Unpublished Disposition, 899 F.2d 19 (9th Cir. 1989)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1989)

Richard Carlyle ROCKSTAD, Petitioner-Appellant,v.Tom WOOTEN, Superintendent, et al., Respondent-Appellee.

No. 88-6541.

United States Court of Appeals, Ninth Circuit.

Submitted March 16, 1990.* Decided March 21, 1990.

Before JAMES R. BROWNING, ALARCON and POOLE, Circuit Judges.


MEMORANDUM** 

Richard Carlyle Rockstad, a federal prisoner, appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate sentence. We review de novo, United States v. Mathews, 833 F.2d 161, 163 (9th Cir. 1987), and affirm.

* Rockstad complains that the federal proceedings leading to his incarceration constituted double jeopardy, and therefore violated his fifth amendment rights.1  He bases this claim on a bungled state prosecution for arson. After the state case failed, federal authorities prosecuted Rockstad for mail fraud and conspiracy. Although the "dual sovereigns" doctrine ordinarily would preclude any claim of double jeopardy under these circumstances, see Bartkus v. Illinois, 359 U.S. 121, 131-32 (1959), Rockstad contends that the "sham prosecution" exception applies such that both prosecutions were really brought by the same sovereign. Cf. id. at 124 (discussing state proceedings that followed a federal prosecution).

The government contends that because Rockstad failed to make this argument in the trial court, he has procedurally defaulted on his double jeopardy claim. We agree. Failure to attack an indictment before trial on the ground of double jeopardy waives this fifth amendment right. Haddad v. United States, 349 F.2d 511, 514 (9th Cir.), cert. denied, 382 U.S. 896 (1965); Fed. R. Crim. P. 12(f).

In response, Rockstad first argues that he actually preserved his double jeopardy claim when he raised the issue of vindictive prosecution in pretrial motions, at trial, and on direct appeal. However, double jeopardy and vindictive prosecution are distinct legal theories. See Adamson v. Ricketts, 865 F.2d 1011, 1017 n. 4 (9th Cir. 1988) (en banc), petition for cert. filed, 57 U.S.L.W. 3655 (U.S. March 20, 1989). When counsel raises one of these issues, the other issue will not thereby be preserved.

Rockstad argues that as a pro se litigant he should not be held accountable for the distinctions between vindictive prosecution and double jeopardy. Rockstad, however, was represented at trial and on direct appeal by counsel whose effectiveness is not in question. He is therefore bound by the prior actions of his attorney, including the decision to argue vindictive prosecution rather than double jeopardy. See Murray v. Carrier, 477 U.S. 478, 488 (1986). It follows that Rockstad procedurally defaulted on the double jeopardy issue.

II

Thus, in order to raise his claim of double jeopardy in a section 2255 motion, Rockstad must show cause for the default, Davis v. United States, 411 U.S. 233, 242 (1973), and prejudice resulting therefrom. United States v. Frady, 456 U.S. 152, 167 (1982). The Supreme Court has held that "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim...." Reed v. Ross, 468 U.S. 1, 16 (1984).

Relying on this holding, Rockstad asserts that the "sham prosecution" exception to the dual sovereigns doctrine was unavailable at the time of his trial. He claims that the "sham prosecution" exception only appeared recently in the case of United States v. Bernhardt, 831 F.2d 181 (9th Cir. 1987), which was decided after the direct appeal of Rockstad's conviction. However, as Rockstad himself made clear during the district court review of his section 2255 motion, the "sham prosecution" exception was available at the time of his trial. In his objection to the magistrate's report, Rockstad cites the decision in United States v. Aboumoussallem, 726 F.2d 906 (2d Cir. 1984), as an example of the "sham prosecution" exception. The Aboumoussallem case was decided on January 6, 1984--more than six months before Rockstad was indicted by a federal grand jury. Because Aboumoussallem sets out the "sham prosecution" exception, 726 F.2d at 910, the law discussed in Bernhardt was clearly available to counsel at the time of Rockstad's trial.2  Rockstad conceded as much by citing to the Aboumoussallem opinion. Thus, unavailability of the "sham prosecution" exception cannot serve as "cause" for Rockstad's default.

No other cause appearing from Rockstad's petition, the opinion of the district court is

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Cir.R. 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 9th Cir.R. 36-3

 1

Rockstad presented this claim to the district court as a petition for a writ of habeas corpus, 28 U.S.C. § 2241, and the district court treated it as such. However, the attack here is directed at Rockstad's conviction, not at the execution of his sentence. Therefore, the claim should have been brought as a motion to vacate sentence pursuant to 28 U.S.C. § 2255. Grimes v. United States, 607 F.2d 6, 11 (2d Cir. 1979). We are free to treat it as such. Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977), cert. denied, 435 U.S. 931 (1978)

 2

See also Bartkus, 359 U.S. at 124 (available to Rockstad at time of his federal indictment; cited in Bernhardt) ; United States v. Aleman, 609 F.2d 298, 309 (7th Cir. 1979) (same), cert. denied, 445 U.S. 946 (1980); United States v. Liddy, 542 F.2d 76, 79 (D.C. Cir. 1976) (same)