U.S. v. Shaid

• Citation: 916 F.2d 984
• Decision Date: 24 October 1990
• Docket Number: No. 88-2716,88-2716
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orrin SHAID, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 984

916 F.2d 984

UNITED STATES of America, Plaintiff-Appellee, v. Orrin SHAID, Jr., Defendant-Appellant.

No. 88-2716.

United States Court of Appeals,

Fifth Circuit.

Oct. 24, 1990.

Orrin Shaid, Jr., Terre Haute, Ind., pro se.

Dane Smith, Asst. U.S. Atty., Tyler, Tex., Bob Wortham, U.S. Atty., Tyler, Tex., Tom Booth, Atty., Dept. of Justice, Crim.Div., Washington, D.C. for U.S.

Appeal from the United States District Court for the Eastern District of Texas.

Before POLITZ, KING and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Pursuant to 28 U.S.C. Sec. 2255, Orrin Shaid collaterally attacks his 1973 convictions for violations of criminal banking statutes. After a lengthy examination of the case, a United States magistrate recommended that relief be denied Shaid. The district court adopted the Report of the Magistrate and denied relief. We affirm the district court's denial of relief on most of Shaid's claims. We find, however, that the district court failed to examine thoroughly one of Shaid's claims, and we remand for further consideration of that claim.

I.

In 1973, Orrin Shaid was convicted of and sentenced for conspiracy to misapply bank funds and to make false statements in a loan application in violation of 18 U.S.C. Sec. 371; nineteen counts of misapplication of bank funds in violation of 18 U.S.C. Sec. 656; two counts of making false statements in a loan application in violation of 18 U.S.C. Sec. 1014; six counts of making a false entry in a bank statement in violation of 18 U.S.C. Sec. 1005; and four counts of accepting a gift in exchange for procuring a bank loan for a third party in violation of 18 U.S.C. Sec. 215. Shaid was sentenced to eight years imprisonment.

The facts of Shaid's case, and particularly of the conspiracy, are set out in detail in United States v. Wilson, 500 F.2d 715, 718-20 (5th Cir.1974), cert. denied, sub nom., Levin v. United States, 420 U.S. 977, 95 S.Ct. 1403, 43 L.Ed.2d 658 (1975). We offer only a brief summary of them here. The evidence introduced at Shaid's trial indicated that, in 1971, he and a group of investors purchased the Shireno State Bank of Shireno, Texas. Shaid apparently had attained the financial backing of his investors by promising them a readily available supply of loans and credit from the bank once it was purchased. After the bank was purchased, the bank's president authorized a bank loan to each of the investors. The government contended that none of those loans was ever repaid.

Two months after the Shireno purchase, Shaid purchased the First State Bank of Grandview, Texas. Shortly thereafter, First State granted unsecured loans to Shaid as well as other members of his group. Several of those loans were used to write off the notes and interest at the Shireno bank.

Soon after the First State purchase, bank directors and examiners at both banks began an investigation of Shaid. That investigation yielded evidence that Shaid and many of the investors, in order to obtain loans, filed financial statements that falsely inflated their assets. Specifically, Shaid had executed promissory notes under other persons' names.

On direct appeal, this Court affirmed Shaid's convictions. Soon thereafter, Shaid filed a motion under 28 U.S.C. Sec. 2255 to vacate his sentence, based on a challenge to the Parole Commissions Guidelines. In 1977, that motion was denied. Shaid was later granted parole.

In 1982, Shaid was convicted on federal bank fraud charges in another case. Due to the earlier conviction, Shaid received an enhanced sentence. The facts of that case are set out in our opinion affirming his conviction. See United States v. Shaid, 730 F.2d 225 (5th Cir.), cert. denied, 469 U.S. 844, 105 S.Ct. 151, 83 L.Ed.2d 89 (1984).

As a result of the 1982 conviction, a parole violator detainer was lodged against Shaid for violation of his parole and he was taken into custody on that basis. Consequently, Shaid's petition is based upon being "in custody" for the 1973 conviction.

In 1984, Shaid filed, pro se, a second Sec. 2255 motion to vacate the 1973 sentence. After an evidentiary hearing and review of Shaid's claims, the magistrate, in a 75 page report, recommended denial of Shaid's motion. The district court adopted the magistrate's findings and recommendations and, after a de novo review of Shaid's objections to the report, denied Shaid's motion.

Shaid appeals, raising essentially ten points of error. While two points of error relate to the handling of the current collateral attack, the first eight challenge his 1973 conviction. With one possible but unimportant exception, none of the objections Shaid raises was specifically raised at trial, in his direct appeal, or in his first collateral attack.

II.

28 U.S.C. Sec. 2255 provides the usual avenue by which federal prisoners collaterally attack their convictions. ¹ They may only do so, however, on the basis of errors of law that constitute "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). Sec. 2255 extends primarily to those issues that are of constitutional or jurisdictional magnitude. See id.; United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept.1981). Any purported error not of such magnitude may only be considered under a Sec. 2255 motion if it could not have been raised on direct appeal and, if condoned, would result in a complete miscarriage of justice. Capua, 656 F.2d at 1037.

On a Sec. 2255 motion, if a convicted defendant raises trial errors to which no contemporaneous objections were made, she or he must meet a two part requirement. First, the defendant must show "cause" as to why the objection was not made at trial and, second, the defendant must show actual prejudice resulting from the errors of which she or he complains. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982). This standard, of course, does not apply to claims of ineffective assistance of counsel, which must be reviewed de novo.

Although the Frady test has been applied by many courts in evaluating Sec. 2255 claims where no objection was raised at trial, there is a recognized exception to the test's application. If a defendant has been convicted of a criminal act that becomes no longer criminal, courts generally acknowledge that such a conviction cannot stand. See, e.g., Addonizio, 99 S.Ct. at 2241 (discussing Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), stating that refusal to vacate a sentence where a change in substantive law had rendered defendant's conduct not a violation of the criminal statute would result in a "complete miscarriage of justice"); Callanan v. United States, 881 F.2d 229, 231-32 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990); see also United States v. Bruno, 903 F.2d 393 (5th Cir.1990) (applying, although not specifically stating, the rule); United States v. Bush, 888 F.2d 1145, 1145-46 (7th Cir.1989); United States v. Stoneman, 870 F.2d 102, 105 (3rd Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 236, 107 L.Ed.2d 187 (1989). Frady itself recognized this exception, emphasizing that the case would have been different if Frady had argued that he was not guilty of the crime for which he was convicted. See Frady, 456 U.S. at 171, 102 S.Ct. at 1596. ² If, then, a defendant has been convicted of a crime of which he is innocent, or has been convicted of acts that are no longer criminal, courts need not consider cause and prejudice. Cf. Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) ("[W]here a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.")

III.

Before addressing Shaid's attacks on his 1973 conviction, we first consider his objections to the handling of his Sec. 2255 motion. Shaid makes two claims. First, he contends that the district judge failed to make a de novo review of his Sec. 2255 motion and his objections to the magistrate's report. Second, he argues that the magistrate committed a reversible error by denying Shaid's request for a copy of the transcript of the 1973 trial. We find that neither the judge nor the magistrate committed reversible error by these actions of which Shaid complains.

A. De Novo Review

Shaid argues that the district court failed to make a de novo review of his motion and objections, as required by 28 U.S.C. Sec. 636(b)(1) and Article III of the Constitution. He also complains that the district judge did not make findings of fact or conclusions of law.

To support his claim that the district court should have made findings of fact and conclusions of law, Shaid cites a number of cases, including our opinion in United States v. Daly, 823 F.2d 871 (5th Cir.1987). In that case, we stated that unless the record shows conclusively that the petitioner is not entitled to relief, the district court must state findings of facts and conclusions of law for its ruling on a Sec. 2255 motion. See Daly, 823 F.2d at 872; see also, United States v. Edwards, 711 F.2d 633, 633 (5th Cir.1983); Hart v. United States, 565 F.2d 360, 361-62 (5th Cir.1978).

In making his argument, however, Shaid ignores one important distinction between his case and those cited above. While Shaid's case was referred to a magistrate to make findings of fact and recommendations for disposition, in accordance with 28 U.S.C. Sec. 636, there is no indication that a magistrate ever reviewed the other cases. Indeed, our rationale for sending those cases back to the district court was to provide us with a record sufficient for appellate review. See, Hart, 565 F.2d at 361. In contrast,...