Poor Thunder v. U.S.

• Decision Date: 06 February 1987
• Docket Number: No. 85-5382,85-5382
• Citation: 810 F.2d 817
• Parties: Charles POOR THUNDER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 817

810 F.2d 817

Charles POOR THUNDER, Appellant, v. UNITED STATES of America, Appellee.

No. 85-5382.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 15, 1986.

Decided Feb. 6, 1987.

David Skeen, Port Townsend, Wash., for appellant.

Jerome C. Kettleson, Asst. U.S. Atty., Bismarck, N.D., for appellee.

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and NICHOL, ^* Senior District Judge.

ARNOLD, Circuit Judge.

In 1983 Fed.R.Crim.P. 32 was amended to require the district courts to give a defendant a chance to examine the presentence investigation report, to listen to any objections the defendant might have to the report, and to make findings as to any controverted matters, or to determine that no such findings are necessary because the matters controverted will not be taken into account in sentencing. Fed.R.Crim.P. 32(c)(3)(D). The amended Rule further requires that a written record of the sentencing court's findings and determinations shall accompany any copy of the report made available to the Bureau of Prisons or the United States Parole Commission. This appeal requires us to consider for the first time in some detail the extent to which violations of this portion of Rule 32 may be raised in a collateral attack on a conviction under 28 U.S.C. Sec. 2255, and also to explain several aspects of the meaning and practical application of the Rule.

I.

Charles Poor Thunder, the appellant in this case, was charged by information with two federal offenses: involuntary manslaughter in violation of 18 U.S.C. Secs. 1153 and 1112(a), and transportation of a firearm by a convicted felon in interstate commerce in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a). He pleaded guilty. On March 8, 1984, after the effective date of amended Rule 32(c)(3)(D) (August 1, 1983), the District Court sentenced Poor Thunder to three years on the manslaughter count and four years on the firearms count, the terms to be consecutive. At the sentencing hearing the defendant, who had duly been given a chance to examine the presentence report, called the Court's attention to no less than ten ¹ claimed errors of fact in the report. The Court's action with respect to these claims of error will be described in detail below.

Defendant did not file a direct appeal. He went on to prison. Shortly after arriving there he discovered that his presentence report had been sent to the Bureau of Prisons and the United States Parole Commission unchanged. The portions of the report to which he had objected were intact. Indeed, there was no indication, so far as the prison and parole authorities could tell, that defendant had questioned any part of the report. No written findings or determinations by the sentencing court were appended to or accompanied the report. ² On July 6, 1984, defendant filed a motion for reduction or correction of sentence under Fed.R.Crim.P. 35, claiming, among other things, violations of Rule 32 and of the Due Process Clause of the Fifth Amendment. The District Court had previously directed that a copy of a detailed letter from defendant (written after his arrival at the Penitentiary), expounding at length on his objections to the presentence report, be affixed to the report and sent to the Penitentiary in Terre Haute, Indiana, where Poor Thunder was being held. But it denied his Rule 35 motion on September 20, 1984. The order states simply that "[t]his Court has reviewed the sentence imposed and finds no reason to modify it." United States v. Poor Thunder, Cr. No. C1-83-38-01 (D.N.D. Sept. 20, 1984). No appeal was taken from this order.

Over a year later, on October 21, 1985, Poor Thunder filed this proceeding to vacate or correct his sentence under 28 U.S.C. Sec. 2255. He again alleged, among other things, violations of Rule 32 and of the Due Process Clause. According to defendant's Section 2255 motion, "[i]naccurate and erroneous information [was] contained in [the] presentence report" and "[n]o finding was made as to accuracy of controverted report or to determine that no reliance would be placed on disputed matters at time of sentencing...." Motion p 11(a)(3), at p. 2. ³ On the same day the motion was filed, the District Court denied it without a hearing. The Court stated: "Defendant's ... version of the facts was presented to this court at the time of sentencing. This court concludes that it did not give undue weight to the government's version of the facts." United States v. Poor Thunder, Criminal No. C1-83-38, slip op. 2 (D.N.D. Oct. 21, 1985).

Poor Thunder then appealed to this Court. After appointing counsel ⁴ and hearing argument, we hold that, in the circumstances of this case, Poor Thunder's Rule 32 arguments are cognizable under 28 U.S.C. Sec. 2255, and that the District Court fully complied with the rule, except that a copy of the sentencing transcript should have been appended to the report. The judgment of the District Court, refusing to set aside the sentence, will therefore be affirmed, and the cause remanded with directions to attach a copy of the sentencing transcript to each copy of the presentence report.

II.

This proceeding is brought under 28 U.S.C. Sec. 2255, the statutory analogue of habeas corpus for persons in federal custody. This statute provides a remedy in the sentencing court (as opposed to habeas corpus, which lies in the district of confinement) for claims that a sentence was "imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." We have no doubt that the Federal Rules of Criminal Procedure are "laws of the United States," at least for some purposes, so if the statute were to be read and applied literally, nothing would be plainer than that the Rule 32 error alleged here is appropriately raised on collateral attack under Section 2255. But it is axiomatic that the statute is not to be read and applied literally: its effect is only to create a new venue for habeas corpus cases that previously had been crowded into districts containing federal penitentiaries. Like habeas itself, Section 2255 is not the equivalent of a direct appeal. There are many claims of error sufficiently grave and prejudicial to cause a reversal of a conviction on direct appeal, but yet not fundamental enough to support a collateral attack. It will not do to assume uncritically (as many appellate opinions seem to do) that a Section 2255 court may immediately go to the merits of any substantial federal question without first examining carefully whether the question is of the kind on which a collateral attack on a final judgment may properly be based. As the Seventh Circuit has recently helpfully explained,

habeas corpus is not a proper route for complaining about simple trial errors. The policy of finality in criminal cases, attenuated though it is compared to the policy of finality in civil cases, retains some strength--enough to make the direct appeal ... the exclusive route for complaining about errors that demonstrate neither "a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure."

Johnson v. United States, 805 F.2d 1284, 1287 (7th Cir.1986), quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).

We know from Davis v. United States, 417 U.S. 333, 345, 94 S.Ct. 2298, 2304, 41 L.Ed.2d 109 (1974), that courts entertaining collateral attacks on convictions are not confined to "claims 'of constitutional dimension.' " (Indeed, we know that much from the words of Section 2255 themselves.) We also know that merely "technical" violations of the Rules of Criminal Procedure are not open under Section 2255, at least in the absence of "other aggravating circumstances," United States v. Timmreck, 441 U.S. 780, 784-85, 99 S.Ct. 2085, 2087-88, 60 L.Ed.2d 634 (1979). How does this present claim fit into this framework? Poor Thunder says the District Court sentenced him on the basis of information that he questioned, but that the Court never determined to be true. Hill v. United States, supra, held that violations of Rule 32(a) (the right of allocution) were not reachable on collateral attack, but that holding is not necessarily dispositive of a claim under Rule 32(c)(3)(D), which, though in one sense merely another aspect of sentencing procedure, addresses a quite different need--the need for factual accuracy in a key sentencing document. ⁵ The Hill Court made this very point clear when it observed that it had not been "suggested that in imposing the sentence the District Judge was either misinformed or uninformed as to any relevant circumstances." 368 U.S. at 429, 82 S.Ct. at 471.

The question in each case must be, not whether a violation of Rule 32 is alleged, but whether the kind of violation alleged demonstrates either "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, supra, 368 U.S. at 428, 82 S.Ct. at 471. Here we have, in our view, a claim that Poor Thunder did not get the rudiments of fair procedure. He was sentenced on the basis of a report that he says was inaccurate, he brought the inaccuracies to the attention of the sentencing judge at the proper time, and yet (he claims) the judge neither corrected the report, nor found as a fact that it was correct as written, nor disclaimed reliance on the disputed material. Rule 32(c)(3)(D) provides a procedure for handling just such matters, and Poor Thunder claims it was not followed. We do not hold that the Rule in its every detail is required by the Due Process Clause of the Constitution. But it is designed to safeguard the right, held to be contained in that Clause, see ...