U.S. v. Nyhuis, No. 98-2716

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Before DUBINA and BLACK, Circuit Judges, and HILL; HILL
• Citation: 211 F.3d 1340
• Docket Number: No. 98-2716
• Decision Date: 17 May 2000
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Douglas NYHUIS, Defendant-Appellant.

Page 1340

211 F.3d 1340 (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee,
v.
Douglas NYHUIS, Defendant-Appellant. No. 98-2716. United States Court of Appeals,
Eleventh Circuit. May 17, 2000.

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Copyrighted Material Omitted

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Appeal from the United States District Court for the Middle District of Florida.(No. 90-139-CR-ORL-19), Patricia C. Fawsett, Judge.

Before DUBINA and BLACK, Circuit Judges, and HILL, Senior Circuit Judge.

HILL, Senior Circuit Judge:

Douglas Nyhuis was tried and convicted in the Middle District of Florida on one count of conspiracy to possess, with intent to distribute, in excess of five kilograms of cocaine during the period from March, 1985, through October, 1989. On direct appeal, his conviction was affirmed by this court. He filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct an illegal sentence. After the district court denied this motion, he filed this appeal.

I.

Douglas Nyhuis was initially indicted in 1989, in the United States District Court for the Western District of Michigan, on one count of conspiracy to possess with intent to distribute marijuana and one count of engaging in a continuing criminal enterprise. The criminal activity was alleged to have occurred between January, 1984, and October, 1987. The Michigan court accepted Nyhuis' guilty plea on the criminal enterprise count and dismissed the conspiracy count. He was sentenced to a fourteen year, no parole term of imprisonment.

On December 12, 1990, a superseding indictment was returned against Nyhuis in the United States District Court for the Middle District of Florida for one count of conspiracy to possess, with intent to distribute, in excess of five kilograms of cocaine during the period from March, 1985, through October, 1989. Nyhuis moved to dismiss the Florida indictment on double jeopardy and immunity grounds. The district court denied the motions and, after a jury trial, he was convicted on the conspiracy charge. The Florida sentence was ordered to run concurrently with the Michigan sentence. We affirmed this conviction on direct appeal. United States v. Nyhuis, 8 F.3d 731 (11th Cir.1993).

Nyhuis filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He alleged eight grounds for relief, but the district court held that he was not entitled to relief on any of them, denied the motion and dismissed the case with prejudice.

Pursuant to 28 U.S.C. § 2253, Nyhuis filed an application for a certificate of appealability in the district court which the court denied. He then applied to this court for the certificate, which was granted as to two issues only. Subsequently, a third issue was certified.¹

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Nyhuis' first issue on appeal is whether the government's prosecution of him in the Middle District of Florida constituted a breach of his Michigan plea agreement which violated due process of law. The second issue is whether the government conducted itself in this case in a manner which violated due process of law. The final issue is whether his trial and appellate counsel was ineffective at sentencing. We consider each of these issues de novo. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

II.

The Breach of the Michigan Plea Agreement

Nyhuis claims that the government orally promised him that he would not be prosecuted for incidents underlying his Michigan conviction and that the Florida prosecution constituted a breach of that agreement. He raised this claim for the first time on motion to dismiss the Florida indictment on double jeopardy and immunity grounds. The district court considered and denied this motion. Nyhuis re-asserted the claim on direct appeal. After careful consideration, we concluded that there was no merit to Nyhuis' claim that the government violated its plea agreement with him. Nyhuis, 8 F.3d at 742. We said then:

The Government "agree[d] not to bring additional criminal charges against the defendant in the Western District of Michigan arising out of his involvement in the distribution of marijuana." It has not done so. The Government further agreed not to bring additional charges against Nyhuis arising out of "those transactions disclosed by the defendant in the proffer already made to the government." (Emphasis added.) It has not done so.... To permit Nyhuis retroactively to sweep his cocaine involvement within the ambit of the plea agreement would be an endorsement of the strategy of telling a little and hiding a lot.

Id.

Upon review of the present motion, the district court concluded that, despite Nyhuis' protestations to the contrary, his Section 2255 due process claim is based upon the same alleged plea agreement violation resolved against him by this court on direct appeal of his conviction. We agree with the district court. We can discern no fact or other evidence underlying the present due process claim which was not raised by Nyhuis and considered by us in his prior immunity claim.² The district court is not required to reconsider claims of error that were raised and disposed of on direct appeal. United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir.1981). "[O]nce a matter has been decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255." United States v. Natelli, 553 F.2d 5, 7 (2d Cir.1977).³ Nyhuis has merely re-characterized his prior immunity claim as a due process claim. A rejected claim does not merit rehearing on a different, but previously available, legal theory. Cook v. Lockhart, 878 F.2d 220, 222 (8th Cir.1989). Accordingly, we hold that the district court did not err in denying the motion to set aside the verdict as a violation of due process.

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III.

Nyhuis' allegations regarding the government's conduct with regard to the plea agreement also state a due process claim for prosecutorial misconduct. The district court held that this claim was predicated upon the same alleged immunity violation that was resolved against him on appeal. Alternatively, the court held that this claim was procedurally barred.

On appeal, the government concedes that Nyhuis'...