Johnson v. U.S.

• Citation: 838 F.2d 201
• Decision Date: 10 February 1988
• Docket Number: No. 86-1714,86-1714
• Parties: Paul D. JOHNSON, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 201

838 F.2d 201

Paul D. JOHNSON, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 86-1714.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 6, 1987.

Decided Jan. 13, 1988.

As Corrected Jan. 25, 1988.

Rehearing Denied Feb. 10, 1988.

Robert C. Perry, Asst. U.S. Atty., John Daniel Tinder, U.S. Atty., Indianapolis, Ind., for respondent-appellee.

Michael B. Nash, Nash & Nash, Chicago, Ill., for petitioner-appellant.

Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

Paul Johnson, a physician, prescribed amphetamines and barbiturates for nonmedical purposes and was convicted of 47 counts of violating 21 U.S.C. Sec. 841(a)(1). In March 1983 Johnson was sentenced to two years' imprisonment, to be followed by five years' special parole. He was fined $75,000 and ordered to pay the costs of prosecution and perform 1,500 hours of public service. Finally, the court revoked the federal certificate that allowed Johnson to prescribe controlled substances; as a practical matter, this precludes Johnson from practicing medicine as a private general practitioner.

Johnson's retained lawyer filed a notice of appeal but later moved to dismiss the appeal. The motion did not comply with Circuit Rule 51(d), which provides that no criminal appeal may be dismissed without the written assent of the client. The lawyer then furnished Johnson's written consent, which recited that the lawyer had moved to drop the appeal and continued: "I concur in my attorney's decision and hereby waive all rights to object or raise any points on appeal." In May 1983 we dismissed the appeal.

After his release from prison Johnson changed his mind. He filed a collateral attack under 28 U.S.C. Sec. 2255, in the nature of a petition for a writ of error coram nobis, see Wright v. United States, 732 F.2d 1048, 1050 (2d Cir.1984), raising the sort of contentions that could have been litigated on appeal. He contended, for example, that 21 U.S.C. Sec. 841(a) may not be applied to physicians who possess a certificate allowing them to prescribe controlled substances; that he had been entrapped; that the indictment was defective; that there had been prejudicial publicity; and that prosecutor, judge, and jury all committed improprieties at trial. The district court held that Johnson's letter withdrawing his appeal waived these claims.

That forgoing an appeal bars collateral review of appealable issues--that a petition under Sec. 2255 "will not be allowed to do service for an appeal", Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982 (1947)--is an old principle. See also United States v. Addonizio, 442 U.S. 178, 184-85, 99 S.Ct. 2235, 2239-40, 60 L.Ed.2d 805 (1979); United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); Hill v. United States, 368 U.S. 424, 427-28, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962); Johnson v. United States, 805 F.2d 1284, 1287-88 (7th Cir.1986). Johnson seeks to avoid these cases on the ground that he has at least some constitutional arguments, which may be raised by a petition under Sec. 2255. The district court erred in relying on waiver, according to Johnson, and should instead have evaluated the withdrawal of his appeal under the "cause and prejudice" standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

We held in Norris v. United States, 687 F.2d 899 (7th Cir.1982), that the Sykes approach governs failures to appeal, so that a defendant may not raise on collateral attack even constitutional claims that could have been raised on appeal, unless the defendant establishes "cause and prejudice" for the omission. See also Williams v. United States, 805 F.2d 1301, 1303-06 (7th Cir.1986) (extending Norris by applying the "cause and prejudice" inquiry to failures to appeal from sentencing proceedings after pleas of guilty); United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc). The Supreme Court recently applied Sykes to failures to appeal or seek discretionary review of particular claims within a state court system. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2646-48, 91 L.Ed.2d 397 (1986). Although it reserved the question whether the Sykes standard would be applied to "counsel 's decision not to take an appeal at all", id. 106 S.Ct. at 2648 (emphasis added), it did not question the application of Sykes to an accused's personal decision not to appeal. We see no reason to question the holding of Norris.

Sykes took the "cause and prejudice" test from Fed.R.Crim.P. 12(f), which deems certain claims forfeited if not timely presented. The Court held that state and federal forfeiture rules should be parallel. See Sykes, 433 U.S. at 84-85, 90-91, 97 S.Ct. at 2505-06, 2508-09; Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). At least one case after Sykes assimilates the standards in state and federal cases. See United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982), on which we relied in Norris, 687 F.2d at 901, 903. Section 2255 incorporates the rules used in habeas corpus, changing only the court (from the court with jurisdiction of the custodian to the sentencing court). To the extent there should be any difference in the standards of collateral attack, it should allow preclusion more readily in federal cases. Carrier may deprive a defendant of any review by a federal judge, while the forfeiture rule of Norris means only that the decision of the first federal judge stands in the absence of "cause and prejudice" justifying further review.

It does not follow from Norris and Carrier, however, that inquiry into "cause and prejudice" governs the outcome of every case. Our case involves a considered waiver, not a default. It should be harder to rescind a conscious choice than to recoup from an unconsidered omission. The principal issue in Norris was whether a footnote in Kaufman v. United States, 394 U.S. 217, 220 n. 3, 89 S.Ct. 1068, 1071 n. 3, 22 L.Ed.2d 227 (1969), had survived Sykes. Kaufman appealed his conviction but neglected to raise some issues. When he filed a petition under Sec. 2255 the government argued that the omission precluded further litigation. The Supreme Court replied in note 3:

This suggestion is contrary to our decisions that failure to take a direct appeal from conviction does not deprive a federal post-conviction court of power to adjudicate the merits of constitutional claims; the question rather is whether the case is one in which refusal to exercise that power would be appropriate. See Fay v. Noia, 372 U.S. 391, 438-440 [83 S.Ct. 822, 848-849, 9 L.Ed.2d 837] (1963); Henry v. Mississippi, 379 U.S. 443, 451-452 [85 S.Ct. 564, 569-570, 13 L.Ed.2d 408] (1965).

This certainly is not a case where there was a "deliberate by-pass" of a direct appeal. Appointed counsel had objected at trial to the admission of certain evidence on grounds of unlawful search and seizure, but newly appointed appellate counsel did not assign the admission as error either in his brief or on oral argument of the appeal. After oral argument of the appeal, however, [Kaufman] wrote a letter to appellate counsel asking him to submit to the Court of Appeals a claim of illegal search and seizure of items from his automobile. Counsel forwarded [Kaufman's] letter to the Clerk of the Court of Appeals who notified counsel that [Kaufman's] letter had been given to the panel which had heard and was considering the appeal. The opinion of the Court of Appeals affirming [Kaufman's] conviction does not appear to pass on the search-and-seizure claim.

Kaufman was a case of an omitted issue, and it assimilated the scope of review under Sec. 2255 to that permitted in the review of state decisions by habeas corpus. At the time, that standard was the "deliberate bypass" rule of Fay v. Noia. Our opinion in Norris asked whether only "deliberate bypass" on appeal would foreclose collateral review after Sykes and concluded that forfeitures too could have that effect--a conclusion fortified by Carrier.

The principles of Sykes are designed for forfeitures--for oversights, blunders, and other defaults. This is how the Court always describes them. For example, Carrier states that the approach of Sykes applies to "defaults on appeal as to those at trial." 106 S.Ct. at 2647. The Court has not allowed relief from a considered waiver on identical terms. Until this case no one has doubted that when there is a deliberate bypass of an appeal, that is the end of the line for all issues that could have been raised on appeal.

A waiver, an intentional relinquishment of a known right, is effective unless involuntary. The Court in Kaufman looked for such a waiver and did not find one. Our Rule 51(d), however, is designed to ensure that no criminal appeal is dismissed unless the defendant files a formal waiver. The defendant must demonstrate that he knows about his right to appeal and deliberately forswears it. Such a declaration is as binding as any other waiver. A plea of guilty, for example, waives a score of constitutional rights and precludes their resurrection at a later date. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Defendants may waive the right to counsel; indeed they have a constitutional right to do so, see Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). They may waive the right to have counsel who has no conflict of interest. E.g., United States v. Levine, 794 F.2d 1203, 1206 (7th Cir.1986). We therefore have no reason to doubt the continued force of the conclusion, implicit in Kaufman, that a waiver of the right to appeal surrenders all claims that could have been raised on appeal.

Even a waiver goes only so far. An involuntary waiver may be set aside. "Involuntariness" is a term of many...