Molina v. Rison

• Decision Date: 25 September 1989
• Docket Number: No. 88-6388,88-6388
• Citation: 886 F.2d 1124
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Carlos MOLINA, Petitioner-Appellant, v. Richard H. RISON, Warden, Respondent-Appellee.

Page 1124

886 F.2d 1124

Carlos MOLINA, Petitioner-Appellant, v. Richard H. RISON, Warden, Respondent-Appellee.

No. 88-6388.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 9, 1989.

Decided Sept. 25, 1989.

Carlos Molina, San Diego, Cal., petitioner-appellant, pro se.

Judith S. Feigin, Asst. U.S. Atty., San Diego, Cal., for respondent-appellee, U.S.

Appeal from the United States District Court for the Southern District of California.

Before FLETCHER and NELSON, Circuit Judges, and CARROLL, ^* District Judge.

NELSON, Circuit Judge:

Appellant Carlos Molina appeals from the dismissal, without a hearing, of his third motion under 28 U.S.C. Sec. 2255 challenging his conviction and sentence on one count of bank robbery. Molina's motion raises two issues. First, Molina contends that the sentencing judge improperly relied on the fact that Molina had refused to cooperate with the probation office. We reject this claim as successive, because it raises a ground that was decided adversely to Molina, on the merits, in proceedings concerning a prior Sec. 2255 motion. Second, Molina contends that the sentencing judge should have recused himself. We conclude that Molina cannot raise this issue on a Sec. 2255 motion because he has procedurally defaulted. Accordingly, we affirm the dismissal of Molina's motion.

I

Molina was convicted on April 23, 1980 after a bench trial held before Judge Turrentine on stipulated facts. The probation office was ordered to conduct a presentence investigation. Molina's defense counsel instructed him not to discuss the case with anyone, including the probation office, while the appeal of his conviction was pending in this court. ¹

On April 28, 1980, Molina's codefendant, Mary DeVargas, pleaded guilty to a reduced charge of one count of bank larceny and was sentenced to five years in prison. On June 2, 1980, Molina was sentenced to 15 years in prison on one count of bank robbery. After his conviction was affirmed on appeal, Molina moved on December 4, 1981 for a modification of sentence, which was granted to the extent of allowing him to be eligible for parole under 18 U.S.C. Sec. 4205(b)(2).

Almost two years later, on December 15, 1983, Molina filed his first motion under Sec. 2255. The motion was based on several grounds, among which was the claim that counsel had been ineffective in failing to move for a recusal of Judge Turrentine, who allegedly had a close relationship with the family of Molina's codefendant, DeVargas. The motion was dismissed on June 13, 1984, and Molina did not appeal. Approximately 16 months later, Molina filed a second motion under Sec. 2255. In the proceedings concerning this second motion, Molina alleged that the sentence disparity between him and DeVargas was unlawful. The district court dismissed the petition, and this court affirmed. Molina v. United States, 812 F.2d 715 (9th Cir.1987) (unpublished memorandum disposition).

About 13 months later, in April 1988, Molina filed a third Sec. 2255 motion, which is the subject of the present appeal. The motion raises two issues. First, Molina once again contends that the sentence disparity between him and his codefendant was unlawful, although his claim is based on somewhat different legal and factual premises. Second, Molina alleges that Judge Turrentine was a "close and personal friend" of the family of Molina's codefendant, Mary DeVargas. The district court dismissed the motion on May 31, 1988. Molina's appeal is timely. ²

II

In this, his third Sec. 2255 motion, Molina alleges an unlawful sentence disparity. The government argues that Molina's contention on this score is "successive" in that it is not sufficiently distinguishable from the grounds that were raised in the second Sec. 2255 motion. Furthermore, it also appears that the issue of whether Judge Turrentine should have been recused was raised in Molina's first Sec. 2255 motion, albeit in the context of a claim of ineffective assistance of counsel. Accordingly, we must first decide whether the dismissal of Molina's Sec. 2255 motion can be sustained on the ground that it was successive.

A

Before turning to a comparison of Molina's various motions, we think it useful first to summarize the standards for determining whether a motion is successive. Rule 9(b) of the Rules Governing Sec. 2255 Proceedings provides:

A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

The first clause of Rule 9(b), concerning motions that raise the same ground, deals with the problem of "successive" motions; the second clause, concerning failure to raise new grounds in an earlier petition, involves the problem of "abusive" motions. See Neuschafer v. Whitley, 860 F.2d 1470, 1474 n. 3 (9th Cir.1988). The issue of whether Molina's third motion is "abusive" is not properly before this court inasmuch as the government did not, as required, specifically raise this issue in response to Molina's motion, either in the district court or on appeal. Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963); United States v. Donn, 661 F.2d 820, 823 (9th Cir.1981). ³ Therefore, the only issue in this regard is whether Molina's motion is "successive." ⁴

In addition to the Rule 9(b) language concerning successive motions, Sec. 2255 provides that the court "shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." Rule 9(b), which became effective in 1977, was drafted so as to be "consistent with the language of Sec. 2255 and relevant case law." Rule 9, Rules Governing Sec. 2255 Proceedings, advisory committee's note. Accordingly, pre-1977 case law interpreting this provision of Sec. 2255 is relevant in interpreting the meaning of Rule 9(b).

The leading Supreme Court case concerning the import of successive motions under Sec. 2255 is Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). In language comparable to Rule 9(b), Sanders held that a prior adverse determination, on the merits, of a ground presented in an earlier motion could be held controlling, at least where the ends of justice would not be served by reaching the merits of the subsequent motion. Id. at 15, 83 S.Ct. at 1077. There is no dispute in the present case that Molina's earlier motions were rejected on the merits. Accordingly, the key issue is whether each "ground" asserted in the current Sec. 2255 motion is sufficiently different from those alleged in the prior motions.

Sanders provides some important guidance on the difficult issue of what constitutes a different "ground" of relief. The Court's comments make it very clear that a prisoner does not allege a new "ground" simply by presenting a legal issue that is distinguishable from the precise issues decided in earlier Sec. 2255 proceedings:

By "ground," we mean simply a sufficient legal basis for granting the relief sought by the applicant. For example, the contention that an involuntary confession was admitted in evidence against [a prisoner] is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different "ground" than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations. So also, identical grounds may often be supported by different legal arguments, or be couched in different language, or vary in immaterial respects.

Id. at 16, 83 S.Ct. at 1077 (citations omitted). The Court also cautioned, however, that any doubts as to whether two grounds are different or the same "should be resolved in favor of the applicant." Id.

As this court has noted, this definition of "ground" is "more easily stated than applied." Polizzi v. United States, 550 F.2d 1133, 1136 (9th Cir.1976). The case law does, however, provide some guidance. Sanders states that an involuntary confession claim is still the same "ground" even if the present claim is based on factual premises that are very different from those on which the earlier claim was based. 373 U.S. at 16, 83 S.Ct. at 1077. Several cases have applied this rule to a variety of contexts. See Lonberger v. Marshall, 808 F.2d 1169, 1174 (6th Cir.) (ground that plea was involuntary because of failure to inform prisoner of nature of charges was not sufficiently different, under Sanders, from ground that plea was involuntary because of failure to inform prisoner of possible double jeopardy violation), cert. denied, 481 U.S. 1055, 107 S.Ct. 2195, 95 L.Ed.2d 850 (1987); In re Shriner, 735 F.2d 1236, 1240 (11th Cir.1984) (where ground of involuntariness of confession has been raised previously and rejected on merits, prisoner could not assert same ground simply by varying facts on which claim was based); Williams v. United States, 731 F.2d 138, 141-42 (2d Cir.1984) (new factual premise for claim of involuntary confession does not present different legal ground under Sanders), cert. denied, 469 U.S. 1188, 105 S.Ct. 956, 83 L.Ed.2d 963 (1985); Cunningham v. Estelle, 536 F.2d 82, 83 (5th Cir.1976) (holding that, under Sanders, prisoner could not reassert ground of ineffective assistance of counsel "simply by varying the factors that he claims demonstrate incompetency"); Raulerson v. Wainwright, 753 F.2d 869, 873 (11th Cir.1985) (same); Brown v. Peyton, 435 F.2d 1352, 1354 (4th Cir.1970) (ground that plea had been coerced by judge was not sufficiently distinct from ground that plea had been coerced by attorney), cert. denied, 406 U.S. 931, 92 S.Ct. 1785, 32 L.Ed.2d 133 (1972).

Conversely, several cases have held that an...