
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1374                                 STEPHEN TED KNIGHT,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Arthur R. Silen for appellant.            _______________            Margaret D.  McGaughey,  Assistant  United States  Attorney,  with            ______________________        whom  Jay P. McCloskey,  United States Attorney, was  on brief for the              ________________        United States.                                 ____________________                                   October 20, 1994                                 ____________________                      CAMPBELL,   Senior  Circuit  Judge.      Petitioner                                  ______________________            Stephen Knight  appeals from  a district court  order denying            his motion under  28 U.S.C.    22551 to  correct his  federal            sentence of 78 months in prison and his fine of  $15,000.  We            affirm.                                          I.                      On  May  25,  1990, Knight  waived  indictment  and            pleaded  guilty to  a  four-count federal  information.   The            information alleged that Knight had participated in a cocaine            conspiracy,  had sold  marijuana  on two  occasions, and  had            possessed cocaine with intent to distribute.                        The   presentence   investigation   report   (PSI),            prepared by  a probation officer, provided  information about            Knight's  criminal history  and  financial status.   The  PSI            indicated  that  several months  earlier  Knight  had pleaded            guilty to state  drug violations, stemming  from a June  1989                                            ____________________            1.   28 U.S.C.   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.A.   2255 (1994).                                         -2-                                          2            arrest  in  Maine.    For  these offenses,  Knight  had  been            sentenced in state court to five years in prison.                      After  a   hearing,  the  federal   district  court            sentenced  Knight on August 24,  1990 to 96  months in prison            and imposed a $15,000 fine.  In calculating the sentence, the            court added  three points to Knight's  criminal history score            because  of  the prior  state  sentence,  in accordance  with            U.S.S.G.    4A1.1(a).   The  addition of  these three  points            raised the  applicable sentencing range from  63-78 months to            78-97 months.  The district court imposed a sentence near the            top of the latter  range although, later, in August  1993, it            reduced  the  sentence  to  78   months,  on  motion  of  the            government  pursuant to Fed. R.  Crim. P. 35(b).   Knight did            not appeal from his federal sentence.                        In October of  1992, Knight  brought this  separate            proceeding  in the  district court  under 28  U.S.C.    2255,            collaterally attacking  his federal sentence.   Following  an            evidentiary  hearing,  a  magistrate judge  recommended  that            Knight's motion be denied.   After considering the  matter de                                                                       __            novo, the district court denied Knight's   2255 motion.  This            ____            appeal followed.                                         II.            A.   Claims of Error under Sentencing Guidelines                 ___________________________________________                      Knight argues that it  was error for the sentencing            court  to add three points  to his criminal  history score on                                         -3-                                          3            account  of  his  prior state  sentence.    Under U.S.S.G.               4A1.1(a), a sentencing  judge must add three points  for each            prior  sentence of  imprisonment exceeding  one year  and one            month.  U.S.S.G.   4A1.2(a)(1) defines a "prior sentence" as:            "any sentence  previously imposed upon adjudication of guilt,            whether by  guilty plea, trial,  or plea of  nolo contendere,            for  conduct  not  part  of the  instant  offense"  (emphasis                 ____________________________________________            added).  Knight argues  that the state offenses for  which he            was previously sentenced were  "part of the instant offense,"            hence  should  not  have  been counted  toward  his  criminal            history  score.  Knight  says the state  and federal offenses            were  all part of a common  scheme or plan involving the same            individuals and occurring over  roughly the same time period.            Accordingly, he  argues, the  state sentence  of imprisonment            should not have been counted in figuring his criminal history            score.2                                            ____________________                 2Knight  did not  specifically argue  below, as  he does            here, that the sentencing court committed error in failing to            find  that  the  state  and federal  offenses  were  related.            Rather, Knight argued that his counsel at sentencing rendered            ineffective  assistance  by failing  to  point  out that  the            offenses  were related.    Both the  magistrate and  district            court  found  that  counsel's   conduct  did  not  constitute            ineffective  assistance,   since  Knight  had   not  shown  a            reasonable   possibility  that   this  argument   would  have            succeeded  or result in a lower sentence.  Knight now appears            to have  abandoned the  ineffective assistance aspect  of the            claim,  arguing  simply  that   the  district  court   erred.            Ordinarily, claims not raised below cannot  be raised for the            first  time on appeal, but as the government has not objected            on this  ground, and  as the  claim  fails in  any event,  we            overlook that it was not raised below.                                         -4-                                          4                      Knight also argues that the sentencing court abused            its discretion in  imposing a  $15,000 fine in  light of  his            inability  to  pay.   U.S.S.G.     5E1.2(a) provides  that  a            district court  "shall impose  a  fine in  all cases,  except            where  the defendant establishes that he is unable to pay and            is not  likely to become able  to pay any fine."   U.S.S.G.              5E1.2(f)  further states  that if  the defendant  establishes            that he "is not able  and, even with the use of  a reasonable            installment schedule, is not likely to become able to pay all            or  part of the fine . . . the court may impose a lesser fine            or  waive the  fine.   Knight  argues  that the  PSI  clearly            indicated  that he was unable  to pay the  $15,000 fine, even            under  a reasonable  installment schedule.   Accordingly,  he            argues,  it was  an abuse  of discretion  for the  sentencing            court to have imposed the fine.                      We do not reach  the merits of either of  the above            contentions.  We hold that neither of  them can now be raised            within a collateral proceeding under 28 U.S.C.   2255.                       28 U.S.C.   2255 sets forth four grounds upon which            a federal prisoner may base  a claim for relief:  "(1)  'that            the sentence was imposed in  violation of the Constitution or            laws of the United  States;' (2) 'that the court  was without            jurisdiction to impose such sentence;' (3) 'that the sentence            was in excess of the maximum authorized by law;' and (4) that            the  sentence 'is  otherwise subject to  collateral attack.'"                                         -5-                                          5            Hill  v. United States, 368 U.S.  424, 426-27, 82 S. Ct. 468,            ____     _____________            470,  7 L.Ed 2.d 417 (1962) (quoting the statute). Neither of            Knight's  present claims  alleges  a constitutional  error or            lack  of jurisdiction.  Thus, the claims can only be properly            brought under   2255 if they allege that the sentence "was in            excess of  the maximum authorized  by law,"  "was imposed  in            violation of  the . . . laws  of the  United States," or  "is            otherwise subject to collateral attack."                      While the statutory language is rather general, the            Supreme   Court  has   narrowly   confined  the   scope   and            availability  of collateral  attack  for claims  that do  not            allege constitutional  or jurisdictional errors.  Such claims            are properly brought under    2255 only if the  claimed error            is  "a  fundamental  defect  which inherently  results  in  a            complete miscarriage of justice" or "an omission inconsistent            with  the rudimentary demands of fair  procedure."  Hill, 368                                                                ____            U.S.   at  428.     The   error  must   "present  exceptional            circumstances where the need  for the remedy afforded by  the            writ  of habeas corpus is  apparent."  Id.  (quoting Bowen v.                     _____________                 ___           _____            Johnston,  306 U.S. 19, 27  (1939)); see Fasano  v. Hall, 615            ________                             ___ ______     ____            F.2d 555, 557 (1st. Cir.), cert. denied, 449 U.S. 867 (1980).                                       ____________            Errors  warranting  a  reversal  on direct  appeal  will  not            necessarily support  a collateral attack.   See United States                                                        ___ _____________            v.  Addonizio, 442 U.S. 178, 184-85, 99 S. Ct. 2235, 2239-40,                _________            60 L.Ed 2d 805 (1979).        The   reason  for   so  sharply                                         -6-                                          6            limiting   the  availability   of   collateral   attack   for            nonconstitutional,  nonjurisdictional  errors is  that direct            appeal  provides  criminal  defendants  with  a  regular  and            orderly avenue for correcting such errors.  The Supreme Court            has repeatedly emphasized that   2255 is not a substitute for            direct appeal.  See,  e.g., United States v. Frady,  456 U.S.                            ___   ____  _____________    _____            152, 165,  102  S. Ct.  1584,  1593 71  L.Ed  2d 816  (1982);            Addonizio,  442 U.S. at 184-85; Sunal v. Large, 332 U.S. 174,            _________                       _____    _____            178,   67  S.  Ct.     1588,   92  L.Ed   1982  (1947).     A            nonconstitutional claim  that could  have been, but  was not,            raised  on appeal, may  not be asserted  by collateral attack            under   2255 absent exceptional  circumstances.  See Stone v.                                                             ___ _____            Powell, 428 U.S. 465, 177 n.10, 96 S. Ct. 3037, 3044 n.10, 49            ______            L.Ed. 1067 (1976);  Suveges v.  United States, 7  F.3d 6,  10                                _______     _____________            (1st  Cir. 1993)  (applying cause  and prejudice  standard to            procedural default of jurisdictional claim).                      The Supreme Court has on four occasions  considered            whether  a  particular  nonconstitutional,  nonjurisdictional            claim was properly brought  under   2255.  See Hill, 368 U.S.                                                       ___ ____            at  428 (denial of  allocution at sentencing  in violation of            Fed.  R. Crim. P. 32(a)  is not a  "miscarriage of justice");            United  States v. Timmreck, 441  U.S. 780, 784-85,  99 S. Ct.            ______________    ________            2085, 60 L.Ed. 2d 805 (1979) (error under Fed. R. Crim. P. 11            in procedure for taking  a guilty plea not a  "miscarriage of            justice"); Addonizio, 442  U.S. at 184-90  (subsequent change                       _________                                         -7-                                          7            in U.S. Parole Commission's parole policies not sufficient to            constitute basis  for collateral  attack).  In  one of  these            cases, the Court found that  the error did justify collateral            attack.  Davis v. United States, 417 U.S. 333, 346, 94 S. Ct.                     _____    _____________            2298,  2305, 41  L.Ed. 2d  109 (1974)  (subsequent change  in            substantive  law making  defendant's  former behavior  lawful            does constitute sufficient basis for collateral attack).            ____                      While the  above  cases are  not on  all fours,  we            think it obvious that  Knight's two claims fall far  short of            the "miscarriage of justice"  standard.  Knight's first claim            is  essentially that  the  district court  made an  erroneous            finding  of  fact which  led  to  the misapplication  of  the            sentencing  guidelines.   Knight's second  claim is  that the            district court abused a discretion explicitly committed to it            by the sentencing guidelines.  Neither claim is based upon an            "exceptional  circumstance."   Rather, each  alleges ordinary            errors  that could and should  have been raised  by Knight on            direct appeal.  And  even assuming error was committed,3  the            error  would  not  amount   to  a  "complete  miscarriage  of            justice."   Knight's eventual sentence was  78 months, within                                            ____________________                 3    While we do not reach the merits of Knight's claims            of error, we note  that they are questionable on  their face.            At the  evidentiary hearing, the magistrate  judge found that            the state and federal offenses involved different individuals            and overlapped only very slightly in time.  The only evidence            that  Knight  offers is  his own  testimony stating,  in very            general terms,  that the  offenses were related.   Similarly,            Knight offers  scant evidence that the  district court abused            its discretion in setting the fine.                                         -8-                                          8            the range that would  have been imposed even if  the district            court  had not  added three  points  to his  criminal history            score.   Similarly,  Knight's $15,000  fine was  at the  very            bottom  of  the  available  range ($12,500  to  $2  million).            Accordingly, even if error was  committed, it would fall well            short of being a "complete miscarriage of justice."                       Knight, moreover, who was  fully aware of his right            to  appeal, could have  raised the purported  error by direct            appeal.  Although Knight's  counsel at the time decided  that            there were no issues  worthy of appeal, he offered  to direct            Knight  to alternative counsel who could help Knight with his            appeal.  Knight did not take advantage of this offer.  Knight            does not allege that there have been any new legal or factual            developments  justifying his  failure  to  appeal.   Allowing            Knight to bring his claim at this late date would essentially            be allowing  him to  use   2255  as a substitute  for appeal.            See  Sunal, 332 U.S. at 178.  Having bypassed his opportunity            ___  _____            to raise the  claim on direct appeal, he  cannot raise it now            on  collateral  attack.   See Stone,  428  U.S. at  177 n.10;                                      ___ _____            Singleton v. United States, 26 F.3d 233, 239 (1st Cir. 1994),            _________    _____________            petition  for  cert. filed,  (July  22,  1994) (No.  94-5551)            __________________________            (failure  to appeal  claim of  improper joinder  bars raising            claim under   2255).                           Several   circuit   courts   have  considered   the            availability of  collateral attack for various  errors in the                                         -9-                                          9            application of the  sentencing guidelines and have  concluded            that such errors are not cognizable under   2255.  See, e.g.,                                                               ___  ____            United States v. Faubion, 19 F.3d 226, 232-33 (5th Cir. 1994)            _____________    _______            (erroneous upward departure under sentencing guidelines not a            "miscarriage of  justice"); Scott v. United  States, 997 F.2d                                        _____    ______________            340, 341-42 (7th Cir. 1993) (erroneous criminal history score            under  sentencing  guidelines   not  subject  to   collateral            attack);  United  States v.  Vaughn, 955 F.2d  367, 368  (5th                      ______________     ______            Cir. 1992)  (error  in technical  application  of  sentencing            guidelines not subject to collateral attack).                        While   we  do  not  hold  that  an  error  in  the            application   of  the   sentencing  guidelines   could  never            constitute  a   "complete miscarriage  of justice,"  Knight's            claims here do not meet that  standard.  The proper place for            Knight  to raise these issues  was on direct  appeal.  Knight            has failed to show cause for  his failure to raise these  two            issues on appeal.  Having  bypassed his opportunity to  raise            these  claims on direct appeal,  he cannot raise  them now on            collateral attack.             B.   Ineffective Assistance Claim                 ____________________________                      Unlike the  two arguments asserted  above, Knight's            claim of ineffective assistance of counsel is properly before            us under  28 U.S.C.    2255.  The  claim is  a constitutional            one,  and  thus falls  within the  plain  wording of    2255.            Moreover,  Knight's failure  to  raise this  claim on  direct                                         -10-                                          10            appeal from his  sentence does  not bar his  asserting it  on            collateral   attack.      Normally,   failure   to  raise   a            constitutional issue  on direct  appeal will bar  raising the            issue  on collateral  attack  unless the  defendant can  show            cause for the failure and actual prejudice.  See Coleman, 501                                                         ___ _______            U.S.  at  750.   However,  the failure  to bring  a  claim of            ineffective  assistance of  counsel on  direct appeal  is not            subject  to the cause and  prejudice standard.   See Brien v.                                                             ___ _____            United States, 695 F.2d 10, 13 (1st Cir. 1982).  In Brien, we            _____________                                       _____            held the  cause and prejudice standard  inapplicable, since a            criminal defendant may still  have been represented on appeal            by  the  counsel  whose   assistance  the  defendant  is  now            challenging (as  was the  case here).4   Id.   In fact,  this                                                     ___            court  has  repeatedly held  that  collateral  attack is  the            preferred  forum for  such  claims, since  there is  often no            _________            opportunity to develop the necessary evidence where the claim            is  first  raised on  direct appeal.    See United  States v.                                                    ___ ______________            Jadusingh,  12 F.3d  1162,  1169-70 (1st  Cir. 1994);  United            _________                                              ______            States  v. Mala,  7 F.3d  1058, 1063  (1st Cir.  1993), cert.            ______     ____                                         _____            denied, 114 S. Ct. 1839 (1994); United States v. Latorre, 922            ______                          _____________    _______            F.2d  1, 9,  (1st Cir.  1990), cert. denied,  112 S.  Ct. 217                                           ____________            (1991);  United States  v. Sanchez, 917  F.2d 607,  613, (1st                                       _______            Cir. 1990), cert. denied, 499 U.S. 977 (1991).                        ____________                                            ____________________                 4Although  Brien  held   inapplicable  the  standard  as                            _____            articulated under  Frady, the  same reasoning applies  to the                               _____            standard as articulated in Coleman.                                       _______                                         -11-                                          11                      The   familiar   two-part   test  for   ineffective            assistance  of counsel  is laid  out  by the  Supreme Court's            decision in Strickland v. Washington,  466 U.S. 668, 687, 104                        __________    __________            S.  Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).  Under the first            prong   of  the   Strickland  test,   a   defendant  claiming                              __________            ineffective assistance of counsel must first demonstrate that            counsel's  performance fell  below an  objective standard  of            reasonableness.  This means that the defendant must show that            counsel's  advice was  not  "within the  range of  competence            demanded of attorneys in criminal cases."   Hill v. Lockhart,                                                        ____    ________            474 U.S. 52, 56, 106 S. Ct.  366, 369, 88 L.Ed. 2d 203 (1985)            (citation omitted).   A  court must review  counsel's actions            deferentially.  Strickland, 466 U.S. at 689; Burger v.  Kemp,                            __________                   ______     ____            483  U.S. 776, 789,  107 S. Ct.  3114, 3123, 97  L.Ed. 2d 638            (1987).  Under the second prong of Strickland,  the defendant                                               __________            must prove that he or she was prejudiced by the errors.  That            is, the  defendant  must prove  that  there is  a  reasonable            probability that, but for counsel's errors, the result of the            proceeding would  have been different.   Strickland, 466 U.S.                                                     __________            at 687.                      Knight complains that his counsel in both the state            and the previous federal proceedings, James LaLiberty, failed            to  tell him about the  impact that his  state sentence would            have  on his  federal  sentence, thereby  misrepresenting the            likely federal sentence.                                          -12-                                          12                      However, assuming for the moment  that Knight could            satisfy  the first prong  of the Strickland  test, Knight has                                             __________            failed to show that  he was prejudiced by the  alleged error.            Knight has not asserted that he would not have pleaded guilty            to  the federal  indictment had  he known  of the  effect the            state sentence would have on his federal sentence.  See Hill,                                                                ___ ____            474  U.S. at 59 (no  ineffective assistance of counsel absent            showing that, but for error, defendant would not have pleaded            guilty);  Lopez-Nieves v.  United States,  917 F.2d  645, 650                      ____________     _____________            (1st  Cir. 1990).  Rather,  Knight appears to  argue that the            knowledge  might have affected  his guilty plea  to the state                                                                    _____            offenses.    It is  difficult, however,  to  see how  this is            relevant to the current federal proceeding.  (Knight admitted            at the evidentiary  hearing that,  even had he  known of  the            impact his state sentence would have on his federal sentence,            he might still have pleaded guilty to the state offenses.)                        Knight  has  not  established,  moreover,  that his            federal sentence  would have been  any shorter had  he known.            Although  he now  suggests that  he might  have been  able to            garner  a better plea bargain,  he has provided  no basis for            this proposition.   What  evidence there is  suggests exactly            the opposite: that  if Knight had  refused the agreement,  he            might have been subject  to consecutive sentences which would            have   greatly  prolonged   his   prison  time.     Moreover,            LaLiberty's  overall  prediction, that  Knight  would receive                                         -13-                                          13            between  five  and eight  years  in  the federal  sentencing,            proved to be accurate.  Knight's sentence was first set at 96            months, and then reduced to 78 months.  Both of these figures            were  within the predicted range.   Thus, it  is difficult to            see  how Knight  could  have been  prejudiced  by the  errors            alleged.                        Even  if the  prediction  had  been inaccurate,  an            inaccurate prediction  about  sentencing will  generally  not            alone  be  sufficient  to  sustain  a  claim  of  ineffective            assistance of counsel.   See United States v.  Arvanitis, 902                                     ___ _____________     _________            F.2d 489,  494-95 (7th Cir. 1990)  (no ineffective assistance            where claim based only on inaccurate prediction of sentence);            United  States v. Turner, 881 F.2d 684, 687 (9th Cir.), cert.            ______________    ______                                _____            denied, 493 U.S. 871 (1989) (same); United States v. Sweeney,            ______                              _____________    _______            878  F.2d  68, 69  (2d Cir.  1989)  (same); cf.  Calabrese v.                                                        ___  _________            United   States,  507   F.2d   259,  260   (1st  Cir.   1974)            _______________            (voluntariness  of plea not  subject to  attack under    2255            where sentence exceeded that predicted by counsel).                        Since Knight has not  satisfied the second prong of            Strickland, we need  not address  the first prong.   We  hold            __________            that the district court was  correct in finding that Knight's            assistance of counsel was not constitutionally defective.5                                            ____________________                 5    In  addition to  the above  argument,  Knight makes            several  claims that  could be  construed as  asserting other            bases for  ineffective assistance.  Knight  appears to argue:            that LaLiberty somehow  erred in failing to warn  Knight that            his  cooperation  with  state  officials might  result  in  a                                         -14-                                          14                                         III.                      We  hold that Knight's  two claims of  error in the            application of the sentencing guidelines cannot presently  be            maintained in  a proceeding under 28 U.S.C.    2255.  We also            find  that the  district court  did not  err in  finding that            Knight   did   not   receive   constitutionally   ineffective            assistance of counsel.                        Affirmed.                      ________                                                          ____________________            subsequent  federal  prosecution;  that  LaLiberty  erred  in            failing to negotiate immunity from federal prosecutors  prior            to  having Knight speak  with them;  that LaLiberty  erred in            failing  to argue  that Knight's  state and  federal offenses            were related for the purpose of sentencing.  Knight, however,            does  not   provide  any   support  for  these   allegations.            Moreover,  he did not make  these arguments at  either of the            proceedings below.   We find them  to be without merit.   See                                                                      ___            United  States v. Panitz, 907  F.2d 1267, 1272  n.4 (1st Cir.            ______________    ______            1990).                                           -15-                                          15
