Belford v. U.S.

• Decision Date: 11 September 1992
• Docket Number: No. 91-3595,91-3595
• Citation: 975 F.2d 310
• Parties: Arthur L. BELFORD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 310

975 F.2d 310

Arthur L. BELFORD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 91-3595.

United States Court of Appeals Seventh Circuit.

Argued April 28, 1992.

Decided Sept. 11, 1992.

James C. McKinley (argued), Gregory F. Hahn, Tabbert & Ford, Indianapolis, Ind., for petitioner-appellant.

Christina McKee, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Indianapolis, Ind., for respondent-appellee.

Before MANION, Circuit Judge, and FAIRCHILD and WOOD, Jr., Senior Circuit Judges.

MANION, Circuit Judge.

In 1990, Arthur Belford pleaded guilty to a violation of 18 U.S.C. § 371. He was sentenced to three years, a fine of $250,000 and restitution. On July 8, 1991, Belford filed a motion under 28 U.S.C. § 2255 collaterally attacking the validity of his guilty plea and resulting sentence. The district court denied the motion after concluding that Belford had not raised the issues in his section 2255 motion on direct appeal and had not shown cause for and actual prejudice resulting from the default. Belford appeals the district court's denial of his motion to vacate his sentence under 28 U.S.C. § 2255. We affirm.

I. Facts

Arthur L. Belford was the chief executive officer and majority stockholder of Circle Express, Inc. The government charged Belford with violating 18 U.S.C. § 371 by conspiring to make false statements and representations to the Securities and Exchange Commission in violation of 18 U.S.C. § 1001. Under a five-page plea agreement, Belford agreed to: plead guilty and waive indictment; cooperate fully in the government's investigation; make restitution by relinquishing all interest held by him or his immediate family in the stock of Circle Express; together with his wife, execute a ten-year promissory note without interest in the sum of $200,000; pay the sum of $200,000 in cash; relinquish the stock, promissory note and cash on or before sentencing by depositing it in escrow; and pay $25,000 to the United States to help cover the costs of the investigation. In exchange, the government agreed: not to seek any further fine or restitution; not to institute any other charge against Belford arising from its investigation of Belford and Circle Express; to inform the sentencing court of the nature of and extent of Belford's cooperation; and to make no recommendation at the time of sentencing as to the sentence to be imposed.

Three provisions in the plea agreement contained several paragraphs warning Belford of the penalties for his offense and the consequences of pleading guilty. First, Paragraph 1 stated that "[t]he maximum penalty for [conspiracy to provide false information to the SEC in violation of 18 U.S.C. § 1001] is five years imprisonment, or a fine of $250,000.00 or both, as well as an assessment in the amount of $50.00." Second, Paragraph 6 provided:

If the Court imposes a sentence with which the Defendant is dissatisfied, the Defendant will not be permitted to withdraw any guilty plea for that reason alone, nor will the Defendant be permitted to withdraw any plea should the Court decline to follow any recommendations by any of the parties to this Agreement.

Finally, in Paragraph 11, the agreement stated:

The Defendant acknowledges that no threats, promises or representations have been made, nor agreements reached, other than those set forth in this document, to induce the Defendant to plead guilty.

Upon questioning by the district judge at the sentencing hearing, Belford stated that he understood the terms of the plea agreement and denied that his plea was induced by any promises beyond those contained in the agreement. The district judge accepted Belford's plea, entered judgment and sentenced Belford to three years imprisonment. The court also ordered restitution as set forth in the plea agreement but provided that payments should be made within nine months. In addition, the court ordered a $250,000 fine. Belford did not appeal.

On October 11, 1990, represented by new counsel, Belford filed a motion to reduce his sentence pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure (as in effect prior to December 1, 1991). Belford argued that he did not know the terms of the plea agreement allowed the district court to fine him $250,000 and that he was sentenced more severely than his co-defendant. Belford requested that the court suspend the balance of his executed sentence, place him on probation on the condition that he perform one year of community service, and vacate the order to pay the $250,000. The court denied the motion, but Belford did not appeal.

On July 9, 1991, Belford, represented by yet a third attorney, filed the section 2255 motion seeking to invalidate both his guilty plea and his sentence. Belford claimed that the fine imposed by the district court represented a rejection of the plea agreement, and therefore Belford should be permitted to withdraw his plea; that his counsel at the sentencing hearing was ineffective because he did not pin down specific figures concerning the loss to Circle Express stockholders resulting from Belford's criminal activities; that the sentencing judge did not comply with Fed.R.Crim.P. 32(c) because he failed to specifically resolve disputed factual issues; that the sentencing judge was biased against the defendant; that the court improperly joined Belford's wife in the restitution program; and that the court abused its discretion in sentencing Belford more severely than his co-defendant. In response, the government pointed out that Belford had not raised these issues on direct appeal and had not shown cause for the default or prejudice resulting from the alleged errors. In his reply, Belford raised the ineffectiveness of his trial counsel as the "cause" for his procedural default and requested an evidentiary hearing. The district court did not hold an evidentiary hearing but concluded that Belford had not shown cause and prejudice.

On appeal, Belford argues that his counsel's ineffectiveness constituted cause for his procedural default; that he should have been afforded an evidentiary hearing; that his plea agreement is invalid because it requires his family to make restitution; and that he is entitled to a different judge if the case is remanded. Because we find that Belford has failed to show cause for and prejudice resulting from his failure to appeal, we affirm.

II. Analysis

Collateral relief under section 2255 is available if any legal error in taking a prisoner's guilty plea or sentencing him subsequent to that plea was "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir.1992) (quoting Haase v. United States, 800 F.2d 123, 126 (7th Cir.1986), petition for cert. filed (U.S. Jul. 22, 1992) (No. 92-5288)). However, a section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal. E.g., Johnson v. United States, 838 F.2d 201, 202 (7th Cir.1988); Qualls v. United States, 774 F.2d 850, 851 (7th Cir.1985); Norris v. United States, 687 F.2d 899, 900 (7th Cir.1982). As a result, there are three types of issues that a section 2255 motion cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) nonconstitutional issues that could have been but were not raised on direct appeal; ¹ and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal. United States v. Rodriguez, 792 F.Supp. 1113 (N.D.Ill.1992); see Norris, 687 F.2d at 900 and 903-04 (On appeal from the denial of a section 2255 motion, the court refused to consider issues previously decided on direct appeal from the conviction and nonconstitutional issues that could have been but were not raised on direct appeal. The court would consider constitutional issues that could have been raised on direct appeal only if petitioner showed cause and prejudice); Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir.1989) (failure to raise a constitutional challenge which could have been raised on direct appeal precludes section 2255 review absent a showing of cause for the procedural default as well as actual prejudice resulting from the failure to appeal); Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir.1988) (citing Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969)) ("non-constitutional errors which could have been raised on appeal but were not, are barred on collateral review--regardless of cause and prejudice."). Belford maintains that he is entitled to relief under section 2255 because he raises constitutional issues not raised on appeal and has demonstrated the requisite cause and prejudice. ²

To meet the cause and prejudice test, Belford argues that his counsel's failure to advise him about his limited appellate rights constituted ineffective assistance of counsel which in turn constituted "cause" for his appellate procedural default. In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Supreme Court held that ineffective assistance of counsel may constitute cause for a procedural default. If a petitioner's default results from the denial of the sixth amendment right to effective assistance of counsel, then the government, "which is responsible for the denial as a constitutional matter, must bear the cost of any resulting default and the harm to state interests that federal habeas review entails." Coleman, --- U.S. at ----, 111 S.Ct. at 2567. However, "so long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), there is] no inequity in requiring him to bear the risk of attorney error...