CA4 — memorandum disposition

United States v. Snyder, No. 05-7731 — This order is confusing.  The district court denied the § 2255 motion but certified for appeal whether the public-safety exception to Miranda allowed the trial court to admit statements the defendant made concerning the location of a weapon.  The court ruled that trial counsel was not ineffective for failing to ask for suppression of the statements.  (That’s not the claim certified for appeal, but both roads lead to the same place.)

Lopez v. U.S. (CA8)

Lopez v. U.S., No. 07-3685 (CA8) — The petitioner pleaded guilty to a drug distribution consipracy and firearms charges.  He received a 135-month sentence, but did not file a direct appeal.

He filed a 2255 motion, asserting that counsel was ineffective for failing to file a direct appeal even though he asked counsel to do so.  The government sought dismissal, noting it was filed 15 months after the petitioner’s conviction became final.  The district court denied the motion as untimely, ruling that the petitioner was not diligent in discovering that counsel had not filed his direct appeal.

The petitioner had alleged that he was unable to communicate with anyone during the first five months of his incarcertaion, due to “repeated transfers” between prisons.  He then alleged that he assumed an appeal had been filed, and all he had to do was wait.  After some time, he began to suspect that no appeal had been filed.  He then contacted his trial lawyer and asked for a copy of his file.  The attorney sent him a copy of the judgment and commitment order.  By this time, the time to file a 2255 motion had passed.

“These allegations are not indicative of a reasonably diligent quest for information.”  The court faulted the petitioner for not alleging why he was not able to contact anyone during the first months of his sentence.  In fact, the court noted, the petitioner waited a year before even contacting the attorney in question.  “Moreover, there is every reason to believe that more prompt action on [the petitioner’s] part would have revealed counsel’s failure to notice an appeal more than one year before he filed his motion.”  The fact of the pending appeal was a matter of public record (how was he supposed to know?) that a duly diligent person in the petitioner’s shoes could have discovered before the one-year period ended.

U.S. v. Gamba (CA9)

United States v. Gamba, No. 06-35021 — On remand from the U.S. Supreme Court, the Ninth Circuit held that the petitioner was not entitled to 2255 relief because a magistrate judge presided over his closing argument.  The petitioner did not personally consent to the magistrate’s presence, but his counsel did.  The district judge announced that the parties had consented to the jury, while the petitioner was present, and the petitioner did not then object.

In Gonzalez v. United States, 128 S. Ct. 1765 (2008), the Court held that counsel may consent on a client’s behalf to a magistrate judge’s involvement in voir dire in a criminal trial.  Under the Federal Magistrates Act, district courts may delegate “additional duties” to magistrate judges, subject to a veto by either of the parties.  As long as the additional duty bears “some relation” to the duties specified in the Act, the magistrate judge may act with the parties’ acquiescence.  This acquiescence, in turn, may stem from a strategic and tactical decision of counsel.

Counsel may make strategic trial decisions on a client’s behalf, short of any decision that implicates the defendant’s basic trial rights.  The list of such rights enumerated in Florida v. Nixon, 543 U.S. 175 (2004), did not include the right to have an Article III judge preside over closing arguments.

Finally, presiding over closing argument was similar to presiding over jury selection, the “additional duty” at issue in Peretz v. United States, 501 U.S. 923 (1991).  Accordingly, neither Article III nor the Federal Magistrates Act precluded having a magistrate judge preside over closing argument.  Since this constitutional claim lacked merit, so too did the petitioner’s claim that trial counsel was ineffective for allowing a magistrate to preside over closing arguments without the petitioner’s personal consent.

Washington v. U.S. (CA7)

Washington v. U.S., No. 08-2787 (CA7) — The Seventh Circuit granted permission to file a delayed appeal, in the guise of ruling on an application for permission to file a second or successive 2255 motion.  In November 2005, the defendant was sentenced to 108 months in prison after pleading guilty to bank robbery.  His plea agreement contained a waiver of the right to appeal, which the defendant followed.  Instead, in April 2008 he filed a motion under Fed. R. Crim. P. 52(b) asking the court to recalculate his sentence in light of what he considered to be an erroneous application of the Guidelines.  The district court denied the motion, reasoning it was an improperly labeled 2255 motion, which he was improperly using as a substitute for an appeal.  But the Seventh Circuit reasoned that because the defendant was not seeking constitutional review of his sentence, the district court erred in characterizing his 52(b) motion as a 2255 motion.  Furthermore, the district court failed to warn the defendant that it was recharacterizing his 52(b) motion, as Castro v. United States, 540 U.S. 375 (2003), required it to do.  Accordingly, the Seventh Circuit construed the SOS application as a notice of appeal and returned it to the district court for processing.

CA3 — memorandum disposition

Soto v. U.S., No. 05-4493 — This appeal from the denial of a 2255 motion asserts a claim of IAC at trial for failing to challenge the indictment.  Soto had been charged with eleven counts relating to a scheme to rob two banks and an armored car between July 1997 and September 1998.  Soto was convicted and sentenced to 447 months in prison.  His conviction was affirmed on direct appeal, and the U.S. Supreme Court denied certiorari.

In a 2255 motion, Soto argued that trial counsel was ineffective for failing to challenge the indictment as multiplicitous.  Count 1 of the indictment named one conspiracy, he asserted, but the evidence established multiple separate conspiracies.  The district court denied the motion.  The Third Circuit later certified the IAC claim for appeal and appointed counsel to represent Soto.

In fact Soto’s trial counsel did challenge the indictment as duplicitous, as well as the sufficiency of the evidence.  The district court denied both motions.  Counsel did not peform deficiently.  Insofar as counsel should have argued that the evidence impermissibly varied the indictment, the Third Circuit ruled that the evidence in fact established one overarching conspiracy.  Accordingly, trial counsel was not ineffective.  The district court therefore correctly denied the motion.

U.S. v. Orozco (CA10)

U.S. v. Orozco, No. 07-3315 (CA10, unpublished order) — The Tenth Circuit denied a COA in a 2255 case.  The petitioner had waived his right to file a direct appeal and a 2255 motion when he pleaded guilty to distributing methamphetamine in federal court.  He filed a direct appeal anyway, which the court dismissed.  He then filed a 2255 motion, asserting a claim of IAC on direct appeal and a claim under United States v. Booker, 543 U.S. 220 (2005).  The district court dismissed the 2255 motion in light of the waiver provision of Orozco’s plea agreement.  The Tenth Circuit denied the COA because the dismissal in light of the waiver provision was not “reasonably subject to debate.”

CA4 — memorandum disposition

U.S. v. Alomia-Torres, No. 07-7771 — The court dismissed an appeal in a 2255 case for lack of jurisdiction because the notice of appeal was filed over 18 months after entry of judgment.  The petitioner sought to appeal the recharacterization of his 60(b) motion as a second or successive 2255 motion.

Stallings v. U.S. (CA7)

Stallings v. U.S., No. 06-3914 (CA7) — Yesterday the Seventh Circuit granted a habeas petitioner the functional equivalent of a Paladino remand on an appeal from the denial of a 2255 motion in the district court.  The petitioner had been convicted of possession of a firearm by a convicted felon.  He was sentenced in November 2004, after Blakely v. Washington, 542 U.S. 296 (2004), was decided, to 188 months in prison.  Given his criminal history, Stallings faced a 180-month mandatory minimum sentence.  The applicable Guidelines range was 188 to 235 months.  The sentencing judge explained, “I believe I am required to impose a certain, at least minimum sentence….  I think the sentence is appropriate.  If it turns out I’m wrong, we’ll do it again.”

Stallings filed a direct appeal, and the briefing took place after the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), and the Seventh Circuit decided its post-Booker cases Paladino and Schlifer.  Appellate counsel did not raise a Booker claim, and the Seventh Circuit affirmed the conviction and sentence in December 2005.

In February 2006, Stallings filed a 2255 motion, raising a claim of ineffective assistance of counsel on direct appeal regarding appellate counsel’s failure to raise a Booker claim.  The district court denied the motion, ruling that Stallings was “foreclosed from raising” a Booker claim in a 2255 motion.  The Seventh Circuit certified his IAC claim for appeal, and ordered the parties to discuss whether counsel’s failure to ask for a limited remand under Paladino constituted ineffective assistance.

The court first held that merely mentioning Blakely at a sentencing hearing that took place during the interregnum in the summer and fall of 2004 did not suffice to preserve a full Booker claim, so as to entitle a defendant to harmless-error review under the Schlifer decision.  Trial counsel merely asked the district court about the governing law in the wake of Blakely; he did not “offer a view of the law or suggest that Mr. Stallings had been sentenced improperly,” and thus did not preserve any Booker error.

The court then ruled that appellate counsel performed deficiently by failing to ask for a Paladino remand.  “Had Mr. Stallings asked for a Paladino remand on direct appeal, we would have granted it; the sentencing judge’s cryptic comment about having imposed an ‘appropriate’ sentence is not enough from which to conclude that the district court would not have considered a lower sentence had it understood the advisory nature of the guidelines.”  The Paladino approach required the district court to assess whether the failure to appreciate the advisory nature of the Guidelines resulted in a different sentence.  Because the answer to this question was not evident from the record, the court could not determine whether appellate counsel’s deficient performance was prejudicial.  The Seventh Circuit thus remanded the case for the district court to answer the Paladino question.