U.S. v. Richards, 92-4197

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation5 F.3d 1369
Docket NumberNo. 92-4197,92-4197
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Larry D. RICHARDS, Defendant-Appellee.
Decision Date23 September 1993

Wayne T. Dance, Asst. U.S. Atty. (David J. Jordan, U.S. Atty., with him on the briefs), Salt Lake City, UT, for plaintiff-appellant.

Loni F. DeLand, McRae & DeLand, Salt Lake City, UT, for defendant-appellee. *

Before MOORE, ANDERSON, and BALDOCK, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The United States appeals the grant of Larry D. Richards' motion to correct his sentence pursuant to 28 U.S.C. Sec. 2255. The government argues on appeal that Richards' motion was procedurally barred for his failure to raise the issue on direct appeal or in an earlier Sec. 2255 motion, and that the original sentence was correctly determined. Because we agree that Richards' motion is an abuse of the writ, we reverse without deciding the other issues presented by this appeal.

BACKGROUND

Richards pled guilty to possession of 1 kilogram or more of a mixture containing a detectable amount of methamphetamine, with intent to manufacture methamphetamine in powder form, in violation of 21 U.S.C. Sec. 841(a). He was sentenced to 188 months of imprisonment and five years of supervised release. United States v. Richards, No. 89-CR-168A (D.Utah Aug. 9, 1990). Richards subsequently filed a Sec. 2255 motion that was denied. Richards v. United States, No. 90-CV-1079A (D.Utah Dec. 11, 1991).

Richards then filed a second Sec. 2255 motion, claiming that the court had misapplied the federal sentencing guidelines by including the weight of unmarketable and unusable waste water along with the weight of extractable methamphetamine in determining the base offense level. The district court granted Richards' motion and subsequently resentenced Richards to 60 months of imprisonment and five years of supervised release. Richards v. United States, 796 F.Supp. 1456. (D.Utah 1992). The government filed a timely notice of appeal.

DISCUSSION

The abuse of the writ doctrine prohibits Richards' second Sec. 2255 motion unless he excuses his failure to raise the issue earlier by showing "cause for failing to raise it and prejudice therefrom" or by showing that a "fundamental miscarriage of justice would result from a failure to entertain the claim." McCleskey v. Zant, 499 U.S. 467, ----, ----, 111 S.Ct. 1454, 1465, 1470, 113 L.Ed.2d 517 (1991). The government adequately pleaded abuse of the writ in response to Richards' second motion. See id. 499 U.S. at ----, 111 S.Ct. at 1470.

Richards offers as cause the lack of a reasonable basis for his claim until after he filed his first Sec. 2255 motion. See Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984) ("[W]here a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim...."). He contends that he did not have a reasonable basis for his claim that the weight of waste products should not be included until similar claims were upheld in several circuit court decisions following Chapman v. United States, --- U.S. ---- 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). The district court agreed, concluding that Richards was not barred from raising this issue in a second motion because "there would have been no viable legal basis" for the argument until after these decisions. Richards, 796 F.Supp. at 1458 n. 4.

The mere fact that others had not raised this issue first is not sufficient cause. "[T]he question is not whether subsequent legal developments have made counsel's task easier, but whether at the time of the default the claim was 'available' at all." Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). Although Chapman itself did not change the law regarding inclusion of waste products in a drug mixture, several circuits have relied on its market-oriented perspective in ruling that the weight of waste products should not be included. See, e.g., United States v. Jennings, 945 F.2d 129, 136-37 (6th Cir.1991), modified, 966 F.2d 184 (6th Cir.1992). Chapman 's market-oriented explanation of federal sentencing for drug crimes was not new, however. In fact, this circuit had given the same explanation before Richards filed his first motion. See United States v. Mendes, 912 F.2d 434, 439 (10th Cir.1990). Furthermore, at least one case had accepted a similar argument long before Richards was convicted. See United States v. Miller, 680 F.Supp. 1189 (E.D.Tenn.1988) (concluding that Congress's market-oriented approach "necessarily assumes that the substance or mixture ... is in some form that is readily marketable" and thus not including the weight of marijuana stalks), aff'd, 870 F.2d 1067 (6th Cir.1989). Both the argument and the principle on which it rests therefore were available to Richards. His belief that it was unlikely to succeed does not excuse his failure to raise the issue. See Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982).

Richards also argues that failure to consider his claim would be a fundamental miscarriage of justice because it is not proportionate to his culpability. A "fundamental miscarriage of justice" in this context, however, means only that the petitioner is actually innocent of the offense. See Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). Richards does not claim to be actually innocent of the offense for which he was convicted; he claims only that he should have received a lesser sentence. A person cannot be actually innocent of a noncapital sentence, however. See Sawyer v. Whitley, --- U.S. ----, ---- - ----, 112 S.Ct. 2514, 2519-20, 120 L.Ed.2d 269 (1992) (explaining that "[i]n the context of a noncapital case, the concept of 'actual innocence' is easy to grasp" because it simply means the person didn't commit the crime); Estrada v. Witkowski, 816 F.Supp. 408, 414 (D.S.C.1993). But see Jones v. Arkansas, 929 F.2d 375, 381 & n. 16 (8th Cir.1991) (suggesting that one might be actually innocent of a sentence in some circumstances).

Even if innocence of a noncapital sentence were a "fundamental miscarriage of justice," Richards' abuse of the writ would not be excused on this ground. The law in this circuit has not changed. We have consistently held that the weight of waste products from the drug manufacturing process should be included in...

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104 cases
  • U.S. v. Richards
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 28, 1996
    ...this motion. On appeal, we concluded that Defendant's second petition constituted an abuse of the writ and reversed. United States v. Richards, 5 F.3d 1369 (10th Cir.1993). We noted, however, that the United States Sentencing Commission had proposed an amendment to § 2D1.1, which if adopted......
  • Embrey v. Hershberger
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 17, 1997
    ...concept of actual innocence is "easy to grasp," id., because "it simply means the person didn't commit the crime," United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993). Even if the basic Sawyer principle were available to undermine the validity of convictions in noncapital cases, wh......
  • U.S. v. Richards, 94-4052
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 11, 1995
    ...granted this motion, but we reversed on appeal, holding that the second petition constituted an abuse of the writ. United States v. Richards, 5 F.3d 1369 (10th Cir.1993). His latest avenue of attack is 18 U.S.C. Sec. 3582(c)(2), which allows a district court to modify the prison term of a d......
  • U.S. v. Talk
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • September 11, 1998
    ...typically do not to give rise to a miscarriage of justice sufficient to excuse procedural default, see, e.g., United States v. Richards, 5 F.3d 1369, 1370-71 (10th Cir.1993) (holding successive § 2255 motion procedurally barred because petitioner failed to raise sentencing error on direct a......
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1 books & journal articles
  • Dretke v. Haley and the still unknown limits of the actual innocence exception.
    • United States
    • Journal of Criminal Law and Criminology Vol. 95 No. 3, March 2005
    • March 22, 2005
    ...unavailable. (112) See Respondent's Brief at 17, Dretke (No. 02-1824). (113) See Petitioner's Brief at 8, Dretke (No. 02-1824). (114) 5 F.3d 1369 (10th Cir. (115) Id. at 1371. (116) Id. (citing Sawyer, 505 U.S. at 341). (117) Id. (citing Sawyer, 505 U.S. at 341). (118) Id. (quoting Sawyer, ......

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