Petition for Writ of Certiorari — Duncan v. United States

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IN THE

Suprene Court of the United States

OCTOBER TERM, 1990

JONATHAN W. DUNCAN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT FABRIKANT *

FRED D. HEATHER

MARGARET M. ANTINORI

MCKENNA & CUNEO

1575 Eye Street, N.W.

Suite 800

Washington, D.C. 20005

(202) 789-7500

ARTHUR BARENS

10209 Santa Monica Blvd.

Los Angeles, CA 90067

(213) 557-0444

* Attorney of Record Counsel for Petitioner

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QUESTIONS PRESENTED

1. Whether a second section 2255 motion raising new

grounds for relief can be dismissed as an “abuse” of the

motion remedy where all the facts necessary to support

the new grounds were known to petitioner at the time

petitioner prosecuted his initial section 2255 motion, absent

a finding that petitioner’s failure to include those grounds

in his initial motion constituted a deliberate bypass of

the section 2255 motion remedy?

2. Whether a second section 2255 motion raising new

grounds for relief can be dismissed as an “abuse” of the

motion remedy where the finding that a lay petitioner had

all the facts necessary to support the new grounds at the

time he prosecuted his initial section 2255 motion is based

solely upon his presence at the court proceeding from

which the new claims arose and for which a transcript

was not available prior to the filing of the initial section

2255 motion, and the new claims relate solely to a failure

by the district court to comply with Constitutional and

other legal requirements?

(i)

PARTIES BELOW

The following were parties to the proceedings in the

United States Court of Appeals for the Eleventh Circuit,

the court whose judgment is sought to be reviewed:

Jonathan W. Duncan

United States of America

TABLE OF CONTENTS —

QUESTIONS PRESENTED ...02.22.2.........eecceeeceeeeeeeeees

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OPINIONS BELOY ............. eineiineisianinibditsaksaniechensansaues

STATEMENT OF THE CASE ......000002...0..00..0..-..eeeeeeee

ada cacianiindaaninandnscsernensses Rana we RD

B. The Deportation Proceedings ......................00000....

C. The Initial Section 2255 Motion —......-........

REASONS FOR GRANTING THE WRIT ........-.....

I. THE COURT SHOULD GRANT CERTIORARI

TO CLARIFY THE STANDARDS APPLI-

CABLE TO THE DETERMINATION OF

WHETHER A NEW-CLAIM SUCCESSIVE

MOTION SHOULD BE DISMISSED ON

I och ntininnannncanineAeiccensnamncceece

A. This Court Enunciated A Subjective Stand-

ard To Govern Dismissals Of New-Claim

Successive Motions On “Abuse” Grounds ......

B. Congress Codified In Rule 9(b) The Subjec-

tive Standard For Determining Abusive Peti-

tions Enunciated By This Court ............. ean

(ili)

TABLE OF CONTENTS-—Continued

C. Accepted Doctrine Regarding New-Claim

Successive Motions Utilizes A Subjective

Standard For Determining Abuse .................

II. THE COURT SHOULD GRANT CERTIORARI

TO CLARIFY THE CIRCUMSTANCES UN-

DER WHICH KNOWLEDGE MAY REASON-

ABLY BE IMPUTED TO A LAY PETITIONER

AS PART OF A DETERMINATION THAT

A NEW-CLAIM SUCCESSIVE MOTION IS

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APPENDICES

APPENDIX A

Judgment Of The Eleventh Circuit Court Of Ap-

peals Affirming District Court’s Dismissal Of

Second Section 2255 Motion ..........................cee eee

APPENDIX B

Order Of The United States District Court For

The Northern District Of Georgia Dismissing

Second Section 2255 Motion .................00000.... OP aan

APPENDIX C

Judgment Of The Eleventh Circuit Court Of Ap-

peals Affirming The Deportation Order And The

District Court’s Denial Of Initial Section 2255

SI IIIII ii-tontesisaisedlbcconannekasciieiiinshsdcsnpinicaateaatansbnamiaeanmstauchaaebaes

APPENDIX D

Order Of The United States District Court For

The Northern District Of Georgia On Remand

Denying Initial Section 2255 Motion ......................

Page

TABLE OF CONTENTS—Continued

APPENDIX E Page

Judgment Of The Eleventh Circuit Court Of Ap-

peals Vacating The District Court’s Denial Of

The Initial Section 2255 Motion And Remanding

Per Meviddewiiary TRemritay q......................cc.<<cccceocceeee l4a

APPENDIX F

Order Of The United States District Court For

The Northern District Of Georgia Denying Initial

Section 2255 Motion ......................... Dre eer nen 17a

TABLE OF AUTHORITIES

CASES Page

Argersinger v. Hamlin, 407 U.S. 25 (1972) —........... 23

Burnside v. White, 760 F.2d 217 (8th Cir.), cert.

denied, 474 U.S. 1022 (1986) ..................0.00. 20

Davis v. United States, 417 U.S. 888 (1974)... 16, 20

Fay v. Nota, 372 U.S. 391 (1968) ................ passim

Francis v. Henderson, 425 U.S. 586 (1976)... 16

Hardy v. United States, 375 U.S. 277 (19638) _.... 24, 26

Harris v. Pulley, 885 F.2d 1354 (9th Cir. 1988),

cert. denied, 110 8. Ct. 854 (1990) ........ ee 19

Hill v. United States, 368 U.S. 424 (1962) ............ 5-6

Humphrey v. United States, 766 F.2d 1622 (11th

+ 3 | eee PRTC E CE eee eee SON en OTC 24

Johnaon v. Copinger, 420 F.2d 395 (4th Cir. 1969) .. 19

Johnson v. Zerbst, 304 U.S. 458 (1988) 0... 16

McCarthy v. United States, 394 U.S. 459 (1969)... 5

Nell v. James, 811 F.2d 100 (2d Cir. 1987)............. 19-20

Paprskar v. Estelle, 612 F.2d 1008 (5th Cir.),

cert. denied, 449 U.S. 885 (1980) 00... 17

Potts v. Zant, 688 F.2d 727 (5th Cir.), cert. denied,

454 U.S. 877 (1981) .......... soicslaaabtaaanligeeashntasubaeaauas . 21

Price v. Johnston, 334 U.S. 266 (1948) ..........14, 16, 17

Richmond v. Ricketts, 774 F.2d 957 (9th Cir.

RI ots cntnuigeisatsavai thacpnisanniahacaeaeddasenlentsesanamiteesdestinnt 20

Robinson v. Fairman, 704 F.2d 368 (7th Cir.

Theos cntaessctdebeat dan nnainebghgusmattablehiaidsbtaphananiaatbinsiabinandin aaa 17, 19

Rose v. Lundy, 455 U.S. 509 (1982) . nineeinaas 19

Salinger v. Loisel, 265 U.S. 224 (1924) . saianapeneeiens 14

Sanders v. United States, 373 U.S. 1 (1968) ........ passim

Santobello v. New York, 404 U.S. 257 (1971) ....... 5

Townsend v. Sain, 872 U.S. 298 (1968) ............. 15, 16, 17

United States v. Brumiey, 560 F.2d 1268 ‘5th Cir.

SITET cis sestenncan'snamianaenanrtinnsireescnauhinusuaeeadiawanntbaiieabbesuainnnanenn 24

United States v. Frady, 456 U.S. 152 (1982) ......... 15

United States v. Hayman, 342 U.S. 205 (1952)... 20

United States v». Selva, 559 F.2d 1808 (5th Cir.

TIE concansindiadsiussbieneshiniantnnsioabtiessabieaanabasnendhinadidenitshinnnnmen 24, 25

United States v. Timmreck, 441 U. S. 780 (1979).. 5

Wainwright v. Sykes, 488 U.S. 72 (1977) —............ 16, 23

Williams v. Holbrook, 691 F.2d 3 (ist Cir. 1982). 20

Wong Doo v. United States, 265 U.S. 239 (1924)... 14

vii

TABLE OF AUTHORITIES—Continued

STATUTES Page

ee ceesbunnuuemuvcienmieie 9

SEE ee See ee 4

ET Te ee sleniaddiocds 4

28 U.S.C. § 753(b) (1988) eben 24

28 U.S.C. § 1254(1) (1988)... ee 1

Se es i i ees ~

28 U.S.C. § 2255 (1988)... Sbhipitiehelhabliaiae tisshan™ 2,3

28 U.S.C. § 2255, Rule 9(b) (1988) Sadeiiniinadban 18

OTHER AUTHORITIES

BPs Bic GAN, Bs BD vecceccacecnccnccccccccssecaccacaccencnncnsnaconses — *

Fed. R. Crim. P. 11(e) (2)... ehioe seiinicalanta 4

Fed. R. Crim. P. 44(c) ~ 4

Rules Governing Section 2055 Precedings 1 in ee

United States District Courts

Rule 2(b) | EE See TOS 23

Rule 9(b)... a = passin

122 Cong. Rec. H30, 217 (daily ed. Sept. 4, 1976) . 18

H.R. Rep. No. 1471, 94th Cong., 2d Sess. 6, re-

printed in 1976 U.S. Code Cong. & Admin. News

ee EONS en ee he a 18

Communication from the Chief Justice of the

United States, H.R. Doc. No. 464, 94th Cong.,

2d Sess. 77 (1976)... sesssnauekneuniienia em _ 17,18

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990 ¢

No. ——

JONATHAN W. DUNCAN,

- Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Jonathan W. Duncan (“Petitioner”) respect-

fully requests that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

Eleventh Circuit in this case.

a OPINIONS BELOW

The District Court’s order dismissing Petitioner’s sec-

ond section 2255 motion as abusive is unreported, but is

reproduced herein as Appendix B at 2a. The Court of

Appeals’ judgment affirming the District Court's order is

unreported, but is reproduced herein as Appendix A at la.

JURISDICTION

The judgment sought to be reviewed by writ of cer-

tiorari was dated and entered January 11, 1991. The

statutory provision conferring jurisdiction on this Court

to review the judgment in question by writ of certiorari

is 28 U.S.C. § 1254/1) (1988).

STATUTORY PROVISIONS INVOLVED

This case involves 28 U.S.C. § 2255 (1988) which

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 ju-

risdiction 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.

A motion for such relief may be made at any time.

Unless the motion and the files and records of the

case conclusively show that the prisoner is entitled to

no relief, the court shall cause notice thereof to be

served upon the United States attorney, grant a

prompt hearing thereon, determine the issues and

make findings of fact and conclusions of law with

respect thereto. If the court finds that the judgment

was rendered without jurisdiction, or that the sen-

tence imposed was not authorized by law or other-

wise open to collateral attack, or that there has been

such a denial or infringement of the constitutional

rights of the prisoner as to render the judgment vul-

nerable to collateral attack, the court shall vacate

and set the judgment aside and shall discharge the

prisoner or resentence him or grant a new trial or

correct the sentence as may appear appropriate.

A court may entertain and determine such motion

without requiring the production of the prisoner at

the hearing.

The sentencing court shall not be required to enter-

tain a second or successive motion for similar relief

on behalf of the same prisoner.

An appeal may be taken to the court of appeals from

the order entered on the motion as from a final judg-

ment on application for a writ of habeas corpus.

An application for a writ of habeas corpus in be-

half of a prisoner who is authorized to apply for re-

lief by motion pursuant to this section, shall not be

entertained if it appears that the applicant has failed

to apply for relief, by motion, to the court which sen-

tenced him, or that such court has denied him relief,

unless it also appears that the remedy by motion is

inadequate or ineffective to test the legality of his

detention.

‘This case also involves Rule 9(b) of the Rules Govern-

ing Section 2255 Proceedings in the United States District

Courts (“Rule 9(b)”), which provides in pertinent part:

Rule 9. Delayed or Successive Motions

(b) Successive motions. A second or successive

motion may be dismissed if the judge finds that

it fails to allege new or different grounds for

relief and the prior determination was on the

merits or, if new and different grounds are

alleged, the judge finds that the failure of the

movant to assert those grounds in a prior motion

constituted an abuse of the procedure governed

by these rules.

STATEMENT OF THE CASE

A. Overview

On November 27, 1989, Petitioner filed a second motion

pursuant to 28 U.S.C. § 2255 (“section 2255”) to vacate

and set aside the sentence of four years probation im-

posed on him after he agreed to plead guilty to a nar-

cotics-related charge. (R1l-1).' In November 1984, Peti-

tioner and his fiancee, Beth Ellen Chanin were charged

in a two count narcotics indictment. (Record Excerpts—

District Court Docket Sheet—1}. On February 20, 1985,

the Honorable Robert Vining accepted a guilty plea to a

1 All references in parentheses are to the record on appeal in the

Eleventh Circuit. Relevant orders and judgments are reproduced

in the Appendices and are cited there for convenience.

one count information which charged that Petitioner and

Ms. Chanin used a telephone in facilitating a drug con-

spiracy, in violation of 21 U.S.C. § 843(b) and 18 U.S.C.

§ 2. (Record Excerpts—District Court Docket Sheet—1).

On July 30, 1985, Judge Vining suspended imposition of

sentence and Petitioner was placed on probation for four

years. (Jd.—5 and 6).

Petitioner’s second section 2255 motion raised the fol-

lowing four grounds for relief, none of which had been

contained in his initial section 2255 motion filed on July

31, 1987: (1) that a violation of Fed. R. Crim. P. 11

occurred because of the District Court’s wholesale failure

to establish on the record a factual basis for the guilty

plea; (2) that the guilty plea was entered involuntarily

because the government insisted upon treating Petitioner

and his then-wife as a “package deal”, thereby coercing

Petitioner to relinquish his entrapment defense and plead

guilty in order that his wife receive probation, and then

failed to inform the court of this condition of the plea

agreement as required by Fed. R. Crim. P. 11(e) (2);

(3) that Petitioner was denied effective assistance of

counsel in violation of the Sixth Amendment because

his counsel’s representation was infected by an actual

conflict of interest that was not disclosed to the Dis-

trict Court, and which was never knowingly and intelli-

gently waived by Petitioner, as required by Fed. R. Crim.

P. 44(c); and (4) that Petitioner’s plea was inadequate

as a matter of law because the District Court did not,

in fact, elicit a plea of “guilty” from Petitioner to any

of the charges lodged against him. These four grounds

for relief were not raised in Petitioner’s original section

2255 motion because the facts necessary to support

grounds one and four above were unknown at that time,

and as to the other grounds, Petitioner did not realize

that facts of which he was aware provided legal grounds

for section 2255 relief.

Petitioner’s argument with respect to the first ground

raised in the second motion, was that the District Court

had failed to comply with Fed. R. Crim. P. 11, which

requires that a factual basis appear on the record in

order for a guilty plea to be accepted by a district court.

Santobello v. New York, 404 U.S. 257 (1971). This re-

quirement contemplates that the essential elements of the

crime be placed on the record, and that the defendant

affirmatively admit on the record to having committed

those acts. McCarthy v. United States, 394 U.S. 459,

467 (1969). It was only after reviewing the plea colloquy

contained in the transcript of the plea proceeding, which

was unavailable when Petitioner filed his initial section

2255 motion,’ that Petitioner’s counsel, who had not rep-

resented Petitioner at the earlier criminal proceedings,

learned that the plea colloquy did not comply with Fed.

R. Crim. P. 11 because the record did not contain the

essential elements of the offenses charged or an admis-

sion of guilt by Petitioner. Accordingly, this ground was

properly raised in the second section 2255 motion. Sim-

ilarly, the existence of the fourth ground raised in the

second section 2255 motion—that the plea was inadequate

because the court never elicited a plea of guilty from

Petitioner—was unknown until counsel obtained and re-

viewed the previously unavailable transcript of the plea

proceeding.

The District Court’s wholesale failure to comply with

the requirements of Rule 11, moreover, is distinguishable

from the type of technical noncompliance which will not

justify collateral relief under section 2255. See United

States v. Timmreck, 441 U.S. 780 (1979). In this case,

the failures by the District Court were so egregious as

to deny Petitioner the due process of law guaranteed him

by the Constitution, resulting in a proceeding “inconsistent

with the rudimentary demands of fair procedure.” Hill

*It is undisputed that the transcript of Petitioner’s plea colloquy

was not available until May 9, 1988, well after Petitioner’s first

section 2255 motion was filed. (See Record Excerpts—District

Court Docket Sheet—7). See infra note 4.

v. United States, 368 U.S. 424, 428 (1962). Counsel has

been unable to find any reported case sustaining a con-

viction where a district court’s failures have been so

fundamental. Accordingly, collateral relief is available

for Petitioner’s Rule 11 claims, as they are not prem-

ised on the simple failure of the District Court to comply

with the formal requirements of the Rule.

By order dated March 6, 1990, District Judge Vining

directed the government to respond to Petitioner’s second

section 2255 motion. (R1-3). The government responded

on April 24, 1999 (R1-5), and moved to dismiss the mo-

tion as an abuse of the section 2255 remedy. (R1-4). On

May 11, 1990, Petitioner, through counsel, submitted a

memorandum of law opposing the government’s motion

to dismiss. (R1-7).

By order dated May 18, 1990, Judge Vining found

that Petitioner’s second section 2255 motion constituted

an abuse of the motion remedy and, hence, denied the

motion. See Appendix B at 2a. The District Court did

not reach the merits of the second section 2255 motion,

dismissing it instead on the ground that the new bases

for relief alleged should have been brought in the first

section 2255 motion. Jd. at 3a. The basis of the District

Court’s erroneous holding that Petitioner’s second section

2255 motion constituted an abuse of the motion remedy

was its finding that

[Petitioner] was present at the sentencing and the

transcript was later available to him; consequently,

all of the facts necessary to support his new grounds

were known to him at the time he prosecuted his

appeal and at the time he filed his first motion pur-

suant to section 2255.

Id. (emphasis added) .*

The District Court’s finding erroneously imputes knowl-

edge to Petitioner of all facts relevant to the four new

3 The district court was mistaken in its belief that Petitioner

had taken a direct appeal.

mee ee RS? ll BS A aan

grounds for relief based solely on his presence at the

sentencing proceeding, and his purported access to a

transcript of that proceeding, which was, in fact, un-

available to Petitioner and his counsel when the initial

section 2255 motion was filed. This finding is erroneous,

as a matter of law, for the further reason that two of

the new claims arose out of the plea, not the sentencing,

proceeding, and the transcript of the plea proceeding was

indisputably unavailable prior to the filing of the initial

section 2255 motion.’ Most importantly, for the reasons

discussed below, the court’s finding of abuse is deficient

as a matter of law because the court did not, indeed could

not, find that Petitioner’s failure to include any of these

new grounds in his initial motion constituted a deliberate

bypass of the section 2255 motion remedy.

On January 11, 1991, the Court of Appeals summarily

affirmed the District Court’s decision. See Appendix A

at la.

* While the sentencing transcript is stamped as filed May 5, 1987,

prior to the filing of Petitioner’s first motion (see Record Ex-

cerpts—District Court Docket Sheet--6), Petitioner’s new counsel

on the initial section 2255 motion submitted an affidavit (the

“Schwartz Affidavit”) stating that he had unsuccessfully attempted

to obtain both the plea and the sentencing transcripts prior to filing

the original section 2255 motion. (See Schwartz Affidavit, R1-7-

Exhibit A-{ 7). Notwithstanding that the factual matters asserted

in the Schwartz Affidavit were not controverted by the government,

the lower courts did not address the matters asserted therein other

than to reach a conclusion wholly, and inexplicably, at odds with

the Schwartz Affidavit.

Petitioner was, of course, also present at the plea proceeding. In-

explicably, however, the District Court did not rely on his presence

at that proceeding as a basis for finding that Petitioner was aware

of all facts necessary to support any of the new grounds raised in

the second motion at the time the first motion was filed. It is

undisputed that the transcript of the plea proceeding was not

available until May 9, 1988, well after Mr. Duncan’s initial section

2255 motion was filed. (See Record Excerpts—District Court Docket

Sheet—7).

5 See supra note 4.

Petitioner now seeks recourse to this Court to clarify

the standards used by lower courts to determine whether

a successive section 2255 motion that raises new grounds

for relief (a “new-claim successive motion’) may prop-

erly be dismissed under Rule 9{b) as an abuse of the

motion remedy.® This case presents an excellent oppor-

tunity for this Court to clarify the applicable standards

because the lower courts, including the courts here, have

grossly misapplied Rule 9(b) and have refused to reach

the merits of countless section 2255 motions for reasons

wholly at odds with the equitable principles enunciated

by this Court, and codified when Congress enacted Rule

9(b). Because the proper administration of criminal

justice requires that section 2255 motions be reached

in a principled, consistent and equitable fashion, the Court

should grant certiorari to address the important ques-

tions presented here.

The broad issue raised is whether, absent a finding

that a petitioner deliberately withheld grounds from his

initial section 2255 motion, a new-claim successive motion

may be dismissed on abuse grounds simply because the

petitioner had knowledge of all facts necessary to include

the new grounds when he filed his initial section 2255

motion. A second, narrower issue is whether, for pur-

poses of determining whether an abuse of the motion

remedy has occurred, knowledge may be imputed to a lay

petitioner based upon his presence at a court proceeding,

where the transcript of that proceeding was not available

prior to the filing of the initial section 2255 motion.

In this case, Petitioner’s mere presence at his sentencing

proceeding was found sufficient to charge him with knowl-

® This Court’s decision on the standards for “abuse” dismissals

under section 2255 will also inform the “abuse” determination for

habeas corpus motions under 28 U.S.C. § 2254 (1988). Sanders v.

United States, 373 U.S. 1, 15 (1963) (no distinction between treat-

ment of successive section 2255 motions and successive habeas

corpus petitions (§ 2254) ).

edge of legal and factual matters occurring at his plea

proceeding, notwithstanding that the transcript of the

plea proceeding was not available prior to filing the ini-

tial motion, that the new grounds in the second section

2255 motion arose out of the plea proceeding, and that

neither Petitioner nor his counsel were in fact aware of

the new grounds for relief at the time the first motion

was filed. Petitioner submits that a new-claim successive

motion may not, as a matter of law, be dismissed as abu-

sive under these circumstances.

B. The Deportation Proceedings

Petitioner is a citizen of New Zealand who has been

living in the United States as a permanent resident alien.

See Appendix D at 6a. Petitioner did not initially en-

counter problems with the Immigration and Naturaliza-

tion Service (“INS”) because of his conspiracy convic-

tion. However, as a result of a subsequent traffic-related

charge, Petitioner’s conviction was brought to the atten-

tion of INS. Jd. at 9a. The INS instituted a deportation

action and Petitioner discovered that his guilty plea, be-

cause it was considered a drug-related crime, made him

automatically deportable. See 8 U.S.C. § 1251(a) (11).

Ultimately, Petitioner was ordered deported. Petitioner

appealed to the Board of Immigration and Naturalization

Appeals, which two months later dismissed his appeal.

Having exhausted his administrative remedies, on Au-

gust 13, 1987, Petitioner filed a Petition for Review with

the Court of Appeals for the Eleventh Circuit (Appeal

No. 87-8581) .”

C. The Initial Section 2255 Motion

On July 31, 1987, Petitioner and his then-counsel Mr.

Dale Schwartz, who had not represented Petitioner at the

7 This appeal was ultimately consolidated with Petitioner’s appeal

from the District Court’s denial of his initial section 2255 motion.

See discussion infra.

plea or sentencing proceedings, filed a section 2255 motion

seeking to set aside the sentence. Due to the pending

deportation and to the court reporter’s inability to locate

the transcripts of Petitioner’s plea and sentencing pro-

ceedings, it was necessary for Petitioner’s initial section

2255 motion to be filed without a review of those tran-

scripts.* The grounds raised in the initial section 2255,

therefore, did not reflect those bases for relief that only

a review of the transcripts would have revealed. On

March 4, 1988, without having held an evidentiary hear-

ing, the District Court denied Petitioner’s original section

2255 motion. See Appendix F at 17a-18a. Petitioner then

appealed the District Court’s denial of the original sec-

tion 2255 motion to the Eleventh Circuit. (Exhibit—

Notice of Appeal).

On January 3, 1989, the Eleventh Circuit issued an

order addressing the deportation and section 2255 ap-

peals, which had been consolidated. See Appendix E at

14a. The court remanded the matter to the District

Court, ordering it to conduct an evidentiary hearing

addressing Petitioner’s allegations of ineffective assist-

ance of counsel. Jd. at 16a. The District Court, after

conducting an evidentiary hearing, concluded that Peti-

tioner had chosen to plead guilty with knowledge that

there was a possible risk of triggering a deportation

inquiry, and, therefore, denied the first section 2255 mo-

tion. See Appendix D at 6a, 13a.

The parties then filed supplemental briefs with the

Eleventh Circuit in light of the District Court’s order on

remand. See Appendix E at 16a. Petitioner’s counsel

raised three new arguments in the supplemental brief:

(1) lack of a factual basis on the record for the guilty

plea; (2) involuntariness of the guilty plea because it

was a “package deal’; and (3) insufficiency of the guilty

plea. (R1-7—Exhibit B). The three new grounds for re-

8 See supra note 4.

lief became apparent only after the court reporter lo-

cated, and Petitioner’s counsel obtained, the transcript of

Petitioner’s plea proceeding.® The government moved to

strike those new issues. The appeals court did not rule

on the government’s motion to strike.

On April 21, 1989, both the deportation order and the

denial of the original section 2255 motion were affirmed

by the Eleventh Circuit. See Appendix C at 4a-5a. On

June 9, 1989, a petition for rehearing and rehearing en

bane was denied by the Eleventh Circuit Court of Ap-

peals.

D. The Second Section 2255 Motion

Approximately five and one-half months after the

Eleventh Circuit’s ruling on the first section 2255 motion

and the order of deportation, Petitioner, represented by

new counsel, filed his second section 2255 motion.

(Rl-1). The second section 2255 motion raised four

new grounds for relief, two of which related solely to

Constitutional and other violations of law which occurred

at the plea proceeding. Following the District Court’s

order to respond to Petitioner’s second section 2255 mo-

tion (R1-3), the government moved to dismiss it and

affirmatively pled abuse of the motion remedy. (R1-4).

Petitioner opposed the government’s motion on the

ground that two of the new grounds, allegations relating

to the inadequacy of the factual basis for the guilty plea

and the insufficiency of the guilty plea, were not raised

in the earlier motion because the transcript of the plea

proceeding which revealed these grounds was not avail-

able until after the initial section 2255 motion had been

® Petitioner’s counsel on the first section 2255 motion, expressly

notified the Eleventh Circuit of the prior unavailability of the tran-

scripts in a footnote to the suppiemental brief. (See Exhibit—

Supplemental Brief of Petitioner—Appellant, Jonathan W. Duncan,

filed April 10, 1989, in consolidated brief before the Eleventh Cir-

cuit, n.2, at 2).

filed. (R1-7-2)." Petitioner’s reasons for not bringing

these grounds earlier were supported by an affidavit from

his counsel who had prepared the first section 2255 mo-

tion (the “Schwartz Affidavit”), and with references to

the record. In the Schwartz Affidavit, Petitioner’s counsel

states:

In July, 1987, at the time I filed petitioner’s orig-

inal § 2255 motion, I was unaware of facts supporting

the grounds currently raised in petitioner’s second

§ 2255 motion. Compelling reasons exist for the fail-

ure to assert these new grounds earlier since the

transcripts which revealed two of these grounds were

unavailable and the proceeding which exposed the

other two grounds had not yet taken place.

In July, 1987, at the time I filed the original

$ 2255 motion, the court reporter could not locate the

transcripts of petitioner’s plea colloquy and sentenc-

ing hearing. I specifically notified the court and op-

posing counsel of this fact . . . . Therefore, I was

unable at that time to determine whether a factual

basis for [petitioner’s] plea appeared on the record or

whether the plea elicited was sufficient, two grounds

currently advanced in petitioner’s second § 2255

motion.

(R1-7—Exhibit A-{] 7-8).

Notwithstanding Petitioner’s uncontroverted explana-

tion for his inability to raise, in his first section 2255 mo-

tion, the claims relating to the Constitutional and other

legal deficiencies in the plea proceeding, the District Court

found that simply because Petitioner was present at the

sentencing proceeding and the transcript of that proceed-

10 Petitioner also cited the absence of the sentencing transcript as

a reason for his lack of knowledge at the time the initial section

2255 motion was filed. The sentencing transcript did not (indeed,

could not), however, contain information that would cure the

Constitutional and procedural violations which had transpired dur-

ing the plea proceedings, which occurred more than five months

before the sentencing proceeding.

ing was later available to him, the facts necessary to

support his new grounds for relief were known to hiia at

the time he filed his initial section 2255 motion. See

Appendix B at 3a. Thus, the District Court imputed

knowledge to Petitioner based solely on his presence at

the sentencing proceeding and his having access to a tran-

script of that proceeding, notwithstanding that two of the

new claims related solely to the plea proceeding, for which

a transcript was indisputably unavailable prior to the ini-

tial section 2255 motion, that Petitioner is a layman, that

Petitioner (and his counsel) denied having had access to

(or possession of) the plea (and sentencing) transcript (s)

prior to filing the initial section 2255 motion," and that

the new grounds related solely to a failure by the District

Court to comply with Constitutional and other legal re

quirements.

Without making any findings as to how Petitioner’s

presence at the sentencing proceeding and putative access

to the transcript of that proceeding provided Petitioner

with knowledge of section 2255 claims relating to Consti-

tutional and other legal deficiencies in the plea proceed-

ing, and without addressing Petitioner’s documented ex-

planation for his inability to raise these grounds in the

original section 2255 motion, the District Court con-

cluded that Petitioner had “failed to prove by a pre-

ponderance of the evidence that he was ignorant of the

facts necessary to support his new grounds” when the

first section 2255 was filed. Appendix B at 3a. On this

basis alone, the District Court dismissed the second sec-

tion 2255 motion as an abuse of the motion remedy. /d.

The Eleventh Circuit, thereafter, summarily affirmed the

judgment of the District Court. See Appendix A at la.

11 See supra note 4.

REASONS FOR GRANTING THE WRIT

I, THE COURT SHOULD GRANT CERTIORARI TO

CLARIFY THE STANDARDS APPLICABLE TO

THE DETERMINATION OF WHETHER A NEW-

CLAIM SUCCESSIVE MOTION SHOULD BE DIS-

MISSED ON ABUSE GROUNDS

A, This Court Enunciated A Subjective Standard To

Govern Dismissals Of New-Claim Successive Motions

On “Abuse” Grounds

In Sanders v. United States, 373 U.S. 1 (1963), this

Court addressed the problem of successive motions under

section 2255, and formulated the “abuse of the writ”

doctrine. In Sanders, this Court stated that a successive

section 2255 motion alleging new grounds for relief, not

previously adjudicated on the merits, could be summarily

dismissed if the petitioner had abused the writ.’? Jd. at

17-19.

To determine whether a new-claim successive motion

is abusive, Sanders directed the federal courts to apply

2 The concept of dismissals for abuse was first enunciated by

the Court in Salinger v. Loisel, 265 U.S. 224 (1924), a habeas

corpus decision. Although the issue before the Salinger Court pre-

sented a successive petition alleging the same ground for relief, the

Court stated that procedural rules may be applied to protect against

abusive successive petitions alleging new grounds, as long as those

rules are applied in accord with the principles underlying the writ.

Id. at 232. In Wong Doo v. United States, 265 U.S. 239 (1924), the

Court stated that where petitioner has deliberately abandoned a

claim he had an opportunity to litigate in a hearing on a prior

petition, such conduct warranted dismissal for abuse of the writ.

Id. at 241. The Court indicated, however, that if petitioner has

presented a reason for his failure to raise the claim earlier, this

must be considered in deciding whether to dismiss for abuse. /d.

See also Price v. Johnston, 334 U.S. 266, 291 (1948) (decided im-

mediately before Congress enacted 1948 version of section 2255;

successive litigation permissible “if for some justifiable reason

[the petitioner] was previously unable to assert his rights or

was unaware of the significance of relevant facts... .”).

the historically established principles of equity jurispru-

dence:

“{H]abeas corpus has traditionally been regarded as

governed by equitable principles. United States ex

rel, Smith v, Baldi, 344 U.S. 561, 573 (dissenting

opinion). Among them is the principle that a suitor’s

conduct in relation to the matter at hand may dis-

entitle him to the relief he seeks... .” Thus, for

example, if a prisoner deliberately withholds one of

two grounds for federal collateral relief at the time

of filing his first application, in the hope of being

granted two hearings rather than one . . . he may

be deemed to have waived his right to a hearing... .

The same may be true if, as in Wong Doo, the prisoner

deliberately abandons one of his grounds at the first

hearing. Nothing in the traditions of habeas corpus

requires the federal courts to tolerate needless piece-

meal litigation, or to entertain collateral proceed-

ings whose only purpose is to vex, harass, or delay.

Id, at 17-18.

For further guidance in determining “abusive” peti-

tions, the Court directed the lower courts to its simul-

taneous rulings in Fay v. Nota, 372 U.S. 391, 438-40

(1963), and Townsend v. Sain, 372 U.S, 293, 317 (1963).

whose principles, the Court held, “govern equally here.”

Sanders, 373 U.S. at 18. Fay and Townsend provide a

subjective test for determining whether a section 2255

applicant should be heard on the merits of a successive

petition, viz, whether the petitioner “deliberately aban-

doned or bypassed” an opportunity to assert the claim in

the earlier petition."

‘8 This Court has determined that the “deliberate bypass” stand-

ard no longer controls the determination of whether a petitioner is

precluded from raising a claim, otherwise cognizable under section

2255, because of his failure to assert that claim properly in pre-

trial proceedings or at trial. United States v. Frady, 456 US. 152.

167-68 (1982). In Frady, the Court determined that the proper

standard on a section 2255 motion for review of procedural defaults

Taking these three opinions together, the gravamen of

the abuse of the writ doctrine is evident: the abuse doc-

trine is rooted in the concept of waiver. The test for

whether a petitioner has waived his right to federal col-

lateral relief is the deliberate bypass standard adopted by

this Court in Fay v. Noia: there must be “ ‘an intentional

relinquishment or abandonment of a known right or privi-

lege.’” 372 U.S. at 439 (citing Johnson v. Zerbst, 304

U.S. 458, 464 (1938) ).™

In deciding whether an applicant has deliberately by-

passed a claim, this Court in Fay admonished lower

courts not “to introduce legal fictions” into the “abuse”

analysis. 372 U.S. at 439. “At all events we wish it

clearly understood that the standard here put forth de-

pends on the considered choice of the petitioner.” Id.

(emphasis added; footnote and citations omitted). In this

regard, the Townsend Court, citing Price v. Johnston,

stated “if for some justifiable reason [the petitioner] was

previously unable to assert his rights or was unaware of

the significance of relevant facts, it is neither necessary

is the “cause and prejudice” standard enunciated in Davis v. United

States, 411 U.S. 233 (1973), and later confirmed and extended in

Francis v. Henderson, 425 U.S. 536 (1976) and Wainwright v. Sykes,

433 U.S. 72 (1977). Because the instant case does not involve

a procedural default, it is governed by the “deliberate bypass”

standard, not the “cause and prejudice” standard.

14 Sanders cites Fay v. Noia as furnishing the controlling standard

for determining abuse. 373 U.S. at 18. Similarly, in Townsend, the

Court referenced Fay as the governing standard, stating:

If, for any reason not attributable to the inexcusable neglect

of petitioner, see Fay v. Noia, post, p. 438 (Part V), evidence

crucial to the adequate consideration of the... claim was not

developed . . . a federal hearing is compelled. The standard of

inexcusable default set down in Fay v. Noia adequately pro-

tects the legitimate state interest in orderly criminal pro-

cedure, for it does not sanction needless piecemeal presentation

of ...claims in the form of deliberate by-passing of .. . pro-

cedures.

372 U.S. at 317.

nor reasonable to deny him all opportunity of obtaining

judicial relief.” Townsend, 372 U.S. at 317 (citing Price,

334 U.S. at 291). This Court, therefore, settled on a sub-

jective, volitional standard to govern the determination of

whether a successive motion raising new grounds for

relief should be dismissed as abusive. The Court’s deci-

sion to base abuse dismissals on a petitioner’s intent, not

simply his knowledge (actual or imputed) of the factual

and legal basis of section 2255 claims, establishes an ex-

ceedingly high threshold for dismissing a new-claim suc-

cessive motion on abuse grounds.

The Sanders court also stated that its guidelines for a

finding of abuse were necessarily “[n]arrowly circum-

scribed” so that they conformed with the writ’s historical

role as an “effective and imperative remedy” in all cases

of unconstitutional detention and with the Court’s prohi-

bition against procedurel doctrines that result in a for-

feiture of constitutional claims. 373 U.S. at 17-18 (citing

Fay v. Noia, 372 U.S. at 438). Accordingly, courts have

recognized that only “rare and extraordinary” circum-

stances warrant dismissal based on a finding of ‘“abuse’”’.

Paprskar v. Estelle, 612 F.2d 1003, 1007 (5th Cir.), cert.

denied, 449 U.S. 885 (1980). See also Robinson v. Fair-

man, 704 F.2d 368, 370 (7th Cir. 1983).

B. Congress Codified In Rule 9(b) The Subjective

Standard For Determining Abusive Petitions Enun-

ciated By This Court

Responding to a recognized need for a uniform set of

rules, this Court, on April 26, 1976, sent Congress pro-

posed rules and forms to govern section 2255 proceed-

ings.’* Included in the proposed rules was Rule 9(b). As

15 Communication From the Chief Justice of the United States,

H.R. Doe. No. 464, 94th Cong., 2d Sess. 77 (1976) [hereinafter

1976 Communication] (emphasis in original). The Supreme Court

also proposed a set of rules to cover section 2254 motions for state

prisoners.

transmitted by the Court, this rule provided that a second

or successive petition alleging new grounds for relief may

be dismissed “if the judge finds that . . . petitioner[’s

failure] to assert those grounds in a prior petition is not

excusable.” 1® The Court’s proposed Rule 9(b), therefore,

substituted “is not excusable” for the abuse of the writ

language enunciated in Sanders.

Congress, however, rejected the Court’s proposed Rule

9(b). Specifically, Congress stated that the Court’s “ ‘not

excusable’ language created a new and undefined standard

that gave a judge too broad a discretion to dismiss a sec-

ond or successive petition.” H.R. Rep. No. 1471, 94th

Cong., 2d Sess. 6, reprinted in 1976 U.S. Code Cong. &

Admin. News 2478, 2482 [hereinafter H.R. Rep. No.

1471]. Congress, thereafter, enacted its own Rule 9(b),

which explicitly states that a successive petition may only

be dismissed for ‘‘abuse.”’ 17

The legislative history of Rule 9(b) clearly indicates

that Congress intended the subjective, waiver-oriented,

“deliberate bypass” standard enunciated in Sanders to con-

tinue to govern the determination of abuse.'’* By ex-

plicitly rejecting the objective, and more stringent, “not

excusable” standard, Congress revealed its unequivocal in-

tention to limit dismissal of new-claim successive motions

to the circumstances encompassed within the subjective, vo-

litional, ‘‘deliberately withheld” and otherwise abusive for-

mulations enunciated by the Supreme Court in Sanders."

161976 Communication, supra note 15, at 98.

17 See 28 U.S.C. § 2255, Rule 9(b) (1988).

18 H.R. Rep. No. 1471, supra. In the House debate on the Rule,

it was stated that Rule 9(b) had been amended “ ‘in order to con-

form the rule to existing statutory [§ 2244(b)] and case [Sanders |

law.’”” 122 Cong. Rec. H30,217-18 (daily ed. Sept. 14, 1976) (state-

ment of Rep. Pepper).

19 Since Sanders, the Court has not comprehensively addressed

new-claim successive motions. Nonetheless, in 1982, most members

C. Accepted Doctrine Regarding New-Claim Successive

Motions Utilizes A Subjective Standard For Deter-

mining Abuse

The rule governing new-claim successive section 2255

motions that was codified in 1948, authoritatively in-

terpreted in 1963 and recodified in 1976 is as follows:

Successive motions presenting new or different grounds

for relief are permissible so long as they do not constitute

“an abuse of the [section 2255] procedure”. Rule 9(b).

Abuse occurs if the petitioner either (i) deliberately with-

held the newly asserted grounds from an earlier petition,

or (ii) otherwise abused the writ because his “only pur-

pose is to vex, harass, or delay.” Sanders, 373 U.S. at

18. Thus, the simple failure to raise a claim, even a

claim about which the petitioner possessed all necessary

knowledge, does not suffice under Rule 9(b) to constitute

abuse.”

of the Court identified Sanders as controlling new-claim successive

motions. Rose v. Lundy, 455 U.S. 509, 521 (1982) (plurality opin-

ion) (“Rule 9(b) incorporates the judge-made principle governing

the abuse of the writ set forth in Sanders v. United States.’’).

The Court, however, recently heard argument in McCleskey v. Zant,

No. 89-7024, filed March 23, 1990, which presents the issue of the

proper standard for finding abuse on a successive section 2254 peti-

tion. The Court’s decision in McCleskey may well impact the issues

presented here.

20 Robinson v. Fairman, 704 F.2d 368, 370-71 (7th Cir. 1983)

(quoting Johnson v. Copinger, 420 F.2d 395, 399 (4th Cir. (1969) )

(Rule 9(b) does not impose “automatic and inflexible forfeiture

on every habeas petitioner who, whether out of ignorance, inad-

vertence, or any other reasons, failed to assert every ground for

relief available to him in his first appearance in a federal court’’) ;

Johnson v. Copinger, 420 F.2d at 399 (deliberate withholding “im-

plies more than simply a failure to present a ground existing at the

time of the previous petition”; “|a]s a minimum, the newly asserted

ground must have been known to the petitioner at the time of nis

earlier petition”); Harris v. Pulley, 885 F.2d 1354, 1380 (9th Cir.

1988) (no abuse when petitioner missed identifying claim at time

of first petition, because no conscious decision deliberately to with-

hold claim), cert. denied, 110 S. Ct. 854 (1990); Nell v. James, 811

The considerable discretion afforded the district court

to consider or dismiss new-claim successive motions must

be exercised in conformity with the equitable principles

that undergird the “abuse” doctrine. See Sanders, 373

U.S. at 18-19. The flexibility inherent in the section 2255

remedy derives from the fact that it is the federal statu-

tory analogue to the great common law writ of habeas

corpus.”' It is for this reason that principles of res judi-

cata are inapplicable to section 2255 litigation. Sanders,

373 U.S. at 7. Rule 9(b) dismissals, therefore, are war-

rented only under circumstances which “justify the with-

holding of federal habeas corpus relief.” Fay, 372 U.S.

at 399. That this language connotes a strong presump-

tion in favor of court’s reaching the merits of a new

claim successive motion is confirmed by Fay, where this

Court determined that even the intentional and knowing

failure not to raise a claim does not, by itself, constitute

abuse.

In Fay, this Court faced the issue of whether a state

prisoner’s intentional failure to pursue his direct appeal in

state court should bar his subsequent federal habeas

F.2d 100, 104-05 (2d Cir. 1987) (unreasonable to dismiss for abuse

where petitioner is unaware of relevant facts affecting merits of

petition, or if he knows them, his failure to appreciate their legal

significance is justified) ; Richmond v. Ricketts, 774 F.2d 957, 960,

961 (9th Cir. 1985) (dismissal only if petitioner made conscious

decision deliberately to withhold claims, is pursuing needless piece-

meal litigation or has raised claims only to vex, harass, or delay) ;

Williams v. Holbrook, 691 F.2d 3, 12-13 (1st Cir. 1982) (dismissal

requires “truly bad faith conduct with respect to the manipulation

of court processes”) ; Burnside v. White, 760 F.2d 217, 219-20 (8th

Cir.) (Rule 9(b) dismissal inappropriate absent allegation that

petitioner “deliberately failed” to raise new claim in earlier peti-

tion), cert. denied, 474 U.S. 1022 (1985).

21 When Congress enacted section 2255 in 1948, it intended the

new procedure to “afford federal prisoners a remedy identical ir

scope to federal habeas corpus.” Davis v. United States, 417 U.S.

333, 343 (1974). See also United States v. Hayman, 342 U.S. 205

(1952) (section 2255 is as broad as habeas corpus, section 2254).

rights. In answering the question, the Court assumed that

the petitioner there knowingly chose to forgo his right of

direct appeal; however, because the choice was made to

avoid the risk of a death sentence, the Court held: ‘Under

no reasonable view can the State’s version of [petitioner’s]

reason for not appealing support an inference of deliberate

by-passing of the state court system.” 372 U.S. at 439.

Accordingly, knowing or intentional abandonment of a

claim will not suffice to constitute “abuse” absent a find-

ing that the petitioner’s conduct was unjustified. Accord

Potts v. Zant, 638 F.2d 727 (5th Cir.) (intentional waiver

or abandonment of a claim cannot constitute per se abuse

of the motion remedy; consideration must be given to rea-

sons proffered by petitioner to justify conduct), cert.

denied, 454 U.S. 877 (1981).

The result reached below is contrary to the decisions of

this Court and to the legislative history underlying Rule

9(b). Even assuming that, as the District Court found,

Petitioner had knowledge of all the facts necessary to

support the new claims contained in the second motion

when the original motion was filed, his failure to include

those claims in the first motion does not, without more,

constitute an abuse within the meaning of Rule 9(b). In

addition to a failure to include all known claims in the

original motion, abuse can be found to exist only where

the omission reflected a deliberate bypass or a malevolent

purpose. No such finding was made here.

II. THE COURT SHOULD GRANT CERTIORARI TO

CLARIFY THE CIRCUMSTANCES UNDER WHICH

KNOWLEDGE MAY REASONABLY BE IMPUTED

TO A LAY PETITIONER AS PART OF A DETER-

MINATION THAT A NEW-CLAIM SUCCESSIVE

MOTION IS ABUSIVE

As noted above, the dismissal of Petitioner’s second

section 2255 motion was based on the District Court’s

finding that

[Petitioner] was present at the sentencing and the

transcript was later available to him; consequently,

all of the facts necessary to support his new grounds

were known to him at the time he prosecuted his

appeal and at the time he filed his first motion pur-

suant to section 2255.

Appendix B at 3a. Thus, the lower courts imputed knowl-

edge of the new claims to Petitioner based upon his pres-

ence at the sentencing proceeding and putative access to

a transcript of that proceeding, which Petitioner and his

then-counsel deny they were in possession of when the

initial section 2255 motion was filed. The record is devoid

of evidence contradicting these denials, or evidence that

this transcript contained information that would have

enabled Petitioner to include any of the new claims in the

initial section 2255 motion.

The lower courts’ finding that Petitioner’s presence at,

and purported access to the transcript of, the sentencing

proceeding sufficed to charge him with knowledge of the

facts underlying the four new claims, and therefore, with

abusing the section 2255 remedy, is predicated on pre-

cisely the type of “legal fictions” denounced in Fay, 372

U.S. at 439, and is clearly at odds with the equitable

principles enunciated in Fay and its progeny. There is,

moreover, simply no basis in law or in fact for charging

Petitioner, a lay person, with comprehending that court

proceedings he attended were Constitutionally and legally

deficient in a manner that furnished him with grounds

for section 2255 relief.** At bottom, the lower courts’ rul-

ings seek to hold Petitioner, a lay person, to a level of

knowledge regarding the requirements of the Constitution

and the Federal Rules of Criminal Procedure higher than

that evidenced by the parties below, who were legally

charged with assuring that those requirements were met.

Imputing knowledge to a lay person in such circumstances

renders entirely illusory the right to raise new-found

claims in a successive section 2255 motion and saps the

section 2255 remedy of its historical role and much of its

practical value.

By imputing knowledge to Petitioner in the circum-

stances presented here, the District Court may have relied

impliedly, and inadvertently. upon Rule 2(b) of the Rules

Governing Section 2255 Proceedings (‘Rule 2(b)”’), which

states, in pertinent part, that a section 2255 motion “shall

specify all the grounds for relief which are available to

the movant and of which he has or, by the exercise of

reasonable diligence, should have knowledge ... .”’ Thus,

the District Court may have concluded that “by the exer-

cise of reasonable diligence” a lay petitioner could have

acquired the knowledge necessary to appreciate the Con-

stitutional and other legal errors which transpired at a

court proceeding he attended, particularly if he had access

to a transcript of that proceeding. Assuming that the

lower courts’ rulings may be so rationalized, this would

reflect an improper submerging of Rule 9(b) into Rule

2(b). In short, a failure to exercise reasonable diligence

cannot, without more, constitute an abuse of the motion

remedy within the meaning of Rule 9(b).

2 As recognized by Chief Justice Burger in Wainwright v. Sykes,

“the decision to assert or not to assert constitutional rights or

constitutionally based objections . . . is necessarily entrusted to the

defendant’s attorney ... [a]s a practical matter ... ‘[e]ven the

intelligent and educated layman has small and sometimes no skill

in the science of law’... .” 433 U.S. at 93 (Burger, C.J., con-

curring) (citing Argersinger v. Hamlin, 407 U.S. 25 (1972) ).

An understanding of the legal significance of the omis-

sions and commissions at issue here cannot be attributed

to Petitioner until after the plea transcript became avail-

able. See Humphrey v. United States, 766 F.2d 1522

(llth Cir. 1985). At that point, but not before, Peti-

tioner through his counsel, would have the wherewithal to

begin to comprehend the legal significance of what had

transpired in District Court. At that point, but not

before, could a lay petitioner, through his counsel, make

legally cognizable arguments based on a record of what

had transpired in District Court.

In the criminal context, a transcript “by shorthand,

[or by] mechanical means” of “all proceedings in crimi-

nal cases had in open court” must be made. Court Re-

porter Act, 28 U.S.C. § 753(b) (1988). This Court has

recognized that one of the purposes of providing access

to transcripts of court proceedings is to allow counsel to

prepare the issues on appeal. See Hardy v. United States,

375 U.S. 277 (1963); United States v. Selva, 559 F.2d

1303 (5th Cir. 1977); United States v. Brumley, 560

F.2d 1268 (5th Cir. 1977). Similarly, access to tran-

scrips is critical to the successful prosecution of collateral

attacks. An inability to access transcripts, therefore,

*3In Humphrey, the Eleventh Circuit had appeared to recognize

that before a new-claim successive motion could be dismissed as

abusive, the record itself must be available for review. In Humphrey,

the Eleventh Circuit considered an appeal from a dismissal of peti-

tioner’s third section 2255 motion. The court found that some of the

new grounds raised were improperly denied as successive. The court

stated that the record did not appear to show abuse on appellant’s

part with regard to the new claims based upon defects in the trial.

The absence of a finding of abuse stemmed from the fact that the

transcript of the trial was not available for review until after the

denial of the first section 2255 motion. 766 F.2d at 1525. Accord-

ingly, the peti »ner’s inability to access the trial transcript was

found by the Eieventh Circuit to constitute an adequate reason for

failing to bring the claims earlier, and therefore, not a proper basis

for a finding of abuse. See supra note 4.

presumptively results in prejudice. See Hardy, 375 U.S.

at 279-80; Selva, 559 F.2d at 1306.

In a direct criminal appeal in which the defendant is

represented by counsel other than the attorney at trial,

the fact that the new appellate counsel is foreclosed from

examining a substantial or crucial portion of the tran-

script has been held to render illusory the right to appeal.

Hardy, 375 U.S. at 280. The wisdom underlying that rule

is equally applicable to the collateral attack context. An

attorney who was present at the relevant proceedings can

be expected to be aware of and articulate errors or im-

proprieties. However, the same cannot be said when a

defendant is represented on appeal by counsel not involved

in the earlier proceeding. In such cases, as in the present

one, counsel cannot be expected to be aware of or articu-

late all bases for error until he has reviewed the entire

transcript. See id. at 279-80.

In the instart case, Petitioner’s counsel on the initial

section 2255 motion, who did not represent him at the

earlier proceedings, was unable, through no fault of his

own, to obtain the transcript of the critical plea proceed-

ing until after the original section 2255 motion was

filed.** This fact is beyond dispute. Due to these cir-

cumstances, Petitioner and his first counsel were unable

to assess all bases for section 2255 relief at the time the

original section 2255 motion was filed. Given the ra-

tionale underlying Hardy, prejudice resulting from the

court reporter’s inability to comply with the Court Re-

porter Act and to locate the transcripts cannot be im-

puted to the Petitioner.** An abuse dismissal under cir-

cumstances such as these strips the 2255 remedy of its

24 See supra note 4.

*5 The District Court docket sheet itself evidences the fact that

the transcript of Petitioner’s plea proceeding was not filed until

May 9, 1988, well after Petitioner filed the initial section 2255 mo-

tion. (See Record Excerpts—District Court Docket Sheet—7).

vitality, and has catastrophic implications for the admin-

istration of justice.

CONCLUSION

The petition for certiorari should be granted.

* Attorney of Record

Dated: April 11, 1991

Respectfully submitted,

ROBERT FABRIKANT *

FRED D. HEATHER

MARGARET M. ANTINORI

MCKENNA & CUNEO

1575 Eye Street, N.W.

Suite 800

Washington, D.C. 20005

(202) 789-7500

ARTHUR BARENS

10209 Santa Monica Blvd.

Los Angeles, CA 90067

(218) 557-0444

Counsel for Petitioner

APPENDICES

Bi aati den se

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 90-8565

Non-Argument Calendar

D. C. Docket No. CR84-349-2A

1:89-cev-2825-RLV

JONATHAN DUNCAN,

Petitioner-A ppellant,

versus

UNITED STATES OF AMERICA,

Respondent-A ppellee. -

Appeal from the United States District Court

for the Northern District of Georgia

(January 11, 1991)

Before TJOFLAT, Chief Judge, FAY and ANDER-

SON, Circuit Judges.

PER CURIAM: AFFIRMED. See 11th Cir. Rule

36-1.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Criminal Action No. CR84-349A

UNITED STATES OF AMERICA

VS.

JONATHAN W. DUNCAN,

Defendant.

ORDER

[Filed May 21, 1990]

This matter is before the court upon Jonathan Dun-

can’s second motion to vacate his sentence pursuant to

28 U.S.C. § 2255. When a defendant presents a second

motion pursuant to section 2255, the court must address

the new grounds raised in the motion “unless the

movant’s failure to prosecute these grounds earlier con-

stitutes an abuse of the motion remedy.” Humphrey v.

United States, 766 F.2d 1522, 1524 (11th Cir. 1985).

The government must plead abuse, as it has in the in-

stant case, and then “the burden shifts to the movant

to show that his failure to assert the new grounds in an

earlier motion does not comprise an abuse.” 766 F.2d

at 1524. “The movant must prove by a preponderance

of the evidence that he was ignorant of facts necessary

to support the new ground when the prior motion was

filed, or that he had not realized that those facts provided

the basis for § 2255 relief.” Gay v. United States, 816

F.2d 614, 616 (11th Cir. 1987).

In his current motion Duncan alleges that there is no

factual basis for his plea in the record, but that the

plea was involuntary because it was part of a “package

deal” involving his wife, that he was denied effective

assistance of counsel because of a conflict of interest of

his attorney, and that the court never actually elicited a

guilty plea from him.

‘Duncan was present at the sentencing and the tran-

script was later available to him; consequently, all of

the facts necessary to support his new grounds were

known to him at the time he prosecuted his appeal and

at the time he filed his first motion pursuant to section

2255. This court finds that Duncan has failed to prove

by a preponderance of the evidence that he was ignorant

of the facts necessary to support his new grounds. There-

fore, finding that his section motion constitutes an abuse

of the writ, the court hereby DENIES the motion.

SO ORDERED, this 18th day of May, 1990.

/s/ Robert L. Vining, Jr.

ROBERT L. VINING, JR.

United States District Judge

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 87-8581

JONATHAN W. DUNCAN,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

No. 88-8221

D. C. Docket Nos. 87-1745, 84-349

JONATHAN W. DUNCAN,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-A ppellee.

Appeals from the United States District Court for the

Northern District of Georgia

(April 21, 1989)

[Filed Jun. 14, 1989]

Before TJOFLAT and CLARK, Circuit Judge, and

ACKER *, District Judge.

* Honorable William M. Acker, Jr., U.S. District Judge for the

Northern District of Alabama, sitting by designation.

PER CURIAM:

After the limited order of remand was entered by this

court on January 3, 1989, the district court conducted an

evidentiary hearing to explore the claim of defendant,

Jonathan W. Duncan, that his guilty plea was not know-

ingly and involuntarily tendered and that his adjudica-

tion of guilt therefore constituted a violation of Rule 11,

F.R.Cr.P., and of the Sixth Amendment. The district

court received and considered all relevant evidence that

was offered on his issue and made findings of fact and

entered conclusions of law, now making it clear that

Duncan chose to plead guilty with the knowledge there

was a possible risk of triggering a deportation inquiry.

The purpose of the remand having been served, the

denial of defendant’s petition invoking 28 U.S.C. § 2255

is AFFIRMED.

Duncan’s separate appeal of his deportation order, a

subject not addressed in this court’s opinion of January

3, 1989, must now be dealt with.

Appellant contends that the offense of which he was

convicted was not “of a conspiracy to violate any law

or regulation relating to the illicit traffic in cocaine,”

contrary to the assertion of the Immigration and Nat-

uralization Service. By pleading guilty to a violation of

21 U.S.C. § 848(b), Duncan confirmed his unlawful use

of a communication facility to facilitate the commission

of the felony of conspiring to distribute cocaine; and

although his involvement may have been indirect and

tangential, it was sufficient to authorize an INS inquiry

and deportation order. It is difficult to sympathize with

Duncan’s position after learning for the first time from

the recent evidentiary hearing conducted by the district

court that Duncan himself waved the red flag and that

by committing a DUI offense waked up a sleeping INS.

Duncan was apparently the author of his own downfall.

Under the circumstances, the deportation order com-

plained of in No. 87-8581 is AFFIRMED.

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Criminal! Action No. CR-84-349 A

U: ITED STATES OF AMERICA

vs.

JONATHAN W. DUNCAN

ORDER

[Filed Feb. 1, 1989]

Pursuant to Duncan v. Immigration and Naturaliza-

tion Service, No. 87-8581 (11th Cir. Jan. 3, 1989), this

court held an evidentiary hearing on January 19, 1989

and heard evidence relating to Duncan’s motion under 28

U.S.C. § 2255 to set aside his adjudication of guilt on the

ground that his guilty plea was not knowingly and vol-

untarily tendered. Duncan in his section 2255 claim

primarily alleges that he was deprived of effective assis-

tance of counsel in that his attorney misled him as to

the immigration consequences of his bargained-for guilty

plea. He argued that his unaccomplished attorney ad-

vised him that a guilty plea to the lesser “communica-

tions facility” offense would not expose him to deporta-

tion and only for that reason did he plead guilty when

he had a good entrapment defense.

The court finds the following facts: Jonathan Duncan

is a citizen of New Zealand but has been residing in the

United States as a permanent resident alien. In the

summer of 1984, Jonathan Duncan and his fiancee, Beth

Ellen Chanin, (now his ex-wife), were charged in a two

count indictment with conspiracy to distribute cocaine

in violation of 21 U.S.C. § 846 and with distribution of

cocaine in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2.

Each of these charges carries a maximum penalty of 15

years incarceration Both Duncan and Ms. Chanin, who

was by this time his wife, were jointly represented at

the arraignment and preliminary hearing by an ex-

perienced criminal attorney, Bruce Morris.

After arraignment and initial discussions with the

United States Attorney’s Office, Mr. Morris advised Dun-

can that because of a potential conflict of interest be-

tween his wife and him in relation to the resolution of

the case Duncan should retain independent counsel to

represent him in plea negotiations. This case presented

a situation where one defendant, Duncan, had arguably

a meritorious entrapment defense and because of his lack

of a prior record his sentence would likely involve pro-

bation as opposed to incarceration. On the other hand,

Duncan’s wife had no entrapment defense and if con-

victed Ms. Chanin, who was now pregnant with Mr.

Duncan’s child, would likely spend some time in jail as

other unrelated drug charges were pending against her

in the Superior Court of Gwinnett County, Georgia. The

United States Attorney’s Office had informed Mr. Morris

that they considered Duncan and Ms. Chanin a package

deal. They would not accept a plea from one unless the

other pled as well.

Acting on Mr. Morris’ advice, Duncan hired another

attorney, T. Henry Clarke, to represent him in the plea

negotiations. Mr. Clarke had some experience in crim-

inal law but was primarily a real estate attorney.

Clarke was a social acquaintance of Duncan’s. Duncan

had met Clarke through Ms. Chanin’s former husband,

Peter Chanin. Clarke was also a friend of Ms. Chanin’s

father. It was Clarke’s and Duncan’s understanding that

Bruce Morris was to direct the plea negotiations and

Clarke was brought in primarily to avoid any appear-

ance of impropriety. Accordingly, Clarke’s fee was

greatly reduced and, in fact, he basically considered

Duncan’s case as pro bono work taken on as a favor to

Duncan’s father-in-law.

According to both Duncan and Clarke, Duncan had

two main priorities which had to be addressed in the

plea negotiations. First, Duncan did not want his preg-

nant wife to serve any jail time and second, Duncan, a

New Zealand citizen, would not plead guilty if it would

have any adverse immigration consequences. With these

objectives in mind, Morris and Clarke worked out an

agreement with the Assistant United States Attorney

(AUSA) whereby both Duncan and his wife would plead

guilty to a lesser charge, serve their sentence on proba-

tion and the AUSA would have no objection to the lesser

charge being one that had no adverse immigration con-

sequences.

It was, however, up to Duncan and his counsel to de-

termine whether the suggested lesser charge of using a

communications facility in furtherance of the commis-

sion of a felony involving cocaine would result in depor-

tation. At no time did the AUSA represent or guarantee

to Duncan that a plea to the comunications felony would

not result in deportation. The AUSA made it clear that

she was not certain what the immigration consequences

would be and if concerned Duncan’s counsel should in-

vestigate.

At Dunean’s request, Clarke investigated whether the

communications charge would impact his immigration

status. Clarke spoke with two experienced immigration

attorneys, one of whom was suggested by Morris, and

Clarke reviewed the statutory authority and case law

which the immigration attorneys suggested would control

Duncan’s situation. Clarke’s file on this case was de-

stroyed by the attorneys who purchased his practice a

few years ago and he does not recall from memory what

specific statutes and cases he relied upon in making his

determination.

From his research and his conversations with ex-

perienced immigration attorneys, Clarke determined that

a plea to the communications feiony would probably not

have any immigration consequences so long as Duncan

avoided any more trouble with the law. It was Clarke’s

cpinion that the communications felony was a “minor

felony” and the fact that Duncan was married to a

United States citizen and was going to be the father of

a United States citizen weighed in his favor if any im-

migration problem arose due to the plea. Clarke did,

however, make it clear to Duncan, while he would prob-

ably be alright with the communications plea, Immigra-

tion and Naturalization Services (“INS”) was unpre-

dictable and there was no guarantee that they would

not try to deport him.

Duncan testified at the evidentiary hearing that

Clarke advised him he would not have any problem with

the INS so long as “he kept him nose clean.” Based on

this opinion and the fact that the charge had been re-

duced from two counts which could possibly result in 30

years incarceration to a charge which would allow both

Duncan and his wife to only serve 4 years on probation,

Jonathan Duncan pled guilty to the charge of using a

communications facility to further commission of a fel-

ony involving cocaine.

Duncan did not initially have any problems with the

INS as a result of his plea. However, one year after his

plea, because he had been charged with Driving Under

the Influence by State authorities and was brought be-

fore this court for probation revocation, his case came

to the attention of the INS. The INS instituted a depor-

tation action against him and Duncan discovered that his

guilty plea to the communications facility felony because

it was considered a drug related crime made him auto-

matically deportable under INS provisions. See 8 U.S.C.

§ 1251. Because the charge fell under the automatic de-

portation provision, Duncan was not eligible for any

10a

waiver that may have been available to him as a result

of marriage to a United States citizen.

Duncan now contends that, because Mr. Clarke did not

warn him about this possible consequence, his plea was

not voluntary as he wouid never have pled guilty if he

had known it would lead to automatic deportation. On

the contrary, the court finds that Mr. Clarke did, indeed,

advise Duncan of the potential for deportation as a re-

sult of his plea. In fact, Duncan’s situation followed the

exact pattern that Clarke warned Duncan would subject

him to deportation. At the evidentiary hearing held by

this court, Duncan testified that Clarke had told him his

plea would not result in deportation so long as he “kept

his nose clean” during the probationary period. As the

evidence showed, the basic plea was not the triggering

factor in Duncan’s deportation. Duncan failed to follow

the rules of his probation, got in trouble with the author-

ities and as a result his case was brought before the

INS. The facts of this case prove that Mr. Clarke’s

opinion about the deportation consequences of Duncan’s

plea was accurate.

Duncan makes much of the fact that Clarke mis-

takenly advised Duncan that a waiver would be available

to him even if the INS instituted deportation proceedings

as a result of his plea. Clarke testified that he felt be-

cause of Duncan’s marriage to a United States citizen

and his impending fatherhood he would eligible for a

waiver. In this opinion, however, Clarke was wrong.

The automatic deportation provision for drug related of-

fenses does not allow for waiver. The court finds this

error in Clarke’s advice to be irrelevant. Although

Clarke’s advice mischaracterized the availability of a

waiver, Clarke’s advice accurately presented the possible

immigration consequences cf Duncan’s plea.

Clarke’s opinion that Duncan would be entitled to a

waiver was based on his marriage to Ms. Chanin and her

pregnancy. If, at the time a deportation question arose,

lla

Duncan was not married to a United States citizen or

the father of a United States citizen, then the waiver

provisions would be inapplicable to his case. So while

Duncan was misadvised that waiver was available, he

was also aware that waiver was not guaranteed. Waiver

would be based on his marital and parental status at the

time of deportation not at the time of the plea. The facts

of this case show that even if Clarke had been right

about the availability of waiver when Duncan pled, it

would not have help[ed] his case when the INS began de-

portation proceedings as he and Ms. Chanin had divorced

and Ms. Chanin had suffered a miscarriage of the child

she was expecting at the time of his plea.

No one, including Mr. Clarke, promised Duncan he

would not be deported. Indeed, Duncan answered in the

negative when this court inquired at the Rule 11 hearing

whether “anyone has promised you any thing else other

than what is in the negotiated plea in this case?” As

well, Duncan responded in the negative when asked if

he had any understandings or agreements with anyone

concerning this case or its outcome. The evidence shows

that Duncan was aware that the possibility of deporta-

tion as a consequence of his plea existed. While the de-

gree of the risk had been miscalculated, Duncan was

aware that there was no foolproof guarantee that plead-

ing guilty would not subject him to deportation. He

knowingly chose to run the risk of deportation when he

pled guilty to the lesser offense in order to keep his

pregnant wife from having to serve time in jail.

Duncan also tries to show ineffective assistance of

counsel by arguing that Clarke was not a criminal at-

torney nor did he have apy background in immigration

law. The standard for ineffective assistance of counsel

is whether trial counsel’s conduct was unreasonable and

that, but for the failure, the result of the plea proceed-

ing would have been different. Strickland v. Washing-

ton, 466 U.S. 668 (1984). Duncan chose his own coun-

sel in this case. He was aware that Clarke was primar-

12a

ily a real cstate attorney. Duncan testified at the evi-

dentiary hearing he only hired Clarke to avoid the ap-

pearance of impropriety and that everyone understood

that he was primarily relying on the advice and experi-

ence of Bruce Morris in the defense of his case. Addi-

tionally, when Duncan asked Clarke to investigate the

immigration consequences of his plea he knew Clarke

was not an immigration attorney and would have to rely

on the input and advice of more experienced attorneys.

The court finds that Clarke’s conduct—consuiting two ex-

perienced immigration attorney’s and conducting inde-

pendent research on the issue—was not unreasonable in

this case.

Furthermore, the court finds that Clarke’s ultimate

opinion about the immigration consequences of a plea to

the communications charge was not unreasonable. The

evidence presented at the hearing shows that the experi-

enced immigration attorneys who were consulted shared

Clarke’s opinion that given Duncan’s background and his

marriage he would not be deported as a result of the plea

so long as he stayed out of trouble. The court also notes

that Duncan testified that Mr. Morris upon whom he was

relying as primary~counsel agreed with Clarke’s conclu-

sion that he would have no problem as a result of the

plea so long as he stayed out of trouble and that given

the dual goals of keeping his wife out of jail and avoid-

ing deportation, the communications charge was the best

possible deal that could be worked out for both Duncan

and his wife. While he ran the risk of deportation if

he failed to stay clean, Duncan, his wife, and their un-

born child avoided the risk of a guilty verdict and up to

15 years incarceration on each of the two counts of the

indictment.

In order to show that Clarke acted unreasonably,

Duncan points the court to the case of Chang-Salazar v.

Immigration & Naturalization Service, 564 F.2d 302

(1977) wherein the Ninth Circuit held that the crime

of using a communications facility to facilitate the com-

18a

mission of a felony involving cocaine fell into the cate-

gory of automatically deportable crimes. Clarke testified

that he did not recall seeing this case and Duncan argues

that if Clarke had found the case he would have known

his opinion was wrong, would have changed his advice

and Duncan would not have pled guilty. Chang-Salazar

shows that at the time of Duncan’s plea one circuit had

specifically reached the question presented by Duncan’s

case but it does not suggest that the issue was a settled

matter of law in the Eleventh Circuit where Duncan

was being-charged. The existence of one opinion which

differs from the conclusion reached by all the attorney’s

consulted in Duncan’s case does not render Clarke’s con-

duct unreasonable; especially in light of the fact that

the case has no precedential value in the Eleventh Cir-

cuit where Duncan was charged.

This court concludes that Duncan was not misled about

the immigration consequences of his plea by Clarke and

that Clarke’s conduct in researching the immigration

consequences of Duncan’s plea and his opinion based on

that research was not unreasonable and did not consti-

tute ineffective assistance of counsel so as to render

Duncan’s plea involuntary in violation of F.R.Cr.P 11

and the Sixth Amendment of the Constitution of the

United States. Accordingly, Duncan’s motion to set aside

his guilty plea on the basis that it was involuntarily en-

tered into is DENIED.

SO ORDERED, this lst day of February, 1989.

/s/ Robert L. Vining, Jr.

ROBERT L. VINING, JR.

United States District Judge

l4a

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 87-8581

JONATHAN W. DUNCAN,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

No. 88-8221

JONATHAN W. DUNCAN,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeals from the United States District Court for the

Northern District of Georgia

(January 3, 1989)

Before TJOFLAT and CLARK, Circuit Judges and

ACKER”, District Judge.

* Honorable William M. Acker, Jr., U.S. District Judge for the

Northern District of Alabama, sitting by designation.

+ einen aaa iii

15a

PER CURIAM:

We consider two consolidated appeals by Jonathan W.

Duncan. Duncan first appeals from an order of the

Board of Immigration Appeals deporting him to New

Zealand upon a finding that he is guilty of a crime “re-

lated to a controlled substance” as a result of his plea

of guilty to the use of a communication facility in fur-

therance of the commission of a felony involving cocaine.

Duncan also appeals from the district court’s denial of

Duncan’s petition filed under 28 U.S.C. § 2255, seeking

to have his adjudication of guilt vacated on the ground

that his guilty plea was not knowingly and voluntarily

tendered and that his adjudication of guilt therefore con-

stituted a violation of Rule 11, F.R.Cr.P., and of the

Sixth Amendment to the Constitution of the United

States. Duncan’s primary contention in this regard is

based upon his secondary allegation that he was deprived

of effective assistance of counsel in that his attorney

misled him as to the immigration consequences of the

bargained-for guilty plea. He charges that his unac-

complished attorney advised him that a guilty plea to

the lesser “communication facility” offense would not ex-

pose him to deportation and that only for that reason did

he plead guilty when he had a good entrapment defense.

It is clear that the deportation order depends entirely

upon Duncan’s adjudication of guilt in the district court.

If the guilty plea is vacated, the deportation order will

necessarily be set aside. However, if the guilty plea is

not vacated but was nonetheless entered according to

Duncan’s version of the facts, the legal issues discussed

in Downs-Morgan v, United States, 765 F.2d 1534 (11th

Cir. 1985), and relied upon by both parties on the appeal

of the deportation order, will remain to be decided by

this court.

The district court did not conduct an evidentiary

hearing on Duncan’s § 2255 petition. Therefore, neither

the district court nor this court has any evidence bear-

ing on the questions raised by Duncan except the tran-

16a

script of the Rule 11 hearing itself. Duncan argues that

the Rule 11 hearing does not tell the whole story. This

court finds that an evidentiary hearing on Duncan’s

§ 2255 petition should have been held so that if there is

more to the story than meets the eye from the Rule 11

hearing, it can be told and judicially evaluated.

This court retains jurisdiction over both appeals but

REMANDS the § 2255 proceeding to the district court

for the limited purpose of the district court’s conducting

an evidentiary hearing within forty-five (45) days of

this date, entering findings of fact and conclusions of

law addressing and deciding Duncan’s allegations of in-

effective assistance of counsel as it may bear on the

knowing and voluntary nature of his guilty plea and on

the prejudice, if any, which may have resulted from

any mistaken belief held by Duncan. After the district

court’s findings and conclusions in this regard are re-

ceived by this court, the parties to the § 2255 proceeding

shall within fourteen (14) days thereafter file supple-

mentary briefs, that is, unless the district court vacates

Duncan’s guilty plea, in which event it will be incumbent

on the United States to decide whether to take its own

appeal or to acquiesce in the district court’s decision and

proceed to trial on the original indictment.

Accordingly, the district court’s denial of Duncan’s

§ 2255 petition is VACATED and the cause REMANDED

for the proceedings outlined above.

17a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Criminal Action No. CR 84-349 A

UNITED STATES OF AMERICA

VS.

JONATHAN DUNCAN

ORDER

[Filed Mar. 7, 1988]

On July 30, 1985, Jonathan Duncan entered a nego-

tiated plea of guilty to a one-count information charging

him with using a communication facility in facilitating

the commission of acts in furtherance of a conspiracy to

distribute cocaine. Imposition of sentence was suspended,

and Duncan was placed on probation for four years.

Duncan has now filed a motion under 28 U.S.C. § 2255

seeking to have his sentence vacated on the ground that

his guilty plea was not knowingly ar. voluntarily en-

tered into. The basis for this contention is that Duncan’s

attorney misled him about the consequences of a guilty

plea, specifically telling him in answer to Duncan’s re-

peated inquiries that a guilty plea would not result in

his deportation. Duncan’s attorney was incorrect, and

deportation proceedings have now been instituted against

Duncan.

In Downs-Morgan v. United States, 765 F.2d 1534

(llth Cir. 1985), the Eleventh Circuit addressed the

precise issue presented in this case and that case held

that under certain circumstances an affirmative misrep-

18a

resentation by counsel in response to a specific inquiry

regarding the possibility of deportation or exclusion

could warrant setting aside a guilty plea. In that case

the defendant contended that if he were deported to

Nicaragua he would certainly be imprisoned for many

years and possibly even be executed by that country.

Although the Eleventh Circuit remanded for an eviden-

tiary hearing in Downs-Morgan to determine if the

attorney did, in fact, give his client erroneous informa-

tion regarding deportation, the court also was very care-

ful to point out that it was dealing with unique circum-

stances and that its holding was very narrow:

We emphasize the narrowness of our decision. We

do not hold that the district court is under any ob-

ligation to inform the defendant about possible im-

migration consequences or that the court’s failure to

do so affects the constitutionality of a guilty plea.

Nor do we suggest that an affirmative misrepresenta-

tion by counsel in response to a specific inquiry about

the possibility of deportation or exclusion, without

the additional factors of imprisonment and execu-

tion, is sufficient to warrant collateral relief.

765 F.2d at 1541, n. 15.

In the instant case Duncan has not alleged that he faces

imprisonment or execution upon his deportation to New

Zealand. Consequently, he is not entitled to have his

sentence set aside.

For the foregoing reasons, Duncan’s motion under 28

U.S.C. § 2255 is DENIED.

SO ORDERED, this 4th day of March, 1988.

/s/ Robert L. Vining, Jr.

ROBERT L. VINING, JR.

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.