Unpublished Disposition, 872 F.2d 431 (9th Cir. 1987)

No. 88-3690.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and ALARCON, Circuit Judges, and WILLIAM H. ORRICK^** , Jr., District Judge.

MEMORANDUM^*** 

Mark Edwin Cook (Cook) appeals from the district court's denial of his 28 U.S.C. § 2255 motion to vacate Count II of the superseding indictment charging Cook with conspiracy in violation of 18 U.S.C. § 371. Cook contends that (1) he was denied a unanimous verdict because the trial court failed to instruct the jury properly so as to avoid a non-unanimous verdict and (2) the jury may have based its verdict on an act (Overt Act No. 5) which was legally insufficient to support the verdict. We disagree and affirm.

* This case arises out of an armed bank robbery of the Pacific Mutual Bank in Tukwila, Washington, on January 23, 1976. Thereafter, an indictment was returned on March 18, 1976, charging Cook with bank robbery and assault during a bank robbery in violation of 18 U.S.C. § 2113(a) and (d); and use and possession of a firearm during a felony in violation of 18 U.S.C. § 924(c). A superseding indictment was returned on May 18, 1976, adding a count charging Cook with conspiracy in violation of 18 U.S.C. § 371.

Cook was separately tried on the superseding indictment and was convicted on all charges on June 28, 1976. We affirmed the judgment of conviction. United States v. Cook, 608 F.2d 1175 (9th Cir. 1979), cert. denied, 444 U.S. 1034 (1980).

On April 27, 1987, Cook filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255 seeking to vacate his conspiracy conviction (Count II). Presiding Judge Donald Voorhees referred the matter to United States Magistrate Philip Sweigert for report and recommendation. On December 21, 1987, the district court adopted the magistrate's report and filed an order denying Cook's section 2255 motion. Cook filed a timely notice of appeal.

II

Cook contends that several of the jury instructions were improper. However, Cook failed to challenge the jury instructions on direct appeal from his conviction.

Where a criminal defendant fails to make allegations of error at trial or on direct appeal, he must demonstrate "cause" excusing his procedural default, and "actual prejudice" resulting from the alleged errors. United States v. Frady, 456 U.S. 152, 167-68 (1982); Roberts v. Arave, 847 F.2d 528, 530 (9th Cir. 1988).

Cook contends that his failure to raise his challenge to the jury instructions on direct appeal from his conviction should be excused because the law of this circuit at the time did not support his allegations of reversible error. Cook's argument is unpersuasive.

The Supreme Court has recognized that novel constitutional claims in certain circumstances may suffice to establish "cause" for an appellant's failure to raise an issue on direct appeal. Reed v. Ross, 468 U.S. 1, 13-16 (1984). To state such a claim, however, the Supreme Court has required that appellants show that the "constitutional claim [was] so novel that its legal basis [was] not reasonably available to counsel" at the time of his appeal. Id. at 16.

In the instant matter, Cook's claims that the jury instructions denied him a unanimous verdict and that the jury may have based its verdict on an overt act which was legally insufficient were not so novel that their legal basis was not reasonably available to counsel during the direct appeal. Although Cook relies on United States v. Carmen, 577 F.2d 556 (9th Cir. 1978), which was decided while Cook's direct appeal was still pending, it is apparent that the principal authorities on which Carmen rests existed before Cook's appellate brief was filed on December 7, 1976. See, e.g., Stromberg v. California, 283 U.S. 359, 367-68 (1931) (Court set aside general verdict where the indictment charged several crimes and one of the crimes was based on an unconstitutional provision of a criminal statute); United States v. Dansker, 537 F.2d 40, 51 (3d Cir. 1976) (conspiracy conviction reversed when conspiracy count set forth two objectives and evidence was insufficient to support conviction of the substantive crime to which one of the objects related), cert. denied, 429 U.S. 1038 (1977); Van Liew v. United States, 321 F.2d 664, 672 (5th Cir. 1963) (conspiracy conviction overturned when portion of conspiracy count failed to set forth illegal objectives and jury rendered a general verdict); Samuel v. United States, 169 F.2d 787, 798 (9th Cir. 1948) (general verdict reversed where one of the three laws set out in the conspiracy count was erroneously defined). Therefore, the legal theories on which Cook now relies were available to him on appeal from his conviction. Accordingly, Cook has not demonstrated "cause" excusing his failure to raise his challenge to the jury instructions on direct appeal.

Because Cook failed to show "cause" for his procedural default, we need not consider whether he suffered actual prejudice. Roberts, 847 F.2d at 530 n. 3. This case does not present the extraordinary situation where the prejudice to a petitioner is so great that a federal court will grant a section 2255 motion even in the absence of a showing of cause for the procedural default. See Murray v. Carrier, 477 U.S. 478, 496 (1986) (Court indicated that an extraordinary case would exist "where a constitutional violation has probably resulted in the conviction of one who is actually innocent"). In light of our earlier affirmance of the judgment of conviction on direct appeal, we are not persuaded that Cook is actually innocent.

The district court's denial of Cook's Section 2255 motion is AFFIRMED.