Dennis Wayne Williams v. United States

Wayne WILLIAMS, Dennis

Petitioner-Appellant, America,

UNITED STATES of

Respondent-Appellee.

No. 86-1087.

United States Court of Appeals,

Seventh Circuit.

Argued 10, 1986. June

Decided Nov. Atty., Wagner, Asst. U.S. Jo- Jeffrey

R. Stadtmueller, Atty., Milwau- seph P. Wis., kee, respondent-appellee. Zaffiro, Allis, Wis., for West Richard L. petitioner-appellant. FLAUM, WOOD, CUDAHY, and

Before Judges. Circuit Jr., WOOD, Circuit HARLINGTON Judge. Wayne

Petitioner-appellant Dennis district court’s denial appeals Williams corpus for a writ of habeas of his motion to 28 U.S.C. brought pursuant § (1982).1 alleges that he was de- Williams when of counsel nied effective assistance attorney failed to court-appointed trial required to he would be him that advise jail if he least 100 months serve at attorney failed guilty and when pleaded filing a motion for a sen- him in to assist pursuant to Fed.R.Crim.P. reduction tence that he is 35(b). also claims enti- grounds that his tled to habeas relief by the rights were violated process due in his of errors re- presence of the is violative port, that his sentence amendment, that his conviction eighth against jeop- prohibition double violates ardy. We affirm.

I. plea agreement, Williams Pursuant to a a four-count three counts of pled was indicted as re- indictment. a codefendant made an offer he and sult of gun and silencer to feder- a machine to sell charged I agents. Count undercover al engage conspiracy Williams with dealing in firearms without business without do so and having registered to occupational tax as having paid special 18 U.S.C. in violation of required by law charge (1982); II involved a Count § gun unregistered machine of an possession jurisdiction to (1982) im- pro- the court was without pertinent part § 1. In 28 U.S.C. sentence, sentence was pose or that the such vides: law, by authorized in excess maximum custody of a prisoner under sentence A attack, subject to collateral or is otherwise claiming Congress court established Act imposed the sen- move upon ground to be released vacate, or correct the sen- set aside tence to in violation the sentence was tence. laws of the United Constitution or in contravention of 5861(d) 26 U.S.C. tion to § consider the motion since it was not (1982); and charged Count IV filed within the 120-day period specified by possession firearm a 35(b).2 convicted Rule After new counsel ap- felon in violation of 18 U.S.C.App. pointed Williams, appealed he the trial 1202(a)(1)(1982 Supp. 1984). & II Count court’s decision and we affirmed in an un- III of the indictment was published dismissed ac- Apart order. from his Rule cordance agreement. with the plea motion, presented On Williams no other direct September 14,1983, Williams, rep- challenge who was his sentence. by resented prior counsel to and the time at Williams subsequently sought pur- relief sentencing, of was sentenced years to three suant to 28 U.S.C. 2255 alleging various I, on years Count ten on Count II to run constitutional infirmities. The district consecutively years the I, three on Count court denied the motion for habeas relief and two years on Count IV to concur- run on the merits and appeals. rently with the sentence on Count II. received, effect, in a sentence of II. thirteen years which was well within the government The contends that our maximum seventeen-year sentence the dis- decision in Norris v. 687 trict could imposed. (7th F.2d 899 Cir.1982)(Cudahy, J., concur 16, 1984, On January days 124 after sen- ring, Wood, Jr., J., with Bauer, whom Williams, tencing, who claims that his trial J., joins dissenting from decision not to counsel ended his representation after the hear the banc), case en dispositive is imposition sentence, of filed proa se mo- issues Williams raises. United States Cf. pursuant tion Fed.R.Crim.P. seek- ex Spurlark rel. v. Wolff, 699 (7th F.2d 354 ing a in reduction alleging sentence that Cir.1983) (en banc). Norris, In we ruled it “unduly was harsh and severe” and that that a failure to raise constitutional chal lenges to a conviction on direct appeal new circumstances “would greatly mitigate punishment the in case.” On February would bar petitioner a from raising the 7, 1984, the district court denied Williams’s same issues in a section 2255 proceeding, Rule motion concluding that not only absent a showing of cause for and was the initially sentence imposed appropri- prejudice from the failure to 687 ate but also that the court jurisdic- lacked F.2d at In 903-04.3 so doing, Judge Pos- 35(b) provides: 2. Rule unreasonable, upon remand of the case to the court— of Reduction A Sentence. motion to reduce a (1) imposition a made, of sentence in may accord sentence or the court findings with the of appeals; the court of or motion, reduce a sentence without within 120 (2) if, sentencing proceedings for further days imposed after the proba- sentence or proceedings, after such the court determines revoked, tion is or days within 120 after re- original that the was sentence incorrect. ceipt by the court a upon of mandate issued (b) Changed Correction of Sentence for Cir- judgment affirmance of the or dismissal of court, The cumstances. of motion the the days or entry within 120 the Government, may year within one after the any judgment of order or Supreme imposition sentence, lower a sentence to of, denying Court having review or the effect reflect a subsequent, defendant’s substantial upholding, of judgment a of conviction or investigation in the prosecution assistance or probation revocation. The court shall deter- person of another who has an of- committed mine the motion within reasonable time. fense, to the extent that such assistance is Changing a sentence from sentence of incar- applicable guidelines factor in policy or state- grant probation ceration to a shall consti- Sentencing ments issued the Commission tute permissible reduction of sentence un- pursuant 994(a). to 28 U.S.C. der this subdivision. 1, 1987, Effective November issues, in among Rule 35 its 3. petitioner other the entirety provide will be amended as follows: challenges raised three constitutional to his con- (a) Correction of (1) biased; Sentence The (2) Remand. viction: that the court shall correct jury is deter- racially prejudiced; (3) that the mined on under 18 U.S.C. to have 3742 that a trial identify witness was induced to the imposed law, been petitioner violation of “by unduly to have suggestive photograph- been appli- as a result an incorrect prepared by ic exhibit prose- that had been the sentencing guidelines, cation the trial, or to be cution.” petition- Id. After 1304 has finality judgment in the ar terest court, rejected the ner, writing for expiration of by the perfected test was bypass been the deliberate gument that direct review allowed for cases. time in such applicable still Kaufman appeal.” the conviction on n. States, 394 affirmance

v. United (1969), 3, L.Ed.2d 227 1068, 1070n. Id. S.Ct. that a failure noted had Supreme Court case, present decisions In the on direct a constitutional to raise mind, we deter- must Frady and Norris subsequent sec to a fatal appeal was is correct government mine whether petitioner had unless action tion 2255 the is- has waived arguing that Williams appellate pro bypassed deliberately of this The context he now raises. sues cess. look at two different requires that we case cases, Unit- among upon, Relying challenge had to opportunities 152, 102 S.Ct. Frady, ed States Rule opportunity was One sentence. (1982), the Norris 71 L.Ed.2d above, Williams noted proceeding. As Supreme Court that the concluded se, pro and there- motion filed a Rule the delib- departed from subsequently had second after, of his with the assistance less adopted the had test and bypass erate unsuccessfully attorney, court-appointed standard. prejudice and stringent cause court’s denial of district appealed the Wainwright at 903-04. 687 F.2d appealed could Williams also motion. 97 S.Ct. Sykes, from district directly the his sentence Frady, Su- (1977). L.Ed.2d 4(b), a defend- Fed.R.App.P. Under court. defendant’s failure that held a preme Court of imposition days after ant has ten jury instruction an erroneous object to to appeal file a in which notice to appeal on barred or direct either at trial however, undisputed, It is court. in that in a section 2255 raising the him from challenged district never that Williams showing cause a petition absent ap- direct sentencing decision on court’s 167, 102S.Ct. at at prejudice. Norris, these two if either of peal.6 Under that the defendant noted Court 1594. The opportu- with an options provided Williams object at failed had that case and he poses he now the issues nity raise 304 he though under Fed.R.Crim.P. even so, showing of cause to do absent failed contemporaneous to raise required failure, is- excusing this and prejudice jury erroneous instruction. objection any waived seemingly be deemed would sues Moreover, the at 159. at Id. action. section 2255 of his purposes for argument defendant’s rejected the Court applica- Although concedes the standard Fed.R. “plain error” that the can he contends that bility of he in his as 52(b)5 applicable case Crim.P. prejudice to cause and necessary show the prejudice stan- cause and opposed to the action. to his habeas this barrier overcome at 1592. As the 164, 102 S.Ct. at dard. Id. he is reaching claim Before noted, “[bjecause it was intended Court satisfy the cause able ‘plain error’ ... use direct however, ascertain standard, must first we prisoner place when is out standard conceding is correct whether against a crimi- attack collateral launches a own in this case. Our controls legitimate in- Norris society’s nal conviction 52(b) provides: directly to 5. Rule conviction er in did Norris However, failed direct he affecting court. or errors defects Error. Plain Plain above. issues mentioned to raise the three although rights be noticed substantial brought they to the attention were not provides: pertinent part Rule 30 4.In court. any portion of may assign party error No as he charge therefrom unless or omission the objects never similarly that Williams It is uncontested jury con- retires to thereto before the objecting challenged either his sentence verdict, distinctly stating the matter sider its filing post-trial sentencing hearing grounds objects to objection. he motion. research indicates that at two dy least petitioner that the had claim, waived his circuits have apparently applica- ruled the court noted: tion of the Norris standard to Williams’s The Court’s concern in Frady was to inappropriate. case would be In United assure that criminal judgments would Corsentino, (2d States v. 685 F.2d 48 Cir. not be perpetually open to revision by 1982), example, the Second Circuit held attack; collateral the Court therefore petitioner’s that a failure to raise his claim mandated a more stringent standard for government plea that the agree- violated its section 2255 motions than necessary ment either on direct or in a Rule 35 raise a challenge on appeal. direct We proceeding petitioner did bar the from think the Frady rationale is inapplicable raising the petition. same issue a habeas to this case for two First, reasons. [the Corsentino, Id. at 50-51. petitioner petitioner] here challenges imposition pled guilty government and the thereafter of a sentence after guilty plea chal-—a allegedly comply failed to plea lenge for which a section proceed- bargain requiring position” that it “take no ing is analogous to a This sentencing at the hearing. case, In that was not petitioner’s] ap- [the “second the district court denied the petitioner ha- peal,” first, but his finality and the con- beas relief noting that he had failed to siderations motivating Frady and its object to the violation of the agree- predecessors Second, do not apply. sen- ment either at hearing or in tencing procedures, and especially sen- his Rule motion. The Second Circuit tencing hearings, need not conform to reversed and in doing so rejected the procedural the requirements that apply government’s argument waiver based on during a During trial, trial. the court Frady, supra. The court found that unlike and opposing parties justified are in ex- Frady prompt where a objection would pecting litigants to raise objections their given the trial court an opportunity to at the procedurally moment, correct and give jury the a correct supplemental in- assuming in objections that not so raised struction, the opportunity to make such an have been waived. The are rules certain- objection in post-trial period when the ly not so well marked sentencing at the government allegedly plea agree- violates a stage of criminal proceedings. For both clearly ment is not defined. Id. at 50-51. reasons, of the above we conclude that Secondly, if petitioner even could have there jurisdictional was no bar to the raised the issue on appeal, the court district having court’s entertained [the concluded that “this is not the traditional petitioner’s] claim. appellate contemplated review (citation Id. at omitted). Frady.” Diggs v. Finally, Id. the court States, 239, found petitioner’s (3d that the 740 F.2d motion, 243-45 Rule 35 Cir.1984) “properly seeking (reaffirming in Baylin light of exercise the Dis- trict Norris). Court’s result discretion to reached in his sen- reduce tence, is not a waiver of defects that are recognize We applying that to Norris normally presented upon a collateral at- Williams’s case would contrary to the tack.” Id. The court accordingly went Nonetheless, aforementioned decisions. to consider petitioner’s claim that the that, extent, we also note to some Norris government plea agreement violated his on already in Corsentino, conflict with Bay- its merits. lin, Diggs. cases, In those the Second Similarly, in Baylin, United States v. 696 and distinguished Third Frady Circuits in (3d Cir.1982), F.2d 1030 the Third Circuit part grounds that 30 re- Fed.R.Crim.P. petitioner’s held that a object quired to to failure in Frady defendant to raise a improper inclusion of contemporaneous objection certain material in to errone- report prior jury ous Conversely, instruction. did not bar courts noted raising proce- him from that no rule of that issue in a criminal section 2255 proceeding. rejecting required contemporaneous dure objection government’s argument premised on alleged post-trial Fra- to the errors raised Corsentino, applicability dural default than to Baylin, Diggs vel inap- standard”). Frady non of the cause and therefore the rationale plicable in such cases. But Gamma cf. Furthermore, reject we the notion 273, States, 732 F.2d rano v. United pleads guilty that when a defendant (2d Cir.1984) (holding that a defendant’s practical purposes, first for all is a government’s fail- object failure to to the proceeding. section 2255 See United agreement, comply plea even ure to with 859, Angelos, 763 States v. F.2d 860-61 requiring in the of a rule contem- absence (7th Cir.1985). There is no doubt that a poraneous objection, can constitute a waiv- pleads guilty pur defendant who is free to where er of that circumstances sue a direct of his sentence. E.g., “ impending plea agree- ‘the violation McCarthy v. United may clearly anticipated that ment be so (1969); L.Ed.2d 418 Unit object fairly defendant’s failure to ... can Burruezo, (2d ed States v. 704 F.2d 33 compliance be taken to be a waiver with Cir.1983). recognize We that Fed.R. ”) Corsentino, agreement.’ (quoting 32(a)(2)requires Crim.P. the trial court to 50). Contrary 685 F.2d at to these deci- advise a defendant who was tried and con sions, however, already we have noted that pleading right victed after of his is not “limited to situations in which Norris duty whereas there is “no on the defendant failed the federal criminal any right court to advise the defendant of requiring rule honor an established a con- after sentence is follow temporaneous objection.” United States Nonetheless, ing guilty....” (7th Cir.1985). Griffin, 765 F.2d simply because the trial is not obli

We also do not share with the Second gated to inform a defendant of his and Third Circuits the concern that it is appeal does not mean that the defendant necessarily unclear when a defendant failing should be excused from to exercise objection post-trial period. raise an right. This conclusion would seem to example, respect For or im- errors Supreme be consistent with the Court’s ad proper presentence report inclusions Frady monition in a collateral chal faced, Baylin which the Fed.R. lenge is not intended as a substitute for a 32(c)(3)(D)provides opportunity Crim.P. an 456 U.S. at 102 S.Ct. at suspected pointed errors to out to be Moreover, apart ap 1593. from a direct finding court. A must then peal, bring the defendant is also free to respect alleged be made with to these er- appeal any Rule 35 motion and adverse rors or the court must conclude that a ruling on the motion the district court. finding necessary is not the dis- because (“[D]eci- Diggs, See 740 F.2d at 244 n. 6 puted matter will not be considered in sen- generally subject sions under rule 35 are to 32(c)(3)(A)(“The tencing. hence, See also Rule appeal; arguably our statements [in court shall afford the defendant and his Baylin that the section 2255 to amounted ] opportunity counsel an on petitioner’s] appeal may to comment first have too [the and, court, report swiftly jumped in the question discretion of the over the of wheth testimony petitioner] introduce or er procedural other information committed a [the relating any alleged inaccuracy subject prejudice factual default to the cause and it.”). unclear, being in Frady contained Far from standard of when he failed to take objecting improper appeal concerning the time for to errors or an from the decision in in presentence reports allegedly improper inclusions is unam- clusion of the material biguously expressed pre-sentence report.”). in the rules of criminal in the For the rea procedure. above, Diggs, 740 F.2d at 244 n. 6 sons noted defendants and because (court noting Baylin plead guilty opportunity that its comments in who an “concerning vagueness challenge directly the relative their sentences and in sentencing stage proceedings, rules at the Rule 35 we hold that the Nor of criminal proceedings might argued applica to relate ris cause and standard proce- more to the attack their sen- existence of cause for a ble when these defendants by raising tences new motion, issues for the first Williams was aware he was time in a section 2255 proceeding.7 With proceeding without counsel. Yet he never mind, in begin we examination anyone, indicated to including the trial 35(b) of Williams’s Rule appeal to deter- judge, his displeasure with his lawyer. first mine whether he has any fact, waived or all of Williams failed to inform the trial posed the issues in his petition. habeas that his counsel had ended repre- sentation and at no time did he ask the The government contends, among appoint new Although counsel. things, that Williams’s failure to criminal defendants are accorded the 35(b) raise on his Rule his claim that to counsel at critical stages in the proceed- he was entitled to counsel at the Rule 35 ings against them, see Love v. Young, 781 stage constitutes a waiver of that issue. F.2d (7th Cir.1986), they must Although 35(b) Rule is intended to deal shoulder at least some responsibility in the with issues raised in the sentencing pro attorney-client relationship and indicate to cess, see Hill v. United when, the court in minds, their appointed 424, 430, 468, 472, 7 L.Ed.2d 417 lawyers are either not doing jobs their or (1962)(Rule 35 was not intended to be used have ceased representation their entirely. as a means “to reexamine occurring errors Without such a duty, minimal defendants at the trial or other proceedings prior to would be free remain throughout silent imposition sentence”) (footnote omit the proceedings only challenge later ted); Moore, 8A J. Moore’s Federal Prac their attorneys’ actions with direct and col- (2d (a tice 1986) ed. Rule 1135.02[1] lateral upon attacks their convictions and motion essentially “is leniency sentences. By putting some minimal re- addressed to the sound discretion of the sponsibility on the defendant to at least let district court which asks the court to recon somebody timely know a manner what sider the already imposed light his counsel representation problem be, may of further information received the time it is not any intended in way to minimize elapsed original sentencing”), since heavy responsibility that is Williams contends that his failure to raise trial counsel. Once a criminal defendant counsel issue on is excusable. has sentenced, been convicted and judg- He maintains that his Rule at ment has been entered a federal habeas which he represented by his second case, counsel withdraw only upon the court-appointed attorney, solely limited approval of this court. United States v. question to the of the timeliness of his Flowers, (7th Cir.1986). 789 F.2d 569 We motion and did not extend to the issue of permit will defense counsel “to bail out whether a defendant is constitutionally en leaving while their clients in the titled to counsel’s in preparing assistance lurch.” Id. Had we known that such a motion. We find argu Williams had been deserted his counsel unpersuasive. ment as alleged, problem would not now be First, there is nothing in the record arising as an attack on his conviction. which would indicate that Williams, Williams was however, legal is no novice. His dissatisfied his court-appointed with includes, trial criminal among record other attorney who claims things, abandoned second-degree a murder conviction Certainly, him. when he pro filed his Indeed, se in Wisconsin. parole he course, holding 7. Of necessarily our is presentence not report bar alleges which defendant he petitioner where, seeking to a habeas relief for opportunity might never saw or had an to see example, new facts surface the time for after long remain unknown the defendant bringing 35(b) filing or for a Rule appeal.... both and the time for cases, expired. motion has In such under Court it [T]he finds difficult to find waiver appropriate circumstances, showing where a [Fed.R.Crim.P. 32] violation has been cause petitioner and would allow the alleged and where there is evidence no that by overcome the imposed threshold Norris. (in report defendant saw the order Johnson, 258, F.Supp. States 607 Cf. to discover the factual claimed to inaccuracies (N.D.Ill.1985) (“While 263 usually error is waived)."). thereafter, shortly known at trial or an error in 1308 question convictions. The is not he was attacks on the time conviction from that issue, but raised weapons charges that whether for arrested simply he could have and After rather whether present case. form the basis to do so. If this were record, failed without cause evident it becomes reviewing his case, litigants keep would be free to not the Williams, only attended col- not who presenting in reserve while chal- issues in the criminal experienced is lege, but their convictions and sentences lenges to and could have have

justice system should “Especially time. at a time one issue at a alleged his counsel earlier about spoken out drowning in the federal courts are when problem. presumption against piece- litigation, is Moreover, if he cannot be faulted even litigation it bur- meal is the movant’s pre- seeking assistance counsel’s for by presumption overcome the show- den to motion, court-ap- he had once paring the proceed- ing that he has a reason for 35(b) appeal, on his Rule pointed counsel 687 F.2d at ing this manner.” argue expected Williams to have we would view, failed to In our Williams has 903-04. filing deadline failure to meet that his necessary showing of cause. Ac- make this being deprived of result of his was a direct conclude that he waived his cordingly, we being to the Far from unrelated counsel. deprivation alleging unconstitutional claim issue, to counsel Williams’s timeliness proceeding. counsel at the Rule 35 been and should have argument could find that waived We also from the district on the raised alleging that his sentence vio motion. his claims of his Rule court’s denial eighth amendment and that argument to the lates in Williams’s The error Norris II and IV violate convictions under Counts by contrary is illustrated prohibition against jeopardy.8 double piecemeal attempt by this court to limit matter, alleges his convic- premises eighth Williams now amendment 8. Williams unconstitutional- grounds that his sentence is unconsti- tions under these two statutes claim on disproportionate jeopardy tutionally ly expose to the twice for the same excessive and him to Our review of the record acts he committed. conduct. claim, if we were indicates that Williams’s even that Williams has Even if we were to assume merits, claim, unfounded. It is to consider it on the jeopardy his double it is none- not waived Ching, that the district court is accord- well-established United States v. 682 theless meritless. In making sentencing Cir.1982), deci- (9th ed wide discretion Circuit faced F.2d 799 Ninth result, long so as the sentence sions. As a now raises. the identical issue Williams almost by statutory is within limits alleged the court Ching, In the defendant convic- Constitution, "it is and is not in violation possession of firearms not identified tions only subject for a manifest to review in violation of 26 U.S.C. serial numbers Mitchell, 5861(i) United States v. possession abuse of discretion." and his conviction § (7th Cir.1986). 1237 788 F.2d of U.S.C. firearm a felon contravention 18 case, undisputed 1202(a)(1) it is that the thir- jeopardy. Williams's teen-year App. violated double § court, States, he received did not exceed citing sentence v. United The Albernaz seventeen-year 333, 337, sentence the trial court could 67 L.Ed.2d U.S. this, light imposed. (1981), Blockburger v. United 180, 182, 299, 304, extensive criminal record and involvement S.Ct. 76 L.Ed. 306 drugs, imposing is clear that in (1932), noting it disagreed that "the same act of abuse its district court did not discretion. give two possession can rise to violation of statutory provisions requires alleges if each statute un- Williams also that his convictions require.” proof does not prohibition of a fact that II and IV violate the der Counts against concluded that this jeopardy. F.2d at 802. The court Count II involved a double under 18 charge possession unregistered was satisfied since the conviction of an ma- test U.S.C.App. 1202(a)(1) upon a show gun was based of 26 U.S.C. chine in contravention felony 5861(d) (1982) ing prior the convictions of a whereas it unlawful for which makes § any person 1(i) showing required a possess 26 U.S.C. 586 § a firearm under "to receive or weapons Sim lacked serial numbers. registered that the is not to him in the National case, ilarly, present conviction Williams’s Registration in the and Transfer Record.” Firearms showing required that he was II charged possession under Count Williams with of a Count IV while, weapon unregistered possession in of an a convicted felon in violation of 18 firearm hand, 1984). Count 1202(a)(1) (1982 his conviction under U.S.C.App. Supp. on the other & II § showing convicted required that he was a Although raising objection when he IV never this imposed indicted, for these two any felon. The sentences for that other time

1309 Even is failing if Williams not faulted for ately sentencing. short, In these proceed- raise issues his Rule 35 give fails to any reason for whatsoever his ing, States, supra, see Hill v. United appeal failure to and we spec- refuse to that, record indicates even before he filed a ulate on what that reason could be. See seeking reduction, motion a sentence Qualls v. 850, 774 F.2d 851 present failed these issues on (7th Cir.1985) (“Although it could be ar- appeal direct from imposed the sentence by gued that some petitioner’s claims the district court. See United States v. could not have been raised on direct 647, (7th McCoy, Cir.1985) 770 F.2d and thus that his failure to take such an (noting appeal that courts of jurisdic- appeal preclude should not here, our review tion to review federal resulting sentence petitioner does not raise this on ap- issue guilty plea from a sentencing “if the peal Accordingly, .... petitioner] has [the ‘relied improper or unreliable informa- waived the issue appeal.”). for Without tion in exercising his discretion or fails to showing cause, some we are forced to ” any exercise discretion at all’ or if the find that Williams’s failure to raise on di- “allegedly sentence the defend- violate[s] appeal rect his claims that his sentence rights.”) ant’s (quoting constitutional Unit violated eighth both the amendment and Main, ed (7th 598 F.2d States prohibition against jeopardy double Cir.), denied, cert. a waiver constituted and bars him from (1979)).9 62 L.Ed.2d 311 weAs noted raising those issues now. earlier, failure, under Norris this absent a Next, we consider Williams’s claim showing cause and prejudice, bars that he was process denied due because of raising Williams from the same issues in a errors in.his report. Although habeas action under section 2255. argument couches his pro due part, For his Williams fails put forth terms, cess gist of his claim is that his any justification as reason raising not attorney object failed to1 to the inclu these issues on direct At oral ar- sion of the alleged presen- errors in the gument, appellate his counsel indicated report tence at the sentencing hearing. that after sentence essence, argument his is that his trial coun trial attorney Williams’s allegedly discon- provided sel ineffective assistance. With representation. tinued his Nonetheless, argument proper in the perspective, it attempt Williams does not explain nor could be contested that Williams has not does why the record indicate notice of waived the ineffective claim assistance appeal from the district court’s arguably since he should not be ac held decision was not Although filed. it countable for his trial counsel’s failure to appointed claimed trial counsel raise an which chal representation ended his before the 120- lenges performance. counsel’s own day period for filing 35(b) a Rule motion example, we noted in cer had expired, there is nothing in the record tain incompetence cases counsel indicating that Williams was represent- first could constitute sufficient during ed days ten subsequent to his cause so that a defendant would not be sentencing when a notice of appeal pursu- raising barred from an issue in a section ant to Fed.R.App.P. should have been filed. if action. 687 F.2d at 903. represented Even he was not Reliance on ground not, course, this during time, counsel would excuse giv- Williams has en us no bring reason to alleged believe that failure to er the decision forego anything rors to other the district court’s attention either than one that he reached in conjunction in his Rule motion or at any trial attorney prior to or immedi- Ordinarily, expected time. we would have not, therefore, 1, 1987, were counts violation After November 18 U.S.C. 1985)

prohibition against (Supp. jeopardy. scope appel III double will define the imposed by late review district court. ing, he very clearly the he is unable to show that issue at to raise this Williams reduc a sentence prejudiced by According- in his motion for that action. latest was Nonetheless, unique factu given tion. ly, conclude that the issue is waived for we the fact this case and al circumstances of purposes present habeas action. primarily related 35(b) appeal that his Rule Finally, argues he Williams that was de- deadline, filing Williams 120-day to the nied effective assistance of counsel because failing arguably excused could also be attorney his to him trial failed advise in his sentence alleged errors to raise the required he at would be to serve least is of little conse This reduction motion. prison pled guilty. months in if he if assume Even we quence, however. essence, challenging what is is the Williams either establish cause Williams can guilty plea. As voluntariness of we attorney’s to failure showing that his trial above, noted counsel’s because it involves alleging inef on his behalf bring an conduct, arguable good it is that there is incompetence constituted fective assistance cause for failure to raise this to raise the al failure or that Williams’s 35(b) proceeding appeal.10 Similarly, issue on direct also for leged errors in his Rule excusable, preju above, he is unable to show the reasons noted Williams could (“When F.2d at 682 Griffin, dice. raising arguably excused for not be applied, is prejudice the cause and standard However, issue his Rule motion. satisfy the cause must both defendant presen- like his claim based on errors elements.”). report, tence even if we assume the exist- cause, re- has argues that the ence of Williams failed indicated, attorney his trial had port prejudiced by establish that he was continuing drug stated, had a that Williams failure to raise the issue. Williams con- maintains, to the con- problem. Williams sentencing hearing cedes that at his he was drug problem under trary, that his fully penalties advised of the maximum he re- this false information control and that by pleading guilty. could receive Further- receiving a harsher sentence. sulted in his more, acknowledged hear- failed to undisputed It that Williams ing sentencing guaran- that there were no object attorney’s character- to his being guilty of his tees made as a result fact, drug problem. ization of his explained plea. judge carefully The trial attorney problem referred to Williams’s obligated Williams that he was not to ac- attempt a less severe sentence an to obtain cept prosecution’s sentencing recom- Moreover, during the course for his client. Nonetheless, mendations. Williams stated sentencing hearing, Williams correct- plead guilty he chosen to and that had drug ly judge that his informed the trial voluntarily so the decision to do had been problem control and had been was under record, reviewing made. After we be- Additionally, the trial years. for ten lieve that the ramifications Williams’s thirteen- giving stated that in Williams a plea fully sufficiently explained were primarily on year had relied sentence he circumstances, him. we Under these “lengthy criminal record” defendant’s prejudiced conclude that was not drug opposed history of use.” as to “his challenge guilty as a result of his circumstances, In these Mem.Op. at 4. appeal or in being raised on direct could es- even if we assume that Williams accordingly proceeding. the Rule We raising good cause for not tablish pur- find that the claim was waived presentence report errors either on section 2255 action. 35(b) proceed- poses present or in the Rule attorney, allege ruling, imply that his trial In so do not that trial attor- does not we asked, neys duty incorrectly being to disclose to him of how have an affirmative advised clients, contemplating their pleas, who are long required If this had he would be to serve. they may required how much time be occurred, entirely facing we would fact imposed by pursuant serve to a sentence issue. different important court. It is also to note that Williams

13H III. ed Corsentino, States v. (2d 685 F.2d 48 Cir.1982); see Diggs For the also above, v. States, reasons United stated deci- (3d 740 Cir.1984). F.2d 239 sion of the district denying both Baylin habeas and relief Corsentino the Third and Second Cir- cuits, respectively, concluded that there Affirmed. was no waiver when a defendant who pleaded guilty failed to appeal or to utilize CUDAHY, Judge, Circuit concurring in Rule 35 and then brought a collateral chal- the result: lenge to his plea. sentence or Baylin, 696 agree I States, Norris v. United 687 1035; F.2d at Corsentino, 685 F.2d at 50- (7th Cir.1982), F.2d 899 might permissibly be applied to bar collateral review under As a practical matter, a the facts of defendant this case. I who write separately, pleads guilty however, and a receives question because I sentence is the wisdom simply not a position and comparable fairness of applying to a Norris here. defendant who is convicted after a trial. Certainly this court has held for a num- The interests of finality and efficiency may years ber of that a defendant’s failure to permit to require us a convicted defendant raise constitutional claims direct to continue to assume on direct appeal the from a conviction bars the defendant from adversarial stance assumed at trial or lose raising those claims on review, collateral his claims. But expectation this seems less absent a showing of cause and prej- actual appropriate after sentencing on a of udice. United Spurlark States ex rel. v. guilty or in the context of a motion for (7th Wolff, 699 Cir.1983)(en F.2d 354 banc) discretionary reduction of sentence. (28 U.S.C. 2254 proceeding); § Norris v. Cf. Baylin, 696 F.2d at 1036 (distinguishing a (7th United Cir.1982) 687 F.2d 899 guilty plea from a conviction and a (28 sentenc- U.S.C. proceeding). 2255 I have in ing procedure trial); a from Corsentino, past questioned Spurlark whether and (direct 685 F.2d at 51 appeal from a guilty Norris are fully supported by Supreme plea “is not the traditional appellate Court authority, review Spurlark, see 699 F.2d at after trial contemplated (Cudahy, J., Frady 362 ... concurring part [and and a Rule 35 seeking an dissenting part); exercise motion] 687 F.2d at 904 the District J., Court’s (Cudahy, discretion to concurring), reduce they must, but [a] sentence, course, is not a regarded waiver of defects that as are the well-established normally presented upon law of See, a circuit. collateral at- e.g., States United tack”). Nor is Bailey, v. (7th 763 defendant who Cir.1985); pleads F.2d 862 Clay guilty normally Director, apprised Div., of his Dep’t right Juvenile Correc- tions, (7th 32(a)(2). F.2d 427 Fed.R.Crim.P. Cir.1984). In The ap- majority plying find the discussion of but cur the result extension to explicit and its

Norris questionable appli unnecessary and a

pleas having their roots doctrines

cation of

Frady. POULTRY, PLUMP

GOLD’N

INC., Appellant, ENGINEERING

SIMMONS

CO., Appellee. 85-5186.

No. Appeals, Court of

United States

Eighth Circuit. May

Submitted 24, 1986.

Decided Nov. notes Norris that a Spurlark pleads defendant who guilty-plea situations, however, undoubtedly I has think we to chal- may be losing lenge pre-sentence track of report, the principles expounded pursue putative their source, of a sentence and bring States v. Fra dy, 152, 102 Rule 35 motion. S.Ct. But it seems L.Ed.2d unrealistic to (1982), expect spoke many to finality judi recognize defendants to cial economy in raise criminal proceedings. challenges constitutional in the cir- cumstances that surround the taking majority The recognizes that the oth- two guilty plea. And, since appeals are rarely er circuits that have considered an asserted guilty pleas, taken from allowing claims on waiver of purposes claims of section collateral review would not in piece- result 2254 and proceedings section 2255 after a proceedings. meal guilty plea have both concluded that a fail- ure to a sentence or to challenge it I would therefore decline to find waiver under Rule 35 should waive claims on here but would follow the path the dis- collateral attack. court, See United States v. trict which reached the merits Baylin, (3d Cir.1982); F.2d 1030 Unit- wanting. found them See United States v. 83-C-79, slip op. at 2-6 Williams, No. 1985). I therefore con (E.D.Wis. Dec.

Case Details

Case Name: Dennis Wayne Williams v. United States

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 24, 1986

Citation: 805 F.2d 1301

Docket Number: 86-1087

Court Abbreviation: 7th Cir.