Daryl E. Ratliff v. United States

respect to defendants Smith and With

Wiggintоn, Knight fails to demonstrate that training supervision

their was deficient. fact, Knight relies on a fact cited theory to create a under which

defendants

they might Specifically, when be liable. mov summary judgment, Wig-

ing for Smith and

ginton complex noted the correctional among

had the second lowest assault rate security Kentucky prisons.

medium In re Knight

sponse, asserted that because the complex Kentucky’s

correctional was one of duty prisons,

safest the defendants “had a

keep vigil psy constant violent and facility.”

chotic inmates within their As a

theory Eighth liability, Amendment argument any provide

tortured fails to basis

upon prison which reasonable officials Wigginton’s positions

Smith’s would have

thought they violating Knight’s were

rights. support

Because the record fails to findings regard

district court’s with indifference, alleged

defendants’ deliberate

we need not determine whether the other- ‍‌​​‌​‌‌​‌​‌‌​​‌‌​​‌​‌​​​​‌‌​​‌‌​​‌​​‌‌​​‌​​​‌​‌​‍applicable principles clearly

wise of law were

established the time of the incident.

III.

We vacate the district court’s order and

grant summary judgment to the defendants

for the aforementioned reasons.

Daryl RATLIFF, Petitioner-Appellant, E. America,

UNITED STATES of

Respondent-Appellee. 92-5391,

Nos. 92-5515. Appeals,

United States Court of

Sixth Circuit.

Submitted Jan. 1993. July

Decided briefed). se,

Daryl (pro Caldwell, Atty., Karen K. U.S. David Bun- (briefed), ning, Atty. Asst. of U.S. Office KY, Atty., Lexington, respondent-appel- lee. RYAN,

Before: KEITH and Circuit PECK, Judges; Judge. Senior Circuit PECK, Judge. JOHN W. Senior Circuit

I. Introduction On March a criminal information charged mail was filed which Ratliff with false, knowingly filing ficti- fraud and with against tious and claims fraudulent Unit- States, §§ ed in violation of 18 U.S.C. that, charged and 287. The information dur- Deputy ing his tenure as Commissioner for Labor, Department Office of Work- Lung Division Compensation, men’s of Black Benefits, engaged in a scheme he claims Mine filed false for Coal Compensation Benefits Worker’s names various individuals who were further entitled to benefits. information through alleged that from December of 1983 $230,- imposed. Finally, Ratliffs scheme secured reduce the fines June Treasury States in moved to correct 671.19 from United information in his Presen- Investigation (“PSI”), Report regard- fraudulent benefits. tenee ing his financial magistrate status.1 The previously A executed judge recommended denial of Ratliffs motion plea agree- filed with the information. The grounds, on all adopted and the district court committed, specify ment did not the offenses that recommendation and denied the motion plead indicate that Ratliff would but did 5, on March 1992. guilty charging a a to two-count information 18, Code, Title violation of United States se, Proceеding pro Ratliff appeals numer- specific at a sections be determined later § ous issues related to the denial of his 2255 promised Ratliff also make full date. res- reasons, following motion.2 For the we af- titution in an amount to determined. In a be firm in part. and in reverse Agreement” later-executed “Restitution filed simultaneously with the and II. The Award of Restitution information, agreed pay Ratliff “restitu- pay Ratliff was ordered to restitution to in tion to the United States of America Department the U.S. of Labor under 18 $230,671.19, plus amount of interest at the 3663, § U.S.C. the Victim and Witness Pro- (10%) begin accumulating rate of ten (hereinafter “VWPA”). tection Act of 1982 imposed the date that the sentence is for the challenges Ratliff this award of restitution on charged.” offense grounds. several 3, 1990, May appeared Ratliff On before sentencing. gov- The the district proceeding Before to the merits of ernment advised the court that Ratliff had arguments, we must first address arranged agreed by for restitution in full as government’s contention that Ratliff has ' parties. The district court then sen- right challenge waived his award (3) years tenced Ratliff to three on each of attack, restitution on cоllateral absent in the two counts the information to run showing of cause to excuse his failure to concurrently, and fined Ratliff an additional appeal prejudice. the issue and actual Unit $5,000.00 on each count. The court also or- 152, 167-168, Frady, ed States v. 456 U.S. dered Ratliff to make restitution to Unit- (1982). 1584, 102 S.Ct. 71 L.Ed.2d 816 $280,671.00, in ed States the amount of standard, satisfy order to this a defendant government included the total loss and showing, must “shoulder the burden of not $50,000.00 an additional for the cost of inves- merely that the errors at trial created a tigating Ratliffs fraudulent scheme. Ratliff possibility prejudice, they but that workеd appeal did not his sentence. to his actual substantial disadvan- 31, 1990, 170, August tage____” On moved for a Id. at 102 S.Ct. at 1596 pursuant (emphasis original). Frady reduction of his sentence to Fed. The cause and 35(b), prejudice applies R.Crim.P. which motion was denied. standard to a defendant April pleads guilty On Ratliff filed this motion to who asserts a claim for first vacate, aside, proceeding. set or correct his sentence relief in a collateral Bate States, custody, 1304, pursuant while in federal to 28 man v. United 875 F.2d 1307 (7th Cir.1989) motion, curiam); § § (per U.S.C. 2255. In his 2255 see also United $50,- Walsh, 31, requiring moved to vacate the order States v. 733 F.2d 35 Cir. 1984). 000 additional restitution. He also moved to granting Ratliff's to information the district court’s order leave to the separate contained in were government However, his PSI raised in a deposition prison. to take his ostensibly pursuant motion 32, made to Fed.R.Civ.P. appeal not does address that properly the district court construed that Therefore, appeal his brief to this court. Ratliff’s supplement motion as to Ratliff's 2255 Mo- from the district court's order is considered tion to Vacate. abandoned and will not be reviewed. See 191, City Flushing, McMurphy F.2d v. appeаl

2. Consolidated with the of the denial of (6th Cir.1988). 198-99 appeal Ratliff's 2255 motions is Ratliff's for which restitu- “at are not direct losses magistrate judge found that fense We the issue of tion be ordered under VWPA. Defendant addressed no time has agree. Al why appeal he did not his sentence.” of cause and though it is true that issue caused is limited to losses Restitution by detail prejudice is discussed specific ‍‌​​‌​‌‌​‌​‌‌​​‌‌​​‌​‌​​​​‌‌​​‌‌​​‌​​‌‌​​‌​​​‌​‌​‍conduct that is the basis of objec allege in petitioner, he did pro se Hughey of conviction. v. United the offense magis tions to the recommendation 1979, States, 110 S.Ct. court that judge in his brief to this trate (1990).3 In United States L.Ed.2d the restitu he asked his (9th Cir.1990) Salcedo-Lopez, F.2d Federal courts award but was rebuffed. tion curiam), (per the Ninth Circuit held of a long recognized pleadings have during the course of investi payments made liberally.

pro litigant must be construed se illegal activities are gating the defendant’s Kerner, 519, 520, 404 e.g. Haines v. U.S. See Act: not recoverable under the (1972) 594, 595, (per L.Ed.2d 652 92 30 S.Ct. Browman, curiam); Any is ordered F.2d loss for which restitution v. 981 Williams (6th Cir.1992). directly 901, allegations from the defendant’s must result 903 appellate Kenney, coun regarding the conduct of his States v. 789 offense. United (9th Cir.1986) directly 783, (citing on the issue of cause and United sel bear F.2d 784 (9th 1350, prejudicе. Tyler, 767 F.2d 1351 States v. Cir.1985)). investigating and The costs of ineffective assistance of counsel The prosecuting an offense are not direct losses Carrier, Murray v. 477 constitutes cause. may Id. for which restitution be ordered. 488, 2639, 2645, 478, 106 S.Ct. 91 U.S. (salaries employees of bank who testified (1986). To establish the ineffec L.Ed.2d 397 prosecution too remote at trial are costs of counsel, appellate it must tive assistance of restitution); Ty see to form the basis for performance that counsel’s be shown (§ 3651, ler, predecessor 767 F.2d 1352 performance the deficient deficient and that 3663, dоes not authorize award of Washington, prejudicial. v. Strickland for decline value of stolen restitution 2064, 2052, 104 S.Ct. 80 466 U.S. evidentiary purposes); timber held for Foltz, (1984); Boiven v. 763 F.2d L.Ed.2d 674 921, Vaughn, v. 636 F.2d 923 United States (6th Cir.1985). 191, appeal A 194 refusal to (“costs (4th Cir.1980) investigation re award, award an erroneous restitution only indirectly from the offense of sult subject ap on would have been reversal violation”). income tax the test and peal, would meet Strickland clearly cause for Ratliffs constitute would Fourth Circuit has likewise held that Although failure to the award. not be awarded under restitution hearing investigation prosecution of a on the issue of cause absence or costs VWPA prejudice makes it more difficult for this and incurred in the offense of conviction. a suffi reviewing Although court to determine whether Vaughn, supra. v. United States made, showing it is obvious cient has been of an prosecution costs did form basis Hand, if prejudice actual that Ratliff will suffer v. order of restitution United States heard, (3rd Cir.1988), claim is not because he will be forced Hand was the 863 F.2d which could pay prosecution an award of restitution where certain costs rare ease upheld. light directly not otherwise be the offense of were losses caused showing prejudice, and facially valid of cause conviction. proceed to the merits of

this court will review juror in a multi-defen- Patricia Hand was regarding the restitution Ratliffs claims imper- trial admitted to criminal who dant award. the defendants contact with one of missible government merits, during criminal trial. The argues that the On jury original verdicts of prosecuting ultimately lost five investigating and an of- costs provision apply expand does not to Ratliff. See Although amended the VWPA was amended to 248, Jewitt, (6th v. 978 F.2d scope offenses follow- Unitеd States of restitution for some Cir.1992). Supreme Hughey, ing decision in Court’s — Cir.1991), -, guilt a mistrial as to sixth cert. denied and suffered U.S. 1515, (1992) (Federal of Hand’s con defendant as a direct result S.Ct. 117 L.Ed.2d 651 prosecuted conduct Hand was for her Savings Corporation); duct. and Loan Insurance guilty contempt (2d of court. On pleaded Helmsley, United States v. 941 F.2d 71 — appeal, Cir.1991), the Third Circuit affirmed an award -, cert. denied against 1162, (1992) (Internal of restitution Hand which consisted S.Ct. L.Ed.2d 409 prosecution prior Service). from the criminal costs Revenue prosecu trial. the court noted that Ratliff also attacks the restitution exрenses ordinarily are “too remote to tion grounds on the award restitution,” form the basis for see United Cir.1986), ability pay court failed to consider his Kenney, 789 F.2d 783 States award, $50,000 alleges award of denied, rt. 479 U.S. 107 S.Ct. ce unnecessary costs expenses. included Be (1986), 93 L.Ed.2d 588 Hand’s offense cause we reverse the award of directly prosecution resulted a loss of costs grounds, other expressly and because Ratliff criminal trial which could be agreed pay Hand, remainder of the award in supra, awarded as restitution. agree F.2d at 1105. Consistent with Salcedo-Lo- ment, we need not arguments consider these Vaughn, pez and no additional restitution further.4 investigating of or was awarded the costs

prosecuting improper conduct. Hand’s ‍‌​​‌​‌‌​‌​‌‌​​‌‌​​‌​‌​​​​‌‌​​‌‌​​‌​​‌‌​​‌​​​‌​‌​‍III. Information in the PSI case,

In the award of restitution in the this $230,671.19, amount of which amount was complains Ratliff also that the sen by parties stipulated the to be the sum em- tencing failing permit court erred to him Ratliff, However, by proper. bezzled was Investigation to review his Presentence Re $50,- sentencing by awarding court erred port prior imposing to sentence. Ratliff now restitution, 000 as an additional amount of regarding contends that information false his solely amount because that was based on the net worth was included in the PSI. investigating prosecuting of Rat- costs 32(c)(3), applicable to Fed.R.Crim.P. of- liffs conduct and was not a direct loss for fenses committed to November which under the restitution be awarded provides: Therefore, of VWPA. we affirm the award $230,671.19, (A) restitution in the amount of but imposing At a time reasonable before $50,000. the additional of reverse award permit sentence the court shall the defen- dant and the defendant’s counsel to read Although additionally argues Ratliff report presentence investigation that restitutiоn should not have been award any exclusive of recommendation as to sen- Department ed to the United States of La tence____ bor, we note that both the added). agreement specified (emphasis and the that restitution that record indicates paid original to to reviewed the restitution was be “the United defense counsel PSI sentencing requested changes, opportu- of America.” The court’s but had an States Department nity only at order of restitution to the of to review the amended PSI government sentencing hearing. Following Labor was not error because the his review of e.g., hearing, can be a “victim” under the the amended PSI at the defense VWPA. (6th Streebing, v. minor re- United States 987 F.2d 368 counsel voiced that Cir.1993) (Social Administration); Security any port, but did not contest information Smith, (9th regarding United States v. 944 F.2d 618 Ratliffs net worth. asserts reasons, additionally argues proceeding. § that the For the same we by Agreement argument concerning court limited was the Restitution decline to address Ratliff’s $230,671.19 ordering validity itself to restitution of and a of a notice received from the Office of Management, fine of for a and Insur- violation of U.S.C. Personnel Rеtirement properly Group, portion are of these issues before this court ance which indicates that being annuity because Ratliff did not raise them before the Ratliff's retirement is withheld to court, by government. sentencing satisfy district either at or in this the debt owed him to the information, opportu- clearly relied Rat- personally did not have the court that he raising grave nity the PSI at all. liff has not met his to review burden veracity the information. doubt as specifically Although the district court adequate opportuni- had that Ratliff found Because Ratliff has failed to show any bring inac- ty to court’s attention sentencing on false that the court relied in PSI, finding clearly is curacies presentence report in a which formation he A review the record reveals erroneous. review, opportunity afforded was not any oppor- given that Ratliff was no evidence raises neither a Rule 32 violation which he PSI, or that tunity personally review require process resentencing nor a due would report. and his discussed he claim can be this addressed Stevens, v. F.2d 140 In United States Mandell, proceeding. See United States (6th Cir.1988), this it error for a court held Cir.1990). F.2d 973-974 In sentencing court fail to determine addition, any ultimately because under claim had the both the defendant and his counsel $50,- only validity of the additional mines presen- opportunity to read discuss the which has been re award report investigation prior to sentenc- tence grounds, any other error versed on commit report false infor- ing, where that contained sentencing ted court harmless. upheld The sentence in mation. Stevens because, case, unlike it was clear per- the record that the defendant had IV. Fines addition, sonally reviewed PSI. challenging In addition award did not the level of a error in Stevens rise to PSI, in his of restitution and information record indi- process due violation because the challenges one of the two fines im rely did not cated by plead posed sentencing the court. Ratliff the on false information contained within the 1341, § guilty to a 18 U.S.C. ed violation of passing at 143-44. report in sentence. Id. $1,000. provides for a fine of which maximum Stevens, arguably the error here Unlike However, $5,000 the court for fined process a to the level of due violation rises error, offense. We no because the this find is required because a court to consider sentencing greater court imposed the fine ability awarding pay prior to to defendant’s the Criminal Fine Enforcement under Act VWPA, no under the and there is (CFEA), 3623, permits § 18 U.S.C. which record, than the information other $250,000 up per ap to offense and fines in the PSI to Ratliffs net statement as January plies to offenses committed between worth, sentencing might on which court 1, 1, by and As noted November $50,000 in restitu- have based additional court, the district execut However, complicated analysis our is tion. provided maximum ed Ratliff that the fine entirely it that by thе fact that is not clear $500,000.00, imposed would to be not exceed upon information relied false. put Ratliff on notice that he could be allegedly false on which the The statement $250,000 up to each of the fined for two represented net relied Ratliffs worth pleaded guilty he to which under the counts $413,682.00. spe- as Without submission CFEA. evidence, his contends that' cific now substantially than that net worth was less V. Conclusion a claim sentenc- regarding amount. For sum, information In we affirm award of restitution ing court’s reliance inaccurate $230,671.19, to constitutional in the amount of but reversе within a PSI amount to a violation, grant and motion process must district court Ratliffs to due “the defendant veracity as of the the additional award of restitution in grave raise doubt to the vacate $50,000. and show court relied on the amount of We affirm denial information § determining in in all other information the sen- of Ratliffs motion re- that false 664, light spects. disposition, F.2d we do not Fry, States this tence.” United Cir.1987). discretionary sentencing district Although the examine the court’s de- 170, 102 evidentiary Frady, 1595-96, in hearing 456 U.S. at cisión not to hold S.Ct. resulting from the this case. district court’s error in

ordering restitution for the costs of the in RYAN, Judge, concurring part in vestigation prosecution. Circuit and I agree, do not dissenting part. however, in that the record established “cause” to excuse Ratliffs failure to raise the issue at join majority part I IV appeal. or on direct in the result reached in opinion, and concur III, part agree I that Ratliff estab- do not that, majority significant it finds in his prejudice” failing for lished “cause and magistrate judge’s to the recom- filing raise the restitution issue relief, Ratliff, deny mendation to section 2255 I therefore 2255 action. must U.S.C. pro appellant, se claimed that he had asked part written in II. I dissent what is appeal the restitution order my disagree- separately express also write Construing pro but was rebuffed. majority’s analysis ment with the III. pleadings liberally, majority se concludes argued lawyer’s Ratliff has thus that his

A. appeal failure to the restitution order amounted to “ineffectiveness” that “caused” majority agree I with the that the district procedural majority default. Then the pay, court erred when it ordered Ratliff to concludes that counsel’s failure to §§ pursuant to 18 U.S.C. 3663 and restitution order established that counsel’s additional restitution оf to cover the representation constitutionally ineffec- failed, investigation. costs of the that, perforce, tive and Ratliff has estab- however, below, object to his sentence lished “cause” for his failure to raise the appeal. he did not raise the issue on direct assuming restitution issue earlier. Even year imposed, Almost a after sentence was majority correctly construes Ratliffs ob- corpus pursuant Ratliff filed for habeas relief jections magistrate judge’s recommen- vacate, to 28 U.S.C. a motion to raising argument dation as that cоunsel’s aside, Consequent- set or correct sentence.1 procedural ineffectiveness caused Ratliffs out, ly, majority points as the Ratliff was default, my opinion Ratliff fails to meet the required prejudice” establish “cause requirement Frady he cause under because failing to raise the restitution issue below to establish that counsel was constitu- fails appeal. and on direct See United States ‍‌​​‌​‌‌​‌​‌‌​​‌‌​​‌​‌​​​​‌‌​​‌‌​​‌​​‌‌​​‌​​​‌​‌​‍v. tionally ineffective. 152, 166-67, 1584, Frady, 456 U.S. 102 S.Ct. (1982). 1593, 71 L.Ed.2d 816 majority it that The is correct when states Frady, Supreme may assistance of counsel consti- Court held ineffective proper reviewing Frady. Murray tute under standard for issues raised “cause” Carrier, 2639, for in a 477 106 S.Ct. the first time motion under section U.S. (1986). 2645, However, prejudice” 2255 is the “cause and actual stan- 91 L.Ed.2d 397 standard, Frady, requirement meet the “cause” of dard. Id. Under this to obtain tantamount collateral relief based on trial errors to which counsel’s assistance must be made, contemporaneous objection no a the assistance of counsel under denial of Supreme Amendment. The Court convicted defendant must show “cause” ex- Sixth “the mere fact that counsel cusing procedural his double default and “ac- has stated that legal prejudice” resulting recognize tual failed to the factual or basis from the error. Id. 168, claim, majority raise the claim de- 102 at 1594-95. The for a or failed to S.Ct. it, cause spite recognizing does not constitute concludes that established both cause 486, prejudice. agree procedural I a default.” Id. at that Ratliff can es- for is, prejudice, injury, at 2644. The Court held: tablish that actual see S.Ct. time, moved, motion, argument, the first when he in his raised that for order, magistrate judge’s to vacate he did re- filed his ground that U.S.C. 3663 not do so on port thе district court that recommended that did not allow the restitution to order deny § 2255 relief. investigation. cover the costs of the functioning that was not question ... of cause so serious counsel think that We guaranteed turn on the “counsel” the defendant procedural default does not as for a Second, by or on the kind of Amendment. whether counsel erred Sixth long as counsel have made. So defendant must show that the deficient error represented by counsel performance prejudiced a is the defense. This defendant constitutionally performance is not requires showing whose that errors counsel’s established ineffective under the standard deprive were so serious as to the defen- 668, Washington, [466 in Strickland v trial, trial is dant of a fair a whose result 2065-66, 690, 2052, 80 L.Ed.2d 104 S.Ct. a defendant makes both reliable. Unless (1984),] inequity in re- we discern no showings, it that the convic- cannot be said attorney quiring him to bear the risk of ... a tion resulted from breakdown procedural in error that results default. adversary process the result that renders Instead, of we think that the existence unreliable. must ordi- procedural cause for a default Strickland, 687, 104 466 U.S. at S.Ct. at 2064. narily prisoner can turn on whether the attorney proper evaluating standard objective factor external to show some performance reasonably is that of effective impeded efforts to counsel’s defense light assistance of counsel considered “in of comply procedural with the State’s rule. 690, all Id. at the circumstances.” S.Ct. at 2645. Id. 477 U.S. at 106 S.Ct. reviewing scrutiny A of at 2066. court’s ineffective of counsel The entire assistance deferential, performance highly is counsel’s argument that sufficient to constitute cause strong presumption and there is a that coun mаjority in finds to have been raised range sel’s conduct fell within the wide pro pleadings Ratliffs se is derived from the professional Id. at reasonable assistance. objection following in Ratliffs statement Thus, at 2065. under Strick S.Ct. judge’s magistrate recommendation: land, ordinary simple oversight, miscalcula immediately Defendant asked his Counsel tion, judgment and bad are not sufficient to $50,000.00 appeal the after constitutionally in establish that counsel was Defendant was asked restitution. effective. grounds?” At that time Counsel “on what competent to answer Defendant Frady The standards set fоrth in incompetent and remained to answer dur- are difficult to meet. Neverthe- Strickland ing timely appeal. the limitations of less, spite hearing by of the absence of a added.) claim, liberally (Emphasis of ineffective the district court on issue construed, most, allegation presents, at counsel,2 majority concludes assistance absolutely is no evi- error. There refusal to an erroneous resti- “[a] objective dence the record that “some award, been tution which award would have impeded factor to the defense coun- external subject appeal, would meet the to reversal on to the claim sel’s efforts” raise clearly constitute Strickland test and would 2255 action. to this section to the cause for Ratliffs failure Strickland, Majority I Supreme op. estab- at 1026. do not Court award.” two-part inquiry agree presently a into whether a de- before this lished that the record “strong adequate was denied his Amendment fendant Sixth court is overcome may right to effective assistance of counsel: It be that presumption” of Strickland. appeal the restitution is- First, counsel’s failure to that coun- the defendant must show Likewise, to ineffectiveness. performance This re- sue amounted sel’s was deficient. plausible expla- may it that counsel had a quires showing that counsel made errors be Smith, Cir.1992). (6th Most general 894 circuit is that "a defen- 981 F.2d 2. The rule in this a assis- permit dant tance of counsel for appeal, not raise claim of ineffective his a defendant to raise circuits would the first time on direct post- in a of counsel claim ineffective assistance generally precludes since such situation proceeding 28 U.S.C. under conviction develop opрortunity and include evidence an Wunder, 919 F.2d United States v. Cir.1990). bearing allegations of inef- on the merits of in the record." United States v. fective assistance doing so. That is what a claim which can be addressed in nation for not this proceeding.” Majority ineffectiveness hearing op. in the trial court on at 1028. simply intended to reveal. There is claims is Ratliff, however, first raised the claim that regarding this court no record before presentence report contained inaccurate quality of assistance received information about his net in worth his Rule Thus, I trial counsel on the restitution issue. motion, a motion in which Ratliff asked is free to this court do believe presen- court to correct the conclude, in of a record devel- the absence report. tence Ratliff filed this Rule 32 mo- evidentiary hearing, that counsel’s oped at an motion, tion after filed he his section 2255 so to amount to assistance was so deficient as properly the district court construed the under the de- constitutional ineffectiveness Rule 32 motion an as addendum to Ratliffs manding standard.3 Strickland section 2255 motion. Because Ratliff raises majority correctly Assuming con- argument for the first time in a section Ratliff, in cluded that his to the motion, Frady, under he must establish deny magistrate judge’s recommendation to prejudice” failing “cause and to raise the relief, suggested that his coun- section appeal. Frady, issue below or on direct See procedural “caused” his sel’s ineffectiveness 166-67, 456 U.S. at S.Ct. 1593-94. default, appropriate I believe it more for this prejudice; Ratliff shows neither cause nor court to remand the case to the district court therefore, I would hold that the district court hearing with instructions to hold to deter- should not have considered this claim when 1) provided mine: whether the assistance determining Ratliffs section 2255 motion. constitutionally defi- Ratliffs counsel was Furthermore, disagree majority’s I with the 2) cient; the ineffectiveness of and whether statement that there nois evidence that Rat- constituted “cause” under Ratliffs counsel opportunity liff presen- had an to review the Frady to excuse Ratliffs failure to raise report attorney. majority tence with his proceedings. issue of restitution earlier op. at 1027. The record indicates that Ratliff Therefore, respeсtfully I must dissent original presentence reviewed and read the majority’s opinion from that of the report, report discussed the with his attor- that Ratliff met the “cause” which concludes ney, suggested At modifications. Frady. requirement of counsel, request report of Ratliffs modified. the record indicates that B. presentence Ratliff did not read the modified stated, previously although agree I As report prior sentencing, the information majority reached the correct result regarding net worth not altered opinion, join I part III of its cannot presentence report. Consequent- in the new rationale. ly, the record indicates that Ratliff had ade- majority concludes that the district quate opportunity to read and discuss with clearly when it found that Ratliff erred (and opportunity suggest opportunity bring any adequate had inac- to) portion presen- modifications presen- curacies about his net worth report tence that determined Ratliffs net report sentencing court’s atten- tence worth. Majority op. according at 1027. But tion. reasons, respectfully I For all of these majority, Ratliff fails to show that the net part dissеnt from the conclusions reached upon by worth information relief the sentenc- majority opinion reasoning II of the and the ing Majority op. was false. 1028. concur, however, Therefore, concludes, majority III. I bal- majority except opinion ance of the with the “raises neither a Rule 32 violation which vacating require resentencing process nor a order restitution order. would due ground majority single opinion counsel’s failure to on that 3. The absence in the lift's any from this circuit for the citation to case may constitutional inef- not amount to Strickland proposition include the that restitution fectiveness. investigation strongly suggests Rat- costs of that, to the trial court I would remand As to proceedings. further

for NAPIER, of the

Lelia Administratrix Petitioner, Napier,

Estate of John

DIRECTOR, OFFICE OF WORKERS’ PROGRAMS,

COMPENSATION

Respondent.

No. 92-3856. Appeals,

United States Court

Sixth Circuit.

Argued June 1993. July

Decided (ar- Perkins, Gary Napier L. W.

Samuel briefed), KY, gued Lexington, peti- for tioner. (ar- Feldman, Sieger H. D.

Allen Edward briefed), Dept, gued of Labor Office DC, Sol., Washington, respondent. Before: NELSON SUHRHEINRICH, Judges; and Circuit EDMUNDS, Judge.* District NELSON, Judge. DAVID A. Circuit petition This matter comes before us on a to review decision United States Department of Labor’s Benefits Review The Board’s ‍‌​​‌​‌‌​‌​‌‌​​‌‌​​‌​‌​​​​‌‌​​‌‌​​‌​​‌‌​​‌​​​‌​‌​‍decision affirmed a rul- Board. ing by judge an law that black administrative lung paid to a disabled coal miner on benefits basis, adjudication “interim” to final claim, paid back of the miner’s had be Applying after the claim was denied. * Edmunds, gan, sitting by designation. Nancy G. United States Honorable Judge of Michi- for the Eastern District District

Case Details

Case Name: Daryl E. Ratliff v. United States

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 30, 1993

Citation: 999 F.2d 1023

Docket Number: 92-5391, 92-5515

Court Abbreviation: 6th Cir.