DENNIS WAYNE WILLIAMS, PETITIONER V. UNITED STATES OF AMERICA No. 86-6346 In the Supreme Court of the United States October Term, 1986 On Petition for A Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief for the United States in Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A21) is reported at 805 F.2d 1301. The decision and order of the district court (App., infra, 1-7) is unreported. JURISDICTION The judgment of the court of appeals (Pet. App. B1) was entered on November 24, 1986. The petition for a writ of certiorari was filed on January 21, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner, who was convicted on his guilty plea, waived his claims for relief under 28 U.S.C. 2255 by failing to establish good cause for and prejudice from his failure to raise his claims at sentencing, on direct appeal, or in trial-court or appellate proceedings on a motion for reduction of sentence under Fed. R. Crim. P. 35(b). 2. Whether petitioner was deprived of effective assistance of counsel. 3. Whether petitioner's lack of counsel for his Rule 35 motion entitles him to collateral relief from his sentence in the circumstances here. 4. Whether petitioner's 13-year sentence of imprisonment amounted to cruel and unusual punishment, in violation of the Eighth Amendment. 5. Whether petitioner's convictions both for possessing an unregistered machine gun and possessing that same firearm as a convicted felon violate the constitutional prohibition against double jeopardy. STATEMENT Following a negotiated guilty plea, petitioner was convicted in the United States District Court for the Eastern District of Wisconsin on one count of conspiring to engage in the business of dealing in firearms without registering to do so, in violation of 18 U.S.C. 371; one count of possessing an unregistered machine gun, in violation of 26 U.S.C. 5861(d); and one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. App. 1202(a)(1). He was sentenced to three years' imprisonment on the conspiracy count, a consecutive ten-year term of imprisonment on the machine gun count, and a concurrent two-year term of imprisonment on the remaining possession count. Petitioner subsequently moved, pursuant to 28 U.S.C. 2255, to withdraw his guilty plea and to vacate his sentence. The district court denied the motion (App., infra, 1-7) and the court of appeals affirmed (Pet. App. A1-A21). 1. The district court accepted petitioner's guilty plea and sentenced him on September 14, 1983. On Janary 16, 1984, 124 days after sentencing, petitioner filed a pro se motion under Fed. R. Crim. P. 35(b) seeking a reduction of his sentence. He alleged that his sentence was "unduly harsh and severe" and that new circumstances "would greatly mitigate the punishment in this case." The district court denied the motion as filed outside the jurisdictional 120 day period specified by Rule 35(b). The court also indicated, however, that it would have denied the motion on the merits even had it not been divested of jurisdiction. With the assistance of counsel, petitioner appealed from the district court's decision. In an unpublished order, the court of appeals affirmed. See Pet. App. A2-A4. 2. Thereafter, petitioner sought relief from both his guilty plea conviction and his sentence under 28 U.S.C. 2255. He raised four challenges: that his counsel's representation had been unconstitutionally deficient in two respects; that he was unconstitutionally deprived of counsel when moving for a reduction of sentence under Rule 35(b); that his 13-year sentence violated the Eighth Amendment's prohibition on cruel and unusual punishment; and that his convictions for possessing a machine gun and possessing the same firearm as a convicted felon amounted to double jeopardy. The district court considered and rejected each of the claims on the merits. App, infra, 1-7. With respect to petitioner's first claim, the district court first rejected petitioner's contention that his plea was involuntary because his attorney neglected to inform him that such a plea would subject him to at least 100 months' imprisonment. The district court noted that, before accepting petitioner's guilty plea, it had "inquired extensively as to whether (petitioner) understood the effects of his guilty plea," including "the specific rights wihch he relinquished by pleading guilty and (that) no guarantees as to sentencing were being made based on his guilty plea" (App., intra, 2). In addition, before pleading guilty petitioner "was made aware of the maximum sentence he could receive" (ibid.). The district court likewise rejected petitioner's assertion that he was denied effective legal assistance when his attorney failed to object at sentencing to the purportedly false statements in the pre-sentence report that petitioner had a continuing drug abuse problem. The court pointed out that petitioner himself had stated at sentencing that his drug problem had long been under control; at the same time, the court noted, petitioner did not protest when his counsel contradicted him by pointing to petitioner's continuing drug abuse as a ground for leniency. Moreover, the court stated that, in determining petitioner's sentence, it had "relied primarily on his lengthy criminal record which included a second degree murder conviction in 1975, rather than his history of drug use" (App., infra, 3-4). In these circumstances the court concluded, petitioner was not "denied the effective assistance of counsel with regard to sentencing" (ibid.). Petitioner's second challenge indirectly sought relief from his original sentence by alleging that his counsel improperly abandoned him and failed to prepare a Rule 35(b) motion. Finding that "new sentencing material" presented by successor counsel "len(t) credence to (petitioner's) assertion that he was unable to gather and present material relevant to sentencing on his prior pro se motion" (App., infra, 4), the district court effectively mooted the ineffective assistance challenge by "considering the new sentencing materials presented in (petitioner's) motion to determine if (he) was prejudiced" (id. at 5). "In spite of the material presented," the court found "no material change in (his) record, such that a reduction in sentence would be appropriate" (ibid.). As the district court summarized it, the material consisted of evidence that petitioner was not a heroin addict and letters attesting that petitioner "has his good points" (ibid.). The court noted that petitioner, though perhaps not an addict, had certainly used opiates and that, in any event, the court had not "significantly rel(ied) on (petitioner's drug abuse history when sentencing him" (ibid.). For those reasons, the court found that the absence of counsel on the Rule 35 motion did not prejudice petitioner. The district court similarly rejected petitioner's claim that his 13-year sentence amounted to cruel and unusual punishment. The maximum sentence to which petitioner could have been subjected was 17 years, and his sentence was not disproportionate either to the crimes he committed or to the seven-year sentence imposed on a codefendant (App., infra, 5-6). Finally, the district court rejected petitioner's assertion that his convictions for possessing an unregistered machine gun and possessing that same firearm as a convicted felon amounted to double jeopardy. Applying the test first articulated by this Court in Blockburger v. United States, 284 U.S. 299 (1932), the district court found that each offense required proof of at least one fact not required by the other and therefore "(t)here was no double jeopardy violation in this case" (App., infra, 6). 3. The court of appeals affirmed. Pet. App. A1-A21. A majority of the panel concluded that, by failing to raise his claims either on direct appeal or in the trial-court or appellate proceedings on his Rule 35(b) motion, and by failing to establish good cause for and prejudice from these failures, petitioner had waived the right to raise them in his collateral attack under 28 U.S.C. 2255. Pet. App. A4-A19. Judye Cudahy, concurring in the result, concluded that the district court correctly both reached and disposed of petitioner's claims on the merits. Id. at A19-A21. a. Despite petitioner's concession on the issue (Pet. App. A6), the court of appeals first determined that, in order to raise his challenges to his conviction and sentence in this collateral proceeding for the first time, petitioner had to show cause for and prejudice from his failure to raise the claims previously. The court noted that petitioner had "two different opportunities * * * to challenge his sentence. One opportunity was the Rule 35 proceeding. * * * (Petitioner) filed a Rule 35(b) motion pro se, and thereafter, with the assistance of his second court-appointed attorney, unsuccessfully appealed the district court's denial of his motion. (Petitioner) also could have appealed his sentence directly from the district court" (Pet. App 6). For each of petitioner's claims, the court held, if petitioner could have raised it on either of those occasions but failed to do so, the claim was waived "absent a showing of cause and prejudice excusing this failure" (ibid.). The court's adoption of the cause and prejudice test in this case rested on this Court's decision in United States v. Frady, 456 U.S. 152 (1982), and its own decision in Norris v. United States, 687 F.2d 899 (7th Cir. 1982). In Frady, this Court held that a defendant who failed both at trial and on direct appeal to object to an erroneous jury instruction waived the right to raise the objection in a Section 2255 proceeding absent a showing of good cause for and prejudice from his failure to object and appeal (456 U.S. at 167). In Norris, the Seventh Circuit, construing Frady, held that a defendant's failure to raise constitutional challenges to his conviction on direct appeal barred his raising the same issues in a Section 2255 petition absent good cause and prejudice (687 F.2d at 903-904). The court of appeals in this case concluded that the rationales of Frady and Norris, resting on the importance of finality and of the timely raising of objections in criminal proceedings, also apply in a guilty-plea case: absent cause and prejudice, challenges to a guilty plea or sentence cannot be raised for the first time in a Section 2255 proceeding if they could have been raised earlier (Pet. App. A10-A11). In so holding, the court acknowledged that its decision apparently conflicted with United States v. Corsentino, 685 F.2d 48 (2d Cir. 1982), and United States v. Baylin, 696 F.2d 1030 (3d Cir. 1982), which permitted guilty-plea defendants to raise challenges to their sentences in Section 2255 proceedings for the first time, without showing cause and prejudice. Both courts rested their rulings on the special character of sentencing challenges by guilty plea defendants. /1/ Both reasoned that sentencing was sufficiently different from trial that defendants who plead guilty cannot be expected to raise objections contemporaneously. Baylin, 696 F.2d at 1036; Corsentino, 685 F.2d at 50-51. /2/ They also concluded that an appeal from a guilty plea conviction was sufficiently different from an appeal from a conviction after trial (Corsentino, 685 F.2d at 51) /3/ that, in guilty plea cases, a "section 2255 proceeding is analogous to a direct appeal" (Baylin, 696 F.2d at 1036). The Second Circuit further noted without explanation that a "Rule 35 motion, properly seeking an exercise of the District Court's discretion to reduce his sentence, is not a waiver of defects that are normally presented upon a collateral attack" (685 F.2d at 51). The court below disagreed with the analysis of the Baylin and Corsentino panels. It "reject(ed) the notion that when a defendant pleads guilty his first appeal, for all practical purposes, is a Section 2255 proceeding" (Pet. App. A10). The court pointed out that "a defendant who pleads guilty is free to pursue a direct appeal of his sentence" (ibid., citing McCarthy v. United States, 394 U.S. 459 (1969)) and that "a collateral challenge is not intended as a substitute for a direct appeal" (Pet. App. A10, citing Frady, 456 U.S. at 165)). In addition to a direct appeal, the court noted, a defendant is free to bring a Rule 35 motion and to appeal any adverse ruling on the motion (Pet. App. A10). The court also rejected the view of the Corsentino and Baylin panels "that it is necessarily unclear when a defendant may raise an objection in the post-trial period" (id. at A9). For example, with respect to the issue faced by the Baylin panel, Fed. R. Crim. P. 32(c)(3)(D) expressly authorizes the defendant, at sentencing, to identify suspected errors in the pre-sentence report (ibid.). b. Turning to whether petitioner demonstrated cause for and prejudice from his failure to raise any of his claims prior to his collateral attack, the court first considered petitioner's claim that he was entitled to counsel at the time he sought a reduction in sentence under Rule 35(b). The court observed that petitioner, who had a college degree and was "no legal novice" (he was on parole from a second-degree murder conviction), said nothing about his alleged abandonment by counsel at the time of his Rule 35 motion to either the trial court or the appellate court; and petitioner was represented by counsel during his appeal of the district court's denial of his Rule 35(b) motion. Although petitioner asserted that the Rule 35 appeal "was limited solely to the question of the timeliness of his motion" (Pet. App. A12), the court noted that it "expected (petitioner) to (have) argue(d) that his failure to meet the filing deadline was a direct result of his being deprived of counsel. Far from being unrelated to the timeliness issue, (petitioner's) right to counsel argument could and should have been raised on the appeal from the district court's denial of his Rule 35(b) motion" (id. at A13). Finding no good cause for petitioner's previous failure to raise the issue, the court held that the claim had been waived (ibid.). Likewise, the court found no justification for petitioner's failure to raise his Eighth Amendment and double jeopardy claims on direct appeal. Petitioner argued, in an attempt to show cause, that his first appointed counsel "ended his representation before the 120-day period for filing a Rule 35(b) motion had expired" (Pet. App. A15-A16). The court pointed out, however, that "there is nothing in the record indicating that (petitioner) was not represented during the ten days subsequent to his sentencing when a notice of appeal pursuant to Fed. R. App. P. 4(b) should have been filed" (id. at A16). Moreover, petitioner had not offered any reason at all for the failure to appeal, and the court stated that it would "refuse to speculate on what that reason could be" (id. at A16). Accordingly, there was no showing of cause, and the Eighth Amendment and double jeopardy claims were waived. (The court went on, however, to reject both claims on the merits. Pet. App. A14-A15 n.8). Finally, with respect to the ineffective assistance claims relating to the guilty plea and sentencing, the court assumed that there was good cause for petitioner's failure to raise the claims either on direct appeal or in the Rule 35(b) proceedings (Pet. App. A16-A17). Nevertheless, for the same reasons that the district court had found no prejudice in concluding that there was no ineffective assistance, the court of appeals found that petitioner had failed to establish prejudice from his earlier failure to raise the claims. See id. at A17-A18; App., infra, 3-5. The court thus held that the ineffective assistance claims had been waived as well. c. In a separate opinion, Judge Cudahy concurred in the result reached by the panel majority. Pet. App. A19-A21. He recognized the well-established rule "that a defendant's failure to raise constitutional claims on direct appeal from a conviction bars the defendant from raising those claims on collateral review, absent a showing of cause and actual prejudice" (id. at A19). Even so, Judge Cudahy concluded, "a defendant who pleads guilty and receives a sentence is simply not in a position comparable to a defendant who is convicted after a trial" (id. at A20). Citing the Corsentino and Baylin decisions, he explained that it seemed unrealistic to expect a defendant who pleads guilty either to take an appeal or to raise constitutional challenges to the plea (id. at A20-A21). /4/ He further concluded that, "since appeals are rarely taken from guilty pleas, allowing claims on collateral review (in such circumstances) would not result in piecemeal proceedings" (id. at A21). Judge Cudahy "would therefore decline" to apply the "cause and prejudice" standard to defendants like petitioner (ibid.). He nevertheless concurred in affirming the denial of relief to petitioner, stating that he agreed with "the path (taken by) the district court, which reached the merits and found them wanting" (ibid.). ARGUMENT 1. Petitioner challenges (Pet. 5-7) the court of appeals' application of the cause and prejudice standard to his case. He contends that he established both cause and prejudice for his failure to raise his claims earlier. He further argues that the court of appeals' adoption of the cause and prejudice standard in the first place was erroneous and is in conflict with the decisions of the Second and Third Circuits in United States v. Corsentino, supra, and United States v. Baylin, supra. /5/ a. Assuming that the cause and prejudice standard was properly adopted by the court of appeals, the court's fact-specific application of that standard raises no issue warranting this Court's attention and, in any event, was clearly correct. With respect to his alleged abandonment by counsel on the filing of his Rule 35 motion, petitioner offered no reason for his having failed to raise the claim -- which would obviously have been relevant to excusing his late pro se filing -- when he appealed, with the assistance of counsel, from the denial of his Rule 35 motion (Pet. App. A12-A13). Petitioner similarly offered no reason for his having failed to take a direct appeal raising his claims alleging double jeopardy and cruel and unusual punishment; moreover, he did not allege that he was without counsel during the period for taking such an appeal (id. at A16). Finally, the petitioner was not prejudiced by his failure to raise his ineffectiveness challenges either on direct appeal or in the Rule 35 proceedings, because neither of the alleged attorney errors warranted relief. See id. at A2-A4, A17 (drug abuse history); App., infra, 4 (same); Pet. App. A18 (potential sentence). b. With respect to whether the cause and prejudice standard is applicable at all in a case like this, although there is a conflict among the circuits, the Court should not grant this petition to resolve the conflict. To begin with, as indicated by Judge Cudahy's concurrence (Pet. App. A21), the result reached by the court below would have been the same even if the court had rejected the cause and prejudice standard. As we show more fully below, the district court's rejection of petitioner's claims on the merits was clearly correct. See also Pet. App. A14-A15 n.8 (court of appeals rejects double jeopardy and Eighth Amendment claims and unusual punishment); id. at A17-A18 (court of appeals finds no prejudice in discussing the ineffectiveness claims). Furthermore, it would be premature to conclude that the conflict presented here, which is limited to challenges to sentences by defendants who plead guilty, will not be resolved without this Court's intervention. Changes in the legal basis for the Second and Third Circuit decisions will require those courts to reconsider their rulings. Thus, both the Second and Third Circuits (Corsentino, 685 F.2d at 50; Diggs v. United States, 740 F.2d at 244 (reaffirming Baylin, 696 F.2d at 1035-1036)) relied in part on a distinction between defaults at trial and defaults on appeal in refusing to adopt the cause and prejudice standard of Frady in circumstances like this one; yet this Court has recently undermined, if not eliminated, the legal significance of that distinction. Smith v. Murray, No. 85-5487 (June 26, 1986), slip op. 6; Murray v. Carrier, No. 84-154 (June 26, 1986), slip op. 9-12. Moreover, both Judge Cudahy in his concurrence (Pet. App. 20) and the Second Circuit in Corsentino, 685 F.2d at 51 n.1, in reasoning that a direct appeal for a guilty-plea defendant differed significantly from a direct appeal for a defendant convicted after trial, relied on Fed. R. Crim. P. 32(a)(2), which requires a district court to give notice of the right to appeal only to a defendant convicted after trial and not to a defendant who pleads guilty. As of November 1, 1987, however, district courts will be required under Rule 32(a)(2) to give notice of the right to appeal a sentence even to guilty plea defendants. Pub. L. No. 98-473, Section 215(a), 235, 98 Stat. 2014, 2031 (1984), as amended, Pub. L. No. 99-217, Section 4, 99 Stat. 1728 (1985). /6/ In light of these recent changes in the law governing challenges by criminal defendants to their convictions and sentences, and the opportunity for the courts of appeals to resolve the conflict, review by this Court in this case would be premature. In any event, the ruling of the court of appeals on this issue was correct. As this Court explained most recently in Murray v. Carrier, slip op. at 10-11, a requirement that a criminal defendant raise challenges at the earliest available opportunity, whether on appeal or in trial court proceedings, "'promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, and while the attention of the * * * court is focused on his case'" (id. at 10, quoting Reed v. Ross, 468 U.S. 1, 10-11 (1984)). See also United States v. Frady, 456 U.S. at 164-166. Those policies are embodied in the requirement of Fed. R. App. P. 4(b) that appeals from criminal judgments be brought within 10 days (see Pet. App. 6; Diggs v. United States, 740 F.2d at 243 n.5), a requirement that must be accommodated in determining when relief is available under 28 U.S.C. 2255. Moreover, contrary to the Second and Third Circuits in Corsentino and Baylin, those policies do not lose their importance and are not somehow overriden where a guilty-plea defendant, as opposed to a defendant convicted after trial, is challenging his conviction and sentence on grounds he could have raised at sentencing, on direct appeal, or in his Rule 35 proceedings. In this case, petitioner readily could have raised all of his claims prior to his Section 2255 petition; therefore, the court of appeals was correct in holding that, in order for petitioner to raise challenges to his plea or sentence for the first time in his collateral attack under 28 U.S.C. 2255, petitioner had to show cause for and prejudice from his failure to raise his claims earlier. /7/ 2. Petitioner also renews each of his challenges on the merits. He asserts (Pet 3, 8) that he was denied effective assistance of counsel. He seeks relief from his sentence (Pet. 4) on the ground that he had no counsel for his Rule 35 motion. He claims (id. at 9) that his 13-year sentence amounts to cruel and unusual punishment and (id. at 10) that his convictions for possessing a machine gun and possessing a firearm as a convicted felon violate the Fifth Amendment prohibition on double jeopardy. As the district court correctly concluded (App., infra, 1-7), all of these claims are patently meritless. a. Petitioner alleges that he was denied effective assistance of counsel because his first attorney failed to inform him that he would have to serve at least 100 months' imprisonment if he pleaded guilty (Pet. 3) and beca se his first attorney failed at sentencing to object to certain purportedly erroneous information in his pre-sentence report (id. at 9). In Strickland v. Washington, 466 U.S. 668 (1984), this Court held that ineffectiveness claims are governed by a two-part test requiring that the defendant establish that "counsel's representation fell below an objective standard of reasonableness" (466 U.S. at 688) and 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). In Hill v. Lockhart, No. 84-1103 (Nov. 18, 1985), the Court applied that test to ineffectiveness challenges to guilty pleas. Petitioner has plainly failed to demonstrate a Sixth Amendment violation under those standards. With respect to the first alleged attorney error, petitioner has failed to establish any likelihood that he would not have pleaded guilty if his first counsel had informed him of the sentencing exposure. Indeed, the district court, in rejecting this claim, found that, in the plea colloquy, petitioner was made fully aware, and acknowledged his understanding, of the maximum sentence he might receive (App., infra, 2). See also Pet. App. A18 (court of appeals finds no prejudice from this alleged error). With respect to the second alleged attorney error, petitioner has shown neither an unprofessional deficiency nor prejudice. Petitioner's counsel made presumptively reasonable use of the pre-sentence report's allegation of continued drug abuse in seeking leniency for petitioner, and petitioner did not protest his attorney's statement (App., infra, 3). Moreover, any error in the drug abuse allegation was corrected at sentencing by petitioner himself (ibid.); in any event, the district court did not rely significantly on petitioner's history of drug use (id. at 4). See also Pet. App. A17 (court of appeals finds no prejudice from this alleged error). b. Petitioner's challenge to his lack of legal assistance in the preparation of his Rule 35 motion likewise affords no basis for his collateral attack. First, the district court effectively rendered the challenge moot by considering, in his counsel-assisted Section 2255 proceeding, the new matieral that petitioner said he would have presented if he had had counsel for his earlier Rule 35 motion. Second, the district court's reaffirmation of the original sentence after considering the new material demonstrates that the lack of counsel, whatever its propriety, was harmless. Had petitioner's counsel been available to petitioner, his Rule 35(b) motion would simply have presented new factual material addressed to the district court's sentencing discretion; but that material, as the district court stated (App., infra, 5), would not have affected the district court's exercise of its discretion. c. Petitioner's claim that his 13-year sentence is so "grossly disproportionate to the offense" he committed that it amounts to cruel and unusual punishment was properly rejected by both the district court (App., infra, 5) and the court of appeals (Pet. App. A14 n.8). Petitioner had an extensive prior criminal record, including a second-degree murder conviction from which he was on parole at the time of his offense here (Pet. App. A13; App., infra, 4). Petitioner was sentenced to 13 years on crimes -- conspiracy to engage, without registration, in the business of dealing in firearms (18 U.S.C. 371) and possession of an unregistered machine gun (26 U.S.C. 5861(d)) -- that Congress has determined together warrant a potential total exposure to imprisonment of 15 years, and petitioner's conviction for violating 18 U.S.C. App. 1202(a)(1) exposed him to an additional two years. Petitioner's possession of an unregistered machine gun constituted a grave threat to society, and petitioner has shown nothing to suggest that his sentence is out of line with those specified for other federal crimes or with the sentences provided for similar state offenses. See Solem v. Helm, 463 U.S. 277, 292 (1983). "In view of the substantial deference that must be accorded legislatures and sentencing courts" (id. at 290 n.16), petitioner's sentence of 13 years out of a possible 17 was well within the wide constitutional limits on felony sentences set by the Eighth Amendment. See also Rummel v. Estelle, 445 U.S. 263 (1980). d. Finally, the district court (App., infra, 6) and the court of appeals (Pet. App. A14-A15 n.8) were correct in rejecting petitioner's claim that the double jeopardy clause prohibits his being convicted for possessing an unregistered machine gun, in violation of 26 U.S.C. 5861(d), and for possessing a firearm as a convicted felon, in violation of 18 U.S.C. App. 1202(a)(1), for the same incident. Contrary to petitioner's assertion (Pet. 10), the two offenses are not the same under the test of Blockburger v. United States, supra. The first offense, but not the second, requires proof that the firearm is unregistered; the second offense, but not the first, requires proof that the defendant is a convicted felon. See Pet. App. A14-A15 n.8; App., infra, 6. Thus, each offense requires proof of a fact the other does not, and since petitioner has offered no evidence that Congress nonetheless intended to prohibit dual convictions under the two statutes, petitioner's double jeopardy argument is meritless. Albernaz v. United States, 450 U.S. 333, 337 (1981). CONCLUSION For the following reasons, the petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General MAURY S. EPNER Attorney APRIL 1987 /1/ In Diggs v. United States, 740 F.2d 239, 243-245 (1984), the Third Circuit, though recognizing that the Seventh Circuit's decision in Norris demonstrated some flaws in the Baylin analysis, extended the Baylin ruling and held that a defendant convicted after trial could challenge a denial of Rule 35 relief in a Section 2255 proceeding even though he had failed to appeal the Rule 35 denial. /2/ The Second Circuit noted (685 F.2d at 51) that no specific rule of criminal procedure required a contemporaneous objection to the government's conduct at sentencing and that, in any event, "it is unlikely that any objection could have remedied the situation." /3/ The Second Circuit noted (685 F.2d at 51 n.1) that, under Fed. R. Crim. P. 32(a)(2), a district court need not inform a defendant who has pled guilty of his right to appeal. /4/ Like the Second Circuit in Corsentino (see note 3, supra), Judge Cudahy noted that Fed. R. Crim. P. 32(a)(2) did not require a district court to inform a guilty plea defendant of his right to appeal. Pet. App. A20. /5/ Because petitioner conceded this issue below (Pet. App. A6), he is not in a good position to raise it in this court. /6/ Two other related changes, which also take effect November 1, 1987, will likewise have to be taken into account when the courts of appeals address the issue again. First, 18 U.S.C. 3742 will expressly provide for a defendant's appeal of a sentence. Second, the grounds for a motion for reduction of sentence under Rule 35, Fed. R. Crim. P., will be greatly narrowed. Pub. L. No. 98-473, Sections 213, 215(a), 235, 98 Stat. 2011, 2014, 2031 (1984), as amended, Pub. L. No. 99-217, Section 4, 99 Stat. 1728 (1985). /7/ In some cases, a petition under 28 U.S.C. 2255 may be the first real opportunity to raise a challenge: for example, when a defendant makes an ineffective assistance claim that requires thorough scrutiny of the trial record and perhaps new evidence, and hence may be inappropriate to present on direct appeal. Whatever the scope of this exception to the cause and prejudice standard, this case does not come within the exception. Petitioner's double jeopardy and Eighth Amendment claims could obviously have been raised on direct appeal. His challenge to lack of counsel for his Rule 35 motion should have been made on appeal from the denial of that motion. And petitioner's ineffectiveness claim alleged only counsel's failure to object to the pre-sentence report and to inform petitioner of his sentencing exposure; these failures and their consequences were fully apparent to petitioner at sentencing, and both could have been fully considered on direct appeal.