Phillip Dozier, Plaintiff-appellant, v. United States District Court for the Northern District Offlorida, Defendant-appellee, 656 F.2d 990 (5th Cir. 1981)

Petitioner Phillip Dozier appeals from the district court's denial of his motion to vacate sentence under 28 U.S.C.A. § 2255. We affirm.

Dozier was convicted on four counts of possessing heroin with an intent to distribute and sentenced to a total of ten years' incarceration with a six-year special parole term. The conviction was affirmed on appeal. United States v. Dozier, 575 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 874, 99 S. Ct. 211, 58 L. Ed. 2d 188 (1978). Following the appeal, Dozier moved for a reduction of sentence pursuant to Fed. R. Crim. P. 35, alleging that the lengthy period of imprisonment would result in "family hardship." Upon denial of the motion, Dozier filed the present action and moved to have his sentence vacated on the grounds that he had received ineffective assistance of counsel and that he was entitled to be sentenced under the Narcotic Addict Rehabilitation Act (NARA), 18 U.S.C.A. § 4251, et seq.¹  A federal magistrate determined that Dozier had received effective assistance of counsel but that he had a right to be considered for sentencing under NARA and recommended the sentence be vacated and a hearing held to ascertain Dozier's eligibility under the Act. The district court rejected the recommendation and concluded that Dozier's right to be sentenced under NARA could not be raised in a motion to vacate sentence.

Dozier's averment that he received ineffective assistance of counsel appears to be based upon counsel's failure to bring Dozier's alleged heroin addiction to the attention of the trial judge in order to obtain rehabilitative sentencing under NARA. It is well settled in this Circuit that an accused in a criminal case is entitled to "effective assistance of counsel," but not to an error free performance. United States v. Burroughs, 650 F.2d 595 (5th Cir. 1981); Washington v. Estelle, 648 F.2d 276, 279 (5th Cir. 1981). The burden of proving an absence of effective counsel lies with the petitioner. United States v. Killian, 639 F.2d 206, 210 (5th Cir. 1981). Considering the facts as reflected by the record in this case, any failure by counsel to attempt to raise Dozier's alleged addiction at the sentencing hearing did not render counsel's representation ineffective.² 

Dozier also asserts that he is at this time entitled to be considered for sentencing under NARA. The issue was not raised on direct appeal or in the motion for reduction of sentence. Generally issues that should have been raised on direct appeal will not be appropriate subjects for a motion to vacate sentence. Buckelew v. United States, 575 F.2d 515, 518 (5th Cir. 1978); Overton v. United States, 450 F.2d 919 (5th Cir. 1971). However, because the purported error arises from the alleged ineffective assistance of counsel, we consider the merits. Thor v. United States, 574 F.2d 215, 219 (5th Cir. 1978).

Relief may be granted under Section 2255 only if "the alleged error amounted to a fundamental defect, which resulted in a miscarriage of justice." United States v. Johnson, 615 F.2d 1125, 1127 (5th Cir. 1980); see also United States v. Timmreck, 441 U.S. 780, 783, 99 S. Ct. 2085, 2087, 60 L. Ed. 2d 634 (1979); Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 2305, 41 L. Ed. 2d 109 (1974). That Dozier was not sentenced under NARA cannot be viewed as a fundamental defect. Use of the Act when sentencing is not mandatory and is left to the sound discretion of the district court. United States v. Hart, 488 F.2d 970, 971 (5th Cir. 1974); United States v. Williams, 407 F.2d 940, 944 (4th Cir. 1969). Even if Dozier had been eligible for rehabilitative sentencing and even had his eligibility been made known to the trial judge, he would not have had any right or entitlement to be sentenced under the Act. Accordingly it cannot be said that the court's failure to sentence petitioner under NARA constituted a fundamental defect and a miscarriage of justice.³ 

AFFIRMED.