Gonzalez v. U.S.

• Decision Date: 11 August 1994
• Docket Number: 92-36821,Nos. 92-36820,s. 92-36820
• Citation: 33 F.3d 1047
• Parties: Miguel Angel GONZALEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1047

33 F.3d 1047

Miguel Angel GONZALEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 92-36820, 92-36821.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 1993.

Decided Aug. 11, 1994.

Constance Crooker, Portland, OR, for petitioner-appellant.

Charles F. Gorder, Jr., Asst. U.S. Atty., Portland, OR, for respondent-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: REINHARDT, BRUNETTI, and FERNANDEZ, Circuit Judges.

Opinion by Judge BRUNETTI; Dissent by Judge REINHARDT

BRUNETTI, Circuit Judge:

Federal prisoner Miguel Angel Gonzalez appeals the district court's denial of his 28 U.S.C. Sec. 2255 motion to vacate or modify his 168-month sentence, which was imposed after his guilty pleas to one count of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a) and 846, and to two counts of using a telephone to commit a felony in violation of 21 U.S.C. Sec. 843(b). In an unpublished disposition of the direct appeal, this court affirmed Gonzalez's convictions and sentence. United States v. Forcelledo, Nos. 89-30335, 89-30336, 89-30337, 89-30338, 89-30340, 89-30342, 89-30343, 919 F.2d 146 (9th Cir. filed Nov. 20, 1990).

We review de novo the district court's denial of Gonzalez's Sec. 2255 motion, see United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir.1990), and we now affirm.

DISCUSSION

Gonzalez claims that he was denied his right to a qualified court interpreter under the Court Interpreters Act, 28 U.S.C. Sec. 1827 (1988), and that the lack of adequate interpretation more generally deprived him of certain Fifth and Sixth Amendment rights because he did not understand the nature and cause of the charges against him and the potential consequences of his guilty plea. He additionally argues that his attorney's failure to request a qualified interpreter to assist him in court proceedings, as well as his attorney's gross miscalculation of his likely sentence under the applicable United States Sentencing Guidelines, constituted ineffective assistance of counsel.

A. Procedural Default

The government correctly points out that Gonzalez failed to raise these contentions during his direct appeal. Ordinarily, he might have to assert cause for this procedural default as well as actual prejudice resulting from the errors of which he complains. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982); but see Chambers v. United States, 22 F.3d 939, 945-46 (9th Cir.1994) (noting inter-circuit conflict on whether Frady standard applies to Sec. 2255 attacks on guilty pleas and unclear posture of Ninth Circuit law on the issue, but not resolving the question). At least some of Gonzalez's claims might not survive such a hurdle.

However, the government failed to assert procedural default in the district court proceedings on Gonzalez's Sec. 2255 motion, and indeed it argued the merits of these claims. Other circuits have held that such a failure to assert default waives the issue. See, e.g., United States v. Metzger, 3 F.3d 756, 758 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1374, 128 L.Ed.2d 50 (1994); United States v. Hicks, 945 F.2d 107, 108 (5th Cir.1991); Valladares v. United States, 871 F.2d 1564, 1566 n. 2 (11th Cir.1989) (Powell, J.); United States v. Hall, 843 F.2d 408, 410 (10th Cir.1988).

This situation also differs from the recent case of Woolery v. Arave, 8 F.3d 1325 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1623, 128 L.Ed.2d 348 (1994), in which this court addressed waiver of the doctrine of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). First, in Woolery we noted that Stone represents "a categorical limitation on the scope of the [judicially-created] exclusionary rule." 8 F.3d at 1326. We held that the State of Idaho could not waive the Stone issue by failing to raise it in the district court's consideration of Woolery's Sec. 2254 petition, because Stone eliminates the cognizability in federal habeas of exclusionary rule claims. Id. at 1326-28. By contrast, the Supreme Court's decision in Frady was not categorical--it simply imposed a cause and prejudice requirement for raising claims defaulted in an earlier federal proceeding. Unlike Stone, Frady did not eliminate the cognizability of an entire class of claims.

Second, Woolery was a collateral attack on a state-court proceeding, for which considerations of comity and federalism have great significance. Such concerns are absent in the context of Gonzalez's Sec. 2255 motion. See Metzger, 3 F.3d at 758. In addition, although the Frady Court did observe that "the Federal Government, no less than the States, has an interest in the finality of its criminal judgments," 456 U.S. at 166, 102 S.Ct. at 1593, that interest is surely attenuated when the government itself fails to assert it during the district court's consideration of a collateral attack. Moreover, permitting the federal government to assert a procedural bar now would represent an unjustifiable double standard, since we would preclude a state from doing so. See, e.g., Panther v. Hames, 991 F.2d 576, 580 (9th Cir.1993). Assuming arguendo that Frady does apply to collateral attacks on guilty pleas, we hold that the government has waived application of Frady's cause and prejudice standard to Gonzalez's claims.

B. Lack of a Qualified Interpreter

Gonzalez traces his right to a qualified interpreter to the Court Interpreters Act, 28 U.S.C. Sec. 1827 (1988), which states in relevant part:

The presiding judicial officer ... shall utilize the services of the most available certified interpreter, or when no certified interpreter is reasonably available, as determined by the presiding judicial officer, the services of an otherwise qualified interpreter, ... if the presiding judicial officer determines on such officer's own motion or on the motion of a party that such party (including the defendant in a criminal case) ...

(A) speaks only or primarily a language other than the English language ...

so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer 28 U.S.C. Sec. 1827(d)(1) (emphasis added). Both the magistrate judge and the district court judge did quickly perceive that Gonzalez, whose primary language is Spanish, had some difficulties with English.

However, the statutory predicate for appointment of an interpreter is a finding by the presiding judicial officer, upon inquiry, that a non-primary English speaker's skills are so deficient as to "inhibit" comprehension of the proceedings. See United States v. Lim, 794 F.2d 469, 471 (9th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986); see also United States v. Sanchez, 928 F.2d 1450, 1455 (6th Cir.1991) ("Our inquiry as to a district court's decision concerning the appropriate use of interpreters in the courtroom focuses upon whether the purposes of the Act were adequately met."); Valladares, 871 F.2d at 1565; United States v. Tapia, 631 F.2d 1207, 1209 (5th Cir.1980). In accepting Gonzalez's guilty plea, the district court judge here specifically determined that Gonzalez's language difficulties did not constitute a "major" problem. This was a factual finding, and we review the cold record for clear error only. United States v. Mayans, 17 F.3d 1174, 1179 (9th Cir.1994); Lim, 794 F.2d at 471.

While the subsequently-filed presentence report contained the information that Gonzalez was a naturalized U.S. citizen, had lived in the United States for twenty years, and had been a principal in and worked for a variety of businesses, at the time of its inquiry the district court certainly knew that Gonzalez had lived in Oregon for ten years, was buying his own home, and worked in the auto and truck sales business. At Gonzalez's arraignment, where the defendant was represented by appointed counsel Norman Linstedt, the magistrate judge had also conducted the following colloquy:

Court: Do you understand?

Gonzalez: Yeah, little bit.

Court: What is your problem, language problem?

Gonzalez: Well, no. I don't know how to read that much. I understand. I understand.

At Gonzalez's change of plea hearing, where Linstedt continued as his attorney, the district court judge examined Gonzalez with a string of questions about the rudiments of his offenses. For example:

Court: What did you do? Did you work with other people to buy drugs and sell them?

Gonzalez: I used the telephone.

Court: In addition to using the phone, what did you do?

Gonzalez: I worked with Forcelledo.

Court: Did you sell drugs to people?

Gonzalez: Yes.

Court: Did you deliver drugs to people?

Gonzalez: Yes.

Court: Was that drug cocaine?

Gonzalez: Yes.

...

Court: Where did you get the drugs you sold?

Linstedt: You worked for Forcelledo?

Gonzalez: Right.

Court: Did you ever sell cocaine to somebody?

Gonzalez: Yes.

Court: Where did you get that cocaine?

Gonzalez: Get it from Forcelledo.

The court continued briefly, then Linstedt interjected:

I spent from about 7:00 o'clock this morning and any deficiency that he has in language, his wife is here and we fully discussed this and read all of these documents; and we have been doing the same thing for the last couple of months. As his lawyer, I am satisfied that his plea is an understanding plea and in his best interest if he did what he just told Your Honor he did.

The court concluded:

[T]here is some language difficulty but not a major one. The record should reflect that he has been in court when other defendants have entered a plea of guilty and that he has been assisted by competent counsel who has fully advised him of his rights and that he has also been assisted also by his wife who is able to assist the attorney in explaining these matters to him.

Reviewing the record of the district court's sua sponte inquiry, we ho...