U.S. v. Guerra

• Decision Date: 12 September 1996
• Docket Number: No. 95-50678,95-50678
• Citation: 94 F.3d 989
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Rolando GUERRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 989

94 F.3d 989

UNITED STATES of America, Plaintiff-Appellee, v. Robert Rolando GUERRA, Defendant-Appellant.

No. 95-50678.

United States Court of Appeals, Fifth Circuit.

Sept. 12, 1996.

As Corrected Sept. 25, 1996.

Richard L. Durbin, Jr., Asst. U.S. Attorney, Glenn William MacTaggart, Office of the United States Attorney, San Antonio, TX, for U.S.

Henry Joseph Bemporad, P. Joseph Brake, Office of the Federal Public Defender, San Antonio, TX, for Guerra.

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

Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.

The opinion in the above case published on September 12, 1996, slip op. 5476, is hereby withdrawn by the court on its own motion and the following opinion is substituted in its stead.

REYNALDO G. GARZA, Circuit Judge:

Robert Rolando Guerra appeals a judgment of the United States District Court for the Western District of Texas denying his motion to set aside, correct, or vacate his sentence under 28 U.S.C. § 2255. The court found that Guerra was procedurally barred from attacking his sentence and, despite the bar, that Guerra's guilty plea was free of any defect. We find error on both parts and therefore REVERSE the judgment of the district court and REMAND this case with instructions to set aside the defendant's conviction and to grant him all relief to which he is entitled.

I. Facts and Summary of Proceedings

On November 28, 1972, a federal grand jury in San Antonio indicted the defendant, Robert Rolando Guerra, on two counts relating to an alleged sale of heroin in July 1972: 1) conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846; and 2) possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At rearraignment, the district court informed Guerra that, because of his prior drug convictions, he was subject to enhanced criminal penalties under the federal statutes as a repeat offender under authority of 21 U.S.C. § 841(b)(1)(A). Thus instead of facing a possible 30-year term for both counts, the court was of the view that a 60-year term was possible.

On this point, however, the district court was mistaken. The enhanced sentences for repeat offenders were applicable only where a defendant had previously been convicted of federal drug offenses. Guerra had been convicted of drug offenses in the courts of Illinois and Texas, but not of the United States. The enhancement was therefore improper and thus Guerra was legally only subject to fifteen years incarceration on each count.

Unaware of the district court's error, Guerra pleaded guilty in February 1973 to the possession count in exchange for dismissal of the conspiracy count. The court found Guerra guilty and, again believing it could sentence Guerra to thirty years in prison, sentenced him to a fifteen-year prison term and a fifteen-year special parole term. ¹ This sentence was in fact the maximum allowable under the law, although the court saw it as only half the amount it could impose.

Following his conviction Guerra wrote letters to the court indicating that he wished to appeal and that he would require the assistance of counsel. Treating these as motions, the court ordered that notice of appeal be filed, but denied Guerra's motion for appointment of counsel. Guerra's trial counsel, A.L. Hernden, moved to withdraw from the case and to have other counsel appointed by the court for the appeal. The court denied this motion. Hernden then filed a motion to allow Guerra to appeal in forma pauperis, which the government opposed and the district court denied under the mistaken belief that there were no appealable issues. At this time, Guerra asked this Court to allow an appeal in forma pauperis but we denied his request. We eventually dismissed his appeal for failing to docket it timely. Guerra v. United States, No. 73-8142 (5th Cir. filed July 11, 1973). Guerra received no assistance from his trial counsel and apparently was unable to afford the filing fee in this Court.

Guerra has since twice sought collateral relief. In August 1990, he moved to vacate, set aside, or correct his sentence, under the authority of 28 U.S.C. § 2255. The district court denied this motion in June 1991. Guerra filed notice of appeal in July 1991, but we dismissed his appeal for want of prosecution. He then moved to reinstate his appeal, which motion this Court granted. In June 1992, this Court affirmed the judgment of the district court. United States v. Guerra, No. 91-5695, 966 F.2d 676 (5th Cir. filed June 5, 1992).

Guerra's second--and present--attempt at habeas relief under § 2255 began in July 1993 when he complained of the trial court's above-mentioned error with respect to sentencing and of ineffective assistance of counsel at trial. The magistrate judge recommended that the district court dismiss Guerra's motion as an abuse of the writ. The district court agreed with respect to the claim of ineffective assistance because it had not been the subject of the first § 2255 motion. The court disagreed as to the sentencing issue, however, as it found that Guerra had attempted to raise this issue in his first habeas proceeding, but that the government and the district court had not addressed it. We refused to address it on appeal given our impression that it had not been raised below. The court sent this part of the case back to the magistrate for further review.

The magistrate ordered the government to respond to Guerra's petition, which it did. It did not, however, raise the issue of procedural bar of the writ, despite the magistrate's admonition that the defense be raised in its first response. The magistrate appointed counsel for Guerra and set a date for an evidentiary hearing. The United States at this time filed an amended response, without leave, in which it raised the defense. Guerra objected to the amended response and moved to strike it, but the magistrate overruled him.

The magistrate judge, in his Second Memorandum and Recommendation, found that the sentencing court had violated Rule 11 of the Federal Rules of Criminal Procedure and Guerra's constitutional rights when it misinformed him of the penalties he faced. He also found, however, that the court's misplaced reliance on the enhanced-penalty scheme was not prejudicial given that Guerra's actual sentence was within the proper range set for that offense and that Guerra therefore procedurally defaulted this issue by failing to pursue his direct appeal. The district court accepted the magistrate's findings and recommendations and denied relief. Guerra appeals. ²

II. Standard of Review

We review the district court's findings of fact in a § 2255 proceeding for clear error. United States v. Mimms, 43 F.3d 217, 220 (5th Cir.1995). Questions of law are reviewed de novo. United States v. Gipson, 985 F.2d 212, 214 (5th Cir.1993).

III. Procedural Bar

The first issue we must address concerns the issue of procedural bar to Guerra's attempt to seek relief under the writ, which the district court found was applicable here. The effect of procedural bar is to preclude a defendant from attacking his conviction or sentence on collateral review. It can arise where a defendant had the opportunity to raise contested issues in a direct appeal from his conviction but failed to do so. To overcome the bar, a defendant must show both "cause" for failing to raise the issue on direct appeal and "actual prejudice" flowing from the errors alleged.

A. Did the Government Properly Raise the Bar in its Pleadings?

Guerra contends that the district court committed reversible error by allowing the government to amend its pleadings before the magistrate to raise the procedural bar. We review the district court's decision to allow an amendment to pleadings in this situation for abuse of discretion. Briddle v. Scott, 63 F.3d 364, 379 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 687, 133 L.Ed.2d 531 (1995).

As noted above, the government raised the defense of procedural bar in an amended pleading to its response to Guerra's second § 2255 motion. The government amended the pleading without leave of court, approximately one month before the evidentiary hearing scheduled by the magistrate. Guerra argues that the district court abused its discretion and violated Federal Rule of Civil Procedure 15 by allowing the government to amend its pleading in this manner. He also contends that the government's failure to seek leave and attempt to amend pleadings at such an advanced stage of the proceedings constituted a waiver of the defense of procedural bar.

These arguments are not well taken. To invoke the procedural bar regarding a petitioner's delay in filing a § 2255 motion, the government must raise it in the district court. United States v. Drobny, 955 F.2d 990, 995 (5th Cir.1992). The government raised the defense before the magistrate's filing of report and recommendation and before the district court's ruling. Because Guerra's motion was still pending at the time of the government's amendment, the issue was "raised in the district court."

Rule 15 does not prevent the government from amending its pleadings when it did. As the government and magistrate note, the Rules Governing Section 2255 Proceedings for the United States District Courts govern procedures under § 2255. Rule 12 provides as follows:

If no procedure is specifically prescribed by these rules, the district court may proceed in any lawful manner not inconsistent with these rules, or any applicable statute, and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules.

It is obvious, then, that a district court is not obligated to apply Federal Rule of Civil Procedure 15's requirement that parties must obtain leave of court before making amendments. Rather, the court may do as it did here and allow the...