United States v. Richard Pulley, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 31, 2018
• Docket: 17-10150
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 31 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10150

Plaintiff-Appellee, D.C. No. 2:05-cr-00368-JAM-1 v.

RICHARD JAMES PULLEY, Jr., AKA MEMORANDUM* Khaliq Ali Abdul As Salaam,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Raul A. Ramirez, District Judge, Presiding

Submitted August 17, 2018** San Francisco, California

Before: BEA and CHRISTEN, Circuit Judges, and McLAUGHLIN,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Mary A. McLaughlin, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Richard James Pulley appeals his conviction, by conditional guilty plea on

remand from this Court, for unlawful possession of a firearm in violation of 18

U.S.C. § 922(g)(1). In a prior appeal, this Court reversed Pulley’s conviction on

the basis that he was denied his Sixth Amendment right of self-representation and

remanded for a new trial. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

First, the district court did not err in denying Pulley’s second motion to

dismiss the indictment under the Speedy Trial Act. Pulley has waived the issue

whether the district court erred by not reaching the merits of the Speedy Trial Act

motion by failing to raise this issue in his opening appellate brief. The district

court did not reach the merits of Pulley’s second motion to dismiss under the

Speedy Trial Act in its May 3, 2016 order, instead finding that Pulley had waived

such arguments by not presenting them in his initial appeal. In his opening brief,

Pulley does not identify any error in that holding. See United States v. Kama, 394

F.3d 1236, 1238 (9th Cir. 2005) (“[A]n issue is waived when the appellant does not

specifically and distinctly argue the issue in his . . . opening brief.”). Rather,

Pulley addresses the merits of the Speedy Trial Act argument, which were not

addressed by the court below.

2 Moreover, Pulley could have raised his arguments regarding the factual

bases of the district court’s denial of his motion to dismiss in his first Speedy Trial

Act motion or his first appeal, but failed to do so. Before the first trial, Pulley

moved to dismiss the indictment on the theory that the failure of the court to

articulate explicitly an ends-of-justice finding was fatal to the effective exclusion

of time under the Speedy Trial Act. His initial motion did not challenge the factual

bases underlying the exclusions of time. The district court and this Court rejected

Pulley’s Speedy Trial Act arguments on the merits, and this Court specifically

noted Pulley's failure to challenge the factual bases in question. Because Pulley

did not challenge the factual bases underlying the exclusions of time prior to his

first trial or during the first appeal, he cannot do so in the present appeal. See

United States v. Nagra, 147 F.3d 875, 882 (9th Cir. 1998) (“When a party could

have raised an issue in a prior appeal but did not, a court later hearing the same

case need not consider the matter.”).

Second, in the plea agreement, Pulley waived appeal of the ineffective

assistance of counsel claim that defense counsel failed to challenge the underlying

factual bases in the original motion to dismiss under the Speedy Trial Act. The

plea agreement states that “this Agreement constitutes a complete waiver of all

appellate rights, except for the single issue described in Section II.B [the May 3,

3 2016 denial of his motion to dismiss the indictment pursuant to the Speedy Trial

Act].” Accordingly, Pulley’s waiver preserved only two issues on which he could

potentially argue ineffective assistance of counsel: (1) ineffective assistance that

occurred on remand leading up to the May 3, 2016 denial of his Speedy Trial Act

motion, or (2) ineffective assistance affecting the voluntariness of the waiver itself.

United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000) (holding that where

waiver includes right to appeal sentence, it also waives right to argue ineffective

assistance during sentencing); Washington v. Lampert, 422 F.3d 864, 871 (9th Cir.

2005) (a waiver of appellate rights is unenforceable with respect to ineffective

assistance of counsel claims challenging the voluntariness of the waiver itself).

The plea agreement did not preserve Pulley’s ability to argue that previous trial and

appellate counsel (those not involved in litigating the May 3, 2016 denial of his

speedy trial motion or in advising him on entry into the appellate waiver) were

ineffective.

Pulley’s motion requesting that we take judicial notice of General Order No.

479 of the United States District Court for the Eastern District of California is

granted. See Fed. R. Evid. 201(b); United States v. Black, 482 F.3d 1035, 1041

(9th Cir. 2007).

AFFIRMED.