U.S. v. Clenney, s. 92-7265
| Decision Date | 31 May 1994 |
| Docket Number | 93-6273,Nos. 92-7265,s. 92-7265 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. David Thomas CLENNEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David Thomas CLENNEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Chief District Judge. (CR-90-453-A, CA-91-1819-AM)
David Thomas Clenney, appellant pro se.
Thomas Higgins McQuillan, Beth M. Elfrey, Office of the United States Attorney, Alexandria, Va., for appellee.
E.D.Va.
AFFIRMED IN PART, VACATED IN PART AND REMANDED IN NO. 92-7265, AFFIRMED IN NO. 93-6273.
Before PHILLIPS, NIEMEYER, and HAMILTON, Circuit Judges.
Following his guilty plea to one count of mail fraud under 18 U.S.C.A. Sec. 1341 (West Supp.1993), David Thomas Clenney was sentenced to thirty months in prison and three years of supervised release. Clenney filed motions for return of seized property and to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Sec. 2255 (1988). In Case No. 92-7265, Clenney appeals the district court's order denying the motion to return seventeen items seized from Clenney pursuant to his arrest. In Case No. 93-6273, he appeals the district court's dismissal of his Sec. 2255 motion. We find that the district court properly dismissed the Sec. 2255 motion and properly denied the motion to return some of the items seized from Clenney. However, we find that Clenney was entitled to the return of the remainder of the listed items. Consequently, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.
Clenney fraudulently obtained credit card numbers and used them to purchase thousands of dollars of merchandise from numerous stores, including Nordstrom's. A one-count indictment charged Clenney with mail fraud in violation of 18 U.S.C.A.Sec. 1341 (West Supp.1993). In December 1990, he entered a plea agreement under which he waived his right to appeal his sentence.
The guideline range 1 based on Clenney's criminal history category (VI) and offense level (eight) was eighteen to twenty-four months in prison. The probation officer recommended an upward departure on the grounds that Clenney's criminal history category and offense level failed to adequately represent the seriousness of his crime. The government agreed with the probation officer's recommendation for an upward departure.
Clenney objected to the government's recommendation for upward departure. Overruling the objection, the district court departed upward from the applicable guideline range on the grounds that the offense level did not represent the seriousness of Clenney's offense and the criminal history category did not take into account that Clenney was being sentenced for a crime identical to one he previously committed, and because he violated the terms of his bond. The court increased Clenney's offense level to ten, placing his guideline range at twenty-four to thirty months, and sentenced him to a thirty month prison term and three years of supervised release. The court also ordered him to pay $1500 in restitution to Nordstrom's and a $50 special assessment, and to undergo drug and alcohol treatment.
Clenney did not appeal his conviction. In his Sec. 2255 motion, he claimed several errors concerning the upward departure from the guideline range. His motion for return of property sought the return of eighteen items the United States Secret Service ("USSS") seized after Clenney's arrest. The government filed summary judgment motions in response to both of Clenney's motions, to which Clenney replied. The district court granted summary judgment for the government on Clenney's Sec. 2255 motion, and issued an order granting Clenney's motion to return Item 18, but denying Clenney's motion to return Items 1 through 17. Clenney's appeal of these orders is timely.
The government argued in its opposition to Clenney'sSec. 2255 motion that Clenney waived his right of appeal in his plea agreement and thus should be barred from challenging his sentence in this Sec. 2255 motion. The district court did not address this issue.
The effect of this waiver on this motion is not clear. Under the approach taken by the Ninth Circuit in United States v. Abaraca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 61 U.S.L.W. 3835 (U.S.1993), when a defendant waives his right of direct appeal in his plea agreement, he also waives his right to challenge his conviction in a Sec. 2255 motion, unless the challenge is based on ineffective assistance of counsel or involuntariness of the waiver. This view appears to conflict this Court's precedent in United States v. Harvey, 791 F.2d 294, 300 (4th Cir.1986), where we held that a plea agreement should be interpreted and enforced according to its terms.
We need not decide the issue here. It is clear that Clenney did not file a direct appeal. "[T]he Supreme Court has held that the government's 'interest in the finality of its criminal judgments' warrants a stringent cause-and-prejudice standard of review forSec. 2255 movants who waive their right of direct appeal." United States v. Metzger, 3 F.3d 756, 757 (4th Cir.1993). Clenney has failed to show cause for his failure to appeal.
In his motion, Clenney stated that the reason he failed to appeal was because he was incarcerated in Charlotte, North Carolina, until June 1991 and did not have access to a law library. We find that this is not good cause. See Murray v. Carrier, 477 U.S. 478, 488 (1986) (). No legal discussion was necessary for Clenney to file his notice of appeal. Because Clenney failed to show good cause for his failure to file a direct appeal, his claims are barred in this Sec. 2255 motion. We therefore affirm the district court's denial of Sec. 2255 relief.
Clenney also appeals the district court's order denying his motion for return of seventeen listed items of property seized by the USSS pursuant to his arrest. "The seizure of property from someone is prima facie evidence of that person's entitlement." United States v. Wright, 610 F.2d 930, 939 (D.C.Cir.1979) (emphasis omitted). Here, it is undisputed that the government seized all seventeen items from Clenney. Therefore, Clenney is entitled to return of the property unless the government shows that it is entitled to maintain possession. "The government may meet this burden by demonstrating 'a cognizable claim of ownership or right to possession adverse to that of [the defendant].' " United States v. Mills, 991 F.2d 609, 612 (9th Cir.1993) (citations omitted). An ongoing criminal investigation constitutes sufficient continuing interest to warrant denial of the defendant's motion. Sovereign News, 690 F.2d 569, 577 (6th Cir.1982), cert. denied, 464 U.S. 814 (1983).
In this case, the government explained that most of the listed items had been returned to the rightful owner, or were suspected of being stolen property and were being held pending a criminal investigation; the government asserted that several items, based on the totality of the circumstances, simply did not belong to Clenney. In response, Clenney argued that the government failed to meet its burden, but he did not provide any evidence that he was...
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