Unpublished Disposition, 898 F.2d 156 (9th Cir. 1987)

No. 87-5895.

United States Court of Appeals, Ninth Circuit.

Before NELSON and BOOCHEVER, Circuit Judges, and JAMES R. BROWNING,^*  District Judge.

MEMORANDUM^** 

Appellant Murillo appeals the denial of his motion pursuant to 28 U.S.C. § 2255. Murillo was convicted October 14, 1981 of conspiracy to possess with intent to distribute heroin (count 1), possession with intent to distribute heroin (counts 2, 3 and 4), engaging in a continuing criminal enterprise (count 5), and income tax invasion (counts 6, 7 and 8). Murillo's direct appeal, petition for writ of certiorari and his first Sec. 2255 motion and its appeal and petition for certiorari were all denied.

Murillo now appeals the denial of his second motion to vacate, set aside, or correct the 17 year sentence imposed for the above convictions. Denial of a Sec. 2255 motion is reviewed de novo. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987). For the reasons stated below, we affirm the order of the district court.

Murillo makes the following arguments on appeal: (1) that the evidence at trial was insufficient to sustain his convictions for conspiracy and continuing criminal enterprise; (2) that counsel's failure to raise these issues in his direct appeal constituted ineffective assistance of counsel (3) that his three consecutive sentences for possession of a controlled substance with intent to distribute violated the double jeopardy clause; and (4) that his grand jury indictment was prejudicially multiplicitas in violation of the due process clause.

Appellant presented these issues to the sentencing judge in his second Sec. 2255 motion. The judge wrote the following words on the caption page of the document: "Petition denied. Contentions disposed of in prior Sec. 2255. See Ct of Appeals opinion filed 7/3/86."

In his first Sec. 2255 motion, Murillo argued that he was denied due process on grounds that the government deported three material witnesses, that there was excessive pre-indictment delay, and that his trial counsel provided ineffective assistance because he neglected to discover material evidence.

In a letter dated March 10, 1987 to the sentencing judge, Murillo asked the Court to reconsider its denial of his second Sec. 2255 motion. Murillo suggested that the issues presented in the two motions were different. The District Judge wrote across the top of the letter, "Dear Mr. Murillo, I decline to take further action on this matter."

Section 2255, 28 U.S.C. provides that " [t]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." 28 U.S.C.A. Sec. 2255 (West 1971). The sentencing court has discretion to refuse to consider a subsequent Sec. 2255 motion where (1) the subsequent motion presents the same ground determined adversely to the petitioner in the earlier motion(s); (2) the prior determination was on the merits; and (3) the ends of justice would not be served by reaching the merits of the subsequent petition. United States v. Donn, 661 F.2d 820, 823 (9th Cir. 1982) (citing Sanders v. United States, 373 U.S. 1, 15-17 (1963) and Chard v. United States, 578 F.2d 1317, 1318 (9th Cir. 1978)).

It appears that Murillo's second motion reargued none of the claims presented and denied in his first motion. However, a sentencing court is relieved from considering the merits of new claims in a subsequent petition if the petition "do [es] not state a claim for relief or [is] so palpably incredible or so patently frivolous or false as to warrant summary dismissal." Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). Petitioner's second petition does not state a claim for relief. Although the district court incorrectly identified the second motion as redundant, we may affirm its dismissal because Baumann permits the summary dismissal of a Sec. 2255 motion where petitioner has no claim. We may affirm the district court on any grounds finding support in the record. Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir. 1986).

1. Appellant's challenge of the sufficiency of the evidence.

Claims of nonconstitutional errors of law or fact may be raised in a Sec. 2255 proceeding only if the alleged error is "a fundamental defect that renders the entire proceeding irregular and invalid or results in a complete miscarriage of justice". United States v. Addonizio, 442 U.S. 178, 185-86 (1979) (quoting Hill v. U.S., 3368 U.S. 424, 428 (1962)). The proceedings of this record do not satisfy this standard.

Appellant's insufficiency of the evidence argument attacks the testimony of three witnesses whose testimony formed the bulk of the evidence on counts 2, 3, 4, and 5.

Count 2 is based upon the testimony of Ramon Ochoa. Murillo asserts that he was a paid informant who secured immunity for himself and was granted special consideration in deportation proceedings because of his testimony. Murillo also contends that Ochoa was a drug user, an admitted liar in judicial proceedings and that Murillo had provided information to police which resulted in Ochoa's conviction for manslaughter.

In count 2 of the indictment, Murillo is charged with "knowingly and intentionally distribute [ing] approximately 106 grams of heroin" on April 9, 1977. Ochoa testified that Murillo supplied him with heroin in April.

Counts 3 and 4 are based on the testimony of Simon Meza. Murillo also attacks the credibility of Meza, claiming that he was a paid informant and drug seller who secured immunity for himself and his nephew in exchange for his testimony.

Count 3 charges Murillo with "knowingly and intentionally possess [ing] with intent to distribute approximately 3 kilograms of heroin" in January 1977. Meza testified that Murillo possessed 3 kilograms of heroin in January 1977 and that he told his wife to store it. Murillo argues that handing the heroin to wife and telling her to store it does not prove that he intended to distribute it.

Count 4 charges that "in or about February, 1977 ... Murillo knowingly and intentionally possessed with intent to distribute approximately 5 kilograms of heroin." Meza testified that Murillo possessed the heroin and that Murillo told a third person, "Here, I'm bringing five kilos of heroin for whatever you would want to do with them."

Murillo does not dispute the fact that the jury was told all of the facts which Murillo contends undermines the witnesses' credibility. Moreover, the testimony of a single witness, even an informant, is sufficient to uphold a conviction. United States v. Larios, 640 F.2d 938, 940 (9th Cir. 1981). In addition, the intent to distribute a controlled substance may be reasonably inferred from the possession of quantities larger than that required for personal use. United States v. Glenn, 667 F.2d 1269, 1272 (9th Cir. 1982).

Notwithstanding Murillo's objections, a rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).

Murillo's attack on the Continuing Criminal Enterprise count (count 5) alleges that the requisite number of predicate acts were not proven. The indictment charged that "Murillo knowingly and willfully violated Title 21, United States Code, section 841(a) (1) as alleged in Counts Two, Three, and Four of this Indictment and Overt Acts 2, 4 and 17 contained in Count One of this Indictment, and willfully violated Title 21 Section 846 as alleged in Count One...."¹ Murillo specifically attacks the evidence supporting overt acts 4 and 17.

The term "series" as used in Sec. 848(c) (2) refers to "three or more federal narcotics laws violations." United States v. Ordonez, 737 F.2d 793, 806 (9th Cir. 1984) (citing United States v. Valenzuela, 596 F.2d 1361, 1367 (9th Cir.), 444 U.S. 865 (1979)). Even conceding Murillo's argument as to overt acts 4 and 17, the violations in counts 1, 2, 3, and 4 remain. Because we have already decided that appellant's attack on counts 2, 3, and 4 is wide of the mark, appellant's challenge to count 5 fails as well.

2. Murillo's sixth amendment rights were not violated because of the ineffective assistance of counsel.

Murillo contends that his retained appellate counsel did not raise the sufficiency of the evidence on his direct appeal.

The standard in this Circuit for ineffective assistance of counsel was set forth in United States v. Layton, 855 F.2d 1388 (9th Cir. 1988):

A defendant claiming ineffective assistance of counsel must make a two-fold showing. He must demonstrate (1) that counsel's actions were 'outside the wide range of professionally competent assistance,' and (2) that the defendant was prejudiced by reason of counsel's actions. Strickland v. Washington, 466 U.S. 668, 687-90, 104 S. Ct. 2052, 2065-66, 80 L. Ed. 2d 674 (1980). To establish prejudice, ' [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'

Layton, 855 F.2d at 1414. In light of our discussion, supra, addressing the sufficiency of the evidence, appellant did not suffer constitutionally ineffective assistance of counsel. Counsel's decision not to argue insufficiency of the evidence was within the ambit of professionally competent assistance.

3. Appellate counsel may withdraw from representation of the issues he contends are frivolous.

Murillo's appointed counsel has concluded that three of the issues raised by this appeal lack an arguable basis in law or in fact and he asks permission to withdraw from representation of to those issues as they were not addressed in Murillo's briefs. Anders v. California, 386 U.S. 738 (1967).

First, counsel submits that Murillo's claim that his three consecutive sentences for possession of a controlled substance with intent to distribute violate the double jeopardy clause is frivolous. Murillo's Sec. 2255 motion cited Blockburger v. United States, 284 U.S. 299 (1932). Blockburger does not support Murillo's argument because it involved a defendant charged with multiple offenses arising from the same drug transaction. In the case at bar, counts 2, 3, and 4 involved different transactions.

Counsel also seeks to withdraw from representation of the following two issues: whether the grand jury indictment was prejudicially "multiplicious" in violation of the due process clause and whether the evidence at trial was sufficient to sustain the conviction for conspiracy. In determining whether an indictment is multiplicative, a court must consider "whether each count of the indictment requires proof of a fact that the others do not. United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir. 1986) (citing Blockburger, 284 U.S. at 304, United States v. Wylie, 625 F.2d 1371, 1381 (9th Cir. 1980), cert. denied, 449 U.S. 1080 (1981)). On this standard, Murillo's indictment is not multiplicative. Each count requires different proof.

Murillo's Sec. 2255 motion argues that " [t]he Government has not showen [sic] an agreement by the petitioner to accomplish an illegal objective coupled with one or more overt acts in furtherance of the illegal purpose...." Pursuant to Jeffers v. United States, 432 U.S. 137, 147-54 (1977), no sentence was imposed on the conspiracy count because of the conviction on the continuing criminal enterprise ("CCE") count. A finding that there was sufficient evidence to sustain the CCE conviction would sustain the lesser included conspiracy conviction. As we have already held, the CCE will not be overturned.

In summary, appellant's Sec. 2255 motion does not state a claim for relief. Dismissal of his motion was justified. Baumann, 692 F.2d at 571.

The order of the district court is AFFIRMED.