F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 28 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 96-2293 v. (D.C. No. CIV-96-101-SC) (D. N.M.) PHILLIP LEE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Defendant appeals the district court’s denial of his motion to set aside his
sentence pursuant to 28 U.S.C. § 2255. Defendant was convicted after a jury trial
of conspiracy to commit bank robbery, bank robbery, and use of a firearm during
a crime of violence. Judgment was entered on February 8, 1995, and defendant
did not pursue a direct appeal. In November 1995, it came to light that the U.S.
Attorney’s Office in New Mexico had issued at least fifty-three subpoenas to
witnesses under Fed. R. Crim. P. 17(a) to compel their attendance at ex parte
pretrial interviews with the prosecution in at least eleven cases. After defendant
received a copy of the letter from the U.S. Attorney’s Office advising the court
that the government had issued twenty-one such subpoenas in his case, defendant
filed the present § 2255 motion.
Defendant argued that the government’s misuse of the court’s subpoena
power violated the Fifth and Sixth Amendments, as well as Fed. R. Crim. P. 16,
and that it constituted prosecutorial misconduct. Defendant also contended that
the government may have violated the Jencks Act, 18 U.S.C. § 3500, if it obtained
statements from witnesses who later testified at trial and did not disclose those
statements to defendant, and that the government may have violated its duties
under Brady v. Maryland, 373 U.S. 83 (1963), if it obtained exculpatory
information during those interviews which it failed to disclose to defendant. In
light of the government’s allegedly unconstitutional conduct, defendant requested
-2- that his conviction be set aside and the indictment be dismissed, or that he be
granted a new trial. Defendant also requested an evidentiary hearing on his
claims.
The district court adopted the report and recommendation of the magistrate
judge, after considering the lengthy objections filed by defendant, and denied
relief. Because defendant had not brought his claims on direct appeal, the district
court held that he would have to establish either cause and prejudice for his
default, or that a fundamental miscarriage of justice would occur if his claims
were not addressed. See United States v. Allen, 16 F.3d 377, 378 (10th Cir.
1994). The court concluded that defendant had established cause, because he did
not learn of the government’s improper use of the court’s subpoena power until
the time for appeal had passed. The court then considered whether defendant
could establish actual prejudice.
In considering the prejudice prong, the court applied the harmless error
standard under Brecht v. Abrahamson, 507 U.S. 619, 638-39 (1993), and
Kotteakos v. United States, 328 U.S. 750, 765-66 (1946). Accordingly, the court
considered whether it had a “grave doubt about whether a trial error of federal
law had substantial and injurious effect or influence in determining the jury's
verdict.” Tuttle v. Utah, 57 F.3d 879, 884 (10th Cir. 1995) (quotation and
emphasis omitted). The court concluded that defendant’s conclusory allegations
-3- were not sufficient to meet this standard, and that the government’s improper use
of Rule 17 subpoena power was harmless error. Because defendant had failed to
establish both cause and prejudice, the court held that his claims were
procedurally barred.
Defendant raises three challenges to the district court’s order on appeal:
(1) the court erred in applying the cause and prejudice standard because
defendant’s failure to raise the claims on direct appeal did not constitute a
procedural default; (2) the court did not give defendant a sufficient opportunity to
respond after sua sponte raising the issue of procedural default; and (3) the court
erred in concluding that defendant did not make a sufficient showing of prejudice.
We address each of defendant’s arguments in turn.
Defendant maintains that he did not procedurally default his claims by
failing to raise them on direct appeal because, like claims of ineffective assistance
of counsel, his claims were not amenable to being raised on direct appeal. Twice
before, we have addressed the misuse of the district court’s subpoena power by
the U.S. Attorney’s Office in New Mexico. In each of these cases, the defendant
raised the challenge on direct appeal. See United States v. Villa-Chaparro, 115
F.3d 797, 798, 804-05 (10th Cir. 1997); United States v. Ventura, No. 96-2148,
1997 WL 774750, at **1, **3-**4 (10th Cir. Dec. 17, 1997). Likewise, other
courts have addressed challenges to the government’s misuse of Rule 17 subpoena
-4- power on direct appeal. See, e.g., United States v. Keen, 509 F.2d 1273, 1274-75
(6th Cir. 1975); United States v. Hedge, 462 F.2d 220, 221, 222-23 (5th Cir.
1972); United States v. Standard Oil Co., 316 F.2d 884, 886-87, 897 (7th Cir.
1963). Therefore, we are not persuaded by defendant’s argument that claims such
as those raised in his § 2255 motion are not of the type that can be adequately
raised on direct appeal.
Turning to defendant’s second challenge, we begin with the
well-established premise that a court may sua sponte raise the defense of
procedural default when a § 2255 movant has failed to raise an issue on direct
appeal. See Hines v. United States, 971 F.2d 506, 507-09 (10th Cir. 1992). If the
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 28 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 96-2293 v. (D.C. No. CIV-96-101-SC) (D. N.M.) PHILLIP LEE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Defendant appeals the district court’s denial of his motion to set aside his
sentence pursuant to 28 U.S.C. § 2255. Defendant was convicted after a jury trial
of conspiracy to commit bank robbery, bank robbery, and use of a firearm during
a crime of violence. Judgment was entered on February 8, 1995, and defendant
did not pursue a direct appeal. In November 1995, it came to light that the U.S.
Attorney’s Office in New Mexico had issued at least fifty-three subpoenas to
witnesses under Fed. R. Crim. P. 17(a) to compel their attendance at ex parte
pretrial interviews with the prosecution in at least eleven cases. After defendant
received a copy of the letter from the U.S. Attorney’s Office advising the court
that the government had issued twenty-one such subpoenas in his case, defendant
filed the present § 2255 motion.
Defendant argued that the government’s misuse of the court’s subpoena
power violated the Fifth and Sixth Amendments, as well as Fed. R. Crim. P. 16,
and that it constituted prosecutorial misconduct. Defendant also contended that
the government may have violated the Jencks Act, 18 U.S.C. § 3500, if it obtained
statements from witnesses who later testified at trial and did not disclose those
statements to defendant, and that the government may have violated its duties
under Brady v. Maryland, 373 U.S. 83 (1963), if it obtained exculpatory
information during those interviews which it failed to disclose to defendant. In
light of the government’s allegedly unconstitutional conduct, defendant requested
-2- that his conviction be set aside and the indictment be dismissed, or that he be
granted a new trial. Defendant also requested an evidentiary hearing on his
claims.
The district court adopted the report and recommendation of the magistrate
judge, after considering the lengthy objections filed by defendant, and denied
relief. Because defendant had not brought his claims on direct appeal, the district
court held that he would have to establish either cause and prejudice for his
default, or that a fundamental miscarriage of justice would occur if his claims
were not addressed. See United States v. Allen, 16 F.3d 377, 378 (10th Cir.
1994). The court concluded that defendant had established cause, because he did
not learn of the government’s improper use of the court’s subpoena power until
the time for appeal had passed. The court then considered whether defendant
could establish actual prejudice.
In considering the prejudice prong, the court applied the harmless error
standard under Brecht v. Abrahamson, 507 U.S. 619, 638-39 (1993), and
Kotteakos v. United States, 328 U.S. 750, 765-66 (1946). Accordingly, the court
considered whether it had a “grave doubt about whether a trial error of federal
law had substantial and injurious effect or influence in determining the jury's
verdict.” Tuttle v. Utah, 57 F.3d 879, 884 (10th Cir. 1995) (quotation and
emphasis omitted). The court concluded that defendant’s conclusory allegations
-3- were not sufficient to meet this standard, and that the government’s improper use
of Rule 17 subpoena power was harmless error. Because defendant had failed to
establish both cause and prejudice, the court held that his claims were
procedurally barred.
Defendant raises three challenges to the district court’s order on appeal:
(1) the court erred in applying the cause and prejudice standard because
defendant’s failure to raise the claims on direct appeal did not constitute a
procedural default; (2) the court did not give defendant a sufficient opportunity to
respond after sua sponte raising the issue of procedural default; and (3) the court
erred in concluding that defendant did not make a sufficient showing of prejudice.
We address each of defendant’s arguments in turn.
Defendant maintains that he did not procedurally default his claims by
failing to raise them on direct appeal because, like claims of ineffective assistance
of counsel, his claims were not amenable to being raised on direct appeal. Twice
before, we have addressed the misuse of the district court’s subpoena power by
the U.S. Attorney’s Office in New Mexico. In each of these cases, the defendant
raised the challenge on direct appeal. See United States v. Villa-Chaparro, 115
F.3d 797, 798, 804-05 (10th Cir. 1997); United States v. Ventura, No. 96-2148,
1997 WL 774750, at **1, **3-**4 (10th Cir. Dec. 17, 1997). Likewise, other
courts have addressed challenges to the government’s misuse of Rule 17 subpoena
-4- power on direct appeal. See, e.g., United States v. Keen, 509 F.2d 1273, 1274-75
(6th Cir. 1975); United States v. Hedge, 462 F.2d 220, 221, 222-23 (5th Cir.
1972); United States v. Standard Oil Co., 316 F.2d 884, 886-87, 897 (7th Cir.
1963). Therefore, we are not persuaded by defendant’s argument that claims such
as those raised in his § 2255 motion are not of the type that can be adequately
raised on direct appeal.
Turning to defendant’s second challenge, we begin with the
well-established premise that a court may sua sponte raise the defense of
procedural default when a § 2255 movant has failed to raise an issue on direct
appeal. See Hines v. United States, 971 F.2d 506, 507-09 (10th Cir. 1992). If the
court chooses to raise the defense sua sponte, however, it “must generally afford
the movant an opportunity to respond to the defense.” Id. at 509. Here, the
magistrate judge raised the defense sua sponte in his report and recommendation.
The district court then gave defendant forty days to file objections to the
magistrate judge’s report, which defendant did. Included in defendant’s
objections was a discussion of how he had demonstrated prejudice arising from
the government’s misuse of the Rule 17 subpoena power. Thus, the district court
gave defendant ample opportunity to respond to the procedural default defense
before dismissing his § 2255 petition. See id. at 507, 509 (affirming dismissal
-5- where magistrate judge sua sponte raised procedural default and district court
gave defendant opportunity to respond).
Finally, defendant contends that the district court erred in concluding that
he had not demonstrated actual prejudice and, therefore, could not overcome the
procedural default. We agree with the district court that defendant’s conclusory
statements are not enough to establish prejudice. The evidence was
overwhelming that defendant participated in the bank robbery, and defendant has
not made any specific allegations which, if true, would create a grave doubt about
whether the prosecution’s misuse of the court’s subpoena power “had substantial
and injurious effect or influence in determining the jury’s verdict.” Tuttle, 57
F.3d at 884 (quotation and emphasis omitted).
The judgment of the district court is AFFIRMED. All outstanding motions
are DENIED.
Entered for the Court
Mary Beck Briscoe Circuit Judge
-6-