U.S. v. Kleinbart

• Citation: 27 F.3d 586,307 U.S. App. D.C. 136
• Decision Date: 28 June 1994
• Docket Number: Nos. 89-3120,92-3142,s. 89-3120
• Parties: UNITED STATES of America, Appellee, v. Michael N. KLEINBART, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 586

27 F.3d 586

307 U.S.App.D.C. 136

UNITED STATES of America, Appellee, v. Michael N. KLEINBART, Appellant.

Nos. 89-3120, 92-3142.

United States Court of Appeals, District of Columbia Circuit.

Argued March 8, 1994.

Decided June 28, 1994.

On Appeal from the United States District Court for the District of Columbia, Criminal No. 75-527-01.

Santha Sonenberg, Asst. Federal Public Defender, Washington, DC, argued the cause for the appellant. On brief was A.J. Kramer, Federal Public Defender, Washington, DC.

Miriam M. Smolen, Asst. U.S. Atty., Washington, DC, argued the cause for the appellee. On brief were Eric H. Holder, Jr., U.S. Atty., and John R. Fisher and Thomas E. Zeno, Asst. U.S. Attys., Washington, DC.

Before EDWARDS, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

In 1975, a federal jury convicted Michael Kleinbart of numerous crimes arising from his armed robbery of a pharmacy and subsequent flight from the scene of the crime. On February 6, 1989, Kleinbart filed a petition in district court seeking to vacate one of his convictions based on allegedly improper jury instructions. Kleinbart had neither challenged the instructions when given nor raised them on direct appeal. The district court denied Kleinbart's petition because he had not established cause for his procedural default. Kleinbart filed a second petition to vacate the same conviction on April 10, 1991. The court denied Kleinbart's petition, concluding that the petition constituted an abuse of the writ of habeas corpus. Kleinbart appeals both of the district court's orders. We affirm.

I.

On May 21, 1975, Michael Kleinbart and James Thomas robbed Lawson & Sons' Pharmacy in Hyattsville, Maryland. The two men, armed with pistols, obtained a large quantity of prescription drugs. Kleinbart and Thomas fled the scene in a tan Chrysler automobile.

Shortly thereafter, Officer Ronald Blankenship of the United States Park Police Motorcycle Unit observed a brown and white Chrysler parked on the road near the Jefferson Memorial in the District of Columbia. Blankenship noticed that the left front tire of the Chrysler was completely flat and that Kleinbart and Thomas were kneeling beside the car placing unidentified objects into a large bag. Blankenship approached them and offered to assist with the flat tire. Kleinbart and Thomas told Blankenship that their spare tire was flat as well and asked him to locate the nearest crane. When Blankenship broadcast the request over his motorcycle radio, he also asked the dispatcher for a warrant check on the Chrysler's license plate.

While waiting for a response to his radio requests, Blankenship asked Kleinbart and Thomas what they had put in the large bag. The two men, who had been casually leaning against the back of the car, immediately stood up straight. Blankenship stepped back, unsnapped his holster and placed his right hand on his revolver. The tension escalated when the dispatcher's broadcast blared from Blankenship's radio, reporting that there were five outstanding warrants on the Chrysler.

Around this time, United States Park Police Officer Jane Marshall arrived on the scene and stationed herself a short distance from Blankenship. Blankenship asked for the vehicle registration and Kleinbart volunteered to get it from the car. Blankenship followed Kleinbart to the passenger side of the car and rested his right hand on the top of the open front door as Kleinbart reached inside the car. Suddenly, Kleinbart drew a .45 caliber automatic pistol and pointed its barrel just below Blankenship's chin. Blankenship slapped at the weapon with his right hand, pushing the barrel down to his left side. In the struggle, the pistol discharged and Blankenship was shot between his lower chest and hip. Kleinbart then spun around and fired a series of shots at Officer Marshall. The first shot entered Marshall's right forearm and then her chest cavity. The second shot shattered Marshall's left hand.

Kleinbart's partner Thomas sped away in the Chrysler, leaving Kleinbart alone with Blankenship and Marshall. Kleinbart escaped by stopping a taxi, forcing its occupants out and driving into Virginia. The Chrysler that Thomas used to flee was found in Virginia a short time later. Subsequent police investigation linked drugs and other evidence recovered from the car to the robbery of Lawson's Pharmacy.

Kleinbart was charged with: conspiracy to violate the Controlled Substances Act (Count One) in violation of 21 U.S.C. Sec. 846; forcible armed assault on a federal officer in violation of 18 U.S.C. Sec. 111 (Counts Two and Five); assault with intent to kill while armed in violation of D.C.Code Secs. 22-501, 22-3202 (Counts Three and Six); assault with a dangerous weapon in violation of D.C.Code Sec. 22-502 (Counts Four, Seven and Fourteen); possession of a controlled substance with intent to distribute in violation of 21 U.S.C. Sec. 841(a) (Counts Nine, Ten and Eleven); carrying a pistol without a license in violation of D.C.Code Sec. 22-3204 (Count Eight); armed robbery in violation of D.C.Code Secs. 22-2901, 22-3202 (Counts Twelve and Thirteen); interstate transportation of a stolen vehicle in violation of 18 U.S.C. Sec. 2312 (Count Fifteen); and unauthorized use of a motor vehicle in violation of D.C.Code Sec. 22-2204 (Count Sixteen). The jury acquitted Kleinbart by reason of insanity of Counts Five (forcible armed assault on Officer Marshall), Six (assault on Officer Marshall with intent to kill while armed) and Twelve (armed robbery). The jury convicted Kleinbart on the remaining thirteen counts. ¹ The only conviction relevant to this appeal is that of forcible armed assault on a federal officer in violation of 18 U.S.C. Sec. 111. On direct appeal, this court affirmed all of Kleinbart's convictions. See United States v. Kleinbart, 561 F.2d 1022 (D.C.Cir.1977).

On February 6, 1989, Kleinbart petitioned to vacate his conviction pursuant to 28 U.S.C. Sec. 2255 (first 2255 petition). ² See Joint Appendix (J.A.) at 203-08. Kleinbart attacked his conviction on the ground the trial judge failed to instruct the jury that specific intent is an essential element of forcible armed assault on a federal officer under 18 U.S.C. Sec. 111, ³ id. at 206, and that the judge's failure to so instruct the jury rendered his conviction void. Id. On May 24, 1989, Kleinbart supplemented his section 2255 petition by leave of court to include an allegation that the trial judge erred by failing to instruct the jury that it had to find that Kleinbart was armed in order to convict him of forcible armed assault on a federal officer. J.A. at 231.

The district court denied Kleinbart's first 2255 petition, deciding that Kleinbart had failed to show that the allegedly faulty instructions caused him actual prejudice as required by United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Kleinbart appealed. On appeal, we remanded the record to the district court for a "determination of whether appellant Kleinbart is asserting any basis, other than simple attorney omission, to establish cause." United States v. Kleinbart, No. 89-3120 (D.C.Cir. Oct. 10, 1989). Kleinbart then moved to recall the mandate and reinstate his direct appeal, alleging ineffective assistance of counsel based on his appellate counsel's failure to challenge the jury instructions on appeal. Kleinbart also moved in district court to hold remand proceedings in abeyance until his petition to recall and reinstate was resolved. The district court granted Kleinbart's motion. Meanwhile, we denied Kleinbart's motion to recall the mandate and reinstate his direct appeal, concluding that the district court was the proper forum to allege ineffective assistance of appellate counsel. United States v. Kleinbart, No. 76-1230 (March 30, 1990).

On April 10, 1991, Kleinbart filed a second section 2255 petition in district court, alleging ineffective assistance of appellate counsel (second 2255 petition). On August 2, 1991, Kleinbart filed a "Submission on Remand of Record" as to his first 2255 petition, alleging for the first time ineffective assistance of trial counsel. The trial court consolidated Kleinbart's petitions for consideration and disposition. The court denied Kleinbart's first petition, holding that he had failed to show cause and prejudice for his procedural default. The court also denied Kleinbart's second 2255 petition, concluding that he had abused the writ of habeas corpus by failing to raise his ineffective assistance of appellate counsel claim in his first 2255 petition. On appeal Kleinbart argues that: (1) the doctrine of procedural default does not apply because the trial judge's failure to charge the jury on an essential element of the crime rendered his conviction void; (2) if the doctrine of procedural default does apply, his first 2255 petition established cause and prejudice sufficient to excuse his procedural default; and (3) the district court erred in denying his second 2255 petition as an abuse of the writ.

II.

To obtain collateral relief based on improper jury instructions neither objected to at trial nor challenged on direct appeal, a habeas petitioner must establish both cause for the procedural default and actual prejudice resulting from the improper instructions. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Because Kleinbart challenged the jury instructions for the first time in his first 2255 petition, Kleinbart must show cause for his default and resulting prejudice in order to prevail. But Kleinbart argues that the procedural default doctrine does not apply.

Kleinbart bases his argument on Sullivan v. Louisiana, --- U.S. ----, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). There, the appellant challenged on direct appeal the reasonable doubt jury instruction given at his trial. The Government conceded that the jury...