U.S. v. Allen

• Decision Date: 31 August 1998
• Docket Number: No. 97-35697,97-35697
• Citation: 157 F.3d 661
• Parties: 98 Cal. Daily Op. Serv. 6777 UNITED STATES of America, Plaintiff-Appellee, v. Edward E. ALLEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 661

157 F.3d 661

98 Cal. Daily Op. Serv. 6777

UNITED STATES of America, Plaintiff-Appellee, v. Edward E. ALLEN, Defendant-Appellant.

No. 97-35697.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1998.

Decided Aug. 31, 1998.

Thomas K. Coan, Portland, Oregon, for defendant-appellant.

Sean B. Hoar, Assistant United States Attorney, Eugene, Oregon, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; James A. Redden, District Judge, Presiding. D.C. Nos. CV-96-06212-JAR, CR-87-60027-JAR.

Before: ALARCON, FERGUSON, and BRUNETTI, Circuit Judges.

ALARCON, Circuit Judge:

Edward E. Allen ("Allen") appeals from the district court's denial of his 28 U.S.C. § 2255 motion. Allen asserts that (a) he was denied the effective assistance of counsel at his 1994 probation revocation hearing; (b) his guilty pleas were neither knowing nor voluntary; and (c) the district court, after revoking probation, imposed a sentence in excess of the statutory maximum. We affirm in part and vacate in part with directions.

I

Allen was indicted in the District of Arizona on July 15, 1987 on charges of filing false tax returns in violation of 18 U.S.C. § 287 (the "District of Arizona indictment"). On July 29, 1987, Allen was indicted in the District of Oregon, charged with three counts of making false statements on loan applications in violation of 18 U.S.C. § 1014 (the "District of Oregon indictment"). The District of Arizona indictment subsequently was transferred to the District of Oregon pursuant to Fed.R.Crim.P. 20.

Allen pled guilty to count three of the District of Oregon indictment and to count one of the District of Arizona indictment on October 13, 1987, and was placed on five years probation in both cases. On March 31, 1988, the district court issued an order to show cause why Allen's 1987 probation should not be revoked. The district court found that Allen violated the terms of the 1987 probation order, and entered an order modifying the terms of Allen's probation.

On May 12, 1991, Allen filed a pro se § 2255 motion attacking the 1987 federal judgment and sentence, asserting inter alia, that due to ineffective assistance of counsel, the guilty pleas were not entered knowingly and voluntarily. Following appointment of counsel, Allen filed an amended § 2255 motion. The district court granted the Government's motion to dismiss Allen's amended § 2255 motion on December 30, 1991. Allen filed a notice of appeal on January 6, 1992. We affirmed the district court's denial of Allen's § 2255 motion. See United States v. Allen, No. 92-35176, 1992 WL 344931 (9th Cir.1992) (unpublished table decision).

On December 15, 1993, Allen was indicted by a federal grand jury on forty-seven counts of making false statements to financial institutions in violation of 18 U.S.C. § 1014. Allen was convicted on thirty-five of the forty-seven counts of the 1993 indictment on January 31, 1994. The court held a combined sentencing and probation revocation hearing on October 11, 1994. Allen was sentenced to 46 months imprisonment on the 1994 convictions. Following the imposition of sentence on the 1994 convictions, the court found that Allen had violated the terms of the 1988 probation order and sentenced Allen to five years imprisonment on the 1987 District of Arizona offense and two years imprisonment on the 1987 District of Oregon offense. These sentences were ordered to be served concurrently, but consecutively to the concurrent sentences totaling forty six months imposed for the 1994 convictions.

Allen timely appealed from the district court's decision revoking the 1988 probation order and imposing the five-year and two-year concurrent sentences on the 1987 federal offenses. We affirmed the order revoking probation and the sentencing decision. See United States v. Allen, No. 94-30391/92, 1996 WL 10244 (9th Cir. Jan. 9, 1996) (unpublished table decision).

On August 21, 1996, Allen filed this § 2255 motion attacking both the 1994 probation revocation and the 1987 judgments of conviction. The district court dismissed Allen's petition on the merits in an order dated April 2, 1997.

In his brief before this court, Allen argues that (1) "[d]efendant's [1987] plea was not knowing and voluntary because his attorney gave him incorrect advice on material issues;" (2) "he received ineffective assistance of counsel [at the 1994 probation revocation hearing] when his attorney failed to advocate for defendant's right to allocution;" (3) "[d]efendant's attorney [at the 1994 probation revocation hearing] was ineffective for failing to argue for a sentence under 18 U.S.C. § 4205(b);" and (4) "the district court sentenced defendant beyond the statutory maximum." We review de novo a district court's decision to grant or deny a federal prisoner's § 2255 motion. United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997). We affirm the district court's decision as it pertains to Allen's ineffective assistance claims. We vacate the district court's decision on the merits dismissing Allen's claims concerning the validity of the guilty pleas underlying the probation order because we conclude that the court lacked jurisdiction to consider those claims. We reject Allen's claim, raised for the first time on appeal, that his sentence exceeded the statutory maximum.

II

Allen maintains that his 1987 guilty pleas to count three of the District of Oregon indictment and to count one of the District of Arizona indictment were "not knowing and voluntary because his attorney gave him incorrect advice on material issues." Allen suggests that his attorney's performance was deficient in two respects. First, Allen asserts that his attorney erroneously advised him as to the effect certain prior state convictions would have on the length of his sentence if he rejected the plea agreement and Allen also argues that "he was induced to plead guilty because his trial attorney gave him inaccurate advice as to certain evidence...." Specifically, Allen contends that "he believed he was guilty only because his trial attorney told him the evidence showed that he was guilty." The evidence included certain loan documents which Allen only became aware of in 1994, and which he now alleges were forgeries. Allen asserts that if he "had known that the evidence consisted of forged loan documents, he would not have plead [sic] guilty."

was found guilty on all counts in the District of Oregon and District of Arizona indictments. This issue was raised by Allen in his first § 2255 motion. We affirmed the district court's denial of that motion. Allen, 1992 WL 344931 (holding that "Allen's counsel's performance was not shown to be deficient in a way which prejudiced Allen's defense"). Rule 9(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts (" § 2255 Rule 9(b)") states: "A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds and the prior determination was on the merits...." § 2255 Rule 9(b). In his brief, Allen correctly concedes that he is precluded from raising this claim for a second time.

Although this argument contains new factual allegations, it is still successive within the meaning of § 2255 Rule 9(b). In United States v. Gutierrez, 116 F.3d 412 (9th Cir.1997), we explained that a " 'ground is successive if the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments.' " Id. at 416 (quoting Molina v. Rison, 886 F.2d 1124 (9th Cir.1989)). " '[I]dentical grounds may often be proved by different factual allegations....' " Id. See also Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.1996)(rejecting an ineffective assistance of counsel claim as successive); Cunningham v. Estelle, 536 F.2d 82, 83 (5th Cir.1976)(holding that a habeas petitioner cannot raise an incompetency of counsel claim in a successive petition "by simply varying the factors that he claims demonstrate incompetency"). Allen's contention is that he was denied the effective assistance of counsel at the 1987 change of plea hearing at which he pleaded guilty to count three of the District of Oregon indictment and to count one of the District of Arizona indictment. This same ground was raised in his first § 2255 motion. Hence, it is a successive claim.

Because Allen previously filed a § 2255 motion attacking the 1987 judgments of conviction, any subsequent claims collaterally attacking those convictions are subject to the provisions of § 2255 regarding second or successive motions. Section 2255 states in pertinent part:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255. Allen did not request the requisite certification from this court prior to filing this § 2255 motion in which he has raised a successive claim. We conclude that the district court lacked jurisdiction to consider the merits of Allen's claim that the 1987 guilty pleas were not made knowingly and voluntarily. See Nelson v. United States, 115 F.3d 136 (2d Cir.1997).

III

The district court had jurisdiction to consider Allen's claim that he received ineffective assistance of counsel at his 1994 probation revocation hearing because that issue had not been previously raised in a collateral attack on the district court's judgment. Having successfully crossed that...