Scribd Logo
Upload

Welcome to Scribd!

  • Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    20 views6 pages
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding defendant Phillip Lee's appeal of the denial of his motion to set aside his sentence. The court order summarizes that Lee was convicted of bank robbery and related charges but did not appeal. He later filed a §2255 motion arguing prosecutorial misconduct because the prosecution issued subpoenas to compel witness interviews. The district court denied the motion, finding the misconduct was harmless error. The appeals court affirmed, finding that Lee's claims could have been brought on direct appeal so he had defaulted, and that he failed to demonstrate the actual prejudice needed to overcome the default.

    Original Description:

    Filed: 1998-05-28 Precedential Status: Non-Precedential Docket: 96-2293

    Original Title

    United States v. Lee, 10th Cir. (1998)

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding defendant Phillip Lee's appeal of the denial of his motion to set aside his sentence. The court order summarizes that Lee was convicted of bank robbery and related charges but did not appeal. He later filed a §2255 motion arguing prosecutorial misconduct because the prosecution issued subpoenas to compel witness interviews. The district court denied the motion, finding the misconduct was harmless error. The appeals court affirmed, finding that Lee's claims could have been brought on direct appeal so he had defaulted, and that he failed to demonstrate the actual prejudice needed to overcome the default.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    20 views6 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding defendant Phillip Lee's appeal of the denial of his motion to set aside his sentence. The court order summarizes that Lee was convicted of bank robbery and related charges but did not appeal. He later filed a §2255 motion arguing prosecutorial misconduct because the prosecution issued subpoenas to compel witness interviews. The district court denied the motion, finding the misconduct was harmless error. The appeals court affirmed, finding that Lee's claims could have been brought on direct appeal so he had defaulted, and that he failed to demonstrate the actual prejudice needed to overcome the default.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    MAY 28 1998

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    PHILLIP LEE,

    No. 96-2293
    (D.C. No. CIV-96-101-SC)
    (D. N.M.)

    Defendant-Appellant.

    ORDER AND JUDGMENT *


    Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
    ordered submitted without oral argument.

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

    Defendant appeals the district courts denial of his motion to set aside his
    sentence pursuant to 28 U.S.C. 2255. Defendant was convicted after a jury trial
    of conspiracy to commit bank robbery, bank robbery, and use of a firearm during
    a crime of violence. Judgment was entered on February 8, 1995, and defendant
    did not pursue a direct appeal. In November 1995, it came to light that the U.S.
    Attorneys Office in New Mexico had issued at least fifty-three subpoenas to
    witnesses under Fed. R. Crim. P. 17(a) to compel their attendance at ex parte
    pretrial interviews with the prosecution in at least eleven cases. After defendant
    received a copy of the letter from the U.S. Attorneys Office advising the court
    that the government had issued twenty-one such subpoenas in his case, defendant
    filed the present 2255 motion.
    Defendant argued that the governments misuse of the courts subpoena
    power violated the Fifth and Sixth Amendments, as well as Fed. R. Crim. P. 16,
    and that it constituted prosecutorial misconduct. Defendant also contended that
    the government may have violated the Jencks Act, 18 U.S.C. 3500, if it obtained
    statements from witnesses who later testified at trial and did not disclose those
    statements to defendant, and that the government may have violated its duties
    under Brady v. Maryland, 373 U.S. 83 (1963), if it obtained exculpatory
    information during those interviews which it failed to disclose to defendant. In
    light of the governments allegedly unconstitutional conduct, defendant requested
    -2-

    that his conviction be set aside and the indictment be dismissed, or that he be
    granted a new trial. Defendant also requested an evidentiary hearing on his
    claims.
    The district court adopted the report and recommendation of the magistrate
    judge, after considering the lengthy objections filed by defendant, and denied
    relief. Because defendant had not brought his claims on direct appeal, the district
    court held that he would have to establish either cause and prejudice for his
    default, or that a fundamental miscarriage of justice would occur if his claims
    were not addressed. See United States v. Allen, 16 F.3d 377, 378 (10th Cir.
    1994). The court concluded that defendant had established cause, because he did
    not learn of the governments improper use of the courts subpoena power until
    the time for appeal had passed. The court then considered whether defendant
    could establish actual prejudice.
    In considering the prejudice prong, the court applied the harmless error
    standard under Brecht v. Abrahamson, 507 U.S. 619, 638-39 (1993), and
    Kotteakos v. United States, 328 U.S. 750, 765-66 (1946). Accordingly, the court
    considered whether it had a grave doubt about whether a trial error of federal
    law had substantial and injurious effect or influence in determining the jury's
    verdict. Tuttle v. Utah, 57 F.3d 879, 884 (10th Cir. 1995) (quotation and
    emphasis omitted). The court concluded that defendants conclusory allegations
    -3-

    were not sufficient to meet this standard, and that the governments improper use
    of Rule 17 subpoena power was harmless error. Because defendant had failed to
    establish both cause and prejudice, the court held that his claims were
    procedurally barred.
    Defendant raises three challenges to the district courts order on appeal:
    (1) the court erred in applying the cause and prejudice standard because
    defendants failure to raise the claims on direct appeal did not constitute a
    procedural default; (2) the court did not give defendant a sufficient opportunity to
    respond after sua sponte raising the issue of procedural default; and (3) the court
    erred in concluding that defendant did not make a sufficient showing of prejudice.
    We address each of defendants arguments in turn.
    Defendant maintains that he did not procedurally default his claims by
    failing to raise them on direct appeal because, like claims of ineffective assistance
    of counsel, his claims were not amenable to being raised on direct appeal. Twice
    before, we have addressed the misuse of the district courts subpoena power by
    the U.S. Attorneys Office in New Mexico. In each of these cases, the defendant
    raised the challenge on direct appeal. See United States v. Villa-Chaparro, 115
    F.3d 797, 798, 804-05 (10th Cir. 1997); United States v. Ventura, No. 96-2148,
    1997 WL 774750, at **1, **3-**4 (10th Cir. Dec. 17, 1997). Likewise, other
    courts have addressed challenges to the governments misuse of Rule 17 subpoena
    -4-

    power on direct appeal. See, e.g., United States v. Keen, 509 F.2d 1273, 1274-75
    (6th Cir. 1975); United States v. Hedge, 462 F.2d 220, 221, 222-23 (5th Cir.
    1972); United States v. Standard Oil Co., 316 F.2d 884, 886-87, 897 (7th Cir.
    1963). Therefore, we are not persuaded by defendants argument that claims such
    as those raised in his 2255 motion are not of the type that can be adequately
    raised on direct appeal.
    Turning to defendants second challenge, we begin with the
    well-established premise that a court may sua sponte raise the defense of
    procedural default when a 2255 movant has failed to raise an issue on direct
    appeal. See Hines v. United States, 971 F.2d 506, 507-09 (10th Cir. 1992). If the
    court chooses to raise the defense sua sponte, however, it must generally afford
    the movant an opportunity to respond to the defense. Id. at 509. Here, the
    magistrate judge raised the defense sua sponte in his report and recommendation.
    The district court then gave defendant forty days to file objections to the
    magistrate judges report, which defendant did. Included in defendants
    objections was a discussion of how he had demonstrated prejudice arising from
    the governments misuse of the Rule 17 subpoena power. Thus, the district court
    gave defendant ample opportunity to respond to the procedural default defense
    before dismissing his 2255 petition. See id. at 507, 509 (affirming dismissal

    -5-

    where magistrate judge sua sponte raised procedural default and district court
    gave defendant opportunity to respond).
    Finally, defendant contends that the district court erred in concluding that
    he had not demonstrated actual prejudice and, therefore, could not overcome the
    procedural default. We agree with the district court that defendants conclusory
    statements are not enough to establish prejudice. The evidence was
    overwhelming that defendant participated in the bank robbery, and defendant has
    not made any specific allegations which, if true, would create a grave doubt about
    whether the prosecutions misuse of the courts subpoena power had substantial
    and injurious effect or influence in determining the jurys verdict. Tuttle, 57
    F.3d at 884 (quotation and emphasis omitted).
    The judgment of the district court is AFFIRMED. All outstanding motions
    are DENIED.

    Entered for the Court

    Mary Beck Briscoe


    Circuit Judge

    -6-

    You might also like