U.S. v. Smith, No. 86-3605

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, JOHNSON, and HIGGINBOTHAM; PER CURIAM
Citation844 F.2d 203
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Donald E. SMITH, Defendant-Appellant.
Docket NumberNo. 86-3605
Decision Date19 April 1988

Page 203

844 F.2d 203
UNITED STATES of America, Plaintiff-Appellee,
v.
Donald E. SMITH, Defendant-Appellant.
No. 86-3605.
United States Court of Appeals,
Fifth Circuit.
April 19, 1988.

Page 205

Herbert Larson, New Orleans, La. (Court-appointed), for defendant-appellant.

Donald E. Smith, pro se.

Constantine D. Georges, Asst. U.S. Atty., John P. Volz, U.S. Atty., Peter G. Strasser, Robert M. Hamilton, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

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

Before BROWN, JOHNSON, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

A prisoner appeals from an order denying motions under 28 U.S.C. Sec. 2255 challenging the validity of his conviction on the grounds of involuntary guilty plea, ineffective assistance of counsel, and violation of Rule 32 of the Federal Rules of Criminal Procedure. We affirm with modification.

I

Donald E. Smith pled guilty in federal district court to conspiracy to import marijuana and to conspiracy to possess marijuana with intent to distribute. As part of the plea bargain, the government dropped two counts of importation and possession. Smith was sentenced to five years for conspiracy to import and eight years to be served concurrently for conspiracy to possess.

Smith, proceeding pro se and under 28 U.S.C. Sec. 2255, 1 moved to vacate, set aside, or correct the sentence. He asserted that an error in the pre-sentence investigation report regarding the amount of marijuana involved increased the severity rating of his crime and that although the district court ordered that the error be corrected, the Parole Commission had adopted the uncorrected PSI. The petition then was amended after Smith obtained counsel.

The district court held that because Smith attacked his post judgment confinement rather than the judgment itself, Smith should have filed a petition for habeas corpus under 28 U.S.C. Sec. 2241 instead of proceeding under Sec. 2255. The court then held that it lacked territorial jurisdiction and dismissed without prejudice.

Smith next filed a new Sec. 2255 motion asserting: (1) that his guilty plea was involuntary because his counsel misinformed him about possible sentences; (2) that the trial court considered prior uncounseled convictions; (3) that the district court made no written response to controverted statements in the PSI; and (4) that his counsel was ineffective. The district court denied this motion without evidentiary hearing.

On appeal Smith presses these same four claims and relatedly argues that the district court should have held an evidentiary hearing, should have construed his pro se petition liberally, and should not have denied summarily his Rule 60(b) motion. The government argues that Smith has abused the writ process.

II

The grounds for relief under Sec. 2255 are narrower than those for relief on direct appeal. On direct appeal a defendant may raise any error subject to the limiting reality of the harmless error rule. 2 In contrast, Sec. 2255 "is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and, would, if condoned, result in a complete miscarriage

Page 206

of justice." 3 Thus, in determining whether a claim of error is cognizable under Sec. 2255, we first look to whether the claim is that petitioner was deprived of a constitutionally secured right or jurisdictional.

Section 2255 reaches a claim of a constitutional magnitude unless the petitioner has deliberately bypassed the direct appellate process. 4 Other errors may not be raised in a Sec. 2255 motion if they could have been raised on direct appeal 5 and that the claim could not have been asserted on direct appeal does not mean that it can necessarily be asserted under Sec. 2255 because

[e]ven those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted " 'a fundamental defect which inherently results in a complete miscarriage of justice.' " 6

At least one circuit has narrowed the reach of Sec. 2255 to constitutional errors. 7 Whether Sec. 2255 reaches claims that do not assert a deprivation of right secured by the Constitution is not presented by this case and we do not decide the question. 8

Our threshold task, thus, is to determine which of Smith's claims fall into each of these two camps. Claims of involuntary guilty plea, consideration of uncounseled convictions, and ineffective assistance of counsel are of course constitutional in nature, and we will address each of these in turn by applying the deliberate bypass analysis. First, though, we will address the nonconstitutional claims of the district court's failure to comply with Rule 32(c)(3)(D) and denial of Smith's motion to correct.

III

We first consider whether 28 U.S.C. Sec. 2255 will support an attack upon a district court's failure to comply with Rule 32 of the Federal Rules of Criminal Procedure. Rule 32(c)(3)(D) provides:

If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission.

Rule 32 serves twin goals of obtaining a fair sentence based on accurate information and obtaining a clear record of the resolution of disputed facts. 9 We have held on direct appeal that violation of Rule 32 is reversible error requiring resentencing 10 and that Rule 32 must be construed strictly. 11

The district court violated Rule 32(c)(3)(D) by failing to make findings regarding disputed information in the PSI report. Had Smith appealed directly to this court, it is likely that we would have reversed and remanded for resentencing. Smith, however, did not file a direct appeal but instead waited and challenged his sentence by a Sec. 2255 motion, and, again, the

Page 207

grounds for relief under Sec. 2255 are narrower than those for relief on direct appeal.

Much judicial energy has been spent puzzling over whether a claim such as Smith's is cognizable under Sec. 2255. 12 That is, whether an error is of a sort constituting "a fundamental defect which inherently results in a complete miscarriage of justice." 13 We do not reach this inquiry until we are satisfied that the claim could not have been raised on direct appeal, for Capua dictates that the ability to raise a nonconstitutional issue on direct appeal, and the failure to have done so, is a bar to collateral review.

A violation of Rule 32(c)(3)(D) is cognizable either on direct appeal 1...

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67 practice notes
  • Ex parte Ali, No. 03–11–00323–CR.
    • United States
    • Court of Appeals of Texas
    • May 17, 2012
    ...120 S.Ct. 1029).6 “The test is objective; it turns on what a reasonable person in the defendant's shoes would do.” United States v. Smith, 844 F.2d 203, 209 (5th Cir.1988) (citing Hill, 474 U.S. at 60, 106 S.Ct. 366). In determining whether an applicant would not have pleaded guilty but for......
  • Rupert v. Johnson, Civil Action No. SA-98-CA-31-OG.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • July 8, 1999
    ...105. See Blackledge v. Allison, 431 U.S. at 73-74, 97 S.Ct. at 1629; DeVille v. Whitley, 21 F.3d at 659; United States v. Smith, 844 F.2d 203, 208 (5th Cir.1988); United States v. Raetzsch, 781 F.2d at 1151; United States v. Corbett, 742 F.2d 173, 178 n. 11 (5th Cir. 1984); and United State......
  • U.S. v. Nichols, No. 91-5581
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 16, 1993
    ...which no imprisonment was imposed may properly be introduced in the punishment phase of a trial.' Id. at 998. In United States v. Smith, 844 F.2d 203 (5th Cir.1988), we held that a sentencing court could consider the defendant's numerous prior uncounseled convictions, none of which resulted......
  • Hines v. Louisiana, No. Civ. 97-2618.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • February 18, 2000
    ...1081. Hines has the burden of proving that he is entitled to relief on the ground that his plea was involuntary. United States v. Smith, 844 F.2d 203, 208 (5th At the guilty plea hearing, the trial court explained the rights that Hines would be giving up if he pleaded guilty. Hines stated t......
  • Request a trial to view additional results
67 cases
  • Ex parte Ali, No. 03–11–00323–CR.
    • United States
    • Court of Appeals of Texas
    • May 17, 2012
    ...120 S.Ct. 1029).6 “The test is objective; it turns on what a reasonable person in the defendant's shoes would do.” United States v. Smith, 844 F.2d 203, 209 (5th Cir.1988) (citing Hill, 474 U.S. at 60, 106 S.Ct. 366). In determining whether an applicant would not have pleaded guilty but for......
  • Rupert v. Johnson, Civil Action No. SA-98-CA-31-OG.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • July 8, 1999
    ...105. See Blackledge v. Allison, 431 U.S. at 73-74, 97 S.Ct. at 1629; DeVille v. Whitley, 21 F.3d at 659; United States v. Smith, 844 F.2d 203, 208 (5th Cir.1988); United States v. Raetzsch, 781 F.2d at 1151; United States v. Corbett, 742 F.2d 173, 178 n. 11 (5th Cir. 1984); and United State......
  • U.S. v. Nichols, No. 91-5581
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 16, 1993
    ...which no imprisonment was imposed may properly be introduced in the punishment phase of a trial.' Id. at 998. In United States v. Smith, 844 F.2d 203 (5th Cir.1988), we held that a sentencing court could consider the defendant's numerous prior uncounseled convictions, none of which resulted......
  • Hines v. Louisiana, No. Civ. 97-2618.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • February 18, 2000
    ...1081. Hines has the burden of proving that he is entitled to relief on the ground that his plea was involuntary. United States v. Smith, 844 F.2d 203, 208 (5th At the guilty plea hearing, the trial court explained the rights that Hines would be giving up if he pleaded guilty. Hines stated t......
  • Request a trial to view additional results

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