U.S. v. Willis, 00-20191

• Decision Date: 12 November 2001
• Docket Number: No. 00-20191,00-20191
• Citation: 273 F.3d 592
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH JEROME WILLIS, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 592

273 F.3d 592 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH JEROME WILLIS, Defendant-Appellant.

No. 00-20191

UNITED STATES COURT OF APPEALS Fifth Circuit

November 12, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court For the Southern District of Texas.

Before JONES and DeMOSS, Circuit Judges, and LIMBAUGH,¹ District Judge.

DeMOSS, Circuit Judge:

Federal prisoner Joseph Jerome Willis brought the instant 28 U.S.C. § 2255 motion pro se, contending that: (1) his § 924(c) firearm conviction was invalid; (2) the jury instructions on the §a924(c) count were erroneous; (3) Willis' trial attorney performed ineffectively in numerous instances; and (4) his appellate counsel also performed ineffectively by failing to raise several claims on appeal. A magistrate judge issued a report recommending that Willis' § 2255 motion be denied, and the district judge adopted the magistrate judge's recommendation. Willis now appeals the denial of his § 2255 motion.

BACKGROUND

After a 1992 trial, Joseph Jerome Willis was convicted by a jury of the following offenses: being a felon in possession of a firearm, in violation of 18 U.S.C. §a922(g); possession of more than 5 grams of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and using or carrying a firearm during a drug-trafficking offense, in violation of 18 U.S.C. §a924(c)(1). Willis raised four issues on direct appeal regarding: (1) the admissibility of his prior drug convictions pursuant to Fed. R. Evid. 404(b); (2) the denial of his motion for a mistrial based on an unresponsive answer; (3) prosecutorial misconduct during closing argument; and (4) the sufficiency of the evidence supporting his § 924(c) firearm conviction. United States v. Willis, 6 F.3d 257, 259 (5th Cir. 1993). This Court affirmed the conviction. Id. at 265.

Willis then filed the instant 28 U.S.C. § 2255 motion pro secontending that: (1) his § 924(c) firearm conviction was invalid; (2) the jury instructions on the § 924(c) count were erroneous; (3) Willis' trial attorney performed ineffectively in numerous instances;² and (4) his appellate counsel also performed ineffectively by failing to raise several claims on appeal. The government filed an answer arguing that all of the claims were meritless.

The magistrate judge issued a report recommending that the §a2255 motion be denied. As to Willis' claim that he was denied his constitutional right to testify on his own behalf, the magistrate concluded that there was no evidence in the record to support the claim. Additionally, the magistrate judge found that the claim was procedurally barred because Willis had not raised the claim on direct appeal and had not met the "cause and prejudice" test to excuse such failure. As to Willis' ineffective assistance of counsel claim, the magistrate judge concluded that the defense counsel's decision not to call Willis to testify was a reasoned trial strategy because Willis had two prior drug-trafficking convictions about which the government could have cross-examined him.

After Willis filed objections, the district court adopted the magistrate judge's recommendation and dismissed Willis' § 2255 motion, to which Willis filed for a certificate of appealability ("COA"). In its final judgment, the district court denied Willis a COA, and Willis then filed a motion with this court for a COA. This Court granted Willis a COA "as to his claim that he was denied his right to testify on his own behalf at trial" and directed the parties to brief this issue and to address the degree of substantiation that is required to trigger an evidentiary hearing on a 28 U.S.C. § 2255 right-to-testify claim. The court denied COA as to the other two claims made on appeal and declared that all other claims had been abandoned.

DISCUSSION

Standard of review

We review the district court's findings of fact in a § 2255 proceeding for clear error. United States v. Mimms, 43 F.3d 217, 220 (5th Cir. 1995). Questions of law are reviewed de novo. United States v. Gipson, 985 F.2d 212, 214 (5th Cir. 1993).

The alleged denial of Willis' right to testify

It is undisputed that Willis did not raise, at trial or on direct appeal, the allegation that he was denied his right to testify on his own behalf. This issue is therefore being raised for the first time in the present § 2255 motion. Usually, after a conviction and exhaustion or waiver of any right to appeal, this Court is entitled to presume that the defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991). A defendant can challenge a final conviction, but only on issues of constitutional or jurisdictional magnitude. Shaid, 937 F.2d at 232 (citing Hill v. United States, 368 U.S. 424, 428 (1962)). The Supreme Court has stated that, in a § 2255 proceeding, "to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Frady, 456 U.S. at 167-68; see also United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000) ("A section 2255 movant who fails to raise a constitutional or jurisdictional issue on direct appeal waives the issue for a collateral attack on his conviction, unless there is cause for the default and prejudice as a result."). Willis never raised the denial of right to testify issue on direct appeal and so it would appear that he is procedurally barred from raising it now.

However, the government never attempted to invoke the procedural bar until the present appeal.³ This Court has stated that in order to raise the procedural bar at the appellate level, the government must attempt to invoke it in the district court first. Kallestad, 236 F.3d at 227; United States v. Drobny, 955 F.2d 990, 995 (5th Cir. 1992). The government concedes that it is attempting to affirmatively invoke the procedural bar for the first time on appeal. It asserts, however, that this is permissible because the magistrate judge, and the district court by adopting the magistrate's findings, raised the procedural bar sua sponte.

The issue of whether a magistrate judge or district court can invoke the procedural bar sua sponte in a § 2255 case is one of first impression in this Court. It is not an issue without guidance, however. In a proceeding involving a 28 U.S.C. § 2254 motion,⁴ this Court stated that "a federal district court may, in the exercise of its discretion, raise a habeas petitioner's procedural default sua sponte and then apply that default as a bar to further litigation of petitioner's claims." Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir. 1998); Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000) (raising the procedural bar in a § 2254 case sua sponte at the appellate level). When this Court is considering whether to apply the procedural bar sua sponte in the § 2254 context, we consider whether the petitioner has had a reasonable opportunity to argue against application of the bar, and whether the government intentionally waived the procedural bar defense. Smith, 216 F.3d at 524. Though § 2254 and § 2255 are analogous, § 2255 does not include a statutorily imposed exhaustion of remedies requirement. However, we can easily extend our reasoning in Magouirk and Smith to § 2255 cases because, as we have already stated, the Supreme Court has engrafted a "procedural bar" into § 2255 to ensure that such proceedings will not develop into a substitute for direct appeals. See Frady, 456 U.S. at 167 (imposing the "cause and actual prejudice" standard on motions for collateral relief when no objection was made on direct appeal); see also Reed v. Farley, 512 U.S. 339, 354 (1994) (stating that "[w]here the petitioner - whether a state or federal prisoner - failed properly to raise his claim on direct review, the writ is available only if the petitioner establishes 'cause' for the waiver and shows 'actual prejudice . . ..'").

We find support for allowing district courts to sua sponteinvoke the procedural bar in § 2255 cases in other circuits as well. Many of our sister courts have permitted the district courts to find that the § 2255 motions before them were procedurally barred, without the government raising the issue, or have even raised the bar themselves sua sponte. See, e.g., Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000) (noting that it was proper to raise the default sua sponte at the appellate level in part because the procedural default was manifest in the record); Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir. 1998) (raising the issue of the defendant's procedural default sua sponteat the appellate level); Hines v. United States, 971 F.2d 506, 508 (10th Cir. 1992) (allowing a district court to raise the procedural default in a § 2255 motion sua sponte, and analogizing it to §a2254's procedural default rule). Today we join our sister courts by extending the reasoning of our decisions in Magouirk and Smith, and holding that a court may, sua sponte, invoke the procedural default rule as a bar to § 2255. As the court in Hines noted:

The Frady defense to a § 2255 action, like the state procedural default defense to a § 2254 action, substantially implicates important concerns that transcend those of the parties to a case. TheFrady defense is based upon concerns about finality, docket control, and judicial efficiency.

Hines, 971 F.2d at 508. We note, however, that though a court may invoke the procedural default sua sponte, it should not do so lightly. Rosario, 164 F.3d at 733. As this Court stated in Smith, when considering whether to apply the procedural default rule sua sponte, "[t]he relevant concerns are whether the petitioner has been given notice that procedural default will be an issue...