Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1226 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Reginald Dean STILL, Defendant-Appellant.Reginald Dean STILL, Plaintiff-Appellant,v.Richard H. RISON, Warden, Defendant-Appellee.

Nos. 88-5450, 89-55039 and 88-55159.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 30, 1990* .Decided April 10, 1990.

Before DOROTHY W. NELSON, BRUNETTI and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Reginald Still appeals from the district court's judgment and orders denying his motions for a correction or reduction of his sentence under Federal Rule of Criminal Procedure 35, and to vacate, set aside, or otherwise correct his sentence under 28 U.S.C. § 2255. We affirm.

* On or about November 9, 1985, Still attempted to escape from the Federal Correction Institute in Butner, North Carolina while he was there undergoing a pretrial competency evaluation pursuant to an order of the United States District Court for the Eastern District of California. The United States Marshal's Service returned Still to the Eastern District of California on November 25, 1985 to stand trial on one count of attempted bank robbery in violation of 18 U.S.C. § 2113 and one count of interstate transportation of a stolen vehicle in violation of 18 U.S.C. § 2312 (Dyer Act).

On January 21, 1986, a federal grand jury in the Eastern District of North Carolina returned an indictment, charging Still with attempted escape in violation of 18 U.S.C. § 751(a). A warrant for Still's arrest issued on January 22, 1986. Two days later, the indictment and warrant were forwarded to the United States Marshal's Service in the Eastern District of California so that a detainer could be lodged against Still; but the detainer was not lodged until February 11, 1988. Still filed a motion in the Eastern District of North Carolina to dismiss the indictment on, inter alia, speedy trial grounds. That motion was denied on May 4, 1988.

Meanwhile, Still's trial in the Eastern District of California began on April 29, 1986. A guilty verdict on both counts was returned on May 15, 1986. Still received a fifteen-year sentence on the attempted bank robbery count and five years probation on the Dyer Act count, running consecutively to the attempted bank robbery sentence. He appealed from his convictions to this court.

On January 25, 1988, this court reversed Still's conviction on the attempted bank robbery charge and affirmed his Dyer Act conviction, remanding the case for resentencing. United States v. Still, 837 F.2d 871 (9th Cir.), superseded, 850 F.2d 607 (9th Cir. 1988). On September 20, 1988, the court denied Still's petition for rehearing and rejected a suggestion for rehearing en banc. See 857 F.2d 671 (9th Cir. 1988).

On July 20, 1988, Still filed a motion for consent to transfer pursuant to Federal Rule of Criminal Procedure 20. The motion was granted and Still was arraigned in the Central District of California on the attempted escape charge on August 15, 1988. He entered a guilty plea on September 12, 1988. He was sentenced on November 7, 1988 to the custody of the Attorney General for two years, consecutive to any other federal sentence he was then serving, or to be imposed at the resentencing ordered by this court, as described above. The court also imposed a $50 special assessment upon Still.

On December 21, 1988, Still filed a Rule 35 motion for reduction or correction of sentence. That motion was denied, without comment, on January 12, 1989. Still also filed a pleading denominated a petition for writ of habeas corpus on January 9, 1989. The district court treated the petition as a motion to vacate, set aside, or otherwise correct the sentence pursuant to 28 U.S.C. § 2255 and denied it on January 25, 1989.

II

Still asserts that the government violated his rights to due process and a speedy trial by waiting two years after indictment to lodge the detainer against him. The government responds that Still waived his right to assert these claims. We agree.

A defendant who knowingly and voluntarily enters an unconditional guilty plea waives all nonjurisdictional defects in the criminal proceeding, including constitutional rights. Tollett v. Henderson, 411 U.S. 258, 266-67 (1973); Marrow v. United States, 772 F.2d 525, 527 (9th Cir. 1985). Still entered an unconditional guilty plea to the escape charge on September 12, 1988. By doing so, Still waived his right to assert violations of both his right to a speedy trial and his right to due process of law. See United States v. Montilla, 870 F.2d 549, 552 (9th Cir. 1989); see also United States v. Norman, 767 F.2d 455, 456 (8th Cir. 1985) (guilty plea waives right to assert due process violation).1 

Still also asserts that the district court erred by failing to credit him for the time he served on the overturned attempted bank robbery charge.

We disagree. Still did receive credit for time served on his overturned attempted bank robbery conviction. The United States District Court for the Eastern District of California granted Still "credit for all time served in connection with [that] case." See Judgment of Jan. 19, 1989, of United States District Court for the Eastern District of California. The "case" included both attempted bank robbery and Dyer Act charges; when Still's attempted bank robbery conviction was overturned, the district court properly granted him credit for time served against the Dyer Act conviction which was part of the same "case." Accordingly, it would have been redundant for the United States District Court for the Central District of California to give Still credit for time served as against his escape conviction.

Although Still did not raise the issue in his brief, this court recently held that the $50 special assessment authorized by 18 U.S.C. § 3013 violates the origination clause of the Constitution. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). Accordingly, we reverse that part of Still's sentence and remand for the district court to vacate the assessment.

AFFIRMED in part and REVERSED in part.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

In light of the holding and reasoning of Montilla, we decline to follow the dicta in United States v. Sears, Roebuck and Co., Inc., 877 F.2d 734, 740 (9th Cir. 1989), where the court stated that "a defendant cannot 'waive' his Sixth Amendment right to a speedy trial...."