UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-20363
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG MICHAEL COSCARELLI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-1044)
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July 8, 1998
Before SMITH, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Craig Michael Coscarelli, federal prisoner # 23429-013,
appeals both the district court’s summary dismissal of his 28
U.S.C. § 2255 motion to vacate, set aside, or correct sentence and
the imposition of a $250 sanction for violating his plea agreement.
He contends, inter alia, that he was deprived of the effective
assistance of counsel in violation of the Sixth Amendment, which
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
resulted in an involuntary plea and an inadequate appeal. Along
this line, Coscarelli contends that the sanction was wrongly
imposed because his § 2255 motion did not violate his plea
agreement.
Ineffective assistance of counsel claims require the
resolution of mixed questions of law and fact. See United States
v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). But, in this case,
the district court did not make factual findings or conclusions of
law with respect to the claims; it concluded only “that the
defendant is entitled to no relief”. And, in response to
Coscarelli’s motion for clarification of the sanction, the district
court stated:
The petitioner’s allegation that his plea was
involuntary is a sham. He was not only fully
admonished concerning his plea, he made no
complaint about his attorney when the inquiry
was made. The petitioner’s plea agreement
also reiterates and reinforces the
voluntariness of his plea. The petitioner
knows that he cannot attack the plea except by
a complaint that his attorney did not provide
effective assistance []. That issue has been
appealed and resolved [unfavorably] to the
petitioner. This exercise is foolish and
wasteful.
(Emphasis added.)
Under his plea agreement, Coscarelli agreed to waive his right
to direct appeal under 18 U.S.C. § 3742; but, that agreement does
not mention § 2255 proceedings or collateral constitutional
challenges to his plea and sentence. Therefore, Coscarelli’s plea
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agreement did not contain a waiver of his right to collaterally
attack his conviction and sentence.
With respect to the $250 sanction, we review a district
court’s Rule 11 determination and decision to impose sanctions,
under its inherent powers, for abuse of discretion. Krim v.
BancTexas Group, Inc., 99 F.3d 775, 777 (5th Cir. 1996). “A
district court abuses its discretion if it imposes sanctions based
upon an erroneous view of the law or a clearly erroneous assessment
of the evidence.” Id. The district court’s stated reason for
imposing the sanction on Coscarelli was “for violating his plea
agreement”. But, as discussed, Coscarelli’s plea agreement did not
waive his right to collateral attack.
Accordingly, both the summary dismissal and the sanction are
VACATED; the case is REMANDED for further proceedings; and,
consequently, Coscarelli’s motion for appointment of counsel on
appeal is DENIED as moot. In so holding, we express no opinion as
to whether Coscarelli’s claims are meritless or whether sanctions
are warranted under a different rationale.
VACATED and REMANDED; MOTION FOR APPOINTMENT OF COUNSEL DENIED
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