U.S. v. Flores

• Decision Date: 20 January 1993
• Docket Number: No. 91-7384,91-7384
• Citation: 981 F.2d 231
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abraham FLORES, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 231

981 F.2d 231

24 Fed.R.Serv.3d 1405

UNITED STATES of America, Plaintiff-Appellee, v. Abraham FLORES, Defendant-Appellant.

No. 91-7384

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Jan. 20, 1993.

Abraham Flores, pro se.

E. Scott Frost, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Lubbock, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Abraham Flores appeals the dismissal of his second motion to vacate his sentence under 28 U.S.C. § 2255 (1988), which the district court dismissed as an abuse of the motion. Flores also appeals the district court's denial of his Motion for Reconsideration, Evidentiary Hearing, and Appointment of Counsel. Finding no abuse of discretion, we affirm.

I

Flores pled guilty to the federal offense of distributing heroin, and was sentenced to 240 months imprisonment. He appealed his sentence, which was affirmed by this Court, see United States v. Flores, 875 F.2d 1110 (5th Cir.1989), and then filed his first motion to Vacate, Set Aside, or Correct Sentence, under 28 U.S.C. § 2255. ¹ The district court denied that motion on the merits.

Flores filed a second motion to vacate his sentence under section 2255, asserting that: (1) the sentencing court improperly considered his prior convictions separately, rather than consolidating them and treating them as a single conviction; (2) the federal sentencing guidelines are unconstitutional; (3) he was denied effective assistance of counsel at trial; and (4) he was denied effective assistance of counsel on appeal. Because Flores could have raised all of these claims when he filed his first section 2255 motion, the district court dismissed Flores' second motion as an abuse of the section 2255 procedure, ² pursuant to Rule 9(b), Rules Governing Section 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255 (1988).

Flores then filed a Motion for Reconsideration, Evidentiary Hearing, and Appointment of Counsel. The district court denied that motion via three separate orders: (1) Order Denying Motion for Appointment of Counsel and Overruling Objections to the Order of Magistrate Judge; (2) Order Denying Rule 60, FRCP, Motion; and (3) Order Denying Rule 59, FRCP, Motion for New Trial.

Flores appeals from the district court's dismissal of his second section 2255 motion, and also from the district court's orders denying his Motion for Reconsideration, Evidentiary Hearing, and Appointment of Counsel.

II

The decision whether to dismiss a motion for abuse of the section 2255 proceedings is committed to the sound discretion of the district court. Brager v. United States, 569 F.2d 399, 400 (5th Cir.), cert. denied, 439 U.S. 896, 99 S.Ct. 256, 58 L.Ed.2d 242 (1978); Hallowell v. United States, 197 F.2d 926, 928 (5th Cir.1952). We review such a decision only for abuse of discretion. See Wells v. United States, 210 F.2d 112 (5th Cir.1954) (affirming denial of successive section 2255 motion because "[t]he discretion of the trial court ... was not abused").

A

Rule 9(b) of the Rules Governing Section 2255 Proceedings provides that a section 2255 motion may be dismissed for abuse of the procedure, but Rule 9(b) does not define "abuse." ³ In the context of petitions for the writ of habeas corpus, under 28 U.S.C. § 2254 (1988), the leading case dealing with this doctrine is McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Under McCleskey, a second or subsequent habeas corpus petition which raises a claim for the first time is generally regarded as an abuse of the writ. See McCleskey, --- U.S. at ----, 111 S.Ct. at 1457. However, a habeas corpus petitioner's failure to raise a ground for relief in his initial petition will be excused if he can show: (1) cause for his failure to raise the claim, as well as prejudice from the errors which form the basis of his complaint; or (2) that the court's refusal to hear the claim would result in a fundamental miscarriage of justice. McCleskey, --- U.S. at ----, 111 S.Ct. at 1470. Other circuits have held that McCleskey's formulation of the abuse of the writ doctrine also governs abuse of the proceedings under section 2255. ⁴ We have not decided whether McCleskey applies to section 2255 motions, but we now hold that it does.

We are persuaded that McCleskey should be applied to section 2255 as well as section 2254, because of the similarity of the two remedies, and because the Supreme Court held, prior to McCleskey, that the same rules should govern abuse of both remedies. Section 2254 empowers federal courts to issue a writ of habeas corpus where an individual is held by a state in violation of federal law. See 28 U.S.C. § 2254 (1988). Section 2255 is designed to provide a substantially equivalent remedy for individuals in the custody of the federal government. See Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963) (commenting that "the [section 2255] motion procedure is the substantial equivalent of federal habeas corpus"); Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962) ("[I]t conclusively appears from the historic context in which § 2255 was enacted that the legislation was intended simply to provide ... a remedy exactly commensurate with that which had previously been available by habeas corpus...."). Prior to McCleskey, the similarity of the writ of habeas corpus and the section 2255 motion led the Supreme Court, in Sanders v. United States, to decide that abuse of the two remedies should be governed by the same rules. See Sanders, 373 U.S. at 15, 83 S.Ct. at 1077 (setting out rules for abuse of the writ of habeas corpus and for abuse of the section 2255 motion) ("Since the motion procedure is the substantial equivalent of federal habeas corpus, we see no need to differentiate the two for present purposes."). Application of McCleskey to section 2255 as well as section 2254 is appropriate, in light of the similarity of the two remedies. Furthermore, application of McCleskey to both sections is consistent with the Supreme Court's decision in Sanders to apply the same rules of abuse in both contexts.

In McCleskey the Supreme Court explained its adoption of the cause-and-prejudice standard, pointing out that allowing petitioners to raise claims initially in a second or later habeas corpus petition wastes scarce judicial resources and unduly compromises the finality of the original judicial proceeding. See McCleskey, --- U.S. at ----, 111 S.Ct. at 1468-70. Because these considerations are also relevant where a federal conviction is attacked collaterally, under section 2255, ⁵ we are persuaded that the test announced in McCleskey should apply to section 2255 as well as section 2254. ⁶

B

A second or later section 2255 motion, which raises claims for the first time, is generally subject to dismissal for abuse of the motion. However, if movant can show cause for failing to raise the claims earlier, and prejudice from the errors of which he complains, the motion is not subject to dismissal. See supra II.A. The "cause" prong of this standard requires the movant to show that some objective factor external to his defense prevented him from raising the claim in the initial motion. See McCleskey, --- U.S. at ----, 111 S.Ct. at 1470 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)).

The claims in Flores' second motion were raised there for the first time, ⁷ and his failure to raise those claims in his first motion amounts to abuse of the section 2255 procedure, unless he can show cause and prejudice. ⁸ He has not done so. Flores asserts that, at the time of his first motion, he did not appreciate the legal significance of facts supporting the claims which he now raises. However, Flores' ignorance does not constitute cause under McCleskey, because it was not an objective factor external to Flores' defense. See Woods v. Whitley, 933 F.2d 321, 323 (5th Cir.1991) (holding that habeas petitioner's ignorance of facts and legal theories underlying his claims "does not constitute 'cause' as that term was used in McCleskey "). No external force, such as governmental interference, see McCleskey, --- U.S. at ----, 111 S.Ct. at 1470 ("Objective factors that constitute cause include 'interference by officials'...."), prevented Flores from learning about the facts or law underlying his claims. Neither Flores' illiteracy, nor his deafness, nor his lack of training in the law amounts to cause either, because none of these factors was external to Flores' defense. Furthermore, Flores' pro se status does not amount to cause for his failure to raise the claims in his first motion. See Saahir, 956 F.2d at 118 (holding that habeas petitioner's pro se status did not constitute cause under McCleskey ). Because Flores has not shown cause for his failure to raise his claims in his first motion, we need not consider whether Flores has shown prejudice. See McCleskey, --- U.S. at ----, 111 S.Ct. at 1474.

Although Flores has not shown cause for failing to raise his claims in his first motion, those claims will be heard if failing to do so would result in a fundamental miscarriage of justice. See McCleskey, --- U.S. at ----, 111 S.Ct. at 1470. Such a miscarriage of justice would be indicated if a constitutional violation probably caused Flores to be convicted of a crime of which he is innocent. See id. Flores has not alleged that he is innocent, only that his sentence was improperly computed. Therefore, Flores' motion does not fit within the narrow category of section 2255 proceedings which implicate a fundamental miscarriage of justice, and the district court did not abuse its discretion in dismissing Flores' second section 2255 motion as abusive. ⁹

III

Flores also appeals the district court's denial of...