed to raise the issue in timely motions and because he failed to demonstrate any other prejudice.
Id. at 15; see also United States v. Carey, 884 F.2d 547, 549 (11th Cir. 1989) (court's failure to advise defendant of
mandatory term of supervised release at guilty plea was harmless error where defendant was informed of supervised release in
presentence report and at sentencing and neither defendant nor
his counsel objected), cert. denied, 494 U.S. 1067 (1990).
As in Lucas, Cleary is not entitled to collateral
relief because the record supports the conclusion that Cleary was
not prejudiced by the court's failure to explain the effects of
special parole and that no manifest injustice or unfair procedure
occurred here. At the change of plea hearing, the district court
instructed Cleary that: [B]y entering this guilty plea you could be sentenced to prison for up to five years and/or fined up to $15,000. And if the Judge decides that you are to go to jail for any period of time, he must also place you on special parole for a minimum of two years and for whatever maximum period the Judge believes to be appropriate. That means if I decide to send you to jail for any period of time, when you are released from that institution you will be on a special parole term of at least two years and for whatever maximum I think is appropriate.
App. 16 (emphasis added). We think that these instructions are
sufficient to advise a reasonable person that Cleary's special
parole term would begin only after he successfully completed his
prison sentence of up to five years, and that the term of special
parole could be imposed in excess of the statutory maximum term
of imprisonment for the offense (five years in his case). We
also note that Cleary stated that he understood the penalties
explained by the court and did not ask any questions or make any
statements that would lead us to believe that he did not fully understand the consequences of his guilty plea.5 Furthermore, at
the end of the colloquy, the court asked all of the parties
whether it had overlooked anything. Tr. 53, 56. Cleary did not
ask about special parole or its effects, and neither he nor his
attorney brought up the court's failure to advise Cleary about
the effects of special parole. This is significant because, as
the transcripts of the change of plea and sentencing hearings
show, Cleary was not hesitant to voice his opinions and concerns
to the court.
Additionally, as in Lucas, the fact that Cleary was
subject to a mandatory period of special parole for a minimum of
two years was also stated in the presentence report. Although
Cleary objected to presentence report in several respects, he did
not complain about the term of special parole or raise any
questions as to its effect. Furthermore, neither Cleary nor his
attorney objected to the ten-year special parole term at his
sentencing. In fact, his attorney requested that Cleary "be
placed on a period of probation for the maximum period of time as
well as the maximum [special] parole period after that. Or in
lieu thereof, to do a minimum amount of incarceration and
thereafter do the complete balance of the term on probation and
then the mandatory parole . . . ." Sentencing Hearing Transcript
5 Cleary was represented by competent counsel at his change of plea hearing and Cleary's intelligence and education -- he completed three years of college -- are more than established by the lucid, cogent arguments he has presented to this Court and the court below in his briefs. ("S. Tr.") 115. Indeed, after rendering Cleary's sentence, the
court advised Cleary that the ten years of special parole would
"be of no moment" if he stayed out of trouble with the law, but
warned him that he would be sent back to jail if he committed
another criminal act while on special parole. S. App. 1.
Despite the comments of the court and his attorney and an
opportunity to address the court at his sentencing, S. Tr. 118
and 122, Cleary did not protest the term of special parole or its
effect.
Cleary also failed to challenge the district court's
Rule 11 violation in his first habeas corpus motion. In fact,
Cleary raised the special parole issue for the first time only
after the Parole Commission revoked his special parole status,
more than twelve years after he was sentenced. Even then, he
waited several months before submitting his self-serving
affidavit stating that he would not have pled guilty if he had
known about the effects of special parole. In light of the
record and Cleary's failure to take action with respect to this
claim, his affidavit is unconvincing. Thus, he cannot show that
he was prejudiced by the court's violation. Moreover, we cannot
find that the district court's error resulted in a fundamental
defect which resulted in a complete miscarriage of justice or an
omission inconsistent with the rudimentary demands of fair
procedure. V. CONCLUSION Accordingly, the district court's denial of Cleary's
motion to vacate his guilty plea is affirmed.