United States Court of Appeals,
Fifth Circuit.
No. 94-10969
Summary Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Larry Allen RESSLER, Defendant-Appellant.
June 14, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This is an appeal from the judgment of the district court
which denied relief in a habeas corpus action. Larry Allen Ressler
contends that two of his prior convictions arose out of a single
criminal episode and, therefore, are not separate convictions under
18 U.S.C. § 924(e). He further argues that counsel rendered
ineffective assistance by failing to raise that error. Finding the
district court properly denied relief, we AFFIRM.
I. PROCEDURAL HISTORY
A jury convicted Ressler of two counts of being a felon in
possession of a firearm and one count of knowingly making a false
statement in acquisition of a firearm. Pursuant to 18 U.S.C. §
924(e) (the Armed Career Criminal Act), the court enhanced
Ressler's sentence on the basis of three prior felony convictions:
(1) housebreaking on November 21, 1977; (2) assault and battery of
a high and aggravated nature on November 21, 1977 (the "1977
1
convictions"); and (3) a 1979 conviction for housebreaking. The
court sentenced Ressler to 15 years imprisonment on each of the two
gun counts and 37 months imprisonment on the false statement count,
all to run concurrently. The court also imposed a three-year
period of supervised release.
Ressler appealed, arguing that the "pen packet" relied upon by
the district court did not adequately prove a requisite prior
conviction. This Court affirmed the sentence, holding that the
"pen packets" were properly authenticated. United States v.
Ressler, No. 92-1362, 978 F.2d 710 (5th Cir. Oct. 22, 1992).
Ressler thereafter filed the instant § 2255 motion, alleging
three claims of error. Ressler first argued that the court erred
in treating the 1977 convictions as separate convictions under §
924(e). He contended that the convictions, which arose out of a
single judicial proceeding, were the result of a single criminal
episode and, thus, only one conviction under § 924(e). Ressler
next argued that his counsel rendered ineffective assistance by
failing to raise this error. Finally, Ressler argued that the
court violated his rights under the Fifth and Sixth Amendments.
The magistrate judge recommended that the motion be denied,
finding that the prior offenses were properly treated as separate
convictions under § 924(e) and that counsel was not ineffective
because "there was nothing to which counsel could have objected or
brought to the Court's attention." Thereafter, the district court
overruled Ressler's objections, adopted the magistrate judge's
report and recommendation, and dismissed the motion with prejudice.
2
Ressler now appeals.
II. SECTION 924(e)(1) CLAIM
Ressler argues that the district court erred when it ruled
that the 1977 convictions were separate convictions for purposes of
the § 924(e) enhancement. He argues that these convictions,
separate counts in a single indictment, arose out of a single
criminal act and, thus, constituted only one conviction.
Relief under § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that could
not have been raised on direct appeal and would, if condoned,
result in a complete miscarriage of justice. United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir.1992). Nonconstitutional claims
that could have been raised on direct appeal, but were not, may not
be asserted in a collateral proceeding. Id.
Ressler's § 924 claim is not of constitutional dimension and
could have been raised on direct appeal. Nevertheless, because
Ressler also argues that counsel was ineffective for failing to
raise the § 924 claim, we will address the merits of that claim to
determine whether Ressler's counsel rendered effective assistance.
In pertinent part, § 924(e)(1) provides that a person who has
three previous convictions for either a violent felony or a serious
drug offense "committed on occasions different from one another ...
shall be ... imprisoned not less than fifteen years." The facts
underlying the 1977 convictions are as follows. Ressler broke into
a residence one afternoon, stole some money and a hunting knife,
and then fled on a bicycle when the homeowner, Paulette Williams,
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discovered him in her home. A neighbor, Jerry Glass, chased
Ressler in his truck and, after about five to twelve minutes,
caught Ressler hiding in an adjacent field. As Glass began to lead
Ressler back to Williams' home, Ressler stabbed Glass in the
stomach and ran. Glass caught him again and returned him to
Williams' home. During a single judicial proceeding, Ressler was
convicted of housebreaking and assault and battery of a high and
aggravated nature.
Multiple convictions arising from the same judicial
proceeding but separate criminal transactions constitute multiple
convictions for purposes of § 924(e). United States v. Herbert,
860 F.2d 620, 622 (5th Cir.1988), cert. denied, 490 U.S. 1070, 109
S.Ct. 2074, 104 L.Ed.2d 639 (1989). The inquiry here is whether
Ressler's 1977 convictions were separate criminal transactions,
"committed on occasions different from one another." 18 U.S.C. §
924(e)(1).
We previously addressed that question in United States v.
Washington, 898 F.2d 439, 441 (5th Cir.), cert. denied, 498 U.S.
842, 111 S.Ct. 122, 112 L.Ed.2d 91 (1990). In Washington, the
defendant robbed a convenience store, escaped, returned a few hours
later and robbed the same store and store clerk again. Id. at 440.
This Court determined that the two robberies, although involving
the same victim in the same location, were separate criminal
transactions. We emphasized that Washington committed the first
robbery, safely escaped, and then after some time of no criminal
activity returned to commit the second crime. Id. at 442.
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We favorably compared our decision to the Seventh Circuit's
decision in United States v. Schieman, 894 F.2d 909 (7th Cir.),
cert. denied, 498 U.S. 856, 111 S.Ct. 155, 112 L.Ed.2d 121 (1990),
and the Ninth Circuit's decision in United States v. Wicks, 833
F.2d 192 (9th Cir.1987), cert. denied, 488 U.S. 831, 109 S.Ct. 87,
102 L.Ed.2d 63 (1988). Washington, 898 F.2d at 441-42. In
Schieman, the defendant burglarized a cake store and then fled the
scene. Five minutes later and three blocks away, a police officer
approached Schieman at a telephone booth to question him. Schieman
knocked the officer to the ground and fled on foot. The Seventh
Circuit treated Schieman's resulting convictions for burglary and
aggravated battery as separate offenses under § 924(e). Schieman,
894 F.2d at 910. We noted that Schieman had " "successfully
completed' " the burglary and "had "safely escaped' before
committing the assault." Washington, 898 F.2d at 441. In Wicks,
the Ninth Circuit similarly concluded that the defendant's two
burglaries, committed on the same night but at different locations,
were separate offenses. Wicks, 833 F.2d at 193. We again
emphasized that "the defendant completed the first crime and
successfully fled the scene" before he committed the second crime.
Washington, 898 F.2d at 442.
The facts presented here are distinguishable from Washington,
Wicks, and Schieman. Although the offenses involved different
victims in separate locations, there was no "successful escape."
Ressler was pursued almost from the moment he fled Williams' home.
Recently, the Seventh Circuit, in United States v. Hudspeth,
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42 F.3d 1015 (7th Cir.1994) (en banc), cert. denied, --- U.S. ----,
--- S.Ct. ----, --- L.Ed.2d ---- (U.S. May 30, 1995) (No. 94-8273),
again considered the issue whether multiple convictions arose out
of separate and distinct criminal episodes within the meaning of §
924. In that case, the defendant committed three distinct
burglaries against three separate victims in three separate
locations during a thirty-minute period. Id. at 1021. After
reviewing its earlier decisions, decisions from other circuits, and
the statute's legislative history,1 the Seventh Circuit concluded
that the relevant inquiry is whether the crimes occurred
simultaneously or sequentially. Id. at 1018-24. Because Hudspeth
committed the crimes sequentially, rather than simultaneously, the
court concluded that the crimes were "committed on occasions
different from one another" and, thus, separate offenses under §
924(e). Id. at 1021.
Applying the Seventh Circuit's holding to the instant case,
Ressler's convictions were properly treated as separate offenses
under § 924(e) because the offenses occurred sequentially.
Specifically, Ressler completed the offense of housebreaking and
fled that scene on a bicycle. While fleeing, Ressler was observed
1
The majority opinion in Hudspeth provides that "[w]e are of
the opinion that the phrase "committed on occasions different
from one another' is unambiguous. Other members of this court,
however, believe the phrase ... is ambiguous, and have looked to
the legislative history for guidance." 42 F.3d at 1022-23.
Judge Flaum's dissenting opinion provides that "most" of the
Seventh Circuit finds the phrase ambiguous. 42 F.3d at 1025. In
any event, because we find the phrase "committed on occasions
different from one another" to be unambiguous, we do not look to
the legislative history.
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by a man named Jerry Glass. Glass pursued Ressler and, after
briefly losing sight of Ressler, captured him. During the struggle
Ressler stabbed Glass in the abdomen with a knife. Ressler "was
free to cease and desist from further criminal activity" after he
fled Williams' house, but instead he chose to initiate a new course
of action and commit a separate offense, distinct in both time and
conduct. As in Hudspeth, Ressler's "crimes were committed
sequentially, against different victims, at different times, and at
different locations, [and thus,] they were clearly crimes
"committed on occasions different from one another' as required
under the ACCA." Hudspeth, 42 F.3d at 1022. It is clear to us
that on the occasion that Ressler was burglarizing the house of
Paulette Williams he was not also stabbing Jerry Glass.
Because we find the claim to be without merit, Ressler has not
shown that counsel rendered ineffective assistance.2
CONCLUSION
For the above stated reasons, the judgment of the district
court is AFFIRMED.
2
For the first time on appeal, Ressler alleges several other
errors committed by counsel and the district court. These new
issues involve the resolution of factual issues and, therefore,
are not reviewable by this Court. Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir.1991).
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