U.S. v. Porter, 90-5905
| Decision Date | 12 April 1991 |
| Docket Number | No. 90-5905,90-5905 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Robert T. PORTER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before MILBURN and BOGGS, Circuit Judges, and GILMORE, District Judge *.
Defendant-appellant Robert Porter appeals from the district court's order denying his motion filed under 28 U.S.C. Sec. 2255 for modification of sentence and modification of presentence report. For the reasons that follow, we affirm.
The defendant was convicted of sixteen counts of bank fraud and related offenses on June 20, 1986. He was sentenced to five years imprisonment on each count with all sentences to be served concurrently. In addition, he was fined $5,000 per count, for a total fine of $80,000.
One day prior to his sentencing, defendant Porter was given the opportunity to review his presentence report. At sentencing the next day, the following occurred:
J.A. 138-39. After declining the court's offer of additional time, Porter took up with the court numerous exceptions he had to the presentence report and discussed these with the court without any participation by his attorney, Mr. Pinales. J.A. 140-53.
Following his conviction, Porter perfected an appeal to this court in which he raised issues relating to his trial but not as to his sentence or the sentencing proceeding. United States v. Porter, No. 86-5745 (6th Cir. Sept. 9, 1987) (per curiam). After his conviction was upheld on appeal, he filed his motion to modify his sentence and presentence report.
The district court held that the defendant was not prejudiced by the fact that he only had one day within which to review his presentence report and confer with his counsel. It found that defendant had sufficient time to make detailed objections to the contents of the presentence report and that the defendant declined the court's express offer to allow additional time to confer with counsel. The district court also held that its rulings on the controverted portions of the presentence report had been correct, but it did agree to strike a statement from the presentence report because it had stricken a similar statement from another defendant's presentence report. That statement was to the effect that defendant Porter was responsible for the $10 million loss suffered by the Federal Deposit Insurance Corporation. Finally, the district court rejected the defendant's claim that his trial counsel had been constitutionally ineffective at the time of sentencing.
This timely appeal followed. Defendant Porter raises the following issues on appeal: (1) whether the district court afforded him sufficient time to read and review the presentence report; (2) whether the district court (a) failed to make findings on controverted factual matters in the presentence report or (b) failed to state that those controverted matters would not be considered in imposing sentence; (3) whether the district court relied to a constitutionally significant degree upon materially inaccurate information in the presentence report; (4) whether the defendant was denied effective assistance of counsel at his sentencing and on the appeal of his conviction; (5) whether the district judge erred in imposing a fine of $80,000; and (6) whether a different judge will be required for re-sentencing in the event this case is remanded.
Defendant Porter makes three arguments involving his presentence report. He claims that he was not afforded enough time to read and review the report, that the court failed to make findings regarding matters of controverted fact in the presentence report, and that the district court relied on inaccurate information contained in the report in imposing sentence.
At the time of the defendant's sentencing, Rule 32(c)(3)(A), Federal Rules of Criminal Procedure, provided that the court should allow a defendant and his counsel to read the presentence report "[a]t a reasonable time before imposing sentence...." Rule 32(c)(3)(D) requires courts to "make (i) a finding as to the [controverted] allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing."
The facts in this case show that the defendant was afforded "a reasonable time" within which to review his presentence report. At the sentencing hearing he showed a thorough familiarity with his presentence report, controverting the details of many of its factual assertions at considerable length. A reasonable time under these circumstances is the time within which one can accomplish the purposes for which he is furnished the presentence report. Porter accomplished those purposes. Moreover, when the court, sua sponte, offered the defendant additional time within which to confer with counsel, the defendant declined and elected to proceed.
The record also shows that the district court either made findings concerning the controverted factual matters or stated that such matters would not be considered in the sentencing. Although it is apparent, therefore, that the defendant's first two claims under Rule 32 are probably without merit, a detailed discussion of their facts is unnecessary because those claims are barred. First, this is a collateral attack under 28 U.S.C. Sec. 2255, not a direct appeal. In United States v. Addonizio, 442 U.S. 178, 184 (1979), the Court stated, "It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Particularly where, as here, nonconstitutional claims are being made for the first time upon collateral attack, the courts have refused to consider them.
The writ of habeas corpus and its federal counterpart, 22 U.S.C. Sec. 2255, "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590 (1947). For this reason, nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings.
Stone v. Powell, 428 U.S. 465, 477 n. 10 (1976). Since these matters were not raised on the direct appeal of this case, and because they do not amount to constitutional claims, the defendant is barred from employing them in a collateral attack. See Hill v. United States, 368 U.S. 424, 429 (1962).
As to the defendant's third claim concerning his presentence report, i.e., that the district court relied on inaccurate information within it, it is unclear whether a constitutional or nonconstitutional claim is presented. However, as this court said in United States v. Fry, 831 F.2d 664, 667 (6th Cir.1987), "[I]n order to show a due process violation, the defendant must raise grave doubt as to the veracity of the information and show that the court relied on that false information in determining the sentence."
The alleged inaccuracies raised by the defendant are relatively unimportant ones. Brief for Appellant at 26. At his sentencing, the defendant produced no evidence to show that his version of the controverted matters was accurate. Thus, he has never raised a "grave doubt" about the veracity of the information the court relied on. This allegation, therefore, does not amount to a claim of constitutional error and thus, being first raised on collateral attack, it is barred by the doctrine in Stone and Addonizio.
Even if the claim were treated as a constitutional one, however, it is not to be considered on collateral attack unless the defendant can demonstrate cause for not having appealed the alleged error and prejudice resulting from it. This "cause and prejudice" requirement was specifically adopted for use in section 2255 proceedings by the Supreme Court in United States v. Frady, 456 U.S. 152, 167 (1982). In Frady, the court noted that the defendant had neither objected at trial to the instructions he claimed were erroneous nor raised the issue on direct appeal. Stressing the importance of finality of judgments after direct appeal, the Court said:
Once the defendant's chance to appeal has been waived or exhausted, however, we are...
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