Unpublished Disposition, 914 F.2d 262 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 262 (9th Cir. 1990)

Carl Eugene JONES, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 88-15602.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 17, 1990.Decided Sept. 12, 1990.

Before LIVELY,*  FLETCHER and REINHARDT, Circuit Judges.


MEMORANDUM** 

Carl Eugene Jones appeals the district court's dismissal of his 28 U.S.C. § 2255 motion to vacate his sentence. Jones raises several challenges to his conviction for conspiring to manufacture methamphetamine, unlawfully using a telephone to further a conspiracy, and being a felon in possession of firearms.

FACTS AND PROCEEDINGS BELOW

In November 1985, following a jury trial in federal court, Jones was convicted of conspiring to manufacture methamphetamine (21 U.S.C. § 846), unlawfully using a telephone to further a conspiracy (21 U.S.C. § 843) and being a felon in possession of firearms (18 U.S.C. § 1202(a) (1)).1  The United States District Court sentenced Jones to six years incarceration and five years probation. Jones appealed his conviction, which was affirmed by another panel of this court in an unpublished memorandum. In his direct appeal, Jones challenged only the district court's failure to permit the defendants to cross-examine a witness and the sufficiency of the jury instructions on the telephone charge.

According to the district court judge, Jones subsequently filed almost two dozen post-conviction motions (e.g., seeking to correct the transcript, to grant a new trial, to correct the sentence) and 30 letters to the court. He additionally filed three pro se habeas corpus petitions, which among other matters challenged the district court's denial of bail pending trial, alleged in a general fashion that his conviction was based on perjured testimony, and claimed ineffective assistance of counsel. On November 22, 1988, the district court denied with prejudice all motions, except that of ineffective assistance of appellate counsel, which was denied without prejudice and with leave to amend. Jones filed an amended petition, which the court on December 16, 1988 denied with prejudice. Jones appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 to review a district court's denial of a petition for relief brought pursuant to 28 U.S.C. § 2255. We apply a de novo standard of review. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989).

The government challenges this court's jurisdiction because Jones filed no timely notice of appeal from the district court's final judgment. The relevant chronology is as follows. On November 22, 1988, the district court dismissed all of Jones's claims but one. By granting Jones leave to amend his claim of ineffective assistance of counsel, the court's order was not final. On December 2, 1988, Jones filed a notice of appeal from that November order, which another panel of this court dismissed on April 19 as an appeal from a nonfinal judgment. In the meantime, the district court had issued the final judgment. However, Jones never filed an appeal from that December 16 order nor notified this court of its existence. On April 24, referring this court to the December 16 final judgment, Jones moved for reconsideration of its dismissal issued the previous week. On July 26, 1989, the panel granted the motion for reconsideration and reinstated Jones's appeal.2  Although as a general rule one panel of an appellate court will not reconsider question which another panel has decided on a prior appeal in the same case, the law of the case doctrine does not apply to the question of our jurisdiction to consider an appeal. We must review independently a challenge to our jurisdiction. Duran v. City of Douglas, No. 89-15236, Slip op. 5595, 5600-5601 (9th Cir. June 4, 1990).

The statutory scheme governing appeals in habeas cases is precise. A federal prisoner appealing a dismissal of a habeas corpus petition must file the notice of appeal within 60 days of a final judgment, although the district court may, upon a showing of good cause, extend the period an additional 30 days. These limits are jurisdictional; they apply even if the petitioner is not represented by counsel, and they may not be waived by the court. See 28 U.S.C. § 2255, referring to 28 U.S.C. § 2107 (time for appeal to court of appeals); Fed. R. App. P. 4(a) (1) (in a civil case where the United States is a party, the notice of appeal must be filed within sixty days after the date of entry of a final judgment); U.S. v. Angelone, 894 F.2d 1129 (9th Cir. 1990) (rejecting petitioner's appeal as untimely), Kapsalis v. Wilson, 380 F.2d 365 (9th Cir. 1967) (same).3  An order is final when it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 232 (1945). There is no doubt that the district court's order of November 22 was not final. See Fed. R. Civ. P. 54(b) (absent an explicit directive by the district court that a partial judgment should be entered, any order that adjudicates fewer than all of the claims or the rights of fewer than all the parties shall not terminate the action); Proud v. United States, 704 F.2d 1099 (9th Cir. 1983) (order dismissing complaint with leave to amend was not final and, consequently, not appealable). Therefore, under the governing statutes, Jones failed to present a valid appeal.

The result of applying this strict scheme to the present appeal, however, is unduly harsh. We rely on a line of cases to find that Jones fits within an exception to the finality rule. In Anderson v. Allstate Insurance Co., 630 F.2d 677 (9th Cir. 1980), this court held that an interlocutory order may be treated as a final order for purposes of appeal when that portion of the case that remained in the district court subsequently has been terminated. In other words, if a party files a notice of appeal from a judgment that is not final at the time the notice is filed but which later is reduced to final judgment, the jurisdictional defect is "cured," and the appellate court may assert jurisdiction. Later cases relying on Anderson to find that a premature notice of appeal was perfected by subsequent events typically have dealt with one of two situations: (1) multiple defendants, judgments which were final only as to some defendants when the notice of appeal was filed, e.g. Unioil, Inc. v. E.F. Hutton & Co., Inc., 809 F.2d 548 (9th Cir. 1986) cert. denied, 484 U.S. 822 (1987); Walsh v. United States, 672 F.2d 746 (9th Cir. 1982); Baker v. Limber, 647 F.2d 912 (9th Cir. 1981)4  or (2) a notice of appeal that was filed after an order was issued, but before a judgment or order was filed. DHL Cor. v. C.A.B., 659 F.2d 941, 944, n. 4 (9th Cir. 1981) However, the principles behind this exception--the desire to give a practical rather than a technical construction of the finality rule, and the recognition that the danger of piecemeal litigation is no longer present once nothing else remains in the lower court--apply to the present situation.

When the appellant is a criminal defendant, additional policy considerations support construing the finality rule in a more lenient fashion.5  This is reflected by Fed. R. Crim. P. 52(a) which states that " [a]ny error, defect or irregularity or variance which does not affect substantive rights shall be disregarded." In U.S. v. Wade, 841 F.2d 331 (9th Cir. 1988), we applied that rule to find that a premature notice of appeal from a conviction, filed after the verdict but before a sentence, was a mere technical irregularity. See also Lemke v. United States, 346 U.S. 325 (1953) (Court upheld validity of a notice of appeal filed after sentencing but before the formal entry of a judgment; premature filing was harmless error); United States v. Cortes, 895 F.2d 1245 (9th Cir. 1990) (notice of appeal from conviction filed while notice for a new trial was pending; eschewing the "draconian" approach written in the civil appeals rules and desiring to avoid placing an "unacceptable trap for the unwary appellant," court held that notice of appeal was effective, despite pendency of motion for new trial) cert. denied 110 S. Ct. 2191. We find that Jones's premature filing of the notice of appeal similarly was a technical irregularity that, under the circumstances of this case, does not bar the present appeal.

ANALYSIS OF MERITS

The district court judge denied Jones Sec. 2255 motion without granting a hearing. This summary disposition is appropriate only when the motion and the record of the case "conclusively" show that the prisoner is not entitled to relief. 28 U.S.C. § 2255; Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). The petitioner need not detail his evidence, but mere conclusory statements do not justify a hearing. Id. at 571, Wagner v. United States, 418 F.2d 618, 621 (9th Cir. 1969). If any of Jones's challenges were plausible, we must remand his Sec. 2255 petition to the district court for an evidentiary hearing. Baumann, 692 F.2d at 573.

On appeal, Jones raises several challenges. At each stage of his quest for relief, Jones has raised different objections, but there appears to be a core theme; various government officers lied about the chemicals that are precursors of methamphetamine wand the chemicals that Jones ordered. Jones's challenges are addressed in turn.

1. Failure to grant an evidentiary hearing and failure to suppress evidence.

Jones alleges that government officers lied in the affidavits they submitted to obtain search warrants; the admission at trial of any evidence obtained pursuant to those warrants, he argues, violated his fourth amendment rights. Jones also alleges that the district court erred in not granting him an evidentiary hearing on his pretrial motion to suppress evidence. The government argues that the failure of defendant to raise the validity of the search warrants at the time the evidence was introduced at trial or on direct appeal bars any relief under Sec. 2255.

Our review of the record reveals that this challenge stems from Jones' disagreement with his counsel. Jones's trial counsel refused to make the suppression motion himself, stating in court that Mr. Jones wanted "to have certain motions filed before the court which I felt I was unwilling to file based upon my understanding of the rules, finding that I thought they were not proper motions to file." (Transcript of Hearing at 22-23.) Jones' counsel agreed to submit to the court a list of the motions Jones wished to make (release from detention pending trial, trial continuance, dismissal of trial attorney, motion to dismiss indictment for violation of due process, motion for bill of particulars), and the judge agreed to consider the motions. Jones was not present in court during this presentation of the motions, and he objects to the fact that he was not able personally to support them. However, the following day, the trial judge specifically questioned Jones as to some of the motions, particularly his desire to "exclude" counsel. Jones did not take any further action in regard to the motion to exclude evidence beyond stating that he and his lawyer did not see eye to eye--Jones wanted questions pressed in regard to what he claimed were false statements in the affidavit submitted to obtain the search warrant.

In ruling on his Sec. 2255 petition, the district court held that Jones's failure to object to the introduction of evidence at trial or on appeal constitutes a waiver, which bars relief under Sec. 2255. The court is correct. A procedural default bars habeas relief unless the prisoner can show cause for the default and resulting prejudice, Wainwright v. Sykes, 433 U.S. 72 (1977), and this "cause and actual prejudice" standard for review applies in Sec. 2255 motions based on alleged trial errors. United States v. Frady, 456 U.S. 152, 167-168 (1982) (to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both cause and prejudice). The district court held that Jones failed to set forth adequately the reasons that his fourth amendment objections were not made at trial or on appeal. However, Jones alleged ineffective assistance of counsel below; if he were to prevail on this claim, he would establish cause for the procedural default.

The basis of Jones' charge that both his trial attorney and his appellate lawyer did not provide him effective assistance is that they refused to advance the perjury arguments Jones wished to make and they failed to obtain independent evaluations of the relevant chemicals and procedures. In order to succeed on a claim of ineffective assistance of counsel, Jones must first show that considering all the circumstances, his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, Jones must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694. Jones's claim of ineffective assistance of counsel goes to decisions of strategy; matters such as which claims to advance are within the discretion of the attorney. Particularly in this case, where Jones's trial attorney--a former Chief of a U.S. Attorney's Criminal Division--was an experienced criminal trial litigator, we cannot say that his strategic decisions were unreasonable. The trial lawyer's general competence, of course, does not rule out the possibility that he gave short shrift to Jones's case, but a review of the trial transcript reveals a vigorous defense. In fact, the lawyer succeeded in excluding Jones's oral confession. There is no basis in the record for finding that Jones's appellate counsel was unreasonable in his strategic decisions as to what legal argument to raise on appeal.

Further, under Stone v. Powell, 428 U.S. 465 (1976) fourth amendment exclusionary challenges may not be presented in habeas petitions if there was an opportunity for full and fair litigation of the fourth amendment claims in the trial court.

Finally, Jones's appeal could be construed simply as challenging the district court's refusal to grant him an evidentiary hearing. We note that Jones never requested one. Additionally, we are aware of no caselaw establishing that Jones had a right to such a hearing, nor that the judge abused his discretion in not granting one, where Jones was represented by apparently competent counsel who did not support the motion to suppress.

2. Alleged government official perjury before the grand jury and at trial.

Jones alleges that government officers knowingly gave false testimony both in the grand jury hearing and during trial, and that his conviction should be set aside. This is the heart of his habeas appeal. Setting aside for the moment the government's allegation that Jones waived these objections by not raising all of their material components below (i.e. whether the prosecutor was aware of the perjury), we find that Jones failed to meet his burden of proof.

First, it is not clear that the agents provided erroneous information. Jones allegation is a bit murky, but it boils down to an assertion that the DEA agents testified that Jones ordered a particular chemical from them, which they claim to be a component of methamphetamine. Jones asserts that the chemical he ordered does not produce methamphetamine. The record shows and the parties appear to agree that Jones placed an order for a chemical called methylamine hydrochloride. Jones explains that this drug also is known as methyl-ammonium chloride or methyl-ammonium and that methyl-ammonium is not a component of methamphetamine. The record shows and the parties do not dispute that the DEA agents testified that Jones ordered methylamine hydrochloride, which the agents then refer to as "methylamine." Jones admits that methylamine (which he claims he did not order), produces methamphetamine, but argues that methylamine hydrochloride (which he admits ordering) does not.6  The obvious question is whether the testifying officers simply abbreviated their discussion of the order for "methylamine hydrochloride" to "methylamine," in which case there is no disagreement between the parties.7  If there are two distinct chemicals, one called methylamine and the other methylamine hydrochloride, then there may be some merit to Jones's persistent protest. However, he would have to establish much more.

Assuming the DEA officers were mistaken, there is no evidence that they committed perjury. Even if the agents did commit perjury, the panel must be satisfied that there is a reasonable likelihood that the false testimony affected the judgment of the jury and the outcome of the trial. See, e.g. United States v. Polizzi, 801 F.2d 1543, 1549-50 (9th Cir. 1986). Both the jury and the grand jury were presented with much additional evidence, which Jones does not challenge, that he was involved in a conspiracy to manufacture methamphetamine. Much of the evidence produced by the government--glassware, lab equipment, and chemical books--would be explained by Jones's alleged legal chemical business. However, DEA agents also testified that Jones had previously placed an order for another chemical, benzyl methyl ketone, also known as P-2-P, a central component of methamphetamine. The undercover DEA agent informed Jones that the chemical was illegal and told him he would have to order it through Canada. Jones later reported to the undercover agent that he had obtained it from West Germany. Further, another witness testified that Jones had ordered a shipment of methylamine (the chemical that all agree produces methamphetamine) sent to her Wyoming home. When the agents searched Jones's residence, they seized three and a half grams of methylamine, and found books sitting on work benches opened to pages instructing how to manufacture methylamine and methamphetamine. Even assuming that the DEA agents committed perjury, there was ample additional evidence to support the jury's verdict.

3. Improper standards presented regarding unlawful possession of firearms.

Jones alleges that the prosecutor's comment in closing argument to the jury on the elements of the possession of a firearms by a felon were improper. First, Jones argues that the prosecutor misled the jury by incorrectly arguing that the jury could find that the possession of the firearms was in or affected commerce if it found that the guns were manufactured in another state. Second, Jones claims that the state was obligated to prove exclusive and not merely constructive possession of the firearms.

Jones is raising this challenge for the first time on appeal to the panel. Therefore, we do not consider the issue unless it is "purely legal, central to the case, and important to the public." Tatum v. Christensen, 786 F.2d 959, 963 (9th Cir. 1986). Jones's challenge fails to satisfy this standard.

In any event, the government is correct that the record shows that the parties stipulated that all of the guns charged in the indictment were manufactured in other states or countries and that Jones had a prior felony. Jones claimed that all eight guns found in his home belonged to his co-defendant, Kay Sherwood, but admitted he possessed two handguns. However, the guns were found in the master bedroom, pictures were introduced at trial showing Jones with two of the guns seized, and Jones's fingerprint was found on another gun. This evidence provided the jury with a rational basis for finding that Jones possessed the guns.

CONCLUSION

The district court's denial of Jones's petition for relief under 28 U.S.C. § 2255 is AFFIRMED.

 *

Honorable Pierce Lively, Senior United States Circuit Judge for the Sixth Circuit, sitting by designation

 **

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

The jury also found Jones' cohabitant, Kay Sherwood, guilty of conspiring to produce methamphetamine and unlawfully using a telephone to further a conspiracy

 2

The panel, without comment, cited to Baker v. Limber, 647 F.2d 912 (9th Cir. 1981), which is discussed below

 3

Giving Jones the benefit of the possible expansion of time he would have had to file a notice of appeal by March 16--ninety days from the entry of the final judgment. Therefore, Jones was not prejudiced by the appellate motions panel perhaps improperly reinstituting his appeal, because at that point he could not have filed a timely notice of appeal. But by the same token, Jones could not have remedied the defect when, on April 19, 1989, the panel filed its order dismissing the appeal because it was not from a final judgment

 4

The motions panel, in granting Jones' motion to reconsider the dismissal of his appeal, gave no explanation for its ruling beyond citing Baker v. Limber, 647 F.2d 912 (9th Cir. 1981). This case, however, provides Jones no comfort. Although the Baker court found that it had jurisdiction over an appeal filed before the rights of all the parties had been determined (because in the intervening period the plaintiffs obtained a final judgment against the remaining defendants), the Baker court agreed that it did not have jurisdiction to hear the appeal stemming from an earlier notice to appeal the imposition of discovery sanctions when the lower court had not yet determined damages. This suggests that all matters as to the one appealing party must be resolved before a valid notice of appeal can be filed. But see, Matter of Pacific Far East Line, Inc., 654 F.2d 664, 666, n. 2 (9th Cir. 1981) (court found a notice of appeal valid which had been filed from an order awarding attorney's fees, the effect of which was contingent on a yet to be affirmed settlement)

 5

We of course recognize that habeas petitions are civil, not criminal actions

 6

Jones' purchase is explained by his allegation that he ran a legal chemical wholesale, retail, and research company, Jones Chemical, in Fort Bragg, California

 7

In its brief, the government quotes from a taped telephone call from Jones to an undercover officer during which Jones allegedly ordered methylamine. If this were true, it would dispose of Jones' perjury claim. Unfortunately, the trial transcript is ambiguous

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