Unpublished Disposition, 904 F.2d 711 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 904 F.2d 711 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.James TWINE, Defendant-Appellant.

No. 89-35301.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 4, 1989.* Decided June 13, 1990.

Before CANBY, WIGGINS and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

James Twine appeals the district court's denial of his section 2255 motion. Twine alleged that his sentence had been illegally imposed and that he was entitled to be resentenced. Twine also argued that he had received ineffective assistance of counsel at his sentencing hearing and that the Parole Commission relied on false information when it set Twine's minimum parole term. The district court rejected all of Twine's arguments. We affirm.

BACKGROUND FACTS

In August of 1986, Twine was convicted on eight counts of violating 18 U.S.C. §§ 875 and 876 (using interstate communications to threaten another person). In October of 1986, the district court ordered that Twine be conditionally sentenced for ninety days so that Twine could undergo a psychiatric evaluation. Once that psychiatric evaluation was complete, the district court sentenced Twine to a term of five years in prison and an additional five years of probation.

The Seattle probation office had prepared a presentence report prior to Twine's trial because Twine had initially indicated that he would plead guilty to the charges. However, once Twine opted for a trial, the probation office prepared an amended report for Twine's sentencing. Twine read both of the reports prior to his sentencing. Furthermore, Twine wrote a letter to the district court challenging various facts contained in the reports. Essentially, Twine charged that the presentence reports overstated the nature of his threatening actions and that the reports listed some threatening remarks that Twine denied ever making. Twine did not raise any objections to the reports during either of the sentencing hearings. Twine also did not appeal his sentence.1 

In his section 2255 motion, Twine claimed that the sentencing court violated Federal Rule of Criminal Procedure 32 when the court imposed Twine's sentence. Twine alleged that the sentencing court had not allowed Twine to review the amended presentence report and that the sentencing court had not personally asked Twine whether he objected to the presentence reports. Twine did not raise either issue prior to his section 2255 motion.

STANDARD OF REVIEW

This court reviews de novo a district court's decision to deny a section 2255 motion. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989). We review a district court's findings of fact under the clearly erroneous standard. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989); United States v. McConney, 728 F.2d 1195, 1200 n. 5 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984).

DISCUSSION

A. Legality of Sentence.

At the outset, we note that a prisoner may not generally use a section 2255 motion to newly raise issues that could have been raised at trial or at the time the prisoner directly appealed his conviction. United States v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985). That prohibition includes claims that a sentencing court violated Rule 32 when it imposed the prisoner's sentence. Martorana v. United States, 873 F.2d 283, 284 (11th Cir. 1989); see also Jones v. United States, 783 F.2d 1477, 1478-79 (9th Cir. 1986) (circuit court had previously affirmed district court's dismissal of section 2255 motion because defendant had not raised Rule 32 claims on direct appeal.) Should a defendant fail to raise his Rule 32 objections at the sentencing hearing or on direct appeal, the defendant may raise those objections in a section 2255 motion only upon a showing of cause and prejudice. Martorana, 873 F.2d at 284; see also Theodorou v. United States, No. 86-2767, slip op. 1, 5-6 (7th Cir. Oct. 27, 1989) (section 2255 motion unavailable to defendant who cannot show cause and prejudice for failing to earlier challenge factual accuracy of presentence report).

In this case, Twine failed to raise any of his above Rule 32 objections either at the sentencing hearing or on a direct appeal. Twine has not shown good cause for his failure nor has Twine indicated how he was prejudiced at sentencing by the alleged Rule 32 violations. Therefore, the district court was not obligated to hear Twine's Rule 32 objections in a section 2255 motion. However, since the district court did address Twine's arguments, we will consider whether the district court correctly concluded that Twine's Rule 32 objections were meritless.2 

Twine's claim that he was not allowed to review his amended presentence report is meritless. Twine admitted in his objections to the magistrate's report that he had reviewed the presentence reports. Twine's claim that the district court was obligated to personally ask him whether he objected to the presentence reports is also meritless. A sentencing court need not directly ask a defendant if he objects to the presentence report. The court may use any method it chooses to determine that a defendant has reviewed the presentence report. United States v. Lewis, 880 F.2d 243, 245-46 (9th Cir. 1989). Therefore, the district court correctly held that the sentencing court did not violate Rule 32 when it sentenced Twine.

B. Ineffective Assistance of Counsel.

Twine claims that he received ineffective assistance of counsel at his sentencing hearing. In order to establish a valid claim for ineffective assistance of counsel, a defendant must show that his counsel made errors that a reasonably competent and diligent attorney would not make and that those errors prejudiced the defendant. Popoola, 881 F.2d at 813. Twine argues that his counsel erred when counsel did not object to the factual inaccuracy of the presentence reports. However, in this case Twine's counsel stated that he did not raise Twine's objections because he did not believe that those objections were supported by the facts. Given the record before us, that position was well taken. Twine's counsel made a strategic decision that it would be of more benefit to his client if counsel used his time at the sentencing hearing to address the court's concerns about Twine's mental health since that was the court's own focus. Counsel acted reasonably in making the choice that he did.

Furthermore, Twine has failed to show how he was prejudiced by his counsel's actions. Twine has not shown where in the record the sentencing court relied on any false information in the presentence reports. At both of the sentencing hearings the district court focused on Twine's current mental state and on whether Twine should be permitted to seek rehabilitation from a private physician rather than through the prison system. At the actual sentencing, the only information that the district court affirmatively relied upon was a psychiatric evaluation prepared at the federal prison at Terminal Island and a report prepared by a private psychiatrist in Washington. The district court correctly denied Twine's claim of ineffective assistance of counsel.

C. Parole Commission Decision.

A prisoner is not allowed to use a motion to vacate a sentence for the purpose of challenging a Parole Commission decision. Elliot v. United States, 572 F.2d 238, 239 (9th Cir. 1978); But cf. Jones v. United States, 783 F.2d 1477, 1482-83 (9th Cir. 1986). If a prisoner wants to argue that the Parole Commission based its decision on erroneous information, the prisoner should do so by seeking a writ of habeas corpus under 28 U.S.C. § 2241. Elliot, 572 F.2d at 239. He must bring that petition in the proper court. 28 U.S.C. § 2242. The district court correctly refused to hear Twine's challenge to the Parole Commission's decision.

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

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

Twine did appeal his conviction and it was affirmed by this court. United States v. Twine, 853 F.2d 676 (9th Cir. 1988)

 2

Twine raised one other Rule 32 complaint when he filed his objections to the magistrate's findings on his section 2255 motion. Twine complained that the district court violated Rule 32 when it failed to make a specific finding of fact as to the disputed portion of the amended presentence report. We will not address Twine's claim because Twine did not raise that issue in front of the magistrate and because the district court also did not address the issue