Knight v. U.S.

• Decision Date: 12 September 1994
• Docket Number: No. 94-1374,94-1374
• Citation: 37 F.3d 769
• Parties: Stephen Ted KNIGHT, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 769

37 F.3d 769

Stephen Ted KNIGHT, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.

No. 94-1374.

United States Court of Appeals, First Circuit.

Heard Sept. 12, 1994.

Decided Oct. 20, 1994.

Arthur R. Silen, Boston, MA, for appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Jay P. McCloskey, U.S. Atty., Portland, ME, was on brief, for appellee.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Petitioner Stephen Knight appeals from a district court order denying his motion under 28 U.S.C. Sec. 2255 ¹ to correct his federal sentence of 78 months in prison and his fine of $15,000. We affirm.

I.

On May 25, 1990, Knight waived indictment and pleaded guilty to a four-count federal information. The information alleged that Knight had participated in a cocaine conspiracy, had sold marijuana on two occasions, and had possessed cocaine with intent to distribute.

The presentence investigation report (PSI), prepared by a probation officer, provided information about Knight's criminal history and financial status. The PSI indicated that several months earlier Knight had pleaded guilty to state drug violations, stemming from a June 1989 arrest in Maine. For these offenses, Knight had been sentenced in state court to five years in prison.

After a hearing, the federal district court sentenced Knight on August 24, 1990 to 96 months in prison and imposed a $15,000 fine. In calculating the sentence, the court added three points to Knight's criminal history score because of the prior state sentence, in accordance with U.S.S.G. Sec. 4A1.1(a). The addition of these three points raised the applicable sentencing range from 63-78 months to 78-97 months. The district court imposed a sentence near the top of the latter range although, later, in August 1993, it reduced the sentence to 78 months, on motion of the government pursuant to Fed.R.Crim.P. 35(b). Knight did not appeal from his federal sentence.

In October of 1992, Knight brought this separate proceeding in the district court under 28 U.S.C. Sec. 2255, collaterally attacking his federal sentence. Following an evidentiary hearing, a magistrate judge recommended that Knight's motion be denied. After considering the matter de novo, the district court denied Knight's Sec. 2255 motion. This appeal followed.

II.

A. Claims of Error under Sentencing Guidelines

Knight argues that it was error for the sentencing court to add three points to his criminal history score on account of his prior state sentence. Under U.S.S.G. Sec. 4A1.1(a), a sentencing judge must add three points for each prior sentence of imprisonment exceeding one year and one month. U.S.S.G. Sec. 4A1.2(a)(1) defines a "prior sentence" as: "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense " (emphasis added). Knight argues that the state offenses for which he was previously sentenced were "part of the instant offense," hence should not have been counted toward his criminal history score. Knight says the state and federal offenses were all part of a common scheme or plan involving the same individuals and occurring over roughly the same time period. Accordingly, he argues, the state sentence of imprisonment should not have been counted in figuring his criminal history score. ²

Knight also argues that the sentencing court abused its discretion in imposing a $15,000 fine in light of his inability to pay. U.S.S.G. Sec. 5E1.2(a) provides that a district court "shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine." U.S.S.G. Sec. 5E1.2(f) further states that if the defendant establishes that he "is not able and, even with the use of a reasonable installment schedule, is not likely to become able to pay all or part of the fine ... the court may impose a lesser fine or waive the fine. Knight argues that the PSI clearly indicated that he was unable to pay the $15,000 fine, even under a reasonable installment schedule. Accordingly, he argues, it was an abuse of discretion for the sentencing court to have imposed the fine.

We do not reach the merits of either of the above contentions. We hold that neither of them can now be raised within a collateral proceeding under 28 U.S.C. Sec. 2255.

28 U.S.C. Sec. 2255 sets forth four grounds upon which a federal prisoner may base a claim for relief: "(1) 'that the sentence was imposed in violation of the Constitution or laws of the United States;' (2) 'that the court was without jurisdiction to impose such sentence;' (3) 'that the sentence was in excess of the maximum authorized by law;' and (4) that the sentence 'is otherwise subject to collateral attack.' " Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 470, 7 L.Ed.2d 417 (1962) (quoting the statute). Neither of Knight's present claims alleges a constitutional error or lack of jurisdiction. Thus, the claims can only be properly brought under Sec. 2255 if they allege that the sentence "was in excess of the maximum authorized by law," "was imposed in violation of the ... laws of the United States," or "is otherwise subject to collateral attack."

While the statutory language is rather general, the Supreme Court has narrowly confined the scope and availability of collateral attack for claims that do not allege constitutional or jurisdictional errors. Such claims are properly brought under Sec. 2255 only if the claimed error is "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill, 368 U.S. at 428, 82 S.Ct. at 471. The error must "present exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Id. (quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939)); see Fasano v. Hall, 615 F.2d 555, 557 (1st. Cir.), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 86 (1980). Errors warranting a reversal on direct appeal will not necessarily support a collateral attack. See United States v. Addonizio, 442 U.S. 178, 184-85, 99 S.Ct. 2235, 2239-40, 60 L.Ed.2d 805 (1979).

The reason for so sharply limiting the availability of collateral attack for nonconstitutional, nonjurisdictional errors is that direct appeal provides criminal defendants with a regular and orderly avenue for correcting such errors. The Supreme Court has repeatedly emphasized that Sec. 2255 is not a substitute for direct appeal. See, e.g., United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982); Addonizio, 442 U.S. at 184-85, 99 S.Ct. at 2239-40; Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590-91, 92 L.Ed. 1982 (1947). A nonconstitutional claim that could have been, but was not, raised on appeal, may not be asserted by collateral attack under Sec. 2255 absent exceptional circumstances. See Stone v Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976); Suveges v. United States, 7 F.3d 6, 10 (1st Cir.1993) (applying cause and prejudice standard to procedural default of jurisdictional claim).

The Supreme Court has on four occasions considered whether a particular nonconstitutional, nonjurisdictional claim was properly brought under Sec. 2255. See Hill, 368 U.S. at 428, 82 S.Ct. at 471 (denial of allocution at sentencing in violation of Fed.R.Crim.P. 32(a) is not a "miscarriage of justice"); United States v. Timmreck, 441 U.S. 780, 784-85, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (error under Fed.R.Crim.P. 11 in procedure for taking a guilty plea not a "miscarriage of justice"); Addonizio, 442 U.S. at 184-90, 99 S.Ct. at 2240-41 (subsequent change in U.S. Parole Commission's parole policies not sufficient to constitute basis for collateral attack). In one of these cases, the Court found that the error did justify collateral attack. Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974) (subsequent change in substantive law making defendant's former behavior lawful does constitute sufficient basis for collateral attack).

While the above cases are not on all fours, we think it obvious that Knight's two claims fall far short of the "miscarriage of justice" standard. Knight's first claim is essentially that the district court made an erroneous finding of fact which led to the misapplication of the sentencing guidelines. Knight's second claim is that the district court abused a discretion explicitly committed to it by the sentencing guidelines. Neither claim is based upon an "exceptional circumstance." Rather, each alleges ordinary errors that could and should have been raised by Knight on direct appeal. And even assuming error was committed, ³ the error would not amount to a "complete miscarriage of justice." Knight's eventual sentence was 78 months, within the range that would have been imposed even if the district court had not added three points to his criminal history score. Similarly, Knight's $15,000 fine was at the very bottom of the available range ($12,500 to $2 million). Accordingly, even if error was committed, it would fall well short of being a "complete miscarriage of justice."

Knight, moreover, who was fully aware of his right to appeal, could have raised the purported error by direct appeal. Although Knight's counsel at the time decided that there were no issues worthy of appeal, he offered to direct Knight to alternative counsel who could help Knight with his appeal. Knight did not take advantage of this offer. Knight does not allege that there have been any new legal or factual developments justifying his failure to appeal. Allowing Knight to bring his claim at this late date would essentially be allowing him to use Sec. 2255 as a...