U.S. v. Berry

• Decision Date: 17 April 1987
• Docket Number: No. 85-1292,85-1292
• Citation: 814 F.2d 1406
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Reggie BERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1406

814 F.2d 1406

UNITED STATES of America, Plaintiff-Appellee, v. Reggie BERRY, Defendant-Appellant.

No. 85-1292.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 1986.

Decided April 17, 1987.

Bruce D. Schupp, Cal J. Potter, III, Las Vegas, Nev., for defendant-appellant.

David S. Moynihan, Las Vegas, Nev., for plaintiff-appellee.

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

Before GOODWIN, HUG and WIGGINS, Circuit Judges.

HUG, Circuit Judge:

Reggie Berry appeals from a district court order revoking his probation and reimposing his original sentence of five years' imprisonment and a three-year special parole term for violation of 21 U.S.C. Sec. 846 (1982), conspiracy to distribute heroin. Berry argues that (1) the district judge improperly delegated Berry's final probation revocation hearing to a magistrate; (2) he was denied effective assistance of counsel; (3) the court lost its jurisdiction over him because an unreasonable time elapsed between the issuance of the warrant and its execution and because he was not taken before the sentencing court as quickly as possible after his arrest; and (4) the district court improperly resentenced him to a term of imprisonment greater than that originally imposed.

I. FACTS

On October 25, 1978, appellant Reggie Berry pleaded guilty to one count of conspiracy to distribute heroin in violation of 21 U.S.C. Sec. 846 (1982) and was sentenced to five years' imprisonment and a three-year special parole term. The court stayed the execution of all but six months' imprisonment and placed Berry on probation for the remainder of the sentence.

After Berry had served his six-month sentence and had been released on probation, he committed an extensive series of probation violations. To summarize, Berry received several traffic citations, did not pay child support, did not submit monthly probation reports or meet with probation officials as requested, and was arrested or indicted on three separate occasions for passing bad checks. He also left the jurisdiction without permission and lived in Illinois and Canada.

Violator's warrants for Berry's arrest were issued on July 22, 1980, April 12, 1982, and March 18, 1985. Berry was arrested on June 7, 1985 in Colorado, and made an initial appearance there, where he waived an identity hearing and agreed to return to Nevada. At an initial hearing before a Nevada magistrate on June 25, 1985, Berry waived a preliminary probation revocation hearing. A final revocation hearing before a magistrate was originally scheduled for July 16, but, after a continuance stipulated to by the parties, the hearing

was held on August 21. At the hearing, Berry stipulated to the probation violations, but reserved the right to present mitigating evidence. On September 5, the magistrate filed his report, which found that Berry had violated his probation and recommended that the original sentence be imposed. Berry appeared before the district judge on October 4. After allowing Berry and Berry's attorney to make their presentation, the judge adopted the magistrate's findings and reimposed the original sentence. Berry appealed on October 11.

II. THE FINAL PROBATION REVOCATION HEARING

Berry argues that, by conducting the final probation revocation hearing, the magistrate exceeded the authority given him under 28 U.S.C. Sec. 636 (1982 & Supp.1985). He contends that while a magistrate may conduct a preliminary revocation hearing to determine whether there is probable cause to believe that a probation revocation has occurred, see Fed.R.Crim.P. 32.1(a)(1), he may not conduct the final revocation hearing, where both the determination of whether a violation has occurred and the decision whether to revoke probation are made. Relying on United States v. Curry, 767 F.2d 328 (7th Cir.1985) and Banks v. United States, 614 F.2d 95 (6th Cir.1980), Berry argues that only a district court judge may conduct the final revocation hearing.

In Banks, the court first reviewed the specific grants of authority contained in subsections 636(b)(1)(A) and 636(b)(1)(B) and concluded that these provisions did not empower a magistrate to conduct a final revocation hearing. Banks, 614 F.2d at 96-97. It then examined subsection 636(b)(3), which states that "[a] magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States." After a review of the legislative history, the court concluded that a final probation revocation hearing is, in fact, the type of traditional adjudicatory duty which may not be delegated to a magistrate under subsection 636(b)(3). The Seventh Circuit has also adopted this approach in Curry, 767 F.2d at 330-31.

It is clear that such a result is not compelled by the Due Process Clause of the United States Constitution because the Supreme Court has approved state procedures that permit the final revocation of probation to be preceded by a hearing before a fact finder other than the judge. Black v. Romano, 471 U.S. 606, 611-12, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636 (1985); Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973). The concern is one of statutory construction. The essential question is what duties Congress intended to allow a district court to delegate to a magistrate under subsection 636(b)(3).

The Nevada District Court Local Rules provide that a district judge may refer to a magistrate any application to revoke probation for preliminary and final hearing. The parties have an opportunity to object and the district judge then makes a de novo determination. The determination may be on the record or the district judge may hear further evidence. This procedure is identical to that specified in subsection 636(b)(1) for review of a magistrate's proposed findings and recommendations on the dispositive motions contained in subsection 636(b)(1)(B). Under the rationale of Banks and Curry, the probation revocation would not be valid unless the district judge conducted a final revocation hearing. Thus, there is a potential conflict between the operation of the Nevada rules and the holdings of Banks and Curry. This circuit has not ruled on the specific question of whether subsection 636(b)(3) permits delegation to a magistrate to conduct final probation hearings subject to de novo review in the district court, and this is not the appropriate case to do so.

In this case, at the hearing before the magistrate, Berry stipulated to all of the probation violations alleged by the Government, and desired only to reserve the right to be allowed to make a statement to the district court on the matter of sentencing. At the conclusion of the proceeding before the magistrate, the magistrate stated:

I will then make a recommendation to the District Court simply that upon filing as herein ordered, a hearing be expedited before the District Court Judge for further argument or proceedings as the District Court may deem appropriate in light of the recommendations which previously will have been filed with the Court.

At the hearing before the district court, Berry's attorney stated:

Your Honor, I know we stipulated to the violation set forth in the petition and Mr. Berry now--I am not sure that he really wants to contest it. He wants to give the Court a factual setting on how this led up to the situation.

The attorney made a statement urging leniency and then Berry was offered an opportunity to present whatever he wished to the court. He then made a statement to the court in which he gave no indication of a desire to contest the alleged probation violations.

With Berry having stipulated to the parole violations, there were no factual determinations to be made. The statements made by counsel and by Berry were directed to a plea for leniency. These statements were not made to the magistrate, but were reserved and then made to the district judge. Thus, the only real hearing of the matters that Berry desired to present was before the district court judge. Thus, we conclude that the hearing before the district judge was the final probation revocation hearing.

III.

INEFFECTIVE ASSISTANCE OF COUNSEL

Next, Berry argues that he was denied effective assistance of counsel. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

[t]o establish a claim of ineffective assistance of counsel, the petitioner must show that his " 'attorney's errors reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent attorney,' and that [he] suffered prejudice as a result of those errors." ... There is a strong presumption that counsel's performance fell within the wide range of reasonably effective assistance.

Weygandt v. Ducharme, 774 F.2d 1491, 1493 (9th Cir.1985) (citations omitted); see also United States v. Petersen, 777 F.2d 482, 484 (9th Cir.1985), cert. denied, --- U.S. ----, 107 S.Ct. 154, 93 L.Ed.2d 94 (1986); United States v. Rodriguez-Ramirez, 777 F.2d 454, 458 (9th Cir.1985).

First, Berry claims that he did not wish to stipulate to the facts of his probation violations. However, even the portions of the transcript cited by Berry in his brief do not show that he did not accept the stipulation; rather, he agreed to the stipulation, but reserved the right to present evidence of mitigating circumstances. Further, when Berry had the opportunity to address the district judge, he did not contest the stipulation but instead explained the motivation for his actions. Thus, Berry's first claim is without merit.

Berry's second contention, that he was not allowed to call out-of-state witnesses, is also meritless. He offers no indication of what these witnesses would have testified to, or how their testimony might have changed the outcome of the hearing. Thus, Berry has not demonstrated that he was prejudiced by counsel's actions, because he has not shown that "the [allegedly] deficient...