Marshall v. U.S.

• Decision Date: 01 March 1978
• Docket Number: No. 76-2032,76-2032
• Citation: 576 F.2d 160
• Parties: Robert J. MARSHALL, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 160

576 F.2d 160

Robert J. MARSHALL, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.

No. 76-2032.

United States Court of Appeals, Ninth Circuit.

March 1, 1978.

Rehearing and Rehearing En Banc Denied June 5, 1978.

Lawrence J. Semenza (argued), Las Vegas, Nev., for respondent-appellant.

William P. Daley (argued), Oakland, Cal., for petitioner-appellee.

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

Before HUFSTEDLER and KILKENNY, Circuit Judges, and GRANT, District Judge. ^*

GRANT, District Judge.

The appellee to this proceeding, Robert Marshall, is a federal prisoner incarcerated at the McNeil Federal Penitentiary in Steilacoom, Washington. He has challenged his sentencing, pursuant to the Dangerous Special Offenders Sentencing Statute, 18 U.S.C. § 3575, et seq., on both statutory and constitutional grounds. On February 5, 1976, the district court granted his motion to vacate the sentence and ordered that he be resentenced, exclusive of the Dangerous Special Offenders Statute from which judgment the government instituted this appeal. Jurisdiction here is properly based upon 28 U.S.C. § 1291.

On January 14, 1974, Marshall was convicted on four counts of unregistered possession and illegal transfer of two fragmentation hand grenades, in violation of 26 U.S.C. § 5861. Prior to the trial, the government filed notice with the court, and Marshall, that it intended to proceed against the defendant pursuant to the Dangerous Special Offenders Statute and, on March 29, 1974, the district court held a hearing on the question of sentencing. At the conclusion of the evidence, the court ruled that Marshall was a "dangerous offender". Marshall was then sentenced to twenty years on each count, to be served concurrently, but consecutively to an unrelated sentence he had already begun.

On direct appeal to this court, United States v. Marshall, No. 74-2120 (9th Cir. June 12, 1975), it was argued that the district court erred by not giving reasons, in the record, for withholding the pre-sentence report. We held there that since an objection was not lodged below, the omission could not be challenged for the first time on appeal. Marshall also contended that his sixth amendment right of confrontation had been violated by the admission of hearsay testimony at the trial court hearing on the issue of whether the sentencing should be pursuant to the Dangerous Special Offenders Statute. While we noted that this issue was a substantial one, we specifically held that: "(S)ince appellant also failed to raise this issue in the district court, he may not now do so on this direct appeal. His remedy is under 28 U.S.C. § 2255." United States v. Marshall, supra.

Apparently, as a result of our language, Marshall filed a § 2255 motion on October 29, 1975. On February 5, 1976, the motion was granted without a hearing. The district court Order states specifically that all but one of Marshall's contentions, raised by way of § 2255, were without merit. The court then went on to state that it agreed with the case of United States v. Kelly, 519 F.2d 251 (8th Cir. 1975), and that as a result Marshall's sentence was ordered vacated. We can only assume that since the district court Order relied upon Kelly, a case involving notice of intention to invoke the Dangerous Special Offenders Act, that the granting of this § 2255 motion also hinged on this single issue of notice.

It is upon that basis that we now must reverse. Our earlier opinion in this matter was clear that a constitutional challenge to the Dangerous Special Offenders Statute would have been proper pursuant to a § 2255 motion. Specifically, the language of our opinion indicated that a § 2255 motion challenging whether or not the sixth amendment to the constitution was violated when hearsay evidence was used at the sentencing hearing would have been appropriate. Nevertheless, the district court erroneously linked its determination concerning notice to our statement on the potential constitutional problem in relation to the admittance of hearsay testimony.

While Marshall has framed his notice arguments in constitutional terms, it seems clear that a statutory requirement is involved. Our suggestion on direct appeal that Marshall could collaterally raise his constitutional challenge to the admission of hearsay evidence, pursuant to 28 U.S.C. § 2255, does not sanction Marshall's subsequent attempt to raise the additional, unrelated issue of non-compliance with the statutory notice requirement. The district court's reliance on Kelly makes it clear that it, too, understood Marshall's claim to be an issue of statutory construction. It is true that constitutional claims may be raised in collateral proceedings even if the defendant failed to pursue them on appeal. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). However, non-constitutional issues are proper for collateral attack only when some type of extraordinary discrepancy is alleged. In Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), the Supreme Court stated in reference to the failure of the trial court to ask a defendant if he had anything to say before sentencing:

It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present "exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455.

368 U.S. at 428, 82 S.Ct. at 471.

Thus, it has developed that non-constitutional claims are not proper for collateral review unless a "fundamental defect" is asserted which would lead to a "complete miscarriage of justice". The Supreme Court has re-enunciated this rule on several occasions. Most recently, in Stone v. Powell, 428 U.S. 465, at 477 n.10, 96 S.Ct. 3037, at 3043, 49 L.Ed.2d 1067 (1976), the Court observed that, "Despite the expansion of the scope of the writ, there has been no change in the established rule with respect to non-constitutional claims." See also Davis v. United States, 417 U.S. 333, at 345, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Sunal v. Large, 332 U.S. 174, at 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947).

Here, the statutory issue of notice does not present the "exceptional circumstances" constituting the type of fundamental defect contemplated in Hill. While Marshall's § 2255 motion was pro se, he was represented by counsel on his prior direct appeal to this court. Thus, no allegation can be made that the equities of this case require us to now hear this issue by way of § 2255. Further, notice was provided by the government in this case and it was sufficient to impart knowledge upon Marshall of the intention to proceed pursuant to the Dangerous Special Offenders Statute. Therefore, Marshall has no complaint that his due process right to proper notice under the Dangerous Special Offenders Statute was violated. Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Oyler v. Boles, 368 U.S. 448, 182 S.Ct. 501, 9 L.Ed.2d 446 (1962). Marshall's alleged discrepancy involves the limited question as to whether or not the notice was specific enough to meet the language requirements of the statute. While we do not mean to imply that this is not an important issue, in Hill, a case dealing with the alleged failure to comply with Rule 32(a) of the Federal Rules of Criminal Procedure, the Court stated:

Whether § 2255 relief would be available if a violation of Rule 32(a) occurred in the context of other aggravating circumstances is a question we therefore do not consider. We decide only that such collateral relief is not available when all that is shown is a failure to comply with the formal requirements of the Rule.

368 U.S. at 429, 82 S.Ct. at 472. See also Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). Accordingly, under the circumstances, we do not feel review pursuant to 28 U.S.C. § 2255 is warranted.

The point is also made that possibly this motion for relief pursuant to § 2255 should be converted into a motion to correct an illegal sentence under Federal Rule of Criminal Procedure 35, and thus be controlled by United States v. Garrett, 565 F.2d 1065 (1977). However, we would prefer to follow the guidance, by analogy, of Sunal v. Large where it was stated, "So far as convictions obtained in federal court are concerned, the general rule is that the writ of habeas corpus will not be allowed to do service for an appeal." 332 U.S. at 178, 67 S.Ct. at 1590 (1947). Specific language in Hill makes it clear that consideration of a Section 2255 motion as one under Rule 35 is of a permissive nature and is not mandatory upon the Court. Further, Hill continues by saying that Rule 35 was not designed to "(R)e-examine errors occurring at the trial or other proceedings prior to the imposition of sentence." 368 U.S. at 430, 82 S.Ct. at 472. Here, the appellant would challenge the notice received under the Dangerous Special Offenders Statute even though the record shows that that notice was given long before the sentencing. Thus, in this situation, where, as here, Marshall was represented by counsel at his direct appeal as well as on this current appeal, and where no mention has ever been made in terms of a Rule 35 motion, we do not now feel compelled to take the affirmative steps necessary to construe this motion as one made under Rule 35.

We, therefore, reverse the District Court judgment for the reason that the issue of adequate statutory notice was not raised on direct appeal.

REVERSED.

HUFSTEDLER, Circuit Judge, dissenting:

The majority opinion holds that Marshall's attack upon the validity of his sentence,...