EDGAR BRATHWAITE, PETITIONER V. UNITED STATES OF AMERICA No. 88-6515 In The Supreme Court Of The United States October Term, 1988 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 OPINIONS BELOW The judgment order of the court of appeals (Pet. App. C1-C2) is unreported. The order of the district court (Pet. App. B1-B2) is unreported. The opinion of the court of appeals on petitioner's direct appeal (Pet. App. A399-A408) is reported at 782 F.2d 399. JURISDICTION The judgment of the court of appeals (Pet. App. C1-C2) was entered on April 28, 1988. A petition for rehearing was denied on October 4, 1988. Pet. App. F2. The petition for a writ of certiorari was filed on December 24, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner is entitled to use 28 U.S.C. 2255 to challenge the decision of the court of appeals, on petitioner's direct appeal, to vacate the sentence but not the conviction for one of two offenses that the court deemed to be the same for purposes of the Double Jeopardy Clause. STATEMENT Following a jury trial in the District Court of the Virgin Islands, petitioner was convicted on one count of conspiracy to import and distribute cocaine and marijuana, in violation of 21 U.S.C. 846 and 963, and one count of conspiracy to traffic in cocaine and marijuana, in violation of V.I. Code Ann. tit. 19, Section 609. He was sentenced to eight years' imprisonment and a three-year special parole term under the federal statutes and a suspended five-year term of imprisonment under the Virgin Islands statute. On petitioner's direct appeal the court of appeals held that petitioner could not be punished under both the federal statutes and the Virgin Islands statute. The court of appeals vacated both of petitioner's sentences and remanded the case to the district court to impose a single sentence for both of petitioners' convictions. Petitioner did not seek further review of the judgment of the court of appeals. On remand, the district court sentenced petitioner to eight years' imprisonment. Petitioner did not appeal. Rather, a year later petitioner sought relief under 28 U.S.C. 2255. The district court denied relief, and the court of appeals affirmed. 1. The evidence at trial showed that petitioner and his co-defendant attempted to rent an airplane to smuggle a large quantity of cocaine and marijuana from Colombia to the Virgin Islands. The corporation from which petitioner and his co-defendant sought to rent the airplane contacted agents of the Drug Enforcement Administration, who arrested petitioner after an undercover investigation. Pet. App. A402-A403. 2. On appeal, petitioner's co-defendant Peter Ottley argued that the government "abused its prosecutorial discretion" by charging him under both the United States and Virgin Islands codes. Pet. App. A406. In an opinion issued January 21, 1986, the court of appeals held that the statutes under which petitioner and Ottley were convicted "are not sufficiently distinct to pass the Blockburger test." Pet. App. A407 (citing Blockburger v. United States, 284 U.S. 299 (1932)). For that reason, the court held, Ottley's sentence under both statutes violated the Double Jeopardy Clause. Pet. App. A407-A408. In addition, the court held that petitioner should have the benefit of that ruling even though he had not raised the double jeopardy issue on appeal. Id. at A408. The court therefore vacated both of petitioner's sentences and remanded the case to the district court for imposition of a single sentence on both convictions. The court of appeals did not vacate either of petitioner's convictions. In a footnote to the court's opinion, Judge Becker argued that the court should have vacated petitioner's and Ottley's convictions on one of the two counts. According to Judge Becker, "where convictions are multiplicitous or, in current parlance, where the dual prosecution 'flunks' the Blockburger test, vacatur of the 'surplus' conviction and resentence on the remaining count is the appropriate remedy, not merely vacatur of sentence." Judge Becker reasoned that the possibility of adverse collateral consequences of multiple convictions requires that result. For that reason, Judge Becker declined to join the judgment of the court of appeals. Judge Becker further indicated his view that "the Court in banc should reconsider" prior Third Circuit precedent on which the majority relied to support its holding that petitioner's and Ottley's convictions need not be vacated along with their sentences. Pet. App. A408 n.9. Despite Judge Becker's comments, petitioner and Ottley sought neither rehearing en banc nor certiorari. In particular, petitioner took no opportunity, before the judgment on his direct appeal became final, to argue that the judgment of the court of appeals was inconsistent with Ball v. United States, 470 U.S. 856 (1985), which had been decided some ten months before the court of appeals ruled on petitioner's direct appeal. 3. On remand, the district court sentenced petitioner to eight years' imprisonment. Pet. App. D2-D3. The district court's judgment and commitment order is dated March 3, 1986. Petitioner took no appeal from that final judgment. Rather, in a motion dated February 25, 1987, and filed on March 3, 1987, petitioner sought relief under 28 U.S.C. 2255. /1/ Petitioner's Section 2255 motion asserted that the prior judgment of the court of appeals was contrary to Ball v. United States, supra, and that counsel who represented petitioner at his trial, on his direct appeal, and at resentencing had been ineffective. The district court denied petitioner's Section 2255 motion on the basis of the Third Circuit's prior opinion. Pet. App. B1-B2. A panel of the court of appeals, which included Judge Becker, affirmed without opinion. Id. at C1-C2. ARGUMENT We think it quite clear under Ball v. United States, 470 U.S. at 864-865, that Judge Becker was right and the majority was wrong about the proper disposition of petitioner's direct appeal. Once the court determined to extend to petitioner the benefit of its holding that the two convictions were for the "same offense," despite petitioner's failure to raise the issue, the court was obligated to ensure that petitioner not receive punishment for both offenses. And under Ball "the second conviction, even if it results in no greater sentence, is an impermissible punishment." 470 U.S. at 865. We nevertheless believe that the courts below correctly denied relief under 28 U.S.C. 2255. Petitioner is using Section 2255 to do service for a direct appeal, and that is not the statute's function. The D.C. Circuit's recent summary of the case law is an accurate one: While it is a "familiar principle that res judicata is inapplicable in habeas proceedings," including those brought by federal prisoners under 28 U.S.C. Section 2255, it is equally well established that a court may decline to review issues raised in a section 2255 motion that have already been decided on direct review. Recently, we had occasion to summarize the rule against relitigation * * * as follows: It is well established in the federal circuits that a federal prisoner cannot raise collaterally any issue litigated and adjudicated on a direct appeal from his conviction, absent an intervening change in the law. Any other rule would frustrate policies strongly favoring conservation of judicial resources and finality of district court decisions. . . . . . Collateral review may be available to rectify an error not correctable on direct appeal, or when exceptional circumstances excuse a failure to assert the error on appeal. But "it must be remembered that direct appeal is the primary avenue for review of a conviction or sentence," and mere lack of success on that appeal does not pave the way for collateral attack. United States v. Greene, 834 F.2d 1067, 1070 (D.C. Cir. 1987) (citations omitted), cert. denied, 108 S. Ct. 2908 (1988). There is no reason, under standard Section 2255 doctrine, why petitioner should be allowed to raise now an issue that was resolved expressly -- albeit erroneously -- against him on direct review, particularly when all that is at stake is a technical conviction that has no sentence attached to it. There is, especially, no reason why petitioner should be allowed to litigate that issue at the Supreme Court level in a Section 2255 proceeding after petitioner chose not to pursue Supreme Court review of the decision on his direct appeal. Furthermore, we doubt that Section 2255 is ever a proper jurisdictional basis for the litigation of the unique issue raised by the application of Ball, i.e., whether a conviction that has no sentence attached to it should be vacated under the Double Jeopardy Clause. By its plain terms, Section 2255 only permits a prisoner to "move the court which imposed the sentence to vacate, set aside or correct the sentence," and to do so on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. 2255 (emphasis added). Petitioner, however, in no way attacks his sentence, for the court of appeals has already given him all the relief to which he claims entitlement with respect to his sentence. Petitioner's only contention, which is based on Ball, is that his conviction, which has no effect on his sentence, should fall. The language of Section 2255 provides no support for the proposition that a court can entertain such a contention on collateral attack. To be sure, petitioner is subject to a conviction that should have been vacated on direct appeal, and we readily confess that the government has no interest, other than the preservation of scarce judicial and prosecutorial resources, in keeping that conviction on the books. But the preservation of such resources is precisely the interest that the finality doctrine was intended to serve. In these circumstances, there is no sufficient cause for this Court to grant certiorari in order to correct an error that petitioner did not bother to challenge at the appropriate time. /2/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General J. DOUGLAS WILSON Attorney APRIL 1989 /1/ In the interim, petitioner filed a motion for reduction of sentence under Fed. R. Crim. P. 35, which the district court denied on September 4, 1986. Petitioner did not appeal the denial of his Rule 35 motion. /2/ If the Court is not satisfied that certiorari should be denied on the ground that Section 2255 is not a proper basis for litigation of petitioner's claim under Ball, then a summary disposition would be appropriate. We did not concede in the courts below that Ball is controlling on the question whether, at the time of his direct appeal, petitioner's conviction as well as sentence should have been vacated. If the Court does not deny certiorari, therefore, the Court should grant the petition, vacate the judgment below, and remand for further consideration in light of the position we have taken in this brief on the merits of petitioner's underlying claim.