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UNITED STATES v. SANDERS

April 29, 1998

UNITED STATES OF AMERICA
v.
CYRUS SANDERS, JR., Defendant



The opinion of the court was delivered by: MCCLURE

MEMORANDUM

 April 29, 1998

 BACKGROUND :

 On January 24, 1996, a grand jury sitting in the Middle District of Pennsylvania returned an indictment charging defendant Cyrus Sanders, Jr., with conspiracy to possess a firearm by a convicted felon and to traffic in stolen firearms in violation of 18 U.S.C. §§ 371, 922(g)(1), 922(j)(Count I), possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) (Count II), trafficking in stolen firearms in violation of 18 U.S.C. § 922(j) (Count III), and retaliating against a witness in violation of 18 U.S.C. § 151 (count IV). Sanders entered a plea of guilty to Counts I and III on April 29, 1996; Counts II and IV were dismissed on motion of the government. The plea to Count I was as it related to the underlying offense of trafficking in stolen firearms (Count III). The dismissal therefore included a portion of Count I, that related to the felon-in-possession charge (Count II). On October 21, 1996, following an evidentiary hearing, the court sentenced Sanders to 70 months' incarceration.

 After a remand by the Third Circuit for the purpose of placing factual matters on the record, 124 F.3d 189 (3d Cir. 1997)(table), that court apparently affirmed the conviction. *fn1" Neither the record before this court nor a search of the WESTLAW(c) electronic database reflects the order doing so. However, the Supreme Court of the United States denied certiorari on December 1, 1997. Sanders v. United States, 139 L. Ed. 2d 420, 118 S. Ct. 582 (1997).

 On January 14, 1998, acting pro se, Sanders filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. We appointed counsel for Sanders and directed the filing of a statement of new evidence supporting two of the grounds for relief cited in his motion and established a further briefing schedule.

 Both Sanders and the government have filed briefs related to the motion so that it is ripe for disposition.

 DISCUSSION:

 I. STATEMENT OF FACTS

 Our disposition of the § 2255 motion is based primarily on matters of law, and so we provide only a brief summary of facts for background purposes.

 Between September, 1990, and April, 1994, Sanders conspired with Ronald Brewer and Paul Lacy, then a juvenile, to burglarize residences in remote locations. Most of the burglaries involved Sanders and Brewer. Typically, Sanders would select a target and return later with Brewer. Sanders, who has some familiarity with such matters, would cut telephone and/or alarm cables before making a forcible entry. They would steal items which appeared to have value for resale, such as 4-wheel ATV's, lawn mowers, snowmobiles, and (of particular importance) guns.

 Other guns were obtained by providing false information to legitimate firearms dealers. The conspirators disposed of the guns through sales to private individuals and legitimate dealers, often at gun shows. A total of 44 stolen guns were attributed to Sanders.

 The burglary spree and gun trafficking scheme ended when Brewer was arrested for passing bad checks. On his arrest, Brewer began telling police about his and Sanders' involvement in the burglaries; he later revealed Lacy's involvement as well. At later court proceedings, Sanders would make threatening gestures toward Brewer, such as by running his hand across his throat or pretending to shoot himself in the head. Although Brewer was the only person to observe this conduct, Brewer's testimony on the point was corroborated by letters written by Sanders which contained threatening language. Some of these letters were sent to people likely to relate the contents to Brewer.

 II. PRELIMINARY MATTERS

 Before addressing the motion itself, we note several matters which also deserve attention.

 First, the motion by Sanders was timely. Timeliness is a relatively new issue with respect to § 2255, a one-year time limit having been added in 1996. Pub. L. 104-132, Title I, § 105, 110 Stat. 1220 (April 24, 1996). The Supreme Court having denied Sanders' petition for a writ of certiorari on December 1, 1997, Sanders' pro se, § 2255 motion is well within the one-year limitations period.

 Another matter which warrants attention is the terminology employed by the parties and the court. In his brief, Sanders states, "A plea agreement does not waive defendant's right to bring a habeas corpus petition unless it does so expressly." Defendant's Brief at 8 (citing United States v. Pruitt, 32 F.3d 431 (9th Cir. 1994)). Actually, the Pruitt court wrote, "A plea agreement does not waive the right to bring a § 2255 motion unless it does so expressly." 32 F.3d at 433. The headnotes *fn2" preceding the opinion refer to a "federal habeas corpus motion."

 This interchange is reflective of a trend in which courts, attorneys, and (apparently) legal publishers refer to § 2255 motions as petitions for habeas corpus. See, e.g., Santana v. United States, 98 F.3d 752, 753 n. 1 (3d Cir. 1996)(referring to § 2255 motions as petitions for habeas corpus despite distinction in historical notes); United States v. Vancol, 916 F. Supp. 372, 377 (D. Del. 1996) (court may grant "federal habeas corpus relief" under § 2255). But see United States v. Skandier, 125 F.3d 178 (3d Cir. 1997) (referring to § 2255 motions and state habeas corpus petitions without equation); Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir. 1996) (referring to habeas corpus relief available to a federal prisoner under 28 U.S.C. § 2241).

 Section 2255 itself indicates that it does not provide habeas corpus relief, at least not in the form of a writ of habeas corpus. Both before and after its amendment, § 2255 was/is captioned, "Federal custody; remedies on motion attacking sentence." The first, unnumbered paragraph of § 2255 indicates that a person claiming relief "may move the court which imposed the sentence to vacate, set aside or correct the sentence." The fourth unnumbered paragraph provides that appeals are to be taken in the same manner as from final judgment on an application for habeas corpus. Most importantly, perhaps, the fifth unnumbered paragraph provides that an application for a writ of habeas corpus may not be entertained if the applicant is eligible to seek relief under § 2255.

 In contrast, the caption to § 2254 reads, "State custody; remedies in Federal courts." Subsection (a) thereto provides that certain federal courts or judicial officers may "entertain an application for a writ of habeas corpus" by a person in state custody. Further, § 2241 provides the authority of federal courts and/or judicial officers to entertain an applications for writs of habeas corpus by persons in federal custody.

 Other statutory provisions distinguish an application for a writ of habeas corpus from a motion under § 2255. See, e.g., 28 U.S.C. § 2253(a) ("In a habeas corpus proceeding or a proceeding under section 2255 ..."); Appendix of Forms, Rules Governing § 2254 Cases in the United States District Court, 28 U.S.C. following § 2254 (captioned, "MODEL FORM FOR USE IN APPLICATIONS FOR HABEAS CORPUS UNDER 28 U.S.C. § 2254"; form captioned, "PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY"); Appendix of Forms, Rules Governing § 2255 Proceedings for the United States District Courts, 28 U.S.C. following § 2255 (captioned, "MODEL FORM FOR MOTIONS UNDER 28 U.S.C. § 2255"; form captioned, "MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY").

 Finally, the relief available under § 2255 is somewhat broader than that available under § 2254. Specifically, § 2254 permits issuance of a writ of habeas corpus when a person is in state custody "in violation of the Constitution or laws or treaties of the United States." Sec. 2254(a). A § 2255 motion may be granted when "the sentence was imposed in violation of the Constitution or laws of the United States, ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack..." Sec. 2255 (first unnumbered paragraph).

 The distinction is important for two reasons. First, while many principles of habeas corpus jurisprudence are applicable in § 2255 proceedings, Vancol at 377 n. 3 (citing United States v. Nahodil, 36 F.3d 323, 327 (3d Cir. 1994) *fn3" ), as noted above, the language of § 2255 provides for relief in more circumstances. More importantly, use of the term "habeas corpus" confuses § 2255 with § 2241. See generally Felker v. Turpin, 518 U.S. 651, , 116 S. Ct. 2333, 2337-2338, 135 L. Ed. 2d 827 (1996) (reviewing history of federal habeas corpus, including fact that statutes originally providing such authority were "direct ancestors" of provisions of § 2241). The Third Circuit itself long ago recognized a fundamental distinction between § 2241 and § 2255: "The purpose of Section 2255 was to require a federal prisoner to exhaust his remedies in the courts of the District and Circuit in which he was convicted and sentenced, and to apply to the Supreme Court, on Certiorari from a denial of such remedies, before seeking release on habeas corpus. " Crismond v. Blackwell, 333 F.2d 374, 377 (3d Cir. 1964) (emphasis in original).

 For these reasons, this court will use the term "§ 2255 motion" and "relief under § 2255" as opposed to "petition for a writ of habeas corpus" or "habeas relief" or similar language. We write at length to emphasize that we have specific reasons for doing so.

 We turn, then, to the applicable standards.

 III. STANDARDS

 A. Section 2255

 As relevant, § 2255 provides:

 
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

 28 U.S.C. § 2255 (first unnumbered paragraph).

 "A petitioner's failure to raise a particular error either at trial or on direct appeal generally precludes the assertion of that error for the first time in a collateral attack under section 2255." Taccetta v. United States, 975 F. Supp. 672, 676 (D.N.J. 1997) (citing, inter alia, United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993), reh'g denied). When the defendant has failed to raise an issue on direct appeal, the issue is procedurally defaulted, and the defendant must show cause for failing to raise the issue and actual prejudice arising the error. Taccetta at 677 (citing, inter alia, United States v. Frady, 456 U.S. 152, 167, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)). The cause must be some factor external to the defense, such as interference by officials, the unavailability of the factual or legal basis for the claim, or ineffective assistance of counsel. Id. (quoting Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986); McCleskey v. Zant, 499 U.S. 467, 493-494, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991)). Attorney error short of ineffective assistance does not excuse procedural default. Id. (quoting McCleskey).

 The cause-and-prejudice standard applies in instances in which the judgment of conviction and sentence was entered pursuant to a guilty plea. Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997), reh'g, reh'g en banc denied, cert. denied, 139 L. Ed. 2d 668, 118 S. Ct. 730 (1998). The same standard has been applied in cases both before and after the most recent amendments to § 2255. Compare Vancol (pre-amendment); Henry v. United States, 913 F. Supp. 334 (M.D. Pa.) (pre-amendment), aff'd, 96 F.3d 1435 (3d Cir. 1996) (table), with Taccetta (post-amendment); Matthews (post-amendment).

 The government indicates that Sanders "waived" the first two issues presented by pleading guilty. Government's Response at 7. The case cited by the government, United States v. Broce, 488 U.S. 563, 102 L. Ed. 2d 927, 109 S. Ct. 757 (1989) (mis-cited by both the government and Sanders as "Borce "), indicates that waiver is not at issue.

 
Our decisions have not suggested that conscious waiver is necessary with respect to each potential defense relinquished by a plea of guilty. Waiver in that sense is not required. For example, the respondent in Tollett [v. Henderson, 411 U.S. 258, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973),] pleaded guilty to first- degree murder, and later filed a petition for habeas corpus contending that his plea should be set aside because black citizens had been excluded from the grand jury that indicted him. The collateral challenge was foreclosed by the earlier guilty plea. Although at the time ...

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