United States v. Samuel Lee Oliver

865 F.2d 600, 1989 WL 1129

Opinions

CHAPMAN, Circuit Judge:

This appeal presents the question: Whether it is proper for a trial court to dismiss a motion made under 28 U.S.C. § 2255, attacking a sentence on constitutional grounds without providing notice to the petitioner and an opportunity to respond to allegations forming the basis of the dismissal? We find that, on the present facts, the district court had the authority, under the clear language of § 2255¹ and Rules 4(b)² and 9(b)³ of the Rules Governing Proceedings in the United States District Court Under Section 2255 of Title 28, United States Code, to dismiss the petition without providing prior notice to the petitioner with an opportunity to respond to the court’s findings forming the basis of the dismissal, and that the judge did not abuse his discretion, because it plainly appeared from the face of the motion, the annexed exhibits and the prior proceedings that petitioner was not entitled to relief, that petitioner had failed to allege new or different grounds from those previously presented and decided on the merits, and that the failure to assert the present grounds in the prior motion was an abuse of the procedure governing the Section 2255 Rules.

I

All of the judicial proceedings relevant to this case were conducted before the Honorable Franklin T. Dupree, Jr., United States District Judge for the Eastern District of North Carolina. Appellant Samuel Lee Oliver is approximately 38 years of age and, he completed high school and attended college. In 1976 appellant Oliver was convicted of bank robbery and sentenced by Judge Dupree to an active prison term. On March 30, 1979 he was paroled from federal custody. On June 30,1981, Oliver, while armed with a handgun robbed the Peoples Bank and Trust Company in Fayetteville, North Carolina, and put in jeopardy the life of one of the tellers. He was again brought before Judge Dupree. Oliver en tered a plea of not guilty and H. Gerald Beaver, Esquire, was appointed by the court to represent Mr. Oliver. Mr. Beaver and his associate, Mr. Tom Holt, had numerous meetings and conferences with Oliver and prepared his case for trial. Oliver worked closely with his attorneys, furnished them with the names of witnesses, and at trial took notes during the testimony of government witnesses, which Mr. Beaver testified were “particularly cogent”. On August 25, 1981, when the government had completed its presentation, except for one final witness, Oliver informed his attorney that he wished to enter a plea of guilty. Although the attorney did not feel that appellant should change his plea, he testified that appellant gave no indication that he was acting pursuant to any undue influence or that he was not competent to make this decision. The attorney asked Oliver the same basic questions that a court must ask under F.R.Crim.P. 11 to be sure that Oliver understood what he was doing and appreciated the consequences of his act.

The district judge then conducted a thorough Rule 11 proceeding during which the court asked Oliver: “Have you been satisfied with the services that he [Attorney Beaver] has rendered you?” Oliver answered: “Overwhelmingly satisfied, sir.” During this proceeding Oliver testified that he was not under the influence of any drug or alcohol and that his mind was clear and that he was making his change of plea freely, voluntarily and with a full understanding of the charges. The court made the necessary findings under Rule 11 and then imposed a sentence of 24 years pursuant to 18 U.S.C. § 2113(d) and 2.

On December 8, 1981 appellant Oliver filed a motion for reduction of sentence under F.R.Crim.P. 35. In this petition Oliver alleged that he was denied a proper defense to the charges in the indictment because “his Court Appointed Counsel, Gerald Beaver, was ineffective, in his assistance for protecting Petitioner’s Constitutional Right, pursuant to the provisions of the 5th Article of the United States Constitution.” Oliver also alleged that Beaver had failed to comply with F.R.Crim. P. 12.2 by not giving notice of an insanity defense and by not following the procedures set forth in this rule. This motion for reduction of sentence was denied by the district court on January 20, 1982.

On May 3, 1982, Oliver filed his first motion to vacate his sentence under 28 U.S.C. § 2255. In his motion he alleged that he had previously filed a Rule 35 motion alleging ineffective assistance of counsel, and he further alleged that his guilty plea was involuntary, because he was incompetent at the time of the plea and it was not a knowing and an intelligent plea. The district court ordered a psychiatric examination to be conducted by the Bureau of Prisons pursuant to 18 U.S.C. §§ 4245 and 4241. A majority of the examining doctors found that appellant was competent to change his plea at the time of trial and that he completely understood and he was aware of the procedures and consequences of pleading guilty. During this procedure Attorney Beaver testified as to his representation of the appellant and gave his opinion that appellant was competent at the time he decided to change his plea and entered a plea of guilty.

Following the hearing on this first motion for relief under § 2255, the court found that Oliver had failed to carry his burden of proof on the issue of incompetency. The motion for relief was denied on March 9, 1983.

On November 25, 1986, appellant filed his second motion under 28 U.S.C. § 2255 to vacate his conviction for armed bank robbery, and in this motion he stated his ground of relief as “Counsel failed to raise the issue of Defense of Insanity when there was sufficient evidence to support the issue.” On January 13, 1987, the same district judge, who had sentenced Oliver on two prior occasions for bank robbery, and had considered his Rule 35 motion in which he alleged ineffective counsel, and had considered and denied his first § 2255 motion after appointing a medical examining board and taking testimony of various witnesses, denied this second motion. At the time of the second denial the district judge had before him all of the files, records, tran scripts and correspondence relating to the judgment under attack, and to prior motions and petitions filed by Oliver attacking his conviction. The district court found that the November 25, 1986 motion was successive and that an answer by the government was unnecessary. The court found that this second 2255 motion was governed by Rule 9(b) and that “[mjovant has abused the procedure governed by the rules of habeas corpus. Furthermore, the court concludes that the government would be prejudiced by the granting of this motion.” The court further found that the facts asserted in the new motion “[w]ere entirely known to movant at the time of his previous motion. Movant has presented to the court exhibits documenting his use of ‘anti-depressant and psycho-tropic medication’ during 1976 and 1977. Movant’s ‘continuous’ use of these drugs was obviously known to him when filing his first Section 2255 motion and during the subsequent hearing. Although Oliver now alleges that he was insane when he committed the robbery, as opposed to incompetent when he pled guilty, the essence of his prior and present motions revolves around his mental state. With this in mind, mov-ant should have raised his insanity argument at his first Section 2255 motion. Such action would have enabled movant to confront his attorney with his present allegations at the hearing at which his counsel testified.

Footnotes

•

* Oliver’s presentation of his mental issue now and not previously constitutes an abuse of procedure, movant having obviously known the facts asserted here for some time.”

II

First, we face the appellant’s claim that Johnson v. Copinger, 420 F.2d 395 (4th Cir.1969), requires a district court to provide to a § 2255 petitioner facing dismissal for abuse of the process, both notice and an opportunity to respond. Appellant does not understand our holding in Johnson v. Copinger, nor does he appreciate the changes in procedure which have occurred since 1969. Copinger did not deal with § 2255, but with 28 U.S.C. § 2254(b). Copinger relates to the 1966 amendments to § 2254 and we held at 398-399:

However, the issue in this case extends beyond the simple question of whether a district judge may, on his own motion, dismiss a petition for abuse of process without an abuse having been specifically pleaded by the respondent. The question remains whether the judge may determine, solely on the basis of the petition and the prior records, that the petitioner has deliberately withheld known grounds or otherwise abused the writ, without providing the petitioner an opportunity to explain his conduct. We do not believe that the statute, as amended, authorizes such a procedure.

In Copinger the petitioner was a state prisoner attacking his state conviction in the United States District Court. The only things before the district judge were the motion and certain prior records from the state court. In the present proceeding we are dealing with a motion attacking a conviction in the United States District Court. The present motion for relief under § 2255 was presented to the same judge, who had heard a prior motion for relief under § 2255, a prior motion for reduction of sentence under Rule 35, and who had twice tried and sentenced the movant for bank robbery.

Since Copinger the rules governing procedures in the United States District Courts under § 2255 of Title 28, United States Code have been adopted. Rule 4(b) provides:

Initial consideration by judge.

The motion, together with all of the files, records, transcripts and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior pro ceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.

Rule 9(b) Successive motions

A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert these grounds in a prior motion constituted an abuse of the procedure governed by these rules.

The district judge was intimately acquainted with the prior convictions and the prior motions of the appellant. The prior proceedings clearly indicate that as early as the appellant’s Rule 35 motion, dated November 22, 1981, he claimed ineffective assistance of counsel because such counsel had not raised the issue of insanity. In this prior motion he even called attention to Federal Rule of Criminal Procedure 12.2 which requires the defense attorney to give notice of such an insanity defense and the procedures to be followed thereafter. Five years later in his November 25, 1986 motion for relief under § 2255 he makes the same claim of ineffective assistance of counsel stating “counsel failed to raise the issue of Defense of Insanity when there was sufficient evidence to support the issue.” Also, the May 3,1982 petition under § 2255 raised the issue of mental competency, but it did not raise it with a claim of ineffective assistance of counsel allegation.

Judge Dupree dismissed the motion under Rule 9(b), but he would have been clearly correct in dismissing it under Rule 4(b), since it was obvious from the prior proceedings in the case that appellant was not entitled to relief. Twice before appellant had raised the issue of his sanity or competency, and on one of these occasions had tied it to a claim of ineffective counsel. A dismissal under Rule 4(b) does not require notice to the appellant and an opportunity to respond to the allegations forming the basis of the dismissal.

The dismissal without notice and an opportunity to respond was also appropriate under Rule 9(b), because the district judge knew from the allegations of the present motion and the record of prior motions, and the district judge’s unique knowledge of the prior motions and proceedings, that there were no new or different allegations for relief in the November 25, 1986 motion. The district judge found that the facts asserted in movant’s present motion were entirely known to movant at the time of his previous motion.” This finding is supported by the record and the dismissal on this finding is proper under Rule 9(b).

There is no requirement of notice to appellant prior to dismissal or an opportunity to respond on the present facts. Our holding in Johnson v. Copinger does not apply because the present appeal involves a § 2255 motion, and, as such, it is governed by the Rules Governing Proceedings In The United States District Courts Under Section 2255 of Title 28, United States Code. This motion was properly dismissable under either Rule 4(b) or Rule 9(b), or both, and the language of 4(b) is clear that the movant is only notified after dismissal. On the present facts it would serve no useful purpose to require prior notice of a 9(b) dismissal.

The standard for dismissal under the § 2255 Rule 9(b) is not as strict as that under Rule 9(b) of the § 2254 Rules. Under 9(b) of the § 2254 Rules the court must find “that the failure of the movant to assert those grounds in a prior motion, constituted an abuse of the writ.” However, under § 2255 Rule 9(b) the court may dismiss if it finds “that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.” Oliver’s present petition is an abuse of the procedure governed by the § 2255 rules, because it is successive. It involves the same alie- gation of ineffective assistance of counsel as his Rule 35 motion, filed 5 years previously, and his failure to assert these grounds in the prior § 2255 motion violate the procedure, the letter and the spirit of the rules.

From the allegations of the present motion, the record of prior proceedings, and the district court’s knowledge of the prior proceedings, the court could properly find there was no right to relief on the assertion of ineffective assistance of counsel. The appellant could not meet the standard imposed by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) that a defendant must show that but for the attorney’s unprofessional errors, there was a reasonable probability that the result of the trial would have been different. Oliver does not allege that, but for Beaver’s failure to investigate the insanity defense, the outcome of the criminal proceeding would have been different. He entered a guilty plea and his mental capacity to enter such a plea has already been established.

Appellant also contends that the district court erred in considering the untimeliness of the present motion, because 28 U.S.C. § 2255 provides: “a motion for such relief may be made at any time.” It is obvious from the language of the district court’s order that little weight was given to the question of timeliness. However, we held in Raines v. United States, 423 F.2d 526 (4th Cir.1970) that the delay in filing such a motion is not controlling, but it may merit consideration.

AFFIRMED.

1

. 28 U.S.C. § 2255 (pertinent language)

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of the law with respect thereto.

The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.

2

. Rule 4(b) Initial consideration by judge. The motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.

3

.Rule 9(b) Successive Motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

"Movant apparently does not recall this hearing since he states in his motion that he did not receive a hearing on his first motion. This statement is simply incorrect.” (Footnote to District Court order).