UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 95-20060
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABDULLAH USMAN SURTY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(CA H 94 4309 (CR H 91 180 2))
(August 28, 1995)
Before GARWOOD, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
The defendant, Abdullah Usman Surty, appeals the district
court's denial of his motion for habeas relief pursuant to 28
U.S.C. § 2255. Finding no error, we affirm.
I. FACTS
In January 1993, Surty was convicted by guilty plea of
conspiracy to import heroin. Surty was sentenced to 72 months
*
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should not be published.
imprisonment to be followed by five years of supervised release.
Surty did not pursue a direct appeal.
In December 1994, Surty filed a § 2255 motion, alleging that
he was entitled to relief because: (1) he did not receive any
documents in his own language and was therefore "unaware of the
majority of the court proceedings"; (2) the "court supplied"
interpreter failed to fully translate the proceeding into his
native language, prohibiting him from participation; and (3) he
received ineffective assistance of counsel because he was unable to
effectively communicate with his attorney. Surty also requested
that his sentence be reduced because: (1) he did not use violence
or a dangerous weapon, (2) the offense did not cause death or
serious bodily injury to any person, (3) he was not a leader or
organizer, and (4) he has cooperated with the Government. The
district court summarily denied Surty's motion.
II. DISCUSSION
Surty does not raise on appeal those claims presented to the
district court. Thus, those claims are deemed abandoned. Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Instead, Surty
challenges the district court's denial of his motion by arguing for
the first time on appeal: (1) that counsel was ineffective in
failing to note the absence of grand jury participation in the
indictment; (2) that the indictment was defective because it was
signed by an Assistant United States Attorney, rather than a United
States Attorney; (3) that he was entrapped; and (4) that he should
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have received a shorter sentence because Salim Sitafalwalla, his
co-defendant, was more culpable than he.
As a general rule, this Court will consider errors raised for
the first time on appeal "only in exceptional circumstances to
avoid a miscarriage of justice." Highlands Ins. Co. v. National
Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir. 1994), cert.
denied, 115 S. Ct. 903 (1995). None of the arguments made by Surty
on appeal present such an exceptional circumstance. Indeed, we
find no error, much less error that would constitute a "miscarriage
of justice" if left uncorrected.
The non-jurisdictional defects Surty claims with regard to his
conviction were waived by his guilty plea. A valid guilty plea
waives an ineffective-assistance-of-counsel claim, unless the
ineffective-assistance affects the voluntariness of the plea.
Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied,
466 U.S. 906 (1984). Surty does not claim that the alleged
ineffectiveness cause his plea to be involuntary. In addition, any
defect concerning the signature by the attorney for the Government
was waived by Surty's guilty plea. See United States v. Easton,
937 F.2d 160, 161-62 (5th Cir. 1991), cert. denied, 502 U.S. 1045
(1992). Also, the argument that Surty was entrapped was waived by
Surty's guilty plea. See United States v. Sarmiento, 786 F.2d 665,
668 (5th Cir. 1986).
To the extent Surty's brief can be read to challenge the
sufficiency of the indictment, it does raise a jurisdictional
challenge to his conviction. A claim that an indictment fails to
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state an offense is a challenge to the jurisdiction of the
convicting court and is not waived by a guilty plea. Moreover,
such a challenge may be raised for the first time in a § 2255
petition because such an error divests the sentencing court of
jurisdiction. United States v. Osiemi, 980 F.2d 344, 345 (5th Cir.
1993). When a challenge to the sufficiency of an indictment is
presented for the first time on collateral review, however, this
court will consider the challenge "only in exceptional
circumstances." United States v. Armstrong, 951 F.2d 626, 628 (5th
Cir. 1992). The indictment "is entitled to liberal review in favor
of the [G]overnment and will be held sufficient if by any
reasonable construction it is understood to charge an offense."
Id. (internal quotation marks and citation omitted).
The indictment against Surty satisfies this criterion. It
includes a reference to the statute which Surty was convicted of
offending and alleges the elements of the offense charged. See
Armstrong, 951 F.2d at 628. In addition, the indictment was
certified a "true bill" by the foreperson of the grand jury,
evidencing grand jury participation.
Finally, Surty's claim that he should receive a lesser
sentence because his co-defendant was more culpable than he does
not merit § 2255 relief. See United States v. Vaughn, 955 F.2d
367, 368 (5th Cir. 1992).
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III. CONCLUSION
For the foregoing reasons, the judgment of the district court
denying Surty's motion is AFFIRMED.
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