Knight v. United States

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1374

STEPHEN TED KNIGHT,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Stahl, Circuit Judge.

Arthur R. Silen for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, was on brief for the

United States.

October 20, 1994

CAMPBELL, Senior Circuit Judge. Petitioner

Stephen Knight appeals from a district court order denying

his motion under 28 U.S.C. 22551 to correct his federal

sentence of 78 months in prison and his fine of $15,000. We

affirm.

I.

On May 25, 1990, Knight waived indictment and

pleaded guilty to a four-count federal information. The

information alleged that Knight had participated in a cocaine

conspiracy, had sold marijuana on two occasions, and had

possessed cocaine with intent to distribute.

The presentence investigation report (PSI),

prepared by a probation officer, provided information about

Knight's criminal history and financial status. The PSI

indicated that several months earlier Knight had pleaded

guilty to state drug violations, stemming from a June 1989

1. 28 U.S.C. 2255 provides:

A prisoner in custody under sentence of a court
established by Act of Congress claiming the right
to be released upon the ground that the sentence
was imposed in violation of the Constitution or
laws of the United States, or that the court was
without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the
sentence.

28 U.S.C.A. 2255 (1994).

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arrest in Maine. For these offenses, Knight had been

sentenced in state court to five years in prison.

After a hearing, the federal district court

sentenced Knight on August 24, 1990 to 96 months in prison

and imposed a $15,000 fine. In calculating the sentence, the

court added three points to Knight's criminal history score

because of the prior state sentence, in accordance with

U.S.S.G. 4A1.1(a). The addition of these three points

raised the applicable sentencing range from 63-78 months to

78-97 months. The district court imposed a sentence near the

top of the latter range although, later, in August 1993, it

reduced the sentence to 78 months, on motion of the

government pursuant to Fed. R. Crim. P. 35(b). Knight did

not appeal from his federal sentence.

In October of 1992, Knight brought this separate

proceeding in the district court under 28 U.S.C. 2255,

collaterally attacking his federal sentence. Following an

evidentiary hearing, a magistrate judge recommended that

Knight's motion be denied. After considering the matter de

novo, the district court denied Knight's 2255 motion. This

appeal followed.

II.

A. Claims of Error under Sentencing Guidelines

Knight argues that it was error for the sentencing

court to add three points to his criminal history score on

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account of his prior state sentence. Under U.S.S.G.

4A1.1(a), a sentencing judge must add three points for each

prior sentence of imprisonment exceeding one year and one

month. U.S.S.G. 4A1.2(a)(1) defines a "prior sentence" as:

"any sentence previously imposed upon adjudication of guilt,

whether by guilty plea, trial, or plea of nolo contendere,

for conduct not part of the instant offense" (emphasis

added). Knight argues that the state offenses for which he

was previously sentenced were "part of the instant offense,"

hence should not have been counted toward his criminal

history score. Knight says the state and federal offenses

were all part of a common scheme or plan involving the same

individuals and occurring over roughly the same time period.

Accordingly, he argues, the state sentence of imprisonment

should not have been counted in figuring his criminal history

score.2

2Knight did not specifically argue below, as he does
here, that the sentencing court committed error in failing to
find that the state and federal offenses were related.
Rather, Knight argued that his counsel at sentencing rendered
ineffective assistance by failing to point out that the
offenses were related. Both the magistrate and district
court found that counsel's conduct did not constitute
ineffective assistance, since Knight had not shown a
reasonable possibility that this argument would have
succeeded or result in a lower sentence. Knight now appears
to have abandoned the ineffective assistance aspect of the
claim, arguing simply that the district court erred.
Ordinarily, claims not raised below cannot be raised for the
first time on appeal, but as the government has not objected
on this ground, and as the claim fails in any event, we
overlook that it was not raised below.

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Knight also argues that the sentencing court abused

its discretion in imposing a $15,000 fine in light of his

inability to pay. U.S.S.G. 5E1.2(a) provides that a

district court "shall impose a fine in all cases, except

where the defendant establishes that he is unable to pay and

is not likely to become able to pay any fine." U.S.S.G.

5E1.2(f) further states that if the defendant establishes

that he "is not able and, even with the use of a reasonable

installment schedule, is not likely to become able to pay all

or part of the fine . . . the court may impose a lesser fine

or waive the fine. Knight argues that the PSI clearly

indicated that he was unable to pay the $15,000 fine, even

under a reasonable installment schedule. Accordingly, he

argues, it was an abuse of discretion for the sentencing

court to have imposed the fine.

We do not reach the merits of either of the above

contentions. We hold that neither of them can now be raised

within a collateral proceeding under 28 U.S.C. 2255.

28 U.S.C. 2255 sets forth four grounds upon which

a federal prisoner may base a claim for relief: "(1) 'that

the sentence was imposed in violation of the Constitution or

laws of the United States;' (2) 'that the court was without

jurisdiction to impose such sentence;' (3) 'that the sentence

was in excess of the maximum authorized by law;' and (4) that

the sentence 'is otherwise subject to collateral attack.'"

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Hill v. United States, 368 U.S. 424, 426-27, 82 S. Ct. 468,

470, 7 L.Ed 2.d 417 (1962) (quoting the statute). Neither of

Knight's present claims alleges a constitutional error or

lack of jurisdiction. Thus, the claims can only be properly

brought under 2255 if they allege that the sentence "was in

excess of the maximum authorized by law," "was imposed in

violation of the . . . laws of the United States," or "is

otherwise subject to collateral attack."

While the statutory language is rather general, the

Supreme Court has narrowly confined the scope and

availability of collateral attack for claims that do not

allege constitutional or jurisdictional errors. Such claims

are properly brought under 2255 only if the claimed error

is "a fundamental defect which inherently results in a

complete miscarriage of justice" or "an omission inconsistent

with the rudimentary demands of fair procedure." Hill, 368

U.S. at 428. The error must "present exceptional

circumstances where the need for the remedy afforded by the

writ of habeas corpus is apparent." Id. (quoting Bowen v.

Johnston, 306 U.S. 19, 27 (1939)); see Fasano v. Hall, 615

F.2d 555, 557 (1st. Cir.), cert. denied, 449 U.S. 867 (1980).

Errors warranting a reversal on direct appeal will not

necessarily support a collateral attack. See United States

v. Addonizio, 442 U.S. 178, 184-85, 99 S. Ct. 2235, 2239-40,

60 L.Ed 2d 805 (1979). The reason for so sharply

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limiting the availability of collateral attack for

nonconstitutional, nonjurisdictional errors is that direct

appeal provides criminal defendants with a regular and

orderly avenue for correcting such errors. The Supreme Court

has repeatedly emphasized that 2255 is not a substitute for

direct appeal. See, e.g., United States v. Frady, 456 U.S.

152, 165, 102 S. Ct. 1584, 1593 71 L.Ed 2d 816 (1982);

Addonizio, 442 U.S. at 184-85; Sunal v. Large, 332 U.S. 174,

178, 67 S. Ct. 1588, 92 L.Ed 1982 (1947). A

nonconstitutional claim that could have been, but was not,

raised on appeal, may not be asserted by collateral attack

under 2255 absent exceptional circumstances. See Stone v.

Powell, 428 U.S. 465, 177 n.10, 96 S. Ct. 3037, 3044 n.10, 49

L.Ed. 1067 (1976); Suveges v. United States, 7 F.3d 6, 10

(1st Cir. 1993) (applying cause and prejudice standard to

procedural default of jurisdictional claim).

The Supreme Court has on four occasions considered

whether a particular nonconstitutional, nonjurisdictional

claim was properly brought under 2255. See Hill, 368 U.S.

at 428 (denial of allocution at sentencing in violation of

Fed. R. Crim. P. 32(a) is not a "miscarriage of justice");

United States v. Timmreck, 441 U.S. 780, 784-85, 99 S. Ct.

2085, 60 L.Ed. 2d 805 (1979) (error under Fed. R. Crim. P. 11

in procedure for taking a guilty plea not a "miscarriage of

justice"); Addonizio, 442 U.S. at 184-90 (subsequent change

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in U.S. Parole Commission's parole policies not sufficient to

constitute basis for collateral attack). In one of these

cases, the Court found that the error did justify collateral

attack. Davis v. United States, 417 U.S. 333, 346, 94 S. Ct.

2298, 2305, 41 L.Ed. 2d 109 (1974) (subsequent change in

substantive law making defendant's former behavior lawful

does constitute sufficient basis for collateral attack).

While the above cases are not on all fours, we

think it obvious that Knight's two claims fall far short of

the "miscarriage of justice" standard. Knight's first claim

is essentially that the district court made an erroneous

finding of fact which led to the misapplication of the

sentencing guidelines. Knight's second claim is that the

district court abused a discretion explicitly committed to it

by the sentencing guidelines. Neither claim is based upon an

"exceptional circumstance." Rather, each alleges ordinary

errors that could and should have been raised by Knight on

direct appeal. And even assuming error was committed,3 the

error would not amount to a "complete miscarriage of

justice." Knight's eventual sentence was 78 months, within

3 While we do not reach the merits of Knight's claims
of error, we note that they are questionable on their face.
At the evidentiary hearing, the magistrate judge found that
the state and federal offenses involved different individuals
and overlapped only very slightly in time. The only evidence
that Knight offers is his own testimony stating, in very
general terms, that the offenses were related. Similarly,
Knight offers scant evidence that the district court abused
its discretion in setting the fine.

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the range that would have been imposed even if the district

court had not added three points to his criminal history

score. Similarly, Knight's $15,000 fine was at the very

bottom of the available range ($12,500 to $2 million).

Accordingly, even if error was committed, it would fall well

short of being a "complete miscarriage of justice."

Knight, moreover, who was fully aware of his right

to appeal, could have raised the purported error by direct

appeal. Although Knight's counsel at the time decided that

there were no issues worthy of appeal, he offered to direct

Knight to alternative counsel who could help Knight with his

appeal. Knight did not take advantage of this offer. Knight

does not allege that there have been any new legal or factual

developments justifying his failure to appeal. Allowing

Knight to bring his claim at this late date would essentially

be allowing him to use 2255 as a substitute for appeal.

See Sunal, 332 U.S. at 178. Having bypassed his opportunity

to raise the claim on direct appeal, he cannot raise it now

on collateral attack. See Stone, 428 U.S. at 177 n.10;

Singleton v. United States, 26 F.3d 233, 239 (1st Cir. 1994),

petition for cert. filed, (July 22, 1994) (No. 94-5551)

(failure to appeal claim of improper joinder bars raising

claim under 2255).

Several circuit courts have considered the

availability of collateral attack for various errors in the

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application of the sentencing guidelines and have concluded

that such errors are not cognizable under 2255. See, e.g.,

United States v. Faubion, 19 F.3d 226, 232-33 (5th Cir. 1994)

(erroneous upward departure under sentencing guidelines not a

"miscarriage of justice"); Scott v. United States, 997 F.2d

340, 341-42 (7th Cir. 1993) (erroneous criminal history score

under sentencing guidelines not subject to collateral

attack); United States v. Vaughn, 955 F.2d 367, 368 (5th

Cir. 1992) (error in technical application of sentencing

guidelines not subject to collateral attack).

While we do not hold that an error in the

application of the sentencing guidelines could never

constitute a "complete miscarriage of justice," Knight's

claims here do not meet that standard. The proper place for

Knight to raise these issues was on direct appeal. Knight

has failed to show cause for his failure to raise these two

issues on appeal. Having bypassed his opportunity to raise

these claims on direct appeal, he cannot raise them now on

collateral attack.

B. Ineffective Assistance Claim

Unlike the two arguments asserted above, Knight's

claim of ineffective assistance of counsel is properly before

us under 28 U.S.C. 2255. The claim is a constitutional

one, and thus falls within the plain wording of 2255.

Moreover, Knight's failure to raise this claim on direct

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appeal from his sentence does not bar his asserting it on

collateral attack. Normally, failure to raise a

constitutional issue on direct appeal will bar raising the

issue on collateral attack unless the defendant can show

cause for the failure and actual prejudice. See Coleman, 501

U.S. at 750. However, the failure to bring a claim of

ineffective assistance of counsel on direct appeal is not

subject to the cause and prejudice standard. See Brien v.

United States, 695 F.2d 10, 13 (1st Cir. 1982). In Brien, we

held the cause and prejudice standard inapplicable, since a

criminal defendant may still have been represented on appeal

by the counsel whose assistance the defendant is now

challenging (as was the case here).4 Id. In fact, this

court has repeatedly held that collateral attack is the

preferred forum for such claims, since there is often no

opportunity to develop the necessary evidence where the claim

is first raised on direct appeal. See United States v.

Jadusingh, 12 F.3d 1162, 1169-70 (1st Cir. 1994); United

States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), cert.

denied, 114 S. Ct. 1839 (1994); United States v. Latorre, 922

F.2d 1, 9, (1st Cir. 1990), cert. denied, 112 S. Ct. 217

(1991); United States v. Sanchez, 917 F.2d 607, 613, (1st

Cir. 1990), cert. denied, 499 U.S. 977 (1991).

4Although Brien held inapplicable the standard as

articulated under Frady, the same reasoning applies to the

standard as articulated in Coleman.

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The familiar two-part test for ineffective

assistance of counsel is laid out by the Supreme Court's

decision in Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Under the first

prong of the Strickland test, a defendant claiming

ineffective assistance of counsel must first demonstrate that

counsel's performance fell below an objective standard of

reasonableness. This means that the defendant must show that

counsel's advice was not "within the range of competence

demanded of attorneys in criminal cases." Hill v. Lockhart,

474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L.Ed. 2d 203 (1985)

(citation omitted). A court must review counsel's actions

deferentially. Strickland, 466 U.S. at 689; Burger v. Kemp,

483 U.S. 776, 789, 107 S. Ct. 3114, 3123, 97 L.Ed. 2d 638

(1987). Under the second prong of Strickland, the defendant

must prove that he or she was prejudiced by the errors. That

is, the defendant must prove that there is a reasonable

probability that, but for counsel's errors, the result of the

proceeding would have been different. Strickland, 466 U.S.

at 687.

Knight complains that his counsel in both the state

and the previous federal proceedings, James LaLiberty, failed

to tell him about the impact that his state sentence would

have on his federal sentence, thereby misrepresenting the

likely federal sentence.

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However, assuming for the moment that Knight could

satisfy the first prong of the Strickland test, Knight has

failed to show that he was prejudiced by the alleged error.

Knight has not asserted that he would not have pleaded guilty

to the federal indictment had he known of the effect the

state sentence would have on his federal sentence. See Hill,

474 U.S. at 59 (no ineffective assistance of counsel absent

showing that, but for error, defendant would not have pleaded

guilty); Lopez-Nieves v. United States, 917 F.2d 645, 650

(1st Cir. 1990). Rather, Knight appears to argue that the

knowledge might have affected his guilty plea to the state

offenses. It is difficult, however, to see how this is

relevant to the current federal proceeding. (Knight admitted

at the evidentiary hearing that, even had he known of the

impact his state sentence would have on his federal sentence,

he might still have pleaded guilty to the state offenses.)

Knight has not established, moreover, that his

federal sentence would have been any shorter had he known.

Although he now suggests that he might have been able to

garner a better plea bargain, he has provided no basis for

this proposition. What evidence there is suggests exactly

the opposite: that if Knight had refused the agreement, he

might have been subject to consecutive sentences which would

have greatly prolonged his prison time. Moreover,

LaLiberty's overall prediction, that Knight would receive

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between five and eight years in the federal sentencing,

proved to be accurate. Knight's sentence was first set at 96

months, and then reduced to 78 months. Both of these figures

were within the predicted range. Thus, it is difficult to

see how Knight could have been prejudiced by the errors

alleged.

Even if the prediction had been inaccurate, an

inaccurate prediction about sentencing will generally not

alone be sufficient to sustain a claim of ineffective

assistance of counsel. See United States v. Arvanitis, 902

F.2d 489, 494-95 (7th Cir. 1990) (no ineffective assistance

where claim based only on inaccurate prediction of sentence);

United States v. Turner, 881 F.2d 684, 687 (9th Cir.), cert.

denied, 493 U.S. 871 (1989) (same); United States v. Sweeney,

878 F.2d 68, 69 (2d Cir. 1989) (same); cf. Calabrese v.

United States, 507 F.2d 259, 260 (1st Cir. 1974)

(voluntariness of plea not subject to attack under 2255

where sentence exceeded that predicted by counsel).

Since Knight has not satisfied the second prong of

Strickland, we need not address the first prong. We hold

that the district court was correct in finding that Knight's

assistance of counsel was not constitutionally defective.5

5 In addition to the above argument, Knight makes
several claims that could be construed as asserting other
bases for ineffective assistance. Knight appears to argue:
that LaLiberty somehow erred in failing to warn Knight that
his cooperation with state officials might result in a

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III.

We hold that Knight's two claims of error in the

application of the sentencing guidelines cannot presently be

maintained in a proceeding under 28 U.S.C. 2255. We also

find that the district court did not err in finding that

Knight did not receive constitutionally ineffective

assistance of counsel.

Affirmed.

subsequent federal prosecution; that LaLiberty erred in
failing to negotiate immunity from federal prosecutors prior
to having Knight speak with them; that LaLiberty erred in
failing to argue that Knight's state and federal offenses
were related for the purpose of sentencing. Knight, however,
does not provide any support for these allegations.
Moreover, he did not make these arguments at either of the
proceedings below. We find them to be without merit. See

United States v. Panitz, 907 F.2d 1267, 1272 n.4 (1st Cir.

1990).

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