U.S. v. Nyhuis

• Citation: 211 F.3d 1340
• Decision Date: 17 May 2000
• Docket Number: No. 98-2716,98-2716
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Douglas NYHUIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1340

211 F.3d 1340 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee, v. Douglas NYHUIS, Defendant-Appellant.

No. 98-2716.

United States Court of Appeals Eleventh Circuit.

May 17, 2000.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Middle District of Florida.(No. 90-139-CR-ORL-19), Patricia C. Fawsett, Judge.

Before DUBINA and BLACK, Circuit Judges, and HILL, Senior Circuit Judge.

HILL, Senior Circuit Judge:

Douglas Nyhuis was tried and convicted in the Middle District of Florida on one count of conspiracy to possess, with intent to distribute, in excess of five kilograms of cocaine during the period from March, 1985, through October, 1989. On direct appeal, his conviction was affirmed by this court. He filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct an illegal sentence. After the district court denied this motion, he filed this appeal.

I.

Douglas Nyhuis was initially indicted in 1989, in the United States District Court for the Western District of Michigan, on one count of conspiracy to possess with intent to distribute marijuana and one count of engaging in a continuing criminal enterprise. The criminal activity was alleged to have occurred between January, 1984, and October, 1987. The Michigan court accepted Nyhuis' guilty plea on the criminal enterprise count and dismissed the conspiracy count. He was sentenced to a fourteen year, no parole term of imprisonment.

On December 12, 1990, a superseding indictment was returned against Nyhuis in the United States District Court for the Middle District of Florida for one count of conspiracy to possess, with intent to distribute, in excess of five kilograms of cocaine during the period from March, 1985, through October, 1989. Nyhuis moved to dismiss the Florida indictment on double jeopardy and immunity grounds. The district court denied the motions and, after a jury trial, he was convicted on the conspiracy charge. The Florida sentence was ordered to run concurrently with the Michigan sentence. We affirmed this conviction on direct appeal. United States v. Nyhuis, 8 F.3d 731 (11th Cir.1993).

Nyhuis filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He alleged eight grounds for relief, but the district court held that he was not entitled to relief on any of them, denied the motion and dismissed the case with prejudice.

Pursuant to 28 U.S.C. § 2253, Nyhuis filed an application for a certificate of appealability in the district court which the court denied. He then applied to this court for the certificate, which was granted as to two issues only. Subsequently, a third issue was certified.¹

Nyhuis' first issue on appeal is whether the government's prosecution of him in the Middle District of Florida constituted a breach of his Michigan plea agreement which violated due process of law. The second issue is whether the government conducted itself in this case in a manner which violated due process of law. The final issue is whether his trial and appellate counsel was ineffective at sentencing. We consider each of these issues de novo. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

II. The Breach of the Michigan Plea Agreement

Nyhuis claims that the government orally promised him that he would not be prosecuted for incidents underlying his Michigan conviction and that the Florida prosecution constituted a breach of that agreement. He raised this claim for the first time on motion to dismiss the Florida indictment on double jeopardy and immunity grounds. The district court considered and denied this motion. Nyhuis re-asserted the claim on direct appeal. After careful consideration, we concluded that there was no merit to Nyhuis' claim that the government violated its plea agreement with him. Nyhuis, 8 F.3d at 742. We said then:

The Government "agree[d] not to bring additional criminal charges against the defendant in the Western District of Michigan arising out of his involvement in the distribution of marijuana." It has not done so. The Government further agreed not to bring additional charges against Nyhuis arising out of "those transactions disclosed by the defendant in the proffer already made to the government." (Emphasis added.) It has not done so.... To permit Nyhuis retroactively to sweep his cocaine involvement within the ambit of the plea agreement would be an endorsement of the strategy of telling a little and hiding a lot.

Id.

Upon review of the present motion, the district court concluded that, despite Nyhuis' protestations to the contrary, his Section 2255 due process claim is based upon the same alleged plea agreement violation resolved against him by this court on direct appeal of his conviction. We agree with the district court. We can discern no fact or other evidence underlying the present due process claim which was not raised by Nyhuis and considered by us in his prior immunity claim.² The district court is not required to reconsider claims of error that were raised and disposed of on direct appeal. United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir.1981). "[O]nce a matter has been decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255." United States v. Natelli, 553 F.2d 5, 7 (2d Cir.1977).³ Nyhuis has merely re-characterized his prior immunity claim as a due process claim. A rejected claim does not merit rehearing on a different, but previously available, legal theory. Cook v. Lockhart, 878 F.2d 220, 222 (8th Cir.1989). Accordingly, we hold that the district court did not err in denying the motion to set aside the verdict as a violation of due process.

III.

Nyhuis' allegations regarding the government's conduct with regard to the plea agreement also state a due process claim for prosecutorial misconduct. The district court held that this claim was predicated upon the same alleged immunity violation that was resolved against him on appeal. Alternatively, the court held that this claim was procedurally barred.

On appeal, the government concedes that Nyhuis' claim of prosecutorial misconduct may not have been litigated previously, contrary to the district court's finding. The government states that the due process claim based on outrageous government misconduct is substantively different from the claim previously resolved by this court because it contains additional assertions of bad faith bargaining and fabrication of evidence by the government.

Nevertheless, the government maintains that the district court correctly denied collateral relief on the alternative ground that this claim is procedurally barred. Nyhuis concedes that this claim has not been previously litigated. Therefore, he is barred from asserting it on motion for collateral relief unless he can show cause excusing his failure to raise the issue previously and actual prejudice resulting from the alleged error. Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.1994); Cross v. United States, 893 F.2d 1287, 1289 (11th Cir.1990).⁴

Nyhuis suggests that ineffective assistance of counsel is the cause for his failure to raise this issue in the trial court or on direct appeal, and that prejudice is demonstrated by his Florida prosecution and conviction.

Ineffective assistance of counsel may satisfy the cause exception to a procedural bar. Greene v. United States, 880 F.2d 1299, 1305(11th Cir.1989). In order to do so, however, the claim of ineffective assistance must have merit. Id. To determine whether it does, we must decide whether the arguments the defendant alleges his counsel failed to raise were significant enough to have affected the outcome of his appeal. Miller v. Dugger, 858 F.2d 1536, 1538 (11th Cir.1988). Appellate counsel is not ineffective for failing to raise claims "reasonably considered to be without merit." Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.1984).

The outrageous conduct which forms the basis for Nyhuis' present prosecutorial misconduct claim include "deceptive investigatory practices, bad faith plea bargaining, contradictory representations to the relevant tribunals, and the proffer of false and misleading testimony at pretrial evidentiary hearings in Florida" through which "the government was able to prevent their prosecution from being barred on an immunity claim." If proven, such claims might rise to the level of a due process violation. United States v. Savage, 701 F.2d 867, 868 (11th Cir.1983) Law enforcement techniques which are "shocking to the universal sense of justice mandated by the Due Process Clause of the Fifth Amendment violate the Constitution." United States v. Mulherin, 710 F.2d 731, 735 (11th Cir.1983).

We find no merit in Nyhuis present claim that the government bargained in bad faith with him. Nyhuis offers no new evidence to support this claim. On direct appeal, we held that there is no evidence that the government tricked him into believing that he had been granted global immunity. We also found no evidence that the language of the written plea agreement did not accurately reflect the agreement of the parties. 8 F.3d at 742.

Nor do we find any merit to his present assertion that government agents lied concerning the source of their information concerning his cocaine activities (stating that it came from an independent source rather than from Nyhuis' own belated admissions). Nyhuis offers no evidentiary support for this allegation at all. He merely recounts portions of the agents' testimony at the prior evidentiary hearing, calls attention to certain exhibits and concludes that the agents must have...