Femia v. U.S.

• Decision Date: 08 February 1995
• Docket Number: No. 697,D,697
• Citation: 47 F.3d 519
• Parties: Francesco FEMIA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 94-2303.
• Court: U.S. Court of Appeals — Second Circuit

Page 519

47 F.3d 519

Francesco FEMIA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 697, Docket 94-2303.

United States Court of Appeals, Second Circuit.

Submitted Jan. 17, 1995.

Decided Feb. 8, 1995.

Francesco Femia, pro se.

Mary Jo White, U.S. Atty. for the So. D.N.Y. (Andrew C. McCarthy and Alexandra Rebay, Asst. U.S. Atty., So. D.N.Y., of counsel), for respondent-appellee.

Before: WALKER, JACOBS, and CALABRESI, Circuit Judges.

WALKER, Circuit Judge:

Habeas corpus petitioner Francesco Femia appeals from an order of the United States District Court for the Southern District of New York (Robert J. Ward, Judge ) dismissing sua sponte and without prior notice his second petition under 28 U.S.C. Sec. 2255 as an abuse of the writ. The issues before us are (1) whether a district court has the power to dismiss a petition sua sponte for abuse of the writ, and, if so, (2) whether such dismissal was proper without prior notice to Femia. We hold that a district court may dismiss sua sponte a petition under Sec. 2255, and, where it is a second or successive petition and the ground for dismissal is lack of actual prejudice from the error alleged, no prior notice to petitioner is required. Because Femia is unable to show actual prejudice, we affirm the order of the district court.

I. BACKGROUND

On July 19, 1989, Francesco Femia, represented by counsel, pled guilty to one count of attempted exportation of cocaine in violation of 21 U.S.C. Secs. 802, 812, 953, 960(a)(1), and 960(b)(1)(B). Although the indictment charged him with attempting to export more than five kilograms of cocaine, an offense which carries a statutory mandatory minimum sentence of ten years and a maximum sentence of life imprisonment under 21 U.S.C. Sec. 960(b)(1)(B), Femia pled guilty to attempting to export an amount of cocaine under five kilograms pursuant to an agreement between Femia's counsel and the government. This reduced the possible mandatory minimum term of imprisonment to five years and the statutory maximum to forty years. See 21 U.S.C. Sec. 960(b)(2)(B). The court explained the applicable statutory maximum and minimum, and Femia acknowledged that he understood the possible sentences he faced.

Prior to sentencing, Femia moved to withdraw his guilty plea on the ground that the factual basis for the plea was inadequate. The district court denied the motion. At his sentencing hearing on May 18, 1990, Femia objected to the presentence report's calculation of his offense level based on ten kilograms since this amount was more than he personally attempted to export and more than the amount to which he pled guilty. The government argued in response that, although it had agreed that Femia could allocute to an amount of less than five kilograms, it had never represented that Femia's actual involvement was limited to that amount.

The district court expressed a concern that Femia may have misunderstood the plea agreement because of his limited command of the English language and therefore gave Femia the opportunity to withdraw his plea agreement and go to trial. The court also informed Femia that the government would be permitted to charge him with more serious offenses in a superseding indictment if he withdrew his plea. The court also noted his intention to sentence Femia to a term of 97 months, which was at the bottom of the applicable guideline range for an offense involving ten kilograms of cocaine, if Femia elected not to withdraw his plea.

After an adjournment of several days, Femia decided not to withdraw his plea. The court thereupon sentenced him to 97 months in prison, based on the adjusted offense level of 32 recommended in the presentence report, and a two-level downward adjustment for acceptance of responsibility. Femia did not appeal.

Two years later, Femia, acting pro se, filed a Sec. 2255 petition dated July 14, 1992, attacking his conviction on two grounds. First, he alleged ineffective assistance of counsel because he was sentenced for an amount of drugs not charged in the indictment and because he did not state facts in his plea that would support conviction for attempt. Second, he alleged that the district court incorrectly applied the Sentencing Guidelines in failing to award him a downward adjustment either for his role in the offense or for the fact that the offense was not completed, and in attributing to him an amount of narcotics not reasonably foreseeable to him. In dismissing the petition, the court held that Femia was procedurally barred since he had failed to show cause for not raising his claims on direct appeal and prejudice from the errors alleged. It further held that his claims were not meritorious. Femia did not appeal that decision.

On April 13, 1994, Femia filed a second Sec. 2255 petition, which is the subject of this appeal. He alleges that the sentencing court (1) violated Federal Rule of Criminal Procedure 32(c)(3)(D) by failing to make a determination as to the quantity of narcotics involved in his offense, and (2) violated Sec. 2D1.4 of the Sentencing Guidelines by using an excessive quantity of drugs to calculate his base offense level. The district court sua sponte dismissed Femia's second Sec. 2255 petition as an abuse of the writ without providing Femia with prior notice that the court was contemplating that dismissal.

II. DISCUSSION

A. Notice Requirement under 28 U.S.C. Sec. 2255

In Lugo v. Keane, 15 F.3d 29 (2d Cir.1994) (per curiam), we held that in general it is erroneous for a district court to dismiss a habeas corpus petition sua sponte for abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts ("Sec. 2254 Rules") without giving the petitioner notice and an opportunity to respond. Id. at 31.

We believe the rule set forth in Lugo applies with equal force when the petition is brought under Sec. 2255. The commentary on the Sec. 2255 Rule 9(b), which makes explicit reference to its Sec. 2254 counterpart "[for] further discussion applicable to this rule," suggests that the Sec. 2254 standard should govern abuse-of-writ determinations under Sec. 2255. Rule 9 Governing Section 2255 Proceedings in the United States District Courts ("Sec. 2255 Rules"), 1976 Advisory Committee Note. The commentary to Sec. 2254 Rule 9(b) expressly endorses a notice requirement:

If it appears to the court after examining the petition and answer (where appropriate) that there is a high probability that the petition will be barred under either subdivision of rule 9, the court ought to afford petitioner an opportunity to explain his apparent abuse.

Rule 9 of the Sec. 2254 Rules, Advisory Committee Note. We see no reason why a petitioner should have any less opportunity under Sec. 2255 than under Sec. 2254 to explain why his second or successive petition is not an abuse. See United States v. Fallon, 992 F.2d 212, 213 (8th Cir.1993); but see United States v. Oliver, 865 F.2d 600, 601, 604-05 (4th Cir.), cert. denied, 493 U.S. 830, 110 S.Ct. 98, 107 L.Ed.2d 62 (1989).

Finding that the notice rule of Lugo applies to petitions under Sec. 2255 as well as Sec. 2254 does not end our inquiry, however. In the circumstances of this case, we are required to confront two questions left unanswered by that decision: (1) whether district courts have the power to dismiss a petition sua sponte for abuse of the writ in the first place, and (2) whether, notwithstanding the general rule, there are certain instances in which a petition may be dismissed for abuse of the writ without prior notice to petitioner.

B. Power to Dismiss Petition Sua Sponte

As we noted in Lugo, 15 F.3d at 31, uncertainty over the district court's power to dismiss a habeas corpus petition sua sponte for abuse of the writ arises from the Supreme Court's description of abuse of the writ as a matter to be raised by the respondent: "the burden is on the Government to plead abuse of the writ." Sanders v. United States, 373 U.S. 1, 10-11, 83 S.Ct. 1068, 1074-75, 10 L.Ed.2d 148 (1963). The Fourth Circuit has interpreted the pleading requirement of Sanders to bar any sua sponte dismissals: "under Sanders, abuse of process is an affirmative defense and may not be relied on to dismiss a petition unless it is pleaded by the respondent." Johnson v. Copinger, 420 F.2d 395, 398 (4th Cir.1969). The court in Copinger held, however, that the 1966 amendments to 28 U.S.C. Sec. 2244, ¹ the statutory authorization for dismissing habeas petitions for abuse of the writ, "eliminate[d] this procedural requirement stated by Sanders," id., and therefore permitted sua sponte dismissals so long as prior notice and an opportunity to be heard were provided to the petitioner, id. at 399.

The Supreme Court recently reaffirmed the Sanders rule that the government bears the burden of pleading abuse of the writ. See McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) ("When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ."). The reasoning of Copinger would suggest that under McCleskey a district court may not dismiss a petition sua sponte. But although courts frequently describe abuse of the writ as an "affirmative defense," see Fallon, 992 F.2d at 213; Spradley v. Dugger, 825 F.2d 1566, 1567 (11th Cir.1987); Copinger, 420 F.2d at 398, it would be wrong to conceive of dismissal for abuse of the writ as a matter within the sole initiative of the prosecution. When court processes are abused, the administration of justice is adversely affected to the detriment of the public. Accordingly, "where a 'doctrine implicates [nonjurisdictional] values that may transcend the concerns of the parties to an action, it is not inappropriate for the court, on its own motion, to invoke the doctrine.' " Hardiman v. Reynolds, 971 F.2d 500, 502-03 (10th Cir.1992) (affirming power of district court to raise sua sponte...