IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-20201
Summary Calendar
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United States of America,
Plaintiff/Appellee,
versus
Jeffrey Scott Bisagna,
Defendant/Appellant.
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Appeal from the United States District Court
For the Southern District of Texas
((CA H 95 538) (CR H 90 240 1))
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August 1, 1995
Before KING, JOHNSON and DEMOSS, Circuit Judges.*
JOHNSON, Circuit Judge:
Federal prisoner filed a habeas corpus action pursuant to 28
U.S.C. § 2255 complaining about the imposition of a fine at
sentencing. The district court summarily dismissed the motion
and we AFFIRM.
I. FACTS AND PROCEDURAL HISTORY
Pursuant to a plea agreement, Jeffrey Scott Bisagna pled
guilty to attempt to possess with intent to distribute in excess
of eighty kilograms of marijuana. On June 4, 1991, the district
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
court sentenced Bisagna under the Guidelines to fifty-four months
of imprisonment, three years of supervised release, a $5,000
fine, and a $50 special assessment. Bisagna did not file a
direct appeal.
On December 3, 1992, Bisagna filed a motion to vacate
sentence under 28 U.S.C. § 2255 which, in substance, was actually
a request for reduction of sentence under 18 U.S.C. § 3582. In
that motion, Bisagna alleged he was entitled to an additional one
level reduction for acceptance of responsibility provided by the
November 1, 1992 amendment to U.S.S.G. §3E1.1. The district
court summarily denied this motion, though. Bisagna filed a
notice of appeal. However, the appeal was dismissed for failure
to prosecute.
Next, on April 14, 1994, Bisagna filed a second motion to
vacate, correct or set aside his sentence pursuant to 28 U.S.C. §
2255. In that motion, he alleged that the district court erred
in imposing the $5,000 as a condition of supervised release when
a punitive fine was not imposed. The relief sought was to vacate
the fine. The district court summarily dismissed this petition
and an appeal was taken. This Court affirmed the denial of
habeas corpus relief holding that the imposition of the fine was
a nonconstitutional issue relative to sentencing that should have
been raised on direct appeal. Thus, the issue was not cognizable
when raised for the first time on collateral review.
Following this, Bisagna filed yet another section 2255
motion challenging the $5,000 fine imposed. This time he added
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an attack on the fine couched in terms of ineffective assistance
of counsel. The district court, however, summarily dismissed
this petition under Rule 4(b), 28 U.S.C. foll. § 2255. Bisagna
now appeals from that ruling.
II. DISCUSSION
In his first argument to this Court, Bisagna contends that
his counsel was ineffective in that he failed to object to the
imposition of the fine at the sentencing hearing when the
Presentence Report (PSR) clearly showed that Bisagna was unable
to pay the fine. Further, Bisagna contends that his counsel was
ineffective in failing to challenge the fine on direct appeal.
We do not reach the merits of Bisagna's argument, however,
because this Court has held that an ineffective-assistance-of-
counsel claim which concerns prejudice due to the imposition of a
fine lies outside the scope of section 2255. United States v.
Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994). The Segler Court
reasoned that Congress limited relief under section 2255 to
persons in federal custody. A monetary fine does not amount to a
restraint on liberty which meets the "in custody" requirement of
section 2255. "[I]f counsel's constitutionally insufficient
assistance affected the trial court's guilt determination or the
sentencer's imposition of a prison term, 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." Id. at 1137.
In the instant case, the only prejudice that Bisagna
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proffers stemming from his counsel's allegedly deficient
performance is the imposition of a fine. Therefore, his claim
does not come within the scope of section 2255. We uphold the
district court's determination on this ground. See Bickford v.
International Speedway Corp., 654 F.2d 1028, 1031 (5th Cir. Unit
A Aug. 1981) (reversal is inappropriate if the ruling of the
district court can be affirmed on any grounds, regardless of
whether those grounds were used by the district court).
Bisagna's remaining challenges to the fine imposed are not
of constitutional dimension. Thus, they are not cognizable in a
section 2255 motion which 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). On this
ground, the judgment of the district court must be affirmed. See
Bickford, 654 F.2d at 1031.
III. CONCLUSION
For the reasons stated above, the judgment of the district
court is AFFIRMED.
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