LEXIE LITTLE CARTER, PETITIONER V. UNITED STATES OF AMERICA No. 90-5987 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals, Pet. App. A, is unreported, but the decision is noted at 914 F.2d 245 (Table). JURISDICTION The judgment of the court of appeals was entered on August 24, 1990. The petition for a writ of certiorari was filed on October 15, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court abused its discretion in summarily dismissing petitioner's third motion to vacate his sentence under 28 U.S.C. 2255. STATEMENT Following a jury trial in the United States District Court for the Western District of Pennsylvania, petitioner was convicted on five counts of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to 40 years' imprisonment, to be served consecutively to a state sentence that had previously been imposed. The court of appeals affirmed. United States v. Carter, 756 F.2d 310 (3d Cir. 1985), cert. denied, 478 U.S. 1009 (1986). /1/ After his direct appeal, petitioner filed three motions to vacate his sentence under 28 U.S.C. 2255. The district court denied the first two motions on the merits. On the third motion -- which is the subject of the current petition -- the district court summarily dismissed for abuse. The court of appeals affirmed. Pet. App. A. 1. In his first motion, petitioner alleged that his arrest was illegal because the warrant authorizing it was obtained on the basis of a false representation by a local police officer; that the pretrial lineup was unduly suggestive; that the government improperly used one of its peremptory challenges to strike the only black member of the jury panel; and that the government knowingly permitted false testimony to be introduced at trial. C.A. App. 36-41. The district court dismissed petitioner's motion, and the court of appeals affirmed. C.A. App. 43. 2. In his second motion, petitioner alleged that FBI agents and a local police officer had conspired to arrest him illegally, that his trial counsel had been ineffective, and that the government had improperly withheld exculpatory evidence. C.A. App. 44-46. The district court dismissed petitioner's motion, and the court of appeals affirmed. C.A. App. 48-49. 3. In his third motion, petitioner alleged that the local magistrate who issued the warrants on which he was arrested and who arraigned him on the bank robbery charges was acting without authority because the offenses were committed outside the city limits and because the local magistrate's term of office had expired when the warrants were issued. Pet. App. G, 1-5. After ordering and receiving a response from the government, a United States Magistrate issued a report recommending that petitioner's motion be dismissed. /2/ Pet. App. C, 1-5. The magistrate noted that petitioner had not raised the issue of the local magistrate's authority to issue the arrest warrants in either his direct appeal or his two previous motions to vacate his sentence, and that he had offered no explanation for his failure to do so. The magistrate concluded that petitioner was "abusively attempting to challenge his conviction" and that under Rule 9(b) of the Rules Governing Proceedings Under Section 2255, /3/ petitioner's motion should be dismissed. Pet. App. C, 4-5. The magistrate entered an order directing the parties to file objections to the report and recommendation within 10 days. C.A. App. 34. In his objections, petitioner asserted that the court had not followed proper procedures for the dismissal of a Section 2255 motion under Rule 9(b). Petitioner claimed that he had not been given a reasonable opportunity to explain why he had not raised the issue of the local magistrate's jurisdiction on appeal or in his prior motions to vacate his sentence, and that he had not been informed "that any explanation given had to consist of facts and not opinions or conclusions." Pet. App. E, 1-2. Petitioner explained that he had not raised the jurisdictional issue earlier because he had been unaware that the local magistrate lacked jurisdiction until April of 1989, when "by chance" he "happened to pick up a Pennsylvania Manual" in the prison law library. Pet. App. E, 3. The district court adopted the magistrate's report and recommendation as its opinion and dismissed petitioner's motion to vacate his sentence. Pet. App. B. The court of appeals affirmed without opinion. Pet. App. A. ARGUMENT The judgment of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Further review is not warranted. 1. Petitioner contends that the district court erred in summarily dismissing his third motion to vacate his sentence pursuant to 28 U.S.C. 2255. Pet. 4-7. Rule 9(b) of the Rules Governing Proceedings Under Section 2255 authorizes a district court to dismiss a federal prisoner's second or subsequent motion if it raises new claims, not included in a previous motion, under circumstances constituting "an abuse of the procedure governed by these rules." See Sanders v. United States, 373 U.S. 1, 10, 17-18 (1963). A successive motion is abusive if the movant failed to include a claim in an earlier motion as a result of either deliberate choice or inexcusable neglect. Moore v. Zant, 885 F.2d 1497, 1505 (11th Cir. 1989) (en banc; plurality opinion); cf. Wong Doo v. United States, 265 U.S. 239, 241 (1924) (failure to offer proof of claim during hearing on initial application for writ of habeas corpus was abuse of writ where proof "was accessible all the time"). That determination is "addressed to the sound discretion of the federal trial judge()." Sanders v. United States, 373 U.S. at 18. In this case, the district court properly exercised its authority to dismiss petitioner's motion under Rule 9(b). Petitioner raised the issue of the local magistrate's authority to issue the arrest warrants for the first time in his third motion to vacate his sentence. The facts underlying petitioner's claim -- that his crimes were committed outside the Pittsburgh city limits and that the local magistrate's term of office had expired before September of 1983 -- were readily available at the time petitioner filed his two prior motions. Petitioner offers no reason why he could not have discovered the pertinent facts at an earlier date. 2. Petitioner contends that the magistrate and the district court failed to follow proper procedures for notifying him that to avoid dismissal of his motion to vacate his sentence, he was required to come forward with facts justifying his failure to raise his current claim in his earlier motions. Pet. 4-6. Although the magistrate's report and recommendation did not specifically advise petitioner of his burden under Rule 9(b), /4/ petitioner objected to the report on precisely that ground. Petitioner claimed that the report gave him no notice of his duty to explain his failure to raise the issue of the local magistrate's jurisdiction in his prior motions or of the requirement that "any explanation given had to consist of facts and not opinions or conclusions." Pet. App. E, 1-2. Petitioner's objection to the lack of notice makes clear beyond any doubt that he knew of his duty to provide a factual explanation for his failure to raise the jurisdictional issue at an earlier time. Ibid. Tellingly, petitioner does not suggest that formal notice would have elicited from him a more compelling explanation of his failure to include the jurisdictional claim in his prior motions. /5/ 3. In any event, petitioner could not have prevailed on his third motion because the claims it raises are entirely devoid of merit. A Section 2255 movant who has failed to raise a claim either in the district court or on appeal "must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-168 (1982); see Davis v. United States, 411 U.S. 233 (1973). To satisfy the prejudice requirement, the movant must show that the alleged error "worked to his actual and substantial disadvantage" and "so infected the entire trial that the resulting conviction violates due process." United States v. Frady, 456 U.S. at 169, 170. Petitioner cannot demonstrate that he was prejudiced by the failure to object to the local magistrate's issuance of the warrants for his arrest. Petitioner does not assert that his arrest on the bank robbery charges was not supported by probable cause or that he could not properly have been arrested without a warrant. The alleged invalidity of the arrest warrants therefore could have no effect on the legality of petitioner's arrest. See 2 W. LaFave, Search and Seizure Section 5.1(g), at 430 (2d ed. 1987) ("where probable cause for a warrantless arrest exists, the arrest is not invalidated because it was made pursuant to a warrant that turned out to be invalid") (footnotes omitted); cf. United States v. Watson, 423 U.S. 411 (1976). Thus, even if the local magistrate in fact lacked jurisdiction to issue the warrants for petitioner's arrest, petitioner cannot show that he suffered any "actual prejudice" as a result. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney JANUARY 1991 /1/ Petitioner raised ten claims on direct appeal: (1) the testimony of all government witnesses who placed him at the scene of the bank robberies should have been excluded because of the government's failure to give notice of its alibi rebuttal witnesses; (2) an arrest warrant issued by a local magistrate was invalid because it incorrectly stated the date of one of the robberies; (3) the testimony of eyewitnesses to the robberies should have been excluded because it was unreliable; (4) the district court erred in not charging the jury that they were to determine an issue not by the number of witnesses, but by the quality of the evidence; (5) the district court should have suppressed the physical evidence and petitioner's post-arrest statement because no probable cause was set forth in the arrest warrant; (6) his confession should have been suppressed; (7) the district court erred in not granting his motion for a new trial based on newly discovered evidence; (8) the district court should have authorized him to employ a handwriting expert; (9) the jury selection process discriminated against the selection of black persons; and (10) the district court erred in admitting evidence of a suggestive pretrial lineup. 756 F.2d at 311-314. /2/ The magistrate observed that petitioner was to serve his federal sentence at the completion of his state sentence and that "petitioner's minimum state sentence does not expire until March 21, 2167, thus making this entire analysis of his federal conviction an exercise in futility." Pet. App. C, 2 n.1. /3/ Rule 9(b) provides: A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules. /4/ The magistrate recommended that petitioner's motion be dismissed because he had "set() forth no reasons for his failure to raise this issue in either his direct appeal or in the prior two motions to vacate." Pet. App. C, 4. /5/ Petitioner contends, Pet. 5-6, that the court of appeals' affirmance of the district court's dismissal of his motion conflicts with decisions of the Fifth Circuit which have set out procedures to be followed by district courts in that circuit in summarily dismissing abusive habeas corpus petitions. See Brown v. Butler, 815 F.2d 1054 (5th Cir. 1987); Urdy v. McCotter, 773 F.2d 652 (5th Cir. 1985); Jones v. Estelle, 692 F.2d 380 (5th Cir. 1982). Specifically, petitioner objects to the district court's failure to provide him with the form appended to Rule 9(b) of the Rules Governing Proceedings Under Section 2255. The cases on which petitioner relies make clear, however, that use of the Rule 9(b) form is not required so long as a habeas petitioner receives notice that dismissal of his petition is being considered and that the petition will be dismissed unless he comes forward with a factual explanation for his failure to raise new claims in a prior petition. See Urdy v. McCotter, 773 F.2d at 657 (although providing Rule 9(b) form is the "preferred practice," use of that form "is not the only way to meet the notice requirement"); Jones v. Estelle, 692 F.2d at 385 (approving procedure used by magistrate for Rule 9(b) dismissal of habeas petition; petitioner received adequate notice despite magistrate's failure to use Rule 9(b) form). Here, petitioner clearly had actual notice of the requirements of Rule 9(b), and use of the form appended to that Rule would have added nothing to petitioner's knowledge.