UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2315
ARTHUR SMULLEN,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Stahl, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Anthony M. Fredella with whom Fredella & Wheeler was on brief for
appellant.
Jeanne M. Kempthorne, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
August 30, 1996
CAMPBELL, Senior Circuit Judge. The principal
issue is whether a criminal defendant, who is in custody, may
under 28 U.S.C. 2255 collaterally challenge the restitution
order imposed as a part of his sentence. Following the only
two circuits to have explicitly addressed this matter, we
hold he may not.
Petitioner-appellant Arthur J. Smullen was
convicted following a jury trial in the United States
District Court for the District of Massachusetts on three
counts of making false statements to a federal agency in
violation of 18 U.S.C. 1001. On May 27, 1993, Smullen was
sentenced to 27 months in prison, 36 months of supervised
release, restitution in the amount of $121,377.78, and a
special assessment of $150. Smullen never filed a direct
appeal from his conviction and sentence. On November 30,
1994, Smullen, pro se, filed a motion, pursuant to 28 U.S.C.
2255, to vacate, set aside, or correct his sentence.1 The
motion was denied by the district court, and Smullen now
appeals. We affirm.
1. Smullen has completed his term of imprisonment. Because
Smullen was imprisoned when he filed this 2255 motion,
jurisdiction to consider the motion attached. See Fernos-
Lopez v. Figarella Lopez, 929 F.2d 20, 23 (1st Cir. 1991)
(holding that the "custody" requirement of 28 U.S.C. 2255
is determined as of the date a habeas petition is filed),
cert. denied, 502 U.S. 886 (1992); United States v. Michaud,
901 F.2d 5, 6 (1st Cir. 1990).
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I.
I.
The following facts are taken largely from the
Presentence Investigation Report ("PSR") submitted to the
district court by the probation department.
Smullen was employed by the United States Post
Office until 1974, when he left on total disability. At that
time, Smullen began receiving disability payments from the
United States Department of Labor. Beginning in May 1982,
Smullen began to work full time at the New England Dragway in
Epping, New Hampshire. Smullen worked at the Dragway until
his employment was terminated in 1988. Smullen then began
preparations to open a motorcycle parts and service shop,
Performance Cycles, Inc., which he opened in January 1989.
Throughout the period between May 1982 and February 1990,
during which Smullen was employed or self-employed for all
but a brief period, Smullen filed annual reports with the
United States Department of Labor - Office of Workers'
Compensation Programs falsely stating that he had not been
employed or self-employed in the preceding 15-month period.
As a result, Smullen obtained disability payments to which he
was not entitled.
Smullen was charged with making false statements to a
federal agency in violation of 18 U.S.C. 1001. The three-
count indictment alleged that Smullen had filed fraudulent
statements with the Department of Labor on form CA-1032 in
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1988, 1989, and 1990. A jury convicted Smullen on all three
counts. At sentencing, the district court ordered Smullen to
pay $121,377.78 in restitution -- an amount recommended by
defense counsel.2 The PSR recommended an offense level of
15; however, the district court ordered an additional two-
level enhancement for obstruction of justice, finding that
Smullen's trial testimony was "thorough-going perjury."
Smullen's sentencing range was then set at 24 to 30 months.
The district court imposed a sentence of 27 months in prison
and 36 months of supervised release. Although Smullen did
not appeal from his conviction or sentence, he later filed a
motion under 28 U.S.C. 2255 seeking relief from his
sentence. The district court denied this motion, and Smullen
appeals.
II.
II.
Smullen argued in his 2255 motion, and now argues
on appeal, that errors occurred in his sentence because he
was denied his Sixth Amendment right to the effective
assistance of counsel. Smullen contends that: (1) counsel
erred in not arguing for a two-level reduction in offense
level for acceptance of responsibility; (2) counsel erred in
2. The probation department suggested $168,076 as an
appropriate restitution amount; the government suggested
$147,935.43 in restitution; Smullen's counsel suggested that
the proper restitution figure was $121,377.78.
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agreeing to an allegedly excessive loss amount, resulting in
an improper Guideline sentencing range; and (3) counsel erred
in suggesting a restitution amount approximately $100,000 in
excess of the maximum amount which could be ordered by law.
Only the third point appears to have any substance, but, as
it is beyond the purview of a collateral proceeding brought
under 28 U.S.C. 2255, we cannot resolve it.
Smullen's failure to have raised the above claims
on direct appeal from his sentence would normally have barred
him from raising them in a 2255 collateral attack unless he
could show cause for the failure and actual prejudice. See
Coleman v. Thompson, 501 U.S. 722, 750 (1991); United States
v. Frady, 456 U.S. 152, 165-67 (1982). However, cause and
prejudice need not be shown when the underlying claim alleges
ineffective assistance of counsel. See Knight v. United
States, 37 F.3d 769, 774 (1st Cir. 1994).3 Smullen not only
argues that his counsel performed inadequately during his
sentencing hearing, but also that an appeal relative to these
errors was not taken because of his counsel's allegedly
incompetent advice that "an appeal was just a waste of time."
3. Similarly, because the purported sentencing errors
allegedly arose from ineffective assistance, thus giving them
a constitutional dimension, they may be considered under 28
U.S.C. 2255 even though errors in the application of the
sentencing guidelines, by themselves, are not normally
cognizable on collateral attack. See Knight, 37 F.3d at 772.
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The standard for constitutionally ineffective
assistance of counsel was set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). To succeed, Smullen
has the burden of showing that (1) counsel's performance fell
below an objective standard of reasonableness, and (2) there
is a reasonable probability that, but for counsel's error,
the result of the proceedings would have been different. See
Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir. 1994), cert. denied,
115 S. Ct. 940 (1995); Lopez-Nieves v. United States, 917
F.2d 645, 648 (1st Cir. 1990) (citing Strickland, 466 U.S. at
687). In order to satisfy the first prong of the Strickland
test, Smullen must show that "counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment." Strickland, 466 U.S.
at 687. There is a "strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance." Id. at 689.
The first two of Smullen's sentencing claims must
be dismissed as Smullen cannot meet either prong of the
Strickland test. We cannot attribute error to counsel for
failing to seek an offense level reduction based on
acceptance of responsibility. See U.S.S.G. 3E1.1. As the
record shows, Smullen never accepted responsibility for his
crimes. Smullen pleaded not guilty to each of the counts and
maintained his innocence throughout the trial. See United
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States v. Bennett, 37 F.3d 687, 697 (1st Cir. 1994) (holding
that U.S.S.G. 3E1.1 is generally not intended to apply to a
defendant who challenges the essential factual elements of
guilt). Moreover, the district court stated that the
defendant's trial testimony was "thorough-going perjury" and
imposed a sentence enhancement for obstruction of justice.
See United States v. Talladino, 38 F.3d 1255, 1265 (1st Cir.
1994) ("[I]n the universe of cases where obstruction of
justice looms, a reduction for acceptance of responsibility
is ordinarily forestalled altogether.").
Smullen has provided no better support for his
contention that, had his counsel served him competently, the
court would have found a lower offense level and, therefore,
he would have been sentenced within a lower Guideline
sentencing range. Smullen argues that the loss amount
attributed to him as relevant conduct for sentencing purposes
was excessive, and faults his lawyer for not bringing this
fact to the court's attention. However, the amount of loss
attributed to the petitioner's misconduct related to a period
well within the duration of "relevant conduct" for purposes
of the Sentencing Guidelines. See U.S.S.G. 1B1.3(a)(2)
(requiring that relevant conduct be "part of the same course
of conduct or common scheme or plan as the offense of
conviction"). Over an eight-year period, Smullen engaged in
a course of conduct to fraudulently obtain unentitled
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disability benefits. Smullen's counsel made no error, let
alone a constitutionally relevant one, in failing to argue
for a lower loss amount. As it was, defense counsel argued
for a loss amount significantly lower than that proposed by
the government or by the probation department.
Smullen's third and only substantial claim is that
the ineffective assistance of his counsel contributed to an
order for him to pay an amount of restitution in excess of
that permitted by law. See United States v. Ratliff, 999
F.2d 1023, 1026 (6th Cir. 1993) ("A refusal to appeal an
erroneous restitution award, which award would have been
subject to reversal on appeal, would meet the Strickland test
and would clearly constitute cause for [the] failure to
appeal the award.") If Smullen's restitution obligation
exceeds the maximum amount which the law permits, there may
be a reasonable probability that counsel's failure to point
this out contributed to the unfavorable outcome. Id.
It may be, but we need not decide, that Smullen's
restitution obligation did, in fact, exceed the maximum
permitted by law, notwithstanding the basic equities that
appear to have prompted it. The Supreme Court has limited
restitution to losses caused by the specific conduct that is
the basis of the offense of conviction. Hughey v. United
States, 495 U.S. 411, 420 (1990) (holding that "the loss
caused by the conduct underlying the offense of conviction
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establishes the outer limits of a restitution order").4
Smullen was ordered to repay $121,377.78 in connection with
his guilty verdict on three counts relating to false
statements submitted to the Department of Labor in 1988,
1989, and 1990. The $121,377.78 figure represents the entire
amount of loss relating to Smullen's false statements to the
Department of Labor over the eight-year duration of his
fraudulent scheme. The loss related to the three-year period
for which the government actually secured convictions was
approximately $20,250.93.5
4. In Hughey, the defendant, charged in several counts with
the use of stolen credit cards, pled guilty to the fraudulent
use of one. The order for restitution included use of
others. The Supreme Court reversed, saying the outer limit
for restitution awards was "the loss caused by the conduct
underlying the offense of conviction." Hughey, 495 U.S. at
420.
The statute authorizing restitution, the Victim and
Witness Protection Act of 1982, specifically 18 U.S.C.
3663, was amended in 1990 to allow broad restitution for
offenses involving "as an element a scheme, a conspiracy, or
a pattern of criminal activity." Crime Control Act of 1990,
Pub. L. No. 101-647, 2509, 104 Stat. 4789, 4863. That
amendment does not apply here, however, because Smullen's
offense of conviction, filing false statements to a federal
agency in violation of 18 U.S.C. 1001, did not include a
plan, scheme or conspiracy as an element of the offense. See
United States v. Neal, 36 F.3d 1190, 1201 (1st Cir. 1994)
(holding that a defendant convicted of money laundering and
of being an accessory after the fact could not be ordered to
pay restitution for losses not directly related to those
offenses because neither involved proof of a scheme,
conspiracy or pattern of criminal activity as an element),
petitionfor cert. filed, (U.S. July 25, 1996) (No. 96-5380).
5. The $20,250.93 figure is the amount put forward by
petitioner. The government does not put forward a specific
calculation of the amount of loss specifically attributable
to Smullen's false statements made in 1988, 1989, and 1990.
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As noted, this might be attributed to the
ineffective assistance of counsel where, as here, counsel not
only did not point out the relevant law to the district
judge, but apparently agreed with the prosecution's erroneous
interpretation. See Scarpa, 38 F.3d at 11 ("Serious errors
in an attorney's performance, unrelated to tactical choices
or to some plausible strategic aim, constitute substandard
performance.").6 However, even assuming this is so, we are
powerless in a proceeding under 28 U.S.C. 2255 to grant
relief to Smullen. Section 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. 2255 (emphasis supplied). The plain language of
the statute indicates that 2255 is available to petitioners
6. The government's attempt to avoid a finding of
ineffective assistance by arguing that Smullen's counsel may
have been acting strategically need not be addressed. Cf.
United States v. McGill, 11 F.3d 223, 227-28 (1st Cir. 1993)
(holding that a strategic choice on the part of counsel will
not be second guessed by the courts); United States v.
Tabares, 951 F.2d 405, 409 (1st Cir. 1991). There is little
in the record to suggest that counsel was aware of Hughey and
its progeny, but nonetheless decided not to bring this
doctrine to the court's attention for strategic reasons.
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"in custody" who "claim[] the right to be released" from
custody. Smullen, while in custody at the time he moved
under 2255, was not "claiming the right to be released" but
was merely claiming the right to a reduced restitution order
establishing the monetary restitution he should pay. This
court has previously held that a petitioner, no longer in
custody, subject only to a fine cannot challenge that
obligation in a 2255 action. United States v. Michaud, 901
F.2d 5, 7 (1st Cir. 1990) ("A monetary fine is not a
sufficient restraint on liberty to meet the 'in custody'
requirement for 2255 purposes[;] [n]or does potential
future incarceration for failure to pay such a fine provide
the requisite subject matter jurisdiction.").
The Fifth and Sixth Circuits have held, in cases
analogous to the present, that a person in custody cannot
bring an ineffective assistance of counsel claim challenging
a fine because that person is not "claiming a right to
release" from custody. See United States v. Segler, 37 F.3d
1131, 1137 (5th Cir. 1994) ("[I]f counsel's constitutionally
insufficient assistance affected the trial court's guilt
determination or the sentencer's imposition of a prison term,
a prisoner's ineffective assistance of counsel claim falls
within the scope of 2255; if, as here, it relates only to
the imposition of a fine, his claim falls outside 2255.");
United States v. Watroba, 56 F.3d 28, 29 (6th Cir.), cert.
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denied, 116 S. Ct. 269 (1995); accord United States v.
Gaudet, 81 F.3d 585, 592 (5th Cir. 1996). We are not aware
of any court of appeals that, having addressed this issue,
has reached a contrary result.7
The Fifth and Sixth Circuits' interpretation of
2255 not only tracks the literal language of the statute but
also promotes the equal treatment of similar claims. A
defendant, not in custody, sentenced to an allegedly
erroneous fine or restitution order because of ineffective
assistance of counsel cannot seek relief under 2255, see
Michaud, 901 F.2d at 7, and therefore, it seems congruent
that a petitioner who is given the same allegedly erroneous
fine or restitution order but also happens, at the time he
petitions, to be rightfully imprisoned also should not be
able to challenge his monetary obligation in a collateral
attack.
7. This Circuit has not authoritatively addressed the
question decided by Segler and Watroba -- whether or not
2255 is a proper avenue for a person in custody to assert an
ineffective assistance of counsel claim relating to the
imposition of a fine or restitution order. In several
unpublished opinions lacking in precedential force, we have
implied that a restitution order can be addressed in 2255
proceedings. See, e.g., Vela-Fossas v. United States, 1990
WL 443937 (1st Cir. Sept. 7, 1990). In addition, we have
assumed without deciding that there was jurisdiction to
challenge a restitution order under the former Fed. R. Crim.
P. 35 (which permitted the court to correct an "illegal
sentence" at any time). See United States v. Lilly, 80 F.3d
24, 28 (1st Cir. 1996).
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Agreeing with the Fifth and Sixth Circuits'
analyses, we hold that Smullen cannot challenge his
restitution obligation in this 2255 proceeding.8
Affirmed.
Affirmed
8. Should Smullen become incarcerated in the future due to
his failure to meet the restitution order as the basis for
his confinement obligations, he may, although we need not
decide for present purposes, be entitled to bring a 2255
action challenging his restitution at that point.
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