                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-27-1995

USA v Cleary
Precedential or Non-Precedential:

Docket 94-3290




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                            No. 94-3290


                    UNITED STATES OF AMERICA,

                                          v.

                          THOMAS J. CLEARY,

                                    THOMAS JAMES CLEARY,

                                              Appellant



          Appeal from the United States District Court
            for the Western District of Pennsylvania
                (D.C. Criminal No. 82-cr-00133)



           Submitted Under Third Circuit LAR 34.1(a)
                       September 9, 1994

                Before:    BECKER, COWEN AND ROTH,
                           Circuit Judges

               (Opinion filed January 27, 1995)


Frederick W. Thieman
United States Attorney
Michael L. Ivory
Assistant United States Attorney
633 United States Post Office & Courthouse
Pittsburgh, PA   15219
               Attorney for Appellee

Thomas James Cleary, #01475-068
San Diego M.C.C.
808 Union Street
San Diego, CA    92101
               Appellant, Pro Se
                       OPINION OF THE COURT



ROTH, Circuit Judge:


                           I.   INTRODUCTION

           Thomas James Cleary ("Cleary") appeals from an order of

the district court entered on May 24, 1994, denying Cleary's

motion to vacate or correct an illegal sentence pursuant to 28

U.S.C. § 2255.   Cleary asserts that the district court violated

Rule 11(c)(1) of the Federal Rules of Criminal Procedure by

failing, at his change of plea hearing, to adequately inform him

and determine that he understood the maximum penalty he could

receive.   In particular, Cleary contends that the court erred by

failing to explain the effects of a term of special parole.

Because of the court's alleged error, Cleary seeks a reduction of

his special parole term from ten years to two, or, in the

alternative, a vacatur of his guilty plea.     For the reasons

stated herein, we find that the district court's error did not

rise to the level required to permit collateral relief under

section 2255.
                     II.   BACKGROUND AND FACTS

           On September 8, 1982, a grand jury sitting in the

Western District of Pennsylvania returned a two count indictment

against Cleary, charging him with:     (1) Count One - conspiracy to
violate federal narcotics laws in violation of 21 U.S.C. § 846;

and (2) Count Two - manufacturing and distributing

methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2.   On December 7, 1982, pursuant to an oral plea

agreement, Cleary pled guilty to Count Two of the indictment.       In

exchange, the Government agreed to dismiss Count One of the

indictment.   On January 10, 1983, the district court judge

sentenced Cleary to three years imprisonment to be followed by a

special parole term of ten years on Count Two.   Count One was

dismissed.    Cleary appealed his sentence, but because he became a

fugitive pending appeal, this Court dismissed his appeal.     See

United States v. Cleary, No. 83-5044 (3d Cir. June 6, 1983).

          On June 24, 1985, Cleary filed his first habeas motion

to vacate, set aside or correct his sentence pursuant to 28

U.S.C. § 2255.   Acting pro se, Cleary advanced several arguments

in support of his motion, including:   (1) the presentence

investigation report was factually inaccurate;1 (2) the

government illegally searched his car without a warrant and

illegally seized money therefrom; (3) the prosecution withheld

information favorable to the defense; and (4) the district court

denied him the opportunity to present evidence on his behalf.


    1    Specifically, Cleary claimed that the presentence
investigation report erroneously stated that he had filed for
bankruptcy, when he did no such thing; that he had loaned his
father $12,000, when in actuality his father had loaned him that
amount of money; and that he had 35,750 dosage units of
methamphetamine, when he really had only 2,405 dosage units.
The court appointed counsel for Cleary and, with the assistance

of that counsel, Cleary amended his habeas motion to allege that

the district court had violated Federal Rule of Criminal

Procedure 32 by failing to:   (1) determine whether or not the

defendant and his counsel had an opportunity to read and discuss

the presentence report; (2) afford counsel an opportunity to

speak on behalf of the defendant prior to the imposition of

sentence; and (3) address the defendant personally and ask him if

he wished to make a statement on his own behalf and present

information in mitigation of punishment.

          By order dated January 17, 1986, the district court

denied Cleary's motion.   Cleary appealed, and on August 19, 1986,

this Court affirmed the decision of the district court.    See

United States v. Cleary, Nos. 86-3083 and 86-3097 (3d Cir. August

19, 1986).   Cleary subsequently petitioned the United States

Supreme Court for a writ of certiorari, which was denied on

November 3, 1986.

          Cleary was released from prison on February 2, 1987,

after serving his original three year sentence plus an additional

year on an escape charge.   He began serving his special parole

term on January 14, 1989, after finishing a term of regular

parole, and was to remain on special parole for ten years, until

January 13, 1999.   Supplemental Appendix ("S. App.") 9.   However,

on April 15, 1993, the United States Parole Commission ("Parole

Commission") revoked Cleary's special parole term because Cleary,
while on special parole, had been indicted for:     (1) conspiracy

to manufacture methamphetamine; (2) possession of methamphetamine

for sale; and (3) manufacture of methamphetamine.    S. App. 2.        In

addition, Cleary had been charged with reckless driving and

associating with a person engaged in criminal activity.    Id.     The

Parole Commission directed that Cleary was to be imprisoned until

the expiration of his ten-year special parole term without credit

for the time that he had already spent on special parole.        Id.

Cleary appealed the decision of the Parole Commission.     The

Commission, however, affirmed its prior decision.

          On January 12, 1994, Cleary filed the present motion to

correct or vacate his sentence pursuant to 28 U.S.C. § 2255.       In

this motion, Cleary asserts that his sentence is illegal and

should be reduced or vacated because at his change of plea

hearing the district court failed to properly explain to him the

effects of special parole as required by Federal Rule of Criminal

Procedure 11(c)(1).   The following exchange, at Cleary's change

of plea hearing on December 7, 1982, is central to his present

allegations:
     ASSISTANT UNITED STATES ATTORNEY ("AUSA"): . . . The
     penalty is five years and/or $15,000, with a special
     parole term of two years.

     COURT: All right. Now, that means by entering this
     guilty plea you could be sentenced to prison for up to
     five years and/or fined up to $15,000. And if the
     Judge decides that you are to go to jail for any period
     of time, he must also place you on special parole for a
     minimum of two years and for whatever maximum period
     the Judge believes to be appropriate. That means if I
     decide to send you to jail for any period of time, when
     you are released from that institution you will be on a
     special parole term of at least two years and for
     whatever maximum I think is appropriate. And you will
     be supervised by people such as this man seated in the
     jury box who works for the Probation Office, and you
     will be required to adhere to certain rather stringent
     requirements: That is, to stay out of difficulty with
     the law; your right to own a weapon is abrogated
     without permission otherwise; and certain reporting
     requirements to a probation officer. Do you understand
     that?

     CLEARY:   Yes, I do.


App. 16.

           In particular, Cleary alleges that the AUSA's statement

regarding the penalty misled Cleary into believing that "the

special parole term was with the five (5) year penalty."

Cleary's Opening Brief at 5.   We interpret Cleary's argument to

mean that he believed that the special parole term was included

within, the five year maximum length of imprisonment.   Cleary

further asserts that the district court's statements after the

AUSA's comment did not dispel his mistaken belief.   In addition,

Cleary claims that the district court failed to explain that:

his special parole term would begin only after he had finished
his regular parole and that he could end up serving more than the

five-year maximum sentence revealed to him at his change of plea

hearing because, if he were to violate his special parole, he

could be imprisoned for the entire length of the special parole

term, without any credit for the time he had already spent on

special parole.

           After receiving the government's response to Cleary's

motion, the district court, on March 31, 1994, denied that motion
without explanation.   Cleary filed additional documents with the

district court in support of his motion, including:   (1) an

affidavit stating that he would not have pled guilty if he had

been adequately instructed on the nature and possible

consequences of special parole, on April 14, 1994 (App. 9-10);

(2) a supplemental memorandum, on April 18, 1994; (3) a motion

for reconsideration, on May 6, 1994; and (4) an addendum to the

motion for reconsideration, on May 24, 1994.

          On May 24, 1994, the district court denied Cleary's

motion to reconsider, finding that:    "(1) the court explained the

provisions of special parole in complete and adequate terms

during the guilty plea colloquy; (2) the contentions of

petitioner are foreclosed by the holding of United States v.

Timmreck, 441 U.S. 780 (1979); and (3) the petitioner has failed

to exhaust administrative remedies."    Appendix ("App.") 2

(citation omitted).    Cleary filed the instant appeal on May 29,

1994.
            III.   JURISDICTION AND STANDARD OF REVIEW

           The district court had jurisdiction under 28 U.S.C. §

2255.   We have jurisdiction under 28 U.S.C. § 2255 and 28 U.S.C.

§ 1291.   The decision whether to grant or deny a habeas corpus

petition is reviewed de novo.   See United States v. DeLuca, 889

F.2d 503, 505-508 (3d Cir. 1989).
                          IV.   DISCUSSION
           Rule 11(c) of the Federal Rules of Criminal Procedure

requires that before a district court may accept a guilty plea,

the court must "inform the defendant of, and determine that the

defendant understands," a laundry list of information regarding

the defendant's rights and the consequences of his or her plea.

Fed. R. Crim. P. 11(c).   In particular, Rule 11(c)(1) requires

the court to inform the defendant of, and make sure he or she

understands, "the maximum possible penalty provided by law,

including the effect of any special parole or supervised release

term."2   The Notes of the Advisory Committee on Rules regarding

the 1982 amendment of Rule 11(c)(1) recommends that a judge

inform the defendant, and determine that he or she understands,

the four following items in a case involving special parole or

supervised release:
     (1) that a special parole term will be added to any
     prison sentence he [or she] receives;
     (2) the minimum length of the special parole term that
     must be imposed and the absence of a statutory maximum;
     (3) that special parole is entirely different from --
     and in addition to -- ordinary parole; and
     (4) that if the special parole is violated, the
     defendant can be returned to prison for the remainder
     of his [or her] sentence and the full length of his [or
     her] special parole term.




    2
        At the time of Cleary's guilty plea, Rule 11(c)(1)
required the court to advise the defendant of "the effect of any
special parole term." The Rule was subsequently amended in 1989
to include supervised release.
1982 Amendment Advisory Committee Note, Fed. R. Crim. P. 11(c)(1)

(quoting Moore v. United States, 592 F.2d 753, 755 (4th Cir.

1979)).

          In the present case, Cleary asserts that the court

presiding over his change of plea hearing violated Rule 11(c)(1).

We agree in that the district court failed to explain to Cleary

the effects of special parole, including the consequences of a

violation, and that special parole is different from and in

addition to regular parole.   United States v. Baylin, 696 F.2d

1030, 1037 n.18 (3d Cir. 1982) ("Rule 11 explicitly requires that

courts explain any `special parole' consequences . . . because

they are cumulative to any prison term imposed, and therefore

effectively expand the maximum possible sentence for the

offense."); see also United States v. Osment, 13 F.3d 1240, 1242

(8th Cir. 1994); United States v. Tuangmaneeratmun, 925 F.2d 797,

803 (5th Cir. 1991).

          Because the district court violated Rule 11 in failing

to make an adequate explanation, we must determine whether this

violation rises to a level that would justify a collateral attack

on the judgment of conviction.   It is well established that "to

obtain collateral relief a prisoner must clear a significantly

higher hurdle than would exist on direct appeal."3   United States

    3
        Accordingly, the cases cited by the parties regarding
relief for Rule 11 violations on direct appeal, while instructive
as to what constitutes a Rule 11 violation, are not on point
regarding whether habeas relief for such a violation is
appropriate.
v. Frady, 456 U.S. 152, 165 (1982).     Because of the great

interest in finality of judgments, an error which may "justify

reversal on direct appeal will not necessarily support a

collateral attack on a final judgment."    United States v.

Addonizio, 442 U.S. 178, 184 (1979); Frady, 456 U.S. at 164.

Indeed, "the concern with finality served by the limitation on

collateral attack has special force with respect to convictions

based on guilty pleas."    Timmreck, 441 U.S. at 784 (footnote

omitted).    This is because "'the concern that unfair procedures

may have resulted in the conviction of an innocent defendant is

only rarely raised by a petition to set aside a guilty plea.'"

Id. (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th

Cir. 1971) (Stevens, J., dissenting)).

            To be entitled to habeas corpus relief under section

2255, Cleary must show that the Rule 11 error amounted to "a

fundamental defect which inherently result[ed] in a complete

miscarriage of justice or an omission inconsistent with the

rudimentary demands of fair procedure."    United States v. DeLuca,

889 F.2d 503, 506 (3d Cir. 1989), cert. denied, 496 U.S. 939

(1990).   Not only must Cleary demonstrate an error of

constitutional magnitude, but he also must show that he was

prejudiced by that error, i.e., that he did not understand the
consequences of his plea or that, if he had been properly advised

about the effect of special parole, he would not have pled

guilty.     See Lucas v. United States, 963 F.2d 8, 13 (2d Cir.),
cert. denied, 113 S. Ct. 270 (1992).   We find that the district

court's Rule 11 violation did not rise to that level.

           In United States v. Timmreck, the Supreme Court made it

clear that "'collateral relief is not available when all that is

shown is a failure to comply with the formal requirements of'"

Rule 11.   Id. at 785 (quoting Hill v. United States, 368 U.S.

424, 429 (1962)).   This Court, in United States v. DeLuca, 889

F.2d at 507, went beyond Timmreck to hold that "a petitioner who

has been advised of the possibility of a given sentence but

receives instead a sentence of equal or less time in which

special parole time is substituted for prison time has not

alleged a fundamental defect resulting in a complete miscarriage

of justice as is required to sustain a habeas action."4

           The most factually similar case to the present case,

however, is the Second Circuit's Lucas, 963 F.2d 8.     In Lucas,

the defendant, Lucas, brought a section 2255 habeas motion to

have his judgment of conviction vacated, based on the district

court's failure to inform him of the maximum possible penalty

during his guilty plea.   Although the court had advised Lucas of

    4
       This case is distinguishable from DeLuca in one extremely
important respect:   the district court advised Cleary that he
faced a mandatory term of special parole whereas the district
court in DeLuca completely failed to mention the possibility of a
term of special parole. Indeed, in the present case the district
court advised Cleary that the special parole term would be in
addition to his term of imprisonment and could range from a
minimum of two years to "whatever maximum" the court deemed
appropriate.   Thus, we are not faced with a total failure to
advise of a special parole term, as in DeLuca.
a five-year maximum term of imprisonment, it failed to explain

that Lucas was also subject to a $15,000 fine and a mandatory

two-year term of special parole.      At sentencing, Lucas received

four years of imprisonment, a two-year term of special parole,

and a fine of $10,000.   Id. at 10.    In his habeas motion, Lucas

asserted that he would not have pled guilty if he had been

properly advised about the maximum possible penalty.      The

district court found that Lucas had suffered a constitutional

violation entitling him to collateral relief.     Instead of

vacating his conviction, however, the court excised the parts of

Lucas' sentence which offended Rule 11 -- the special parole term

and the fine.   Both Lucas and the Government appealed.

          The Second Circuit found that the district court had

violated Rule 11(c)(1) by failing to fully advise Lucas, at his

change of plea hearing, of the maximum possible penalty for the

crime of conviction.   However, it determined that Lucas should

not be granted collateral relief:
     because he acknowledged that he had reviewed the
     presentence report before sentencing, a report that
     contained the maximum penalties he faced, including the
     fine and special parole term; because he failed to
     object to the sentence; because he failed to attempt to
     withdraw his plea at sentencing, even when invited by
     the judge to speak; because he failed to pursue a
     direct appeal on the issue; because he failed to raise
     the issue in timely motions and because he failed to
     demonstrate any other prejudice.


Id. at 15; see also United States v. Carey, 884 F.2d 547, 549
(11th Cir. 1989) (court's failure to advise defendant of

mandatory term of supervised release at guilty plea was harmless
error where defendant was informed of supervised release in

presentence report and at sentencing and neither defendant nor

his counsel objected), cert. denied, 494 U.S. 1067 (1990).

          As in Lucas, Cleary is not entitled to collateral

relief because the record supports the conclusion that Cleary was

not prejudiced by the court's failure to explain the effects of

special parole and that no manifest injustice or unfair procedure

occurred here.   At the change of plea hearing, the district court

instructed Cleary that:
     [B]y entering this guilty plea you could be sentenced
     to prison for up to five years and/or fined up to
     $15,000. And if the Judge decides that you are to go
     to jail for any period of time, he must also place you
     on special parole for a minimum of two years and for
     whatever maximum period the Judge believes to be
     appropriate. That means if I decide to send you to
     jail for any period of time, when you are released from
     that institution you will be on a special parole term
     of at least two years and for whatever maximum I think
     is appropriate.


App. 16 (emphasis added).   We think that these instructions are

sufficient to advise a reasonable person that Cleary's special

parole term would begin only after he successfully completed his

prison sentence of up to five years, and that the term of special

parole could be imposed in excess of the statutory maximum term

of imprisonment for the offense (five years in his case).     We

also note that Cleary stated that he understood the penalties

explained by the court and did not ask any questions or make any

statements that would lead us to believe that he did not fully
understand the consequences of his guilty plea.5     Furthermore, at

the end of the colloquy, the court asked all of the parties

whether it had overlooked anything.    Tr. 53, 56.   Cleary did not

ask about special parole or its effects, and neither he nor his

attorney brought up the court's failure to advise Cleary about

the effects of special parole.    This is significant because, as

the transcripts of the change of plea and sentencing hearings

show, Cleary was not hesitant to voice his opinions and concerns

to the court.

          Additionally, as in Lucas, the fact that Cleary was

subject to a mandatory period of special parole for a minimum of

two years was also stated in the presentence report.     Although

Cleary objected to presentence report in several respects, he did

not complain about the term of special parole or raise any

questions as to its effect.     Furthermore, neither Cleary nor his

attorney objected to the ten-year special parole term at his

sentencing.     In fact, his attorney requested that Cleary "be

placed on a period of probation for the maximum period of time as

well as the maximum [special] parole period after that.     Or in

lieu thereof, to do a minimum amount of incarceration and

thereafter do the complete balance of the term on probation and

then the mandatory parole . . . ."     Sentencing Hearing Transcript

    5
       Cleary was represented by competent counsel at his change
of plea hearing and Cleary's intelligence and education -- he
completed three years of college -- are more than established by
the lucid, cogent arguments he has presented to this Court and
the court below in his briefs.
("S. Tr.") 115.   Indeed, after rendering Cleary's sentence, the

court advised Cleary that the ten years of special parole would

"be of no moment" if he stayed out of trouble with the law, but

warned him that he would be sent back to jail if he committed

another criminal act while on special parole.    S. App. 1.

Despite the comments of the court and his attorney and an

opportunity to address the court at his sentencing, S. Tr. 118

and 122, Cleary did not protest the term of special parole or its

effect.

          Cleary also failed to challenge the district court's

Rule 11 violation in his first habeas corpus motion.    In fact,

Cleary raised the special parole issue for the first time only

after the Parole Commission revoked his special parole status,

more than twelve years after he was sentenced.    Even then, he

waited several months before submitting his self-serving

affidavit stating that he would not have pled guilty if he had

known about the effects of special parole.    In light of the

record and Cleary's failure to take action with respect to this

claim, his affidavit is unconvincing.   Thus, he cannot show that

he was prejudiced by the court's violation.    Moreover, we cannot

find that the district court's error resulted in a fundamental

defect which resulted in a complete miscarriage of justice or an

omission inconsistent with the rudimentary demands of fair

procedure.
                          V.   CONCLUSION
          Accordingly, the district court's denial of Cleary's

motion to vacate his guilty plea is affirmed.
