IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 94-20953
______________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
EDGAR ROLANDO PALOMO
Defendant-Appellant
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Appeal from the United States District Court
for the Southern District of Texas
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March 28, 1996
Before: GARWOOD, SMITH and DENNIS, Circuit Judges.
DENNIS, Circuit Judge.
This case raises the question whether a criminal defendant has
a constitutional right to assistance of counsel in a proceeding for
a sentence reduction under Rule 35(b) of the Federal Rules of
Criminal Procedure. Because we find that the right to counsel does
not attach to proceedings initiated by the Government to reduce an
otherwise legal sentence, or negotiations concerning the same, we
affirm the district court's denial of Appellant's motion to vacate,
set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
FACTS AND PROCEEDINGS BELOW
On February 10, 1992, Edgar Rolando Palomo pleaded guilty to
one count of conspiracy to possess with intent to distribute over
five kilograms of cocaine. In exchange for his plea, the
Government agreed to dismiss the remaining count of the superseding
indictment, to stipulate that Palomo had accepted responsibility
for his actions, to recommend that the district court sentence
Palomo at the bottom of the appropriate guideline range, and to
file a motion for a downward departure under § 5K1 of the
Sentencing Guidelines should Palomo render the Government
substantial assistance in the investigation or prosecution of
another person. The Government did not move for a downward
departure prior to Palomo's sentencing hearing on July 2, 1992, but
otherwise complied with the terms of the plea agreement. The
district court sentenced Palomo to 262 months imprisonment (a term
at the bottom of the guideline range of 262 to 327 months), five
years of supervised release, and a special assessment of $50.00.
On July 9, 1992, Palomo filed a notice of appeal. This Court
affirmed his conviction and sentence on August 5, 1993.1 United
States v. Palomo, 998 F.2d 253 (5th Cir.), cert. denied, U.S.
, 114 S. Ct. 358, 126 L.Ed.2d 322 (1993).
The claim in this case may be attributed to confusion over the
1
With respect to the downward departure, the plea agreement
specifically provided only that "[t]he United States will file a motion for
downward departure under Section 5K1 of the Sentencing Guidelines, should
[Palomo] provide substantial assistance." On direct appeal from his
conviction and sentence, Palomo sought alternatively specific performance
of or to vacate his plea agreement, on the ground that the Government
breached the plea agreement by not affording him the opportunity to provide
substantial assistance through a debriefing interview prior to sentencing. A
panel of this Court rejected this claim, finding that Palomo had in fact been
debriefed. See United States v. Palomo, 998 F.2d 253, 256-57 (5th Cir.), cert. denied,
U.S. , 114 S. Ct. 358, 126 L.Ed.2d 322 (1993). Moreover, we observed
that Palomo's trial counsel "implicitly agreed that it would be appropriate for
the Government to seek a reduction under Rule 35 if Palomo provided
substantial assistance after sentencing. Having so acquiesced, Palomo
cannot now contend . . . that the Government violated the plea agreement."
Id. at 257.
2
identity of Palomo's counsel. At the July 2, 1992 sentencing
hearing, the district court appointed trial counsel, Paul Mewis, to
act as counsel on appeal. Nonetheless, on August 6, 1992, Palomo
was appointed another attorney, Thomas Bevans, following
adjudication of his motion to proceed in forma pauperis and for
appointment of counsel. Although the new appointment is reflected
in the docket sheet, there is no indication that the government was
informed of this change and the information does not appear to have
registered in the Government's collective brain. Consequently,
when the Government sought in early September 1992 to use Palomo's
testimony at the upcoming trial of one of his co-defendants, the
Government attorney contacted Palomo's former counsel instead of
the attorney representing him at the time. The Government also
engaged in ex parte communications with Palomo in negotiating with
him to obtain his testimony and debriefing him prior to his
testifying.
Palomo testified at the trial of his co-defendant on or about
September 9, 1992, without having had the benefit of counsel in
negotiating a sentence reduction in exchange for his testimony. On
September 16, 1992, the Government filed a motion under Rule 35(b)
of the Federal Rules of Criminal Procedure requesting that Palomo's
sentence be reduced by approximately five years. The certificate
of service indicates that the motion was mailed to Palomo's former
counsel, Paul Mewis. On October 26, 1992, the district court
granted the Government's motion and reduced Palomo's sentence by 60
months to a term of 202 months. On October 28, 1992, Palomo's
3
appellate counsel, Thomas Bevans, filed a response to the
Government's Rule 35(b) motion requesting the district court to
reduce Palomo's sentence to below 120 months on the following
grounds:
On or about 09/01/92 representations were made to
Defendant and prior counsel, William Paul Mewis by the
United States Attorney's Office that if Defendant
testified for the government, the government would make
a recommendation (Rule 35 Motion) to reduce Defendant's
sentenced below 10 years. DEA made a similar
representation to Defendant.
Defendant's Response to the Government's Motion for Departure (Fed.
R. Crim. P. 35. Palomo did not appeal the district court's order
reducing his sentence by five years.
On March 2, 1994, Palomo filed a motion to vacate, set aside
or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that
he was denied his Sixth Amendment right to the representation of
counsel during negotiations as to the Rule 35 motion and his
appearance in court to testify, as well as the right to oppose or
answer the government's Rule 35 motion. Following an evidentiary
hearing, the United States magistrate hearing the case issued
proposed findings of fact and conclusions of law. The magistrate
found that Palomo was procedurally barred from raising the claim
that he was "denied" counsel to oppose the Government's Rule 35
motion2 because sufficient facts existed at the time to allow him
to appeal the district court's order granting the motion and Palomo
2
The magistrate recharacterized this claim as a denial of due process, as
petitioner had counsel at the time and his claim was really based on the
Government's failure to timely serve correct counsel with its motion, causing
the opposition to the motion to be filed after the district court had already
adjudicated the motion.
4
had not demonstrated cause and prejudice necessary to overcome the
procedural bar. The magistrate found, however, that Palomo could
not have appealed the district court's sentence reduction based on
the government's alleged failure to comply with the terms of its
Rule 35 negotiations, inasmuch as evidence of any agreement between
the Government and Palomo was a matter outside the appellate
record. On the merits, the magistrate determined that Palomo had
not proven an enforceable agreement regarding his sentence
reduction and that, regardless, a Rule 35 proceeding was not a
critical stage of the criminal process requiring the assistance of
counsel under the Sixth Amendment. The magistrate further observed
that even assuming Palomo had a right to counsel that had been
violated, such error was harmless. Consequently, the magistrate
recommended that the § 2255 motion be denied. The district court
adopted the magistrate's findings and recommendation. This appeal
followed.
DISCUSSION
The crux of Palomo's complaint is that he was denied the
benefit of counsel during negotiations leading up to and
proceedings attending the Government's Rule 35(b) motion to reduce
Palomo's sentence, as well as during his testimony for the
government, all in violation of his Sixth Amendment right to
counsel, his "Fourteenth Amendment" right to due process,3 and his
3
Inasmuch as this is a federal prosecution, the Fourteenth Amendment
obviously does not apply. We may presume that Palomo actually intended
to claim a violation of his Fifth Amendment right to due process.
5
Fifth Amendment right against self-incrimination.4 Palomo does not
challenge the district court's finding that he did not adequately
demonstrate the existence of an enforceable agreement with the
Government regarding his Rule 35(b) sentence reduction. Moreover,
Palomo's claims are not predicated on an alleged failure of the
Government to comply with any representations made with respect to
Palomo's agreement to plead guilty and thus the voluntariness of
that plea is not at issue.
Although the district court correctly found that Palomo is
procedurally barred from challenging the "denial" of counsel5 for
purposes of opposing the Rule 35(b) motion, Palomo's remaining
claim that he had a constitutional right to the assistance of
counsel during his dealings with the government prior to its filing
of the motion is logically dependent on the existence of a right to
counsel for the purposes of the Rule 35(b) motion itself.
4
Because this is an appeal from the district court's denial of relief under
28 U.S.C. § 2255, we may only review Palomo's sentence for transgressions
of constitutional rights and a narrow range of injuries that could not have
been brought on direct appeal and which, if condoned, would result in a
miscarriage of justice. United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.
1992)(per curiam). We thus do not address the merits of any nonconstitutional
claims that Palomo could have brought on direct appeal, including whether
Palomo had any common law rights to enforce the alleged September 1992
agreement with the Government for it to seek a greater sentence reduction
in its Rule 35(b) motion .
5
Palomo styles his claim as one challenging the denial of counsel,
although it is clear that at the time of the Rule 35(b) proceedings, he was
being represented by appointed counsel. His real complaint is that he
received ineffective assistance of counsel, or was constructively denied counsel,
by the Government's failure to provide his acting counsel with notice of the
Rule 35(b) proceedings. Inasmuch as the right to effective assistance of
counsel is predicated on an underlying right to counsel, see Wainwright v. Torna, 45
U.S. 586, 587-88, 102 S. Ct. 1300, 1301, 71 L.Ed.2d 475 (1982);Gray v. Lucas,
710 F.2d 1048, 1061 (5th Cir.), cert. denied, 463 U.S. 1237, 104 S.Ct. 211, 77
L.Ed.2d 1453 (1983), we must first determine whether Palomo had a right to
counsel before proceeding to analyze the quality of the assistance he
received.
6
Consequently, we must determine whether a Rule 35(b) motion is the
type of proceeding to which the right to counsel attaches.
A criminal defendant is constitutionally entitled to
assistance of counsel "at every stage of a criminal proceeding
where substantial rights of a criminal accused may be affected."
Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 257, 19 L.Ed.2d
336 (1967). The right to counsel flows from different
constitutional provisions depending on the nature of the
proceedings. A criminal defendant's right to counsel during
critical stages of the prosecution, as well as at trial, is derived
from the Sixth Amendment. See, e.g., Gideon v. Wainwright, 372
U.S. 335, 342-43, 83 S.Ct. 792, 795-96, 9 L.Ed.2d 799 (1963);
United States v. Taylor, 933 F.2d 307, 312 (5th Cir.), cert.
denied, 502 U.S. 883, 112 S. Ct. 235, 116 L.Ed.2d 191 (1991).
Although less clearly grounded, a defendant's right to counsel on
direct appeal as of right stems from due process and equal
protection interests. See Ross v. Moffitt, 417 U.S. 600, 94 S. Ct.
2437, 41 L.Ed.2d 341 (1974); Meyers v. Collins, 8 F.3d 249, 252 n.4
(5th Cir. 1993). In addition, due process requires the appointment
of counsel in certain post-conviction proceedings in which
fundamental fairness necessitates the assistance of a trained
advocate. See, e.g., Gagnon v. Scarpelli, 411 U.S. 78, 93 S.Ct.
1756, 36 L.Ed.2d 656 (1973)(establishing a case-by-case
determinination of whether due process requires appointment of
counsel in probation revocation proceedings); United States v.
7
Whitebird, 55 F.3d 1007, 1011 n.3 (5th Cir. 1995).6
Palomo asks us to find that the right to counsel attaches to
proceedings in which the Government requests that the sentencing
court reduce an otherwise legal sentence as compensation for
assistance in the prosecution of another person. He argues that
such proceedings constitute a "crucial period" because a Rule 35(b)
motion can affect his sentence. In pertinent part, Rule 35
provides:
Rule 35. Correction or Reduction of Sentence
* * *
(b) Correction of sentence for changed circumstances. The
court, on motion of the Government made within one year after
the imposition of sentence, may reduce a sentence to reflect
defendant's subsequent, substantial assistance in the
investigation or prosecution of another person who has
committed an offense, in accordance with the guidelines and
policy statements issued by the Sentencing Commission pursuant
to section 994 of title 28, United States Code. The court may
consider a government motion to reduce a sentence made one
year or more after imposition of the sentence where the
defendant's substantial assistance involves information or
evidence not known by the defendant until one year or more
after imposition of the sentence. The court's authority to
reduce a sentence under this subsection includes the authority
to reduce such sentence to a level below that established by
statute as a minimum sentence.
Fed.R.Crim.P. 35.
Although Palomo couches his right to counsel primarily as a
Sixth Amendment right, it is clear that Rule 35(b) proceedings,
which allow the Government to seek reduction of a legal sentence
6
In addition, federal law establishes a statutory right to counsel under the
Criminal Justice Act, which provides that "[a] person for whom counsel is
appointed shall be represented at every stage of the proceedings from his
initial appearance . . . through appeal, including ancillary matters appropriate
to the proceedings." 18 U.S.C. § 3006A(c). Palomo did not raise a statutory
right to counsel in the context of Rule 35(b) proceedings and we will not
address it here.
8
due to changed circumstances, occur after judgment has been entered
and a sentence imposed. Consequently, a Rule 35(b) motion is not
a trial-related proceeding and no Sixth Amendment right to counsel
attaches at this stage. See United States v. Gouveia, 467 U.S.
180, 104 S. Ct. 2292, 81 L.Ed.2d 146 (1984)("'core purpose' of the
[Sixth Amendment] counsel guarantee is to assure aid at trial,
'when the accused [is] confronted with both the intricacies of the
law and the advocacy of the public prosecutor.'")(citations
omitted); United States v. Nevarez-Diaz, 648 F.Supp. 1226, 1230
(N.D.Ind. 1986)(former Rule 35(b) motion "is a post-trial
proceeding and, logically, because it is not part of the criminal
prosecution, it is outside the scope of the sixth amendment.").
Rather, any right to counsel at this stage must be grounded either
in equal protection or due process. See Ross v. Moffitt, 417 U.S.
600, 94 S. Ct 2437, 41 L.Ed.2d 341 (1974).
In Ross, the Supreme Court held that while the Constitution
requires appointment of counsel for direct appeals as of right,
neither due process nor equal protection mandates the appointment
of counsel in state discretionary appeals. Id. See also
Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L.Ed.2d
539 (1987)(no equal protection or due process right to appointed
counsel in postconviction proceedings). If the right to counsel
does not attach to discretionary proceedings challenging the
legality of a sentence or conviction, in which the defendant and
the Government are clearly engaged in an adversarial relationship,
there appears little to justify holding that a convicted inmate has
9
a right to counsel with respect to proceedings brought by the
Government for the purpose of requesting the sentencing court to
reduce that inmate's sentence as compensation for the provision of
information useful to an ongoing government investigation or
prosecution. Cf. United States v. Whitebird, 55 F.3d 1007, 1011
(5th Cir. 1995)(no constitutional right to counsel for reduction of
sentencing proceeding under 18 U.S.C. § 3582(c)(2)); Nevarez-Diaz,
648 F.Supp. at 1231 (no due process right to counsel under former
Rule 35 for reduction of sentence). The fact that a Rule 35(b)
sentence reduction affects the inmate's sentence is of itself
insufficient to trigger a due process right to counsel in the
proceedings -- in a Rule 35(b) proceeding the inmate faces no new
threat of additional loss of liberty and indeed is given the
opportunity to obtain a lighter sentence. The district court did
not err in finding that Palomo did not have Sixth Amendment or due
process right to counsel with respect to his Rule 35(b) motion.
Palomo also suggests that the absence of counsel at his
debriefings with the Government and during his testimony at his co-
defendant's trial violated his Fifth Amendment right against self-
incrimination. Palomo did not raise this claim in his § 2255
motion before the district court and did not brief it here;
consequently, the claim has been waived. Cavallini v. State Farm
Mut. Auto Ins. Co., 44 F.3d 256, 260 (5th Cir. 1995); United States
v. Maldonado, 42 F.3d 906, 910 n.7 (5th Cir. 1995). In any event,
Palomo has not demonstrated that the Government has used any
statements against him in these proceeding. Inasmuch as no harm
10
has been shown, Palomo has not demonstrated an actionable violation
of his right against self-incrimination. See United States v.
Fortna, 796 F.2d 724, 732 (5th Cir.)("A finding of a constitutional
violation [of the right against self-incrimination] would require
assessment of resulting prejudice before any remedy may properly be
determined."), cert. denied, 479 U.S. 950, 107 S. Ct. 437, 93
L.Ed.2d 386 (1986); Wiley v. Doory, 14 F.3d 993, 996 (4th Cir.
1994)("language in these [Supreme Court] cases suggests that the
right against self-incrimination is not violated by the mere
compulsion of statements, without a compelled waiver of the Fifth
Amendment privilege or the use of the compelled statements against
the maker in a criminal proceeding.").
DECREE
Because we find that Palomo had no constitutional right to
counsel with respect to the Government's motion to reduce his
sentence under Rule 35(b) of the Federal Rules of Criminal
Procedure, the district court's denial of his § 2255 habeas corpus
motion is AFFIRMED.
11