U.S. v. Oliver, 87-6555

• Decision Date: 20 March 1989
• Docket Number: No. 87-6555,87-6555
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel Lee OLIVER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 600

865 F.2d 600

UNITED STATES of America, Plaintiff-Appellee, v. Samuel Lee OLIVER, Defendant-Appellant.

No. 87-6555.

United States Court of Appeals Fourth Circuit.

Argued Oct. 7, 1988.

Decided Jan. 13, 1989.

Rehearing and Rehearing In Banc Denied March 20, 1989.

Frank Salvato, Student Counsel (Nancy Cook, American University Washington College of Law, Appellate Advocacy Law Clinic, Washington, D.C., on brief), for defendant-appellant.

Rudolf A. Renfer, Jr., Asst. U.S. Atty., Raleigh, N.C. (Margaret Person Currin, Office of U.S. Atty. Gen., Raleigh, N.C., on brief), for plaintiff-appellee.

Before HALL, MURNAGHAN and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge:

This appeal presents the question: Whether it is proper for a trial court to dismiss a motion made under 28 U.S.C. Sec. 2255, attacking a sentence on constitutional grounds without providing notice to the petitioner and an opportunity to respond to allegations forming the basis of the dismissal? We find that, on the present facts, the district court had the authority, under the clear language of Sec. 2255 ¹ and Rules 4(b) ² and 9(b) ³ of the Rules Governing Proceedings in the United States District Court Under Section 2255 of Title 28, United States Code, to dismiss the petition without providing prior notice to the petitioner with an opportunity to respond to the court's findings forming the basis of the dismissal, and that the judge did not abuse his discretion, because it plainly appeared from the face of the motion, the annexed exhibits and the prior proceedings that petitioner was not entitled to relief, that petitioner had failed to allege new or different grounds from those previously presented and decided on the merits, and that the failure to assert the present grounds in the prior motion was an abuse of the procedure governing the Section 2255 Rules.

I

All of the judicial proceedings relevant to this case were conducted before the Honorable Franklin T. Dupree, Jr., United States District Judge for the Eastern District of North Carolina. Appellant Samuel Lee Oliver is approximately 38 years of age and, he completed high school and attended college. In 1976 appellant Oliver was convicted of bank robbery and sentenced by Judge Dupree to an active prison term. On March 30, 1979 he was paroled from federal custody. On June 30, 1981, Oliver, while armed with a handgun robbed the Peoples Bank and Trust Company in Fayetteville, North Carolina, and put in jeopardy the life of one of the tellers. He was again brought before Judge Dupree. Oliver entered a plea of not guilty and H. Gerald Beaver, Esquire, was appointed by the court to represent Mr. Oliver. Mr. Beaver and his associate, Mr. Tom Holt, had numerous meetings and conferences with Oliver and prepared his case for trial. Oliver worked closely with his attorneys, furnished them with the names of witnesses, and at trial took notes during the testimony of government witnesses, which Mr. Beaver testified were "particularly cogent". On August 25, 1981, when the government had completed its presentation, except for one final witness, Oliver informed his attorney that he wished to enter a plea of guilty. Although the attorney did not feel that appellant should change his plea, he testified that appellant gave no indication that he was acting pursuant to any undue influence or that he was not competent to make this decision. The attorney asked Oliver the same basic questions that a court must ask under F.R.Crim.P. 11 to be sure that Oliver understood what he was doing and appreciated the consequences of his act.

The district judge then conducted a thorough Rule 11 proceeding during which the court asked Oliver: "Have you been satisfied with the services that he [Attorney Beaver] has rendered you?" Oliver answered: "Overwhelmingly satisfied, sir." During this proceeding Oliver testified that he was not under the influence of any drug or alcohol and that his mind was clear and that he was making his change of plea freely, voluntarily and with a full understanding of the charges. The court made the necessary findings under Rule 11 and then imposed a sentence of 24 years pursuant to 18 U.S.C. Sec. 2113(d) and 2.

On December 8, 1981 appellant Oliver filed a motion for reduction of sentence under F.R.Crim.P. 35. In this petition Oliver alleged that he was denied a proper defense to the charges in the indictment because "his Court Appointed Counsel, Gerald Beaver, was ineffective, in his assistance for protecting Petitioner's Constitutional Right, pursuant to the provisions of the 5th Article of the United States Constitution." Oliver also alleged that Beaver had failed to comply with F.R.Crim.P. 12.2 by not giving notice of an insanity defense and by not following the procedures set forth in this rule. This motion for reduction of sentence was denied by the district court on January 20, 1982.

On May 3, 1982, Oliver filed his first motion to vacate his sentence under 28 U.S.C. Sec. 2255. In his motion he alleged that he had previously filed a Rule 35 motion alleging ineffective assistance of counsel, and he further alleged that his guilty plea was involuntary, because he was incompetent at the time of the plea and it was not a knowing and an intelligent plea. The district court ordered a psychiatric examination to be conducted by the Bureau of Prisons pursuant to 18 U.S.C. Secs. 4245 and 4241. A majority of the examining doctors found that appellant was competent to change his plea at the time of trial and that he completely understood and he was aware of the procedures and consequences of pleading guilty. During this procedure Attorney Beaver testified as to his representation of the appellant and gave his opinion that appellant was competent at the time he decided to change his plea and entered a plea of guilty.

Following the hearing on this first motion for relief under Sec. 2255, the court found that Oliver had failed to carry his burden of proof on the issue of incompetency. The motion for relief was denied on March 9, 1983.

On November 25, 1986, appellant filed his second motion under 28 U.S.C. Sec. 2255 to vacate his conviction for armed bank robbery, and in this motion he stated his ground of relief as "Counsel failed to raise the issue of Defense of Insanity when there was sufficient evidence to support the issue." On January 13, 1987, the same district judge, who had sentenced Oliver on two prior occasions for bank robbery, and had considered his Rule 35 motion in which he alleged ineffective counsel, and had considered and denied his first Sec. 2255 motion after appointing a medical examining board and taking testimony of various witnesses, denied this second motion. At the time of the second denial the district judge had before him all of the files, records, transcripts and correspondence relating to the judgment under attack, and to prior motions and petitions filed by Oliver attacking his conviction. The district court found that the November 25, 1986 motion was successive and that an answer by the government was unnecessary. The court found that this second 2255 motion was governed by Rule 9(b) and that "[m]ovant has abused the procedure governed by the rules of habeas corpus. Furthermore, the court concludes that the government would be prejudiced by the granting of this motion." The court further found that the facts asserted in the new motion "[w]ere entirely known to movant at the time of his previous motion. Movant has presented to the court exhibits documenting his use of 'anti-depressant and psycho-tropic medication' during 1976 and 1977. Movant's 'continuous' use of these drugs was obviously known to him when filing his first Section 2255 motion and during the subsequent hearing. Although Oliver now alleges that he was insane when he committed the robbery, as opposed to incompetent when he pled guilty, the essence of his prior and present motions revolves around his mental state. With this in mind, movant should have raised his insanity argument at his first Section 2255 motion. Such action would have enabled movant to confront his attorney with his present allegations at the hearing at which his counsel testified. ^* Oliver's presentation of his mental issue now and not previously constitutes an abuse of procedure, movant having obviously known the facts asserted here for some time."

II

First, we face the appellant's claim that Johnson v. Copinger, 420 F.2d 395 (4th Cir.1969), requires a district court to provide to a Sec. 2255 petitioner facing dismissal for abuse of the process, both notice and an opportunity to respond. Appellant does not understand our holding in Johnson v. Copinger, nor does he appreciate the changes in procedure which have occurred since 1969. Copinger did not deal with Sec. 2255, but with 28 U.S.C. Sec. 2254(b). Copinger relates to the 1966 amendments to Sec. 2254 and we held at 398-399:

However, the issue in this case extends beyond the simple question of whether a district judge may, on his own motion, dismiss a petition for abuse of process without an abuse having been specifically pleaded by the respondent. The question remains whether the judge may determine, solely on the basis of the petition and the prior records, that the petitioner has deliberately withheld known grounds or otherwise abused the writ, without providing the petitioner an opportunity to explain his conduct. We do not believe that the statute, as amended, authorizes such a procedure.

In Copinger the petitioner was a state prisoner attacking his state conviction in the United States District Court. The only things before the district judge were the motion and certain prior records from the state court. In the present proceeding we are dealing with a motion attacking a conviction in the United States District Court. The present motion for relief under Sec. 2255 was presented to the same judge, who had heard a prior motion for relief under Sec. 2255, a prior ...