U.S. v. Leiby

• Decision Date: 27 May 1987
• Docket Number: No. 86-1702,86-1702
• Citation: 820 F.2d 70
• Parties: UNITED STATES of America v. LEIBY, Glenn, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 70

820 F.2d 70

UNITED STATES of America v. LEIBY, Glenn, Appellant.

No. 86-1702.

United States Court of Appeals Third Circuit.

Submitted May 15, 1987.

Decided May 27, 1987.

Cheryl J. Sturm, Wayne, Pa., for appellant.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief, Appellate Section, Joseph M. Miller, Eric Kraeutler, Asst. U.S. Attys., Philadelphia, Pa., for appellee.

Before GIBBONS, Chief Judge, and MANSMANN, Circuit Judge, and McCUNE, District Judge. ^*

OPINION OF THE COURT

MANSMANN, Circuit Judge.

This matter comes before us on appeal from an order of the district court which denied the appellant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Sec. 2255 (1982). We find that the district court did not abuse its discretion by denying the motion without a hearing, since the motion presented grounds for relief which the court determined adversely to the appellant on the merits in a previous Sec. 2255 application. Because a direction to consider the merits of the latest motion would not serve the ends of justice as expressed in Sanders v. United States, 373

U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), we will affirm the district court's judgment.

I.

On September 7, 1983, the Government charged the appellant, Glenn Leiby, with conspiracy to manufacture and to distribute methamphetamine in violation of 21 U.S.C. Sec. 846 (1982), manufacturing and distributing methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) (1982), and engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (1982). Pursuant to a plea agreement, Leiby pled guilty on January 20, 1984 to one count of conspiracy and to one count of distributing methamphetamine. ¹

On February 23, 1984, the district court sentenced Leiby to five years imprisonment with five years of special parole and imposed a $15,000 fine on the Sec. 841(a)(1) count. The court further sentenced Leiby to three years probation to run consecutively to the special parole term and fined him $15,000 on the conspiracy count. Leiby raised no immediate objection to the sentence.

On June 18, 1984, Leiby filed a motion for reduction of sentence under Fed.R.Crim.P. 35(b). Following the Government's response, the district court denied the motion. Leiby filed a notice of appeal to this court, but the district court entered an order of voluntary dismissal on October 23, 1984.

On July 5, 1985, Leiby filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Sec. 2255. The motion alleged, inter alia, that: (1) "The special parole term of 5 years, if allowed by the plea agreement, was illegal in that the petitioner was not advised of a 5 year special parole term and this renders petitioner's guilty plea involuntary" and (2) "Petitioner's conviction was obtained by a plea of guilty which was unlawfully induced and not made voluntarily in that the plea agreement was violated."

The district court granted the motion in part and denied it in part. By order dated October 18, 1985 the court accordingly amended Leiby's sentence on the Sec. 841(a)(1) count by reducing the special parole term from five to two years. In amending the sentence the court stated:

Mr. Leiby concedes that the court correctly advised him that if he pled guilty to count six, he could receive a sentence of five years followed by a special parole term of at least two years. A special parole term of at least two years is required by the statute. ²

Therefore, the defendant and his attorney knew, in fact, and fully contemplated that if sentence was imposed on count six there would have to be a special parole term of at least two years. (Motion to Vacate, Set Aside, or Correct Sentence at 5). In his petition, he states that he bargained for two years special parole, not three. "The plea he was advised of was 5 + 5 + 2. At sentencing he received 5 + 5 + 3." Id. ³

Mr. Leiby cannot reasonably argue that he had a mistaken belief that the United States Attorney or the court could impose a sentence under count six without adding a special parole term. Here, there was in defendant full expectation that if sentenced under count six, there could be the maximum period of incarceration No appeal was taken from the order of October 18, 1985.

permitted by law but there would have to be the minimum special parole terms permitted under law since the plea agreement did not specify a greater period. To the extent that there was a special parole term of three years imposed on count six, the sentence is illegal since it is at odds with the plea agreement. The court, having power to correct an illegal sentence at any time, will reduce the special parole term to two years.

On September 9, 1986, Leiby filed a second Sec. 2255 motion. That motion averred as its sole ground for relief that "Petitioner's conviction was obtained by a plea of guilty which was unlawfully induced and not made voluntarily in that Petitioner was not advised of the imposition of a special parole term as part of the plea agreement." The district court summarily denied the motion on October 23, 1986. The court specifically found: "Petitioner alleges no new grounds for relief. Petitioner's claims concerning his guilty plea and his plea agreement are identical to those adjudicated on the merits in the previous motion. I find no reason to reconsider the issues raised in the previous action." Leiby v. United States, No. 83-00305-02, final order at 2-3 (E.D.Pa. Oct. 23, 1986). This timely appeal followed.

II.

A.

The Supreme Court in Sanders v. United States formulated guidelines to govern successive applications for federal habeas corpus and motions under 28 U.S.C. Sec. 2255. ⁴

The Court announced:

Controlling weight may be given to denial of a prior application for federal habeas corpus or Sec. 2255 relief [footnote omitted] only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.

373 U.S. at 15, 83 S.Ct. at 1077. The Court emphasized, however, that "these rules are not operative in cases where the second or successive application is shown, on the basis of the application, files, and records of the case alone, conclusively to be without merit. [Citations omitted.] In such a case the application should be denied without a hearing." Id. ⁵

B.

On appeal, Leiby argues that the district court abused its discretion in refusing to entertain the second Sec. 2255 motion, since the court's prior determination was not on the merits and since the ends of justice would be served by reaching the merits of the subsequent application. In his brief, though, Leiby concedes that "the issue raised in the second Section 2255 Motion ha[s] been raised in the first Section 2255 Motion--that is, whether Appellant's plea of guilty was unlawfully induced and not made voluntarily in that Appellant was not advised of the imposition of a special parole term as part of the plea agreement, or that any sentence [footnote omitted] would exceed five years[.]" Therefore, this appeal implicates only the last two of the three Sanders criteria.

III.

First, we find that the district court determined the voluntariness of Leiby's guilty plea on the merits when the court considered Leiby's initial Sec. 2255 motion. In other words, "[t]he prior denial ... rested on an adjudication of the merits of the ground presented in the subsequent application." Sanders, 373 U.S. at 16, 83 S.Ct. at 1077. The appellant insists, however, that the district court did not properly determine the voluntariness of the plea since the court did not hold an evidentiary hearing. Leiby accordingly cites Tucker v. United States, 427 F.2d 615 (D.C.Cir.1970), for the proposition that denial of a Sec. 2255 motion without a hearing cannot satisfy the "on the merits" requirement of Sanders. Yet a closer look at Sanders and Tucker belies Leiby's view.

In Sanders, the Court defined "on the merits" to mean "that if factual issues were raised in the prior application, and it was not denied on the basis that the files and records conclusively resolved these issues, an evidentiary hearing was held." 373 U.S. at 16, 83 S.Ct. at 1077. The Court thus recognized that a district court need not hold a hearing where the record as it stands decisively answers the Sec. 2255 motion; in such a case, the court's decision will be "on the merits." Indeed, the district court in this case possessed the full files and records, including extensive transcripts, which indicated whether Leiby realized that his guilty plea might result not only in imprisonment but also in a special parole term and fines. Most significantly, Leiby confessed in his first Sec. 2255 motion that the court "explained to [him] that on counts 1 and 6 he could receive ... a maximum of 10 years imprisonment plus a $30,000 fine together with a special parole term of ... 'at least' 2 years." Nothing, in short, required the district court to venture outside the then-existing record to determine Leiby's claims.

Leiby misplaces his reliance on Tucker v. United States. There, a pro se prisoner filed a series of motions for post-conviction relief, all of which the district court denied without either holding a hearing or appointing counsel. The prisoner's final application, in addition, raised several grounds for relief which could not be decided solely upon existing files and records. One claim, in fact, rested upon an intervening change in the law which, as the court of appeals observed, "would entitle him to a new hearing even if the merits had been determined adversely to him prior to that time." 427 F.2d at 618 (footnote omitted). But the facts supporting the holding that the district court had not denied Tucker's prior petitions "on the merits" simply...