U.S. v. Braswell, No. 05-35009.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtO'Scannlain
Citation501 F.3d 1147
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Cyrus D.A. BRASWELL, Defendant-Appellant.
Decision Date04 September 2007
Docket NumberNo. 05-35009.
501 F.3d 1147
UNITED STATES of America, Plaintiff-Appellee,
v.
Cyrus D.A. BRASWELL, Defendant-Appellant.
No. 05-35009.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 5, 2007.
Filed September 4, 2007.

[501 F.3d 1148]

Darla J. Mondou, Marana, AZ, argued the cause and was on the brief for the defendant-appellant.

Richard L. Pomeroy, Assistant United States Attorney, District of Alaska, Anchorage, AK, argued the cause and was on the briefs for the plaintiff-appellee; Nelson P. Cohen, United States Attorney, District of Alaska, Anchorage, AK, and Timothy M. Burgess, United States Attorney, District of Alaska, Anchorage, AK, were also on the briefs.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief District Judge, Presiding. D.C. Nos. CV-03-00111-JKS CR-97-00068-JKS.

Before: DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA, and MARSHA S. BERZON, Circuit Judges.

O'SCANNLAIN, Circuit Judge:


We must decide whether a habeas petitioner's argument that his indictment was constitutionally defective is procedurally barred because of his failure to raise it on direct appeal.

I

On July 15, 1997, Cyrus Braswell was indicted by a grand jury in Anchorage, Alaska on four counts of distribution of a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1); one count of possession of a Schedule II controlled substance with intent to distribute, in violation of the same provision; two counts of maintaining a place for drug trafficking, in violation of 21 U.S.C. § 856(a)(1); and two counts of money laundering, in violation of 18 U.S.C. § 1957. After trial, a jury convicted Braswell on eight of the nine counts.

501 F.3d 1149

He was sentenced to 400 months of imprisonment and a fine of $98,677.

Braswell appealed his conviction and the judgment and we affirmed in an unpublished memorandum disposition. United States v. Braswell, No. 98-30198, 2000 WL 335570 (9th Cir. March 30, 2000) (mem.). After the appeal was final, Braswell filed various motions with the district court— for a new trial, for acquittal, for change of venue or recusal, for return of property— and the district court denied each of them; we affirmed. United States v. Braswell, 51 Fed.Appx. 783 (9th Cir.2002) (mem.).

Thereafter, Braswell filed a petition for habeas relief under 28 U.S.C. § 2255. Braswell's pro se petition alleged four grounds for relief, none of which is at issue here. After the magistrate judge issued his Report and Recommendation, however, Braswell filed one objection, raising the claim that his original indictment did not identify the drugs as cocaine and marijuana whereas the jury instructions in his trial did. The government argued that this claim was procedurally barred. The magistrate judge, construing the pro se brief liberally and considering the claim as one for ineffective assistance of counsel, rejected the claim, ruling that the indictment was sufficient and that therefore counsel had not been "ineffective" in failing to challenge it. The district court agreed with the Final Report and Recommendation, adding its own conclusion that no jurist of reason would find it debatable whether Braswell was denied effective assistance of counsel, and that Braswell's allegations against his attorneys were "frivolous and his pleadings an abuse of the writ." The district court dismissed the petition with prejudice and declined to issue a Certificate of Appealability ("COA").

On appeal, a motions panel granted a COA on the sole issue of whether Braswell's constitutional rights had been violated by the indictment's failure to allege the kind of drug involved in Braswell's offense.

II

The government argues that our consideration of the adequacy of Braswell's indictment is procedurally barred.

A

"Where a defendant has procedurally defaulted...

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85 practice notes
  • United States v. Dean, Case No. 3:13-cr-00137-SI
    • United States
    • U.S. District Court — District of Oregon
    • March 15, 2016
    ...if the defendant can first demonstrate either cause and actual prejudice or that he is actually innocent.’ ” United States v. Braswell , 501 F.3d 1147, 1149 (9th Cir.2007) (quoting Bousley , 523 U.S. at 622, 118 S.Ct. 1604 ). Dean's claim is procedurally defaulted because he did not file a ......
  • United States v. Seng Chen Yong, No. 17-16017
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 7, 2019
    ...voluntariness of his plea, we first address the Government's procedural argument on the motion to vacate. See United States v. Braswell 501 F.3d 1147, 1149 (9th Cir. 2007) (citing Bousley v. United States , 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ). To challenge a convicti......
  • Gaines v. United States, Case Nos. 2:16-cv-07067-CAS, 2:99-cr-00257-CAS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • April 3, 2017
    ...substantial disadvantage, infecting his entire [proceedings] with error of constitutional dimensions.’ " United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007) (quotation marks omitted). Thus, Gaines must show a "reasonable probability" that, without the error, the re......
  • United States v. Savage, Case No. LA CR 08–00258–VBF
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • January 12, 2017
    ...infecting his entire proceedings with error of constitutional dimensions." Doc 13 at 12–13 (quoting U . S . v. Braswell , 501 F.3d 1147, 1150 (9th Cir. 2007) ) (italics in Braswell ) (brackets omitted). According to the government, Savage can show prejudice only if he can establish tha......
  • Request a trial to view additional results
85 cases
  • United States v. Dean, Case No. 3:13-cr-00137-SI
    • United States
    • U.S. District Court — District of Oregon
    • March 15, 2016
    ...if the defendant can first demonstrate either cause and actual prejudice or that he is actually innocent.’ ” United States v. Braswell , 501 F.3d 1147, 1149 (9th Cir.2007) (quoting Bousley , 523 U.S. at 622, 118 S.Ct. 1604 ). Dean's claim is procedurally defaulted because he did not file a ......
  • United States v. Seng Chen Yong, No. 17-16017
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 7, 2019
    ...voluntariness of his plea, we first address the Government's procedural argument on the motion to vacate. See United States v. Braswell 501 F.3d 1147, 1149 (9th Cir. 2007) (citing Bousley v. United States , 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ). To challenge a convicti......
  • Gaines v. United States, Case Nos. 2:16-cv-07067-CAS, 2:99-cr-00257-CAS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • April 3, 2017
    ...substantial disadvantage, infecting his entire [proceedings] with error of constitutional dimensions.’ " United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007) (quotation marks omitted). Thus, Gaines must show a "reasonable probability" that, without the error, the re......
  • United States v. Savage, Case No. LA CR 08–00258–VBF
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • January 12, 2017
    ...infecting his entire proceedings with error of constitutional dimensions." Doc 13 at 12–13 (quoting U . S . v. Braswell , 501 F.3d 1147, 1150 (9th Cir. 2007) ) (italics in Braswell ) (brackets omitted). According to the government, Savage can show prejudice only if he can establish tha......
  • Request a trial to view additional results

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