Olmstead v. U.S.

• Decision Date: 24 May 1995
• Docket Number: No. 94-3646,94-3646
• Citation: 55 F.3d 316
• Parties: Leonard J. OLMSTEAD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 316

55 F.3d 316

Leonard J. OLMSTEAD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 94-3646.

United States Court of Appeals, Seventh Circuit.

Argued April 13, 1995.

Decided May 24, 1995.

Margaret Danielson (argued), Madison, WI, for petitioner-appellant.

Robert Anderson, Asst. U.S. Atty. (argued), Madison, WI, for respondent-appellee.

Before POSNER, Chief Judge, ESCHBACH, and MANION, Circuit Judges.

ESCHBACH, Circuit Judge.

In 1991, Leonard Olmstead pleaded guilty to growing marijuana in a back-yard garden in violation of 21 U.S.C. Sec. 841(a)(1). On direct appeal, he challenged the sentencing court's calculation of the number of marijuana plants involved. We affirmed in an unpublished opinion. See United States v. Olmstead, No. 92-1187, (7th Cir. Oct. 27, 1992). Presently before us is Olmstead's appeal of the district court's denial of his petition to vacate, correct or set aside his sentence pursuant to 28 U.S.C. Sec. 2255. For the reasons below, we affirm.

I.

After Olmstead's guilty plea, a sentencing hearing began on January 7, 1992. During this hearing, which lasted three days, testimony was taken regarding the manner in which law enforcement officials seized and counted Olmstead's marijuana plants in August 1991 in order to arrive at the conclusion that Olmstead had grown 1057 marijuana plants. Officer David Keith, who orchestrated the search of Olmstead's land, testified that the officers uprooted two-thirds of the plants, counting each root system as one plant, and then cut the roots off these plants. On the remaining one-third of the plants, the officers cut the plants off at ground level and counted each plant system as one plant, even though it was conceded that there might have been multiple root systems on those plants which would have justified a higher count. Olmstead responded to the officer's testimony by claiming that there were only 728 marijuana plants in his garden. He hired a private investigator, Ernest Lein, who testified that soon after the law enforcement officials had conducted their search he went to Olmstead's property and collected the roots which had been cut off by the officers and uprooted the remaining roots which the officers had left in the ground. Counting all of these roots yielded the lower number.

After Lein's testimony and during a recess in the sentencing hearing, Keith went back to the garden, which was now covered by two-and-one-half feet of snow, to check whether Lein had indeed collected all the roots which had been cut off by the officers. Upon digging in the snow for thirty minutes in several places where he believed the officers had discarded the roots, he found fifteen more roots. In light of this discovery, the prosecution called Keith as a rebuttal witness in order to impeach Lein's statement that he had carefully collected all of the roots the officers had left lying on the ground.

The district court judge sentenced Olmstead to 120 months based upon his conclusion that Olmstead had been growing more than 1000 plants. He found the government's count to be accurate and reliable. He also discounted Olmstead's count, based on Keith's testimony which indicated that Lein had been careless in his collection of the roots.

On direct appeal, Olmstead questioned the sentencing court's findings. He specifically challenged Keith's testimony that he found fifteen roots under the snow. We affirmed the sentence. In response to Olmstead's challenge of Keith's testimony, we stated that "even if Keith's claim about the roots is questionable, we would still affirm because his estimate of the number of marijuana plants bears an 'indicia of reliability.' " Slip op. at 4.

Olmstead brought this Sec. 2255 petition to challenge his sentence and the effectiveness of his counsel at the sentencing hearing. The district court denied his petition without an evidentiary hearing because the reliability of Keith's testimony had already been decided on direct appeal and Olmstead's ineffective assistance of counsel claim was not based upon extrinsic evidence and therefore could not be raised for the first time in a Sec. 2255 motion. Olmstead filed a timely notice of appeal.

II.

Olmstead raises two issues on appeal. The first is that, in light of new evidence regarding the reliability of Keith's impeachment testimony of Lein's count, the district court erred in dismissing his Sec. 2255 petition without an evidentiary hearing. The second is that the sentence should be overturned because he was deprived of effective assistance of counsel during the sentencing hearing. We review the denial of a motion for post-conviction relief de novo. Quinn v. Neal, 998 F.2d 526, 528 (7th Cir.1993); Frazer v. United States, 18 F.3d 778, 781 (9th Cir.1994).

A. Evidentiary Hearing

The dismissal of a Sec. 2255 petition without holding an evidentiary hearing is appropriate, if not required, when "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief...." 28 U.S.C. Sec. 2255; Dugan v. United States, 18 F.3d 460, 464 (7th Cir.1994); Ebbole v. United States, 8 F.3d 530, 534 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1229, 127 L.Ed.2d 573 (1994). The district court found that this was such a case because Olmstead raised the same issue he had raised in his direct appeal of the sentence.

"[A] Section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal." Daniels v. United States, 26 F.3d 706, 711 (7th Cir.1994), (quoting Belford v. United States, 975 F.2d 310, 313 (7th Cir.1992)). Although res judicata does not apply in Sec. 2255 proceedings, "the court may still exercise its discretion not to reconsider issues already decided at trial, on direct appeal, or in prior Sec. 2255 proceedings." Taylor v. United States, 798 F.2d 271, 273 (7th Cir.1986), cert. denied, 479 U.S. 1056, 107 S.Ct. 933, 93 L.Ed.2d 983 (1987). Indeed, in the absence of changed circumstances of fact or law, we will not reconsider an issue which was already decided on direct appeal. Id. In his direct appeal, Olmstead specifically challenged Keith's testimony that he found 15 additional roots when he dug through the snow at Olmstead's property. We considered this claim and found that even if Keith's testimony was questionable, it would not undermine the district court's finding that the government's count was accurate.

Olmstead contends that we should revisit this issue in light of "newly-discovered" evidence that suggests that Keith committed perjury in the sentencing hearing when he testified about the fifteen additional roots. Shortly after his sentencing, Olmstead retained investigator John Reed to examine his property for signs of Keith's presence. One suspects that Olmstead hoped to find that there was no sign that Keith had visited his property and thereby establish that Keith could not have found fifteen additional roots. Instead, Reed discovered that Keith had dug even more holes in the snow than he had reported at the sentencing hearing. Olmstead argues that photographs which Reed took that day establish that Keith had actually dug through the snow in the northern portion of the field, not, as Keith had testified, in the southern portion of the field where the piles of roots had been left by law enforcement officials in August 1991. Olmstead also submitted climatological records evidencing the lack of snowfall between the days Keith and Reed visited the property. He couples these records with Reed's photos depicting the presence of four to six inches of loose snow in the footprints to suggest that Keith had not gone to Olmstead's farm during a recess in the sentencing hearing. In addition to Reed's evidence, Olmstead also submitted the affidavits of two national guardsman, who, allegedly in contradiction to the law enforcement officials' testimony, state that they helped pull plants from the ground. Finally, Olmstead offers the affidavit of an individual who helped Lein in his count, which contradicts the district court's stated assumption that Lein worked alone.

None of this evidence justifies reopening the issue decided on direct appeal. Olmstead raises no new questions as to the accuracy of the government's original count. In fact, most of the issues raised by the "new" evidence were discussed on direct appeal. Olmstead's brief to this court on direct appeal pointed out that Lein had an...