Opinion
No. CIV-05-0832 JC/RLP CR-99-828 JC.
October 6, 2005
ORDER
This matter is before the Court on Defendant's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (CV Doc. #1; CR Doc. #136) filed July 29, 2005. On December 29, 2004, Defendant was sentenced to twenty-four months' imprisonment for violation of supervised release. In his motion he contends that his revocation sentence is illegal and should be set aside. In his response to the order of August 9, 2005, he asks the Court to construe his petition as a motion under 28 U.S.C. § 2255. The petition (hereinafter the "motion") is construed under § 2255. See Braun v. Stole, 15 F. App'x 610, 611 (10th Cir. 2001).
In the petition for revocation of Defendant's supervised release, the government alleged a number of violations including an arrest on drug charges, testing positive for drug use, and failure to notify his probation officer. At the revocation hearing, the Court found that Defendant had violated the terms of his supervised release. According to the policy statements in Chapter 7 of the U.S. Sentencing Guidelines, Defendant's conduct constituted a "Grade A" violation. U.S.S.G. § 7(a)(1). His original conviction was for a "Class C" felony, (PSIR ¶ 17), and his criminal history was III, (CR Doc 94). The Court imposed a 24-month term of imprisonment.
Defendant's motion identifies four claims, and the memorandum in support of the motion sets out seven issues for adjudication. In summary, Defendant's substantive claims are for incorrect calculation of sentence and ineffective assistance of counsel. He alleges that his sentence should have been reduced based on acceptance of responsibility and over-representation of criminal history. Defendant also alleges that his attorney failed to argue for a lower sentence or to file an appeal from the revocation judgment.
Defendant's underlying allegations do not support claims for relief from a revocation sentence. First, these claims are procedurally barred because he did not appeal the revocation or sentence. "A § 2255 motion is not available to test the legality of a matter which should have been raised on direct appeal." United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). "[T]he district court . . . may raise and enforce [procedural bar] sua sponte, if doing so furthers `the interests of judicial efficiency, conservation of scarce judicial resources, and orderly and prompt administration of justice.'" United States v. Allen, 16 F.3d 377, 378-79 (10th Cir. 1994) (quoting Hines v. United States, 971 F.2d 506, 509 (10th Cir. 1992)). On the other hand, the Court should not dismiss Defendant's motion without giving Defendant the opportunity to "affirmatively demonstrate cause and prejudice," United States v. Hernandez, 94 F.3d 606, 612 (10th Cir. 1996), in failing to raise his claims on direct appeal.
Second, relief is not available in a § 2255 motion based on allegations that Defendant's revocation sentence fails to reflect his acceptance of responsibility and actual criminal history. The Guidelines provisions governing revocation sentences are advisory policy statements only and do not include these factors. See U.S. Sentencing Guidelines Manual Chapter 7 (2004). "After revocation of supervised release, the district court is bound only by the statutory maximum. The statutory maximum sentence that may be imposed on revocation in cases involving Class C felonies is two years. 18 U.S.C. § 3583(e)(3)." United States v. Reed, 63 F. App'x 454, 456 (10th Cir. 2003). Under Chapter 7's advisory policy statements, a revocation sentence must be reasonable. See United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005) (citing United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738, 766 (2005)); and see United States v. Tsosie, 376 F.3d 1210, 1218-19 (10th Cir. 2004) (noting reasonableness standard). Because the factors that Defendant asserts did not apply to his revocation proceeding, his "sentence is not unreasonable for the reasons presented," Tedford, 405 F.3d at 1161, and relief will be denied.
Defendant asserts two claims of ineffective assistance of counsel, one for failure to make the arguments for sentence reduction noted above, and the other for failing to appeal the revocation judgment. A defendant does not have a constitutional right to counsel in revocation proceedings, which are not part of the criminal prosecution, see Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); United States v. Drew, 2 F. Supp.2d 781, 783 (E.D. Va. 1998), nor on appeal from revocation, see Drew, 2 F. Supp.2d at 783. "Since defendant had no constitutional right to counsel on appeal from his revocation hearing, he could not be deprived of effective assistance by counsel's failure to file an appeal." Id. (citing Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (ruling, on basis of no right to counsel in discretionary appeal, that counsel's failure to perfect appeal was not ineffective assistance)). Defendant's motion will be dismissed.
IT IS THEREFORE ORDERED that Defendant's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (CV Doc. #1; CR Doc. #136) filed July 29, 2005, construed herein as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, is DISMISSED with prejudice; and, pursuant to Fed.R.Civ.P. 58(a)(2)(A)(iii), United States v. Sam, No. 02-2307, 2003 WL 21702490, at *1 (10th Cir. July 23, 2003), judgment will be entered.