
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2315                                   ARTHUR SMULLEN,                                Petitioner-Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Respondent-Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Anthony M. Fredella with whom Fredella & Wheeler was on brief for            ___________________           __________________        appellant.            Jeanne M. Kempthorne, Assistant United States Attorney, with whom            ____________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   August 30, 1996                                 ____________________                      CAMPBELL,  Senior Circuit  Judge.    The  principal                                 _____________________            issue is whether a criminal defendant, who is in custody, may            under 28 U.S.C.   2255 collaterally challenge the restitution            order imposed as a part of his sentence.  Following  the only            two  circuits to  have explicitly  addressed this  matter, we            hold he may not.                       Petitioner-appellant   Arthur    J.   Smullen   was            convicted  following  a  jury  trial  in  the  United  States            District  Court for  the District  of Massachusetts  on three            counts  of  making false  statements to  a federal  agency in            violation of  18 U.S.C.   1001.  On May 27, 1993, Smullen was            sentenced to  27 months  in prison,  36 months  of supervised            release,  restitution in  the  amount of  $121,377.78, and  a            special assessment  of $150.   Smullen  never filed  a direct            appeal from  his conviction and  sentence.   On November  30,            1994,  Smullen, pro se, filed a motion, pursuant to 28 U.S.C.                            ______              2255, to vacate, set aside, or  correct his sentence.1  The            motion was  denied by  the district  court,  and Smullen  now            appeals.  We affirm.                                            ____________________            1.  Smullen has completed his  term of imprisonment.  Because            Smullen was  imprisoned when  he  filed this    2255  motion,            jurisdiction to  consider the  motion attached.   See Fernos-                                                              ___ _______            Lopez v. Figarella  Lopez, 929  F.2d 20, 23  (1st Cir.  1991)            _____    ________________            (holding that the "custody"  requirement of 28 U.S.C.    2255            is determined as  of the  date a habeas  petition is  filed),            cert.  denied, 502 U.S. 886 (1992); United States v. Michaud,            _____________                       _____________    _______            901 F.2d 5, 6 (1st Cir. 1990).                                         -2-                                          I.                                          I.                      The following  facts  are taken  largely  from  the            Presentence  Investigation Report  ("PSR")  submitted to  the            district court by the probation department.                      Smullen  was  employed  by the  United  States Post            Office until 1974, when he left on total disability.  At that            time, Smullen  began receiving  disability payments  from the            United  States Department of  Labor.  Beginning  in May 1982,            Smullen began to work full time at the New England Dragway in            Epping, New Hampshire.   Smullen worked at the  Dragway until            his  employment was terminated  in 1988.   Smullen then began            preparations  to open  a motorcycle  parts and  service shop,            Performance Cycles,  Inc., which  he opened in  January 1989.            Throughout  the period  between May  1982 and  February 1990,            during which  Smullen was  employed or self-employed  for all            but a  brief period,  Smullen filed  annual reports with  the            United  States  Department  of  Labor -  Office  of  Workers'            Compensation Programs  falsely stating  that he had  not been            employed or self-employed in  the preceding 15-month  period.            As a result, Smullen obtained disability payments to which he            was not entitled.                 Smullen was  charged with  making false statements  to a            federal agency in violation of 18 U.S.C.   1001.   The three-            count indictment  alleged that Smullen  had filed  fraudulent            statements with the  Department of Labor  on form CA-1032  in                                         -3-            1988, 1989, and 1990.  A jury convicted Smullen  on all three            counts.  At sentencing, the district court ordered Smullen to            pay $121,377.78  in restitution  -- an amount  recommended by            defense counsel.2   The PSR recommended  an offense level  of            15; however,  the district  court ordered an  additional two-            level enhancement  for obstruction  of justice,  finding that            Smullen's  trial  testimony  was   "thorough-going  perjury."            Smullen's sentencing range was  then set at 24 to  30 months.            The  district court imposed a sentence of 27 months in prison            and 36 months  of supervised release.   Although Smullen  did            not  appeal from his conviction or sentence, he later filed a            motion  under  28  U.S.C.    2255  seeking  relief  from  his            sentence.  The district court denied this motion, and Smullen            appeals.                                           II.                                         II.                      Smullen argued in his   2255 motion, and now argues            on appeal,  that errors occurred  in his sentence  because he            was  denied  his  Sixth  Amendment  right  to  the  effective            assistance of  counsel.   Smullen contends that:  (1) counsel            erred in  not arguing  for a  two-level reduction  in offense            level for acceptance of  responsibility; (2) counsel erred in                                            ____________________            2.  The  probation  department   suggested  $168,076  as   an            appropriate  restitution  amount;  the  government  suggested            $147,935.43 in restitution; Smullen's counsel  suggested that            the proper restitution figure was $121,377.78.                                         -4-            agreeing to an allegedly  excessive loss amount, resulting in            an improper Guideline sentencing range; and (3) counsel erred            in suggesting a restitution amount approximately $100,000  in            excess of the maximum  amount which could be ordered  by law.            Only the third point  appears to have any substance,  but, as            it  is beyond the purview of  a collateral proceeding brought            under 28 U.S.C.   2255, we cannot resolve it.                      Smullen's failure to  have raised the above  claims            on direct appeal from his sentence would normally have barred            him from raising them in a   2255 collateral attack unless he            could show cause for  the failure and actual prejudice.   See                                                                      ___            Coleman v. Thompson, 501 U.S. 722, 750 (1991);  United States            _______    ________                             _____________            v.  Frady, 456 U.S. 152,  165-67 (1982).   However, cause and                _____            prejudice need not be shown when the underlying claim alleges            ineffective  assistance of  counsel.   See  Knight v.  United                                                   ___  ______     ______            States, 37 F.3d  769, 774 (1st Cir. 1994).3  Smullen not only            ______            argues  that his  counsel  performed inadequately  during his            sentencing hearing, but also that an appeal relative to these            errors  was  not taken  because  of  his counsel's  allegedly            incompetent advice that "an appeal was just a waste of time."                                            ____________________            3.  Similarly,  because  the   purported  sentencing   errors            allegedly arose from ineffective assistance, thus giving them            a constitutional  dimension, they may be  considered under 28            U.S.C.    2255 even though  errors in the  application of the            sentencing  guidelines,  by  themselves,  are   not  normally            cognizable on collateral attack.  See Knight, 37 F.3d at 772.                                              ___ ______                                         -5-                      The   standard  for   constitutionally  ineffective            assistance  of  counsel  was   set  forth  in  Strickland  v.                                                           __________            Washington, 466  U.S. 668, 687  (1984).  To  succeed, Smullen            __________            has the burden of showing that (1) counsel's performance fell            below an objective standard  of reasonableness, and (2) there            is a  reasonable probability  that, but for  counsel's error,            the result of the proceedings would have been different.  See                                                                      ___            Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir. 1994), cert. denied,            ______    ______                                ____________            115  S. Ct.  940 (1995);  Lopez-Nieves v. United  States, 917                                      ____________    ______________            F.2d 645, 648 (1st Cir. 1990) (citing Strickland, 466 U.S. at                                                  __________            687).  In order to satisfy  the first prong of the Strickland                                                               __________            test, Smullen must show that  "counsel made errors so serious            that counsel was not  functioning as the 'counsel' guaranteed            the defendant by the Sixth  Amendment."  Strickland, 466 U.S.                                                     __________            at 687.    There  is  a "strong  presumption  that  counsel's            conduct  falls   within   the  wide   range   of   reasonable            professional assistance."  Id. at 689.                                         ___                      The first two  of Smullen's sentencing  claims must            be  dismissed  as Smullen  cannot  meet either  prong  of the            Strickland  test.  We  cannot attribute error  to counsel for            __________            failing  to   seek  an  offense  level   reduction  based  on            acceptance  of responsibility.  See U.S.S.G.   3E1.1.  As the                                            ___            record  shows, Smullen never  accepted responsibility for his            crimes.  Smullen pleaded not guilty to each of the counts and            maintained his  innocence throughout  the trial.   See United                                                               ___ ______                                         -6-            States  v. Bennett, 37 F.3d 687, 697 (1st Cir. 1994) (holding            ______     _______            that U.S.S.G.   3E1.1 is generally not intended to apply to a            defendant who  challenges the essential  factual elements  of            guilt).    Moreover,  the  district  court  stated  that  the            defendant's trial testimony was "thorough-going  perjury" and            imposed a  sentence enhancement  for obstruction  of justice.            See  United States v. Talladino, 38 F.3d 1255, 1265 (1st Cir.            ___  _____________    _________            1994)  ("[I]n  the universe  of  cases  where obstruction  of            justice  looms, a reduction  for acceptance of responsibility            is ordinarily forestalled altogether.").                       Smullen  has  provided no  better  support for  his            contention that, had his  counsel served him competently, the            court would have found a lower offense level and,  therefore,            he  would  have  been  sentenced  within  a  lower  Guideline            sentencing  range.    Smullen  argues that  the  loss  amount            attributed to him as relevant conduct for sentencing purposes            was  excessive, and faults  his lawyer for  not bringing this            fact to the court's  attention.  However, the amount  of loss            attributed to the petitioner's misconduct related to a period            well within  the duration of "relevant  conduct" for purposes            of  the Sentencing  Guidelines.   See U.S.S.G.    1B1.3(a)(2)                                              ___            (requiring that relevant conduct be "part of the same  course            of  conduct  or  common scheme  or  plan  as  the offense  of            conviction").  Over an  eight-year period, Smullen engaged in            a   course  of  conduct  to  fraudulently  obtain  unentitled                                         -7-            disability benefits.   Smullen's  counsel made no  error, let            alone a  constitutionally relevant  one, in failing  to argue            for a lower  loss amount.  As it was,  defense counsel argued            for a  loss amount significantly lower than  that proposed by            the government or by the probation department.                      Smullen's third and only  substantial claim is that            the ineffective  assistance of his counsel  contributed to an            order for him to  pay an amount of  restitution in excess  of            that permitted by  law.   See United States  v. Ratliff,  999                                      ___ _____________     _______            F.2d  1023, 1026  (6th Cir.  1993) ("A  refusal to  appeal an            erroneous  restitution  award, which  award  would have  been            subject to reversal on appeal, would meet the Strickland test                                                          __________            and  would  clearly constitute  cause  for  [the] failure  to            appeal  the award.")    If  Smullen's restitution  obligation            exceeds  the maximum amount which the  law permits, there may            be a  reasonable probability that counsel's  failure to point            this out contributed to the unfavorable outcome.  Id.                                                                ___                      It may be, but  we need not decide, that  Smullen's            restitution  obligation did,  in  fact,  exceed  the  maximum            permitted  by law,  notwithstanding the  basic equities  that            appear  to have prompted it.   The Supreme  Court has limited            restitution to losses caused by the specific conduct that  is            the  basis of  the offense  of conviction.  Hughey v.  United                                                        ______     ______            States,  495 U.S.  411,  420 (1990)  (holding that  "the loss            ______            caused by  the conduct  underlying the offense  of conviction                                         -8-            establishes  the  outer  limits  of a  restitution  order").4            Smullen was  ordered to repay $121,377.78  in connection with            his  guilty  verdict  on   three  counts  relating  to  false            statements  submitted to  the  Department of  Labor in  1988,            1989, and 1990.  The $121,377.78 figure represents the entire            amount of loss relating to Smullen's false statements  to the            Department  of  Labor over  the  eight-year  duration of  his            fraudulent scheme.  The loss related to the three-year period            for which  the  government actually  secured convictions  was            approximately $20,250.93.5                                               ____________________            4.  In Hughey, the defendant,  charged in several counts with                   ______            the use of stolen credit cards, pled guilty to the fraudulent            use  of one.    The order  for  restitution included  use  of            others.  The Supreme Court  reversed, saying the outer  limit            for restitution awards  was "the loss  caused by the  conduct            underlying the offense of  conviction."  Hughey, 495 U.S.  at                                                     ______            420.                 The  statute authorizing  restitution,  the  Victim  and            Witness  Protection Act  of  1982, specifically  18 U.S.C.               3663,  was amended  in 1990  to  allow broad  restitution for            offenses involving "as  an element a scheme, a conspiracy, or            a  pattern of criminal activity."  Crime Control Act of 1990,            Pub. L.  No. 101-647,    2509,  104 Stat.  4789, 4863.   That            amendment  does not  apply  here, however,  because Smullen's            offense of  conviction, filing false statements  to a federal            agency in violation  of 18 U.S.C.    1001, did not  include a            plan,  scheme or conspiracy as an element of the offense. See                                                                      ___            United States v.  Neal, 36  F.3d 1190, 1201  (1st Cir.  1994)            _____________     ____            (holding that  a defendant convicted of  money laundering and            of being an accessory after the fact  could not be ordered to            pay  restitution for  losses  not directly  related to  those            offenses  because   neither  involved  proof  of   a  scheme,            conspiracy or  pattern of  criminal activity as  an element),            petitionfor cert. filed, (U.S. July 25, 1996) (No. 96-5380).             _______________________            5.  The  $20,250.93  figure  is  the amount  put  forward  by            petitioner.   The government does not  put forward a specific            calculation of  the amount of  loss specifically attributable            to Smullen's false statements made in 1988, 1989, and 1990.                                         -9-                      As  noted,  this   might  be   attributed  to   the            ineffective assistance of counsel where, as here, counsel not            only  did  not point  out the  relevant  law to  the district            judge, but apparently agreed with the prosecution's erroneous            interpretation.  See  Scarpa, 38 F.3d at  11 ("Serious errors                             ___  ______            in an  attorney's performance, unrelated to  tactical choices            or to  some plausible  strategic aim,  constitute substandard            performance.").6  However, even assuming  this is so, we  are            powerless in a  proceeding under  28 U.S.C.    2255 to  grant            relief to Smullen.  Section 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.   2255 (emphasis supplied).  The plain language of            the statute indicates that   2255 is available to petitioners                                            ____________________            6.  The   government's  attempt   to  avoid   a  finding   of            ineffective assistance by arguing that Smullen's counsel  may            have  been acting strategically  need not be  addressed.  Cf.                                                                      ___            United  States v. McGill, 11 F.3d 223, 227-28 (1st Cir. 1993)            ______________    ______            (holding  that a strategic choice on the part of counsel will            not  be  second guessed  by  the  courts); United  States  v.                                                       ______________            Tabares, 951 F.2d 405, 409 (1st Cir. 1991).   There is little            _______            in the record to suggest that counsel was aware of Hughey and                                                               ______            its  progeny,  but  nonetheless  decided not  to  bring  this            doctrine to the court's attention for strategic reasons.                                          -10-            "in  custody"  who "claim[]  the right  to be  released" from            custody.   Smullen,  while in  custody at  the time  he moved            under   2255, was not "claiming the right to be released" but            was merely claiming the right to a reduced restitution  order            establishing the  monetary restitution  he should pay.   This            court has  previously held that  a petitioner,  no longer  in            custody,  subject  only  to  a  fine  cannot  challenge  that            obligation in a   2255 action.  United States v. Michaud, 901                                            _____________    _______            F.2d  5,  7  (1st  Cir. 1990)  ("A  monetary  fine  is  not a            sufficient  restraint on  liberty  to meet  the 'in  custody'            requirement for     2255  purposes[;]  [n]or  does  potential            future incarceration for  failure to pay such  a fine provide            the requisite subject matter jurisdiction.").                       The Fifth  and Sixth  Circuits have held,  in cases            analogous to  the present, that  a person  in custody  cannot            bring an ineffective assistance of counsel  claim challenging            a  fine because  that  person is  not  "claiming a  right  to            release"  from custody.  See United States v. Segler, 37 F.3d                                     ___ _____________    ______            1131, 1137  (5th Cir. 1994) ("[I]f counsel's constitutionally            insufficient  assistance  affected  the  trial  court's guilt            determination or the sentencer's imposition of a prison term,            a 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.");            United  States v. Watroba, 56  F.3d 28, 29  (6th Cir.), cert.            ______________    _______                               _____                                         -11-            denied,  116  S.  Ct. 269  (1995);  accord  United States  v.            ______                              ______  _____________            Gaudet, 81 F.3d 585, 592  (5th Cir. 1996).  We are  not aware            ______            of any  court of appeals  that, having addressed  this issue,            has reached a contrary result.7                      The Fifth and Sixth  Circuits' interpretation of               2255  not only tracks the literal language of the statute but            also  promotes  the equal  treatment  of similar  claims.   A            defendant,  not    in  custody,  sentenced  to  an  allegedly            erroneous  fine or restitution  order because  of ineffective            assistance of counsel  cannot seek relief  under   2255,  see                                                                      ___            Michaud, 901  F.2d at  7, and therefore,  it seems  congruent            _______            that a petitioner  who is given the  same allegedly erroneous            fine  or restitution order but  also happens, at  the time he            petitions,  to be  rightfully imprisoned  also should  not be            able  to challenge  his monetary  obligation in  a collateral            attack.                                            ____________________            7.  This  Circuit  has  not  authoritatively   addressed  the            question  decided by Segler and  Watroba -- whether  or not                                   ______      _______            2255 is a proper avenue for  a person in custody to assert an            ineffective  assistance  of  counsel  claim  relating to  the            imposition of  a  fine  or restitution  order.    In  several            unpublished opinions  lacking in precedential  force, we have            implied that a restitution  order can be addressed in    2255            proceedings.   See, e.g., Vela-Fossas v.  United States, 1990                           ___  ____  ___________     _____________            WL 443937 (1st  Cir. Sept.  7, 1990).   In addition, we  have            assumed  without deciding  that  there  was  jurisdiction  to            challenge a restitution order under the  former Fed. R. Crim.            P.  35 (which  permitted  the court  to  correct an  "illegal            sentence"  at any time).  See United States v. Lilly, 80 F.3d                                      ___ _____________    _____            24, 28 (1st Cir. 1996).                                           -12-                      Agreeing  with  the   Fifth  and  Sixth   Circuits'            analyses,   we  hold  that   Smullen  cannot   challenge  his            restitution obligation in this   2255 proceeding.8                        Affirmed.                      Affirmed                      ________                                            ____________________            8.  Should Smullen become incarcerated in the future due to            his failure to meet the restitution order as the basis for            his confinement obligations, he may, although we need not            decide for present purposes, be entitled to bring a   2255            action challenging his restitution at that point.                                         -13-
