Appeal from the United States District Court for the Eastern District of Wisconsin. No. 83-Cr-79 -- Terence T. Evans, Judge.
Before WOOD, JR., CUDAHY, and FLAUM, Circuit Judges.
Petitioner-appellant Dennis Wayne Williams appeals the district court's denial of his motion for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2255 (1982).*fn1 Williams alleges that he was denied effective assistance of counsel when his court-appointed trial attorney failed to advise him that he would be required to serve at least 100 months in jail if he pleaded guilty and when his attorney failed to assist him in filing a motion for a sentence reduction pursuant to Fed. R. Crim. P. 35(b). Williams also claims that he is entitled to habeas relief on grounds that his due process rights were violated by the presence of errors in his presentence report, that his sentence is violative of the eighth amendment, and that his conviction violates the prohibition against double jeopardy. We affirm.
Pursuant to a plea agreement, Williams pled guilty to three counts of a four-count indictment. Williams was indicted as a result of an offer he and a codefendant made to sell a machine gun and silencer to federal undercover agents. Count I charged Williams with conspiracy to engaged in the business of dealing in firearms without having registered to do so and without having paid the special occupational tax as required by law in violation of 18 U.S.C. § 371 (1982); Count II involved a charge of possession of an unregistered machine gun in contravention of 26 U.S.C. § 5861(d) (1982); and Count IV charged Williams with possession of a firearm by a convicted felon in violation of 18 U.S.C. App. § 1202(a)(1) (1982 & Supp. II 1984). Count III of the indictment was dismissed in accordance with the plea agreement. On September 14, 1983, Williams, who was represented by counsel prior to and at the time of sentencing, was sentenced to three years on Count I, ten years on Count II to run consecutively to the three years on Count I, and two years on Count IV to run concurrently with the sentence on Count II. Williams received, in effect, a sentence of thirteen years which was well within the maximum seventeen-year sentence the district court could have imposed.
On January 16, 1984, 124 days after sentencing, Williams, who claims that his trial counsel ended his representation after the imposition of sentence, filed a pro se motion pursuant to Fed. R. Crim. P. 35(b) seeking a reduction in his sentence alleging that it was "unduly harsh and severe" and that new circumstances "would greatly mitigate the punishment in this case." On February 7, 1984, the district court denied William's Rule 35(b) motion concluding that not only was the sentence initially imposed appropriate but also that the court lacked jurisdiction to consider the motion since it was not filed within the 120-day period specified by Rule 35(b).*fn2 After new counsel was appointed for Williams, he appealed the trial court's decision and we affirmed in an unpublished order. Apart from his Rule 35(b) motion, Williams presented no other direct challenge to his sentence.
Williams subsequently sought relief pursuant to 28 U.S.C. § 2255 alleging various constitutional infirmities. The district court denied the motion for habeas relief on the merits and Williams appeals.
The government contends that our decision in Norris v. United States, 687 F.2d 899 (7th Cir. 1982) (Cudahy, J., concurring, and Wood, Jr., J., with whom Bauer, J., joins dissenting from decision not to hear the case en banc), is dispositive of the issues Williams raises. Cf. United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir. 1983) (en banc). In Norris, we ruled that a failure to raise constitutional challenges to a conviction on direct appeal would bar a petitioner from raising the same issues in a section 2255 proceeding, absent a showing of good cause for and prejudice from the failure to appeal. 687 F.2d at 903-04.*fn3 In so doing, Judge Posner, writing for the court, rejected the argument that the deliberate bypass test was still applicable in such cases. In Kaufman v. United States, 394 U.S. 217, 220 n.3, 22 L. Ed. 2d 227, 89 S. Ct. 1068 (1969), the Supreme Court had noted that a failure to raise a constitutional issue on direct appeal was not fatal to a subsequent section 2255 action unless the petitioner had deliberately bypassed the appellate process.
Relying upon, among other cases, United States v. Frady, 456 U.S. 152, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982), the Norris court concluded that the Supreme Court had subsequently departed from the deliberate bypass test and had adopted the less stringent cause and prejudice standard. 687 F.2d at 903-04. See Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). In Frady, the Supreme Court held that a defendant's failure to object to an erroneous jury instruction either at trial or on direct appeal barred him from raising the issue in a section 2255 petition absent a showing of good cause and prejudice. 456 U.S. at 167. The Court noted that the defendant in that case had failed to object at trial even though under Fed. R. Crim. P. 30*fn4 he was required to raise a contemporaneous objection to any erroneous jury instruction. Id. at 162. Moreover, the Court rejected the defendant's argument that the "plain error" standard of Fed. R. Crim. P. 52(b)*fn5 was applicable in his case as opposed to the cause and prejudice standard. Id. at 164. As the Court noted, "because it was intended for use on direct appeal . . . the 'plain error' standard is out of place when a prisoner launches a collateral attack against a criminal conviction after society's legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal." Id.
In the present case, with the decisions in Frady and Norris in mind, we must determine whether the government is correct in arguing that Williams has waived the issues he now raises. The context of this case requires that we look at two different opportunities Williams had to challenge his sentence. One opportunity was the Rule 35 proceeding. As noted above, Williams filed a Rule 35(b) motion pro se, and thereafter, with the assistance of his second court-appointed attorney, unsuccessfully appealed the district court's denial of his motion. Williams also could have appealed his sentence directly from the district court. Under Fed. R. App. P. 4(b), a defendant has ten days after the imposition of sentence in which to file a notice of appeal in that court. It is undisputed, however, that Williams never challenged the district court's sentencing decision on direct appeal.*fn6 Under Norris, if either of these two options provided Williams with an opportunity to raise the issues he now poses and he failed to do so, absent a showing of cause and prejudice excusing this failure, the issues would seemingly be deemed waived for purposes of his section 2255 action.
Although Williams concedes the applicability of Norris, he contends that he can show the necessary cause and prejudice to overcome this barrier to his habeas action. Before reaching Williams's claim that he is able to satisfy the cause and prejudice standard, however, we must first ascertain whether Williams is correct in conceding that Norris controls in this case. Our own research indicates that at least two other circuits have apparently ruled that application of the Norris standard to Williams's case would be inappropriate. In United States v. Corsentino, 685 F.2d 48 (1982), for example, the Second Circuit held that a petitioner's failure to raise his claim that the government violated its plea agreement either on direct appeal or in a Rule 35 proceeding did not bar the petitioner from raising the same issue in a habeas petition. Id. at 50-51. In Corsentino, the petitioner pled guilty and the government thereafter allegedly failed to comply with the plea bargain requiring that it "take no position" at the sentencing hearing. In that case, the district court denied the petitioner habeas relief noting that he had failed to object to the violation of the plea agreement either at the sentencing hearing or in his Rule 35(b) motion. The Second Circuit reversed and in so doing rejected the government's waiver argument based on Frady, supra. The court found that unlike Frady where a prompt objection would have given the trial court an opportunity to give the jury a correct supplemental instruction, the opportunity to make such an objection in the post-trial period when the government allegedly violates a plea agreement is not clearly defined. Id. at 50-51. Secondly, even if the petitioner could have raised the issue on direct appeal, the court concluded that "this is not the traditional appellate review after trial contemplated by Frady." Id. at 51. Finally, the court found that the petitioner's Rule 35 motion, "properly seeking an exercise of the District Court's discretion to reduce his sentence, is not a waiver of defects that are normally presented upon a collateral attack." Id. The court accordingly went on to consider the petitioner's claim that the government violated his plea agreement on its merits.
Similarly, in United States v. Baylin, 696 F.2d 1030 (1982), the Third Circuit held that a petitioner's failure to object to the improper inclusion of certain material in his presentence report prior to sentencing did not bar him from raising that issue in a section 2255 proceeding. In rejecting the government's ...