USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2315

ARTHUR SMULLEN,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

___________________
____________________

Before

Stahl, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Anthony M. Fredella with whom Fredella & Wheeler was on brief f

___________________
__________________
appellant.

Jeanne M. Kempthorne, Assistant United States Attorney, with wh

____________________

Donald K. Stern, United States Attorney, was on brief for appellee.

_______________
____________________

August 30, 1996

____________________

CAMPBELL,

Senior Circuit Judge.

_____________________

The

principal

issue is whether a criminal defendant, who is in custody, may

under 28 U.S.C.

2255 collaterally challenge the restitution

order imposed as a part of his sentence.

two

circuits to

have explicitly

Following

addressed this

the only

matter, we

hold he may not.

Petitioner-appellant

convicted

District

counts

following

Court for

of

making false

18 U.S.C.

sentenced to

27 months

restitution in

special assessment

trial

the District

violation of

release,

jury

Arthur

in

of $150.

United

a federal

was

States

on three

agency in

On May 27, 1993, Smullen was

in prison,

the

the

Smullen

of Massachusetts

statements to

1001.

J.

36 months

amount of

Smullen

of supervised

$121,377.78, and

never filed

a direct

appeal from

1994,

his conviction and

sentence.

On November

30,

Smullen, pro se, filed a motion, pursuant to 28 U.S.C.

______

2255, to vacate, set aside, or

motion was

appeals.

denied by

correct his sentence.1

the district

court,

and Smullen

The

now

We affirm.

____________________

1.

Smullen has completed his

Smullen was

term of imprisonment.

imprisoned when

jurisdiction to

he

consider the

is determined as

of the

2255

motion attached.

Lopez v. Figarella Lopez, 929

_____
________________
(holding that the "custody"

filed this

F.2d 20, 23

motion,

See Fernos___ _______

(1st Cir.

requirement of 28 U.S.C.

date a habeas

Because

petition is

1991)
2255
filed),

cert. denied, 502 U.S. 886 (1992); United States v. Michaud,

_____________
_____________
_______
901 F.2d 5, 6 (1st Cir. 1990).

-2-

I.
I.

The following

Presentence

facts

are taken

Investigation Report

largely

("PSR")

from

the

submitted to

the

district court by the probation department.

Smullen

was

employed

by the

United

States Post

Office until 1974, when he left on total disability.

At that

time, Smullen

United

began receiving

States Department of

disability payments

Labor.

Beginning

from the

in May 1982,

Smullen began to work full time at the New England Dragway in

Epping, New Hampshire.

his

Smullen worked at the

employment was terminated

preparations

to open

Performance Cycles,

Throughout

but a

United

a motorcycle

Inc., which

the period

during which

States

service shop,

he opened in

January 1989.

1982 and

February 1990,

employed or self-employed

Smullen filed

Department

Compensation Programs

Smullen then began

parts and

between May

Smullen was

brief period,

in 1988.

Dragway until

of

annual reports with

Labor -

falsely stating

employed or self-employed in

for all

Office

the

of

Workers'

that he had

not been

the preceding 15-month

period.

As a result, Smullen obtained disability payments to which he

was not entitled.

Smullen was

charged with

making false statements

federal agency in violation of 18 U.S.C.

count indictment

alleged that Smullen

statements with the

Department of Labor

-3-

1001.

had filed

to a

The three-

fraudulent

on form CA-1032

in

1988, 1989, and 1990.

counts.

A jury convicted Smullen

At sentencing, the district court ordered Smullen to

pay $121,377.78

in restitution

defense counsel.2

15; however,

Smullen's

trial

for obstruction

testimony

was

recommended by

an offense level

court ordered an

Smullen's sentencing range was

of

additional two-

of justice,

finding that

"thorough-going

then set at 24 to

perjury."

30 months.

district court imposed a sentence of 27 months in prison

and 36 months

not

-- an amount

The PSR recommended

the district

level enhancement

The

on all three

of supervised release.

Although Smullen

did

appeal from his conviction or sentence, he later filed a

motion

under

sentence.

28

U.S.C.

2255

seeking

relief

from

his

The district court denied this motion, and Smullen

appeals.

II.
II.

Smullen argued in his

on appeal,

was

that errors occurred

denied

assistance of

erred in

2255 motion, and now argues

his

Sixth

Amendment

counsel.

not arguing

in his sentence

right

to

the

Smullen contends that:

for a

level for acceptance of

because he

two-level reduction

effective

(1) counsel

in offense

responsibility; (2) counsel erred in

____________________

2.

The

probation

appropriate

department

restitution

amount;

suggested
the

$168,076

government

$147,935.43 in restitution; Smullen's counsel

the proper restitution figure was $121,377.78.

as

an

suggested

suggested that

-4-

agreeing to an allegedly

excessive loss amount, resulting in

an improper Guideline sentencing range; and (3) counsel erred

in suggesting a restitution amount approximately $100,000

in

excess of the maximum

amount which could be ordered

by law.

Only the third point

appears to have any substance,

but, as

it

is beyond the purview of

a collateral proceeding brought

under 28 U.S.C.

2255, we cannot resolve it.

Smullen's failure to

have raised the above

claims

on direct appeal from his sentence would normally have barred

him from raising them in a

could show cause for

2255 collateral attack unless he

the failure and actual prejudice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991);

_______
________

v.

Frady, 456 U.S. 152,

_____

165-67 (1982).

See
___

United States
_____________

However, cause and

prejudice need not be shown when the underlying claim alleges

ineffective

assistance of

States, 37 F.3d
______

argues

that his

counsel.

See
___

769, 774 (1st Cir. 1994).3

counsel

Knight v.
______

United
______

Smullen not only

performed inadequately

during his

sentencing hearing, but also that an appeal relative to these

errors

was

not taken

because

of

his counsel's

allegedly

incompetent advice that "an appeal was just a waste of time."

____________________

3.

Similarly,

because

the

purported

sentencing

errors

allegedly arose from ineffective assistance, thus giving them

a constitutional
U.S.C.
sentencing

dimension, they may be

2255 even though

errors in the

guidelines,

themselves,

by

cognizable on collateral attack.

-5-

considered under 28
application of the
are

not

normally

See Knight, 37 F.3d at 772.

___ ______

The

assistance

standard

of

Washington, 466
__________

counsel

for

constitutionally

was

set

U.S. 668, 687

forth

(1984).

in

To

ineffective

Strickland
__________

v.

succeed, Smullen

has the burden of showing that (1) counsel's performance fell

below an objective standard

is a

reasonable probability

of reasonableness, and (2) there

that, but for

counsel's error,

the result of the proceedings would have been different.

See
___

Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir. 1994), cert. denied,

______
______
____________

115

S. Ct.

940 (1995);

Lopez-Nieves v. United States, 917

____________
______________

F.2d 645, 648 (1st Cir. 1990) (citing Strickland, 466 U.S. at
__________

687).

In order to satisfy

the first prong of the Strickland

__________

test, Smullen must show that

that counsel was not

functioning as the 'counsel' guaranteed

the defendant by the Sixth

at 687.

conduct

There

falls

is

within

the

The first two

dismissed

Strickland
__________

failing

to

acceptance

as Smullen

test.

seek

Amendment."

a "strong

professional assistance."

be

"counsel made errors so serious

We

an

Strickland, 466 U.S.

__________

presumption

wide

range

that

counsel's

of

reasonable

of Smullen's sentencing

claims must

Id. at 689.
___

cannot

meet either

cannot attribute error

offense

of responsibility.

level

prong

to counsel for

reduction

See U.S.S.G.
___

of the

based

3E1.1.

on

As the

record

crimes.

shows, Smullen never

accepted responsibility for his

Smullen pleaded not guilty to each of the counts and

maintained his

innocence throughout

the trial.

See United
___ ______

-6-

States
______

v. Bennett, 37 F.3d 687, 697 (1st Cir. 1994) (holding

_______

that U.S.S.G.

3E1.1 is generally not intended to apply to a

defendant who

guilt).

challenges the essential

Moreover,

the

district

factual elements

court

stated

defendant's trial testimony was "thorough-going

imposed a

See
___

sentence enhancement

that

of

the

perjury" and

for obstruction

of justice.

United States v. Talladino, 38 F.3d 1255, 1265 (1st Cir.

_____________
_________

1994)

("[I]n

justice

the universe

looms, a reduction

of

cases

where obstruction

of

for acceptance of responsibility

is ordinarily forestalled altogether.").

Smullen

has

provided no

contention that, had his

better

support for

counsel served him competently, the

court would have found a lower offense level and,

he

would

sentencing

have

been

range.

his

sentenced

Smullen

within

argues that

therefore,

lower

the

Guideline

loss

amount

attributed to him as relevant conduct for sentencing purposes

was

excessive, and faults

fact to the court's

his lawyer for

attention.

not bringing this

However, the amount

of loss

attributed to the petitioner's misconduct related to a period

well within

of

the duration of "relevant

the Sentencing

Guidelines.

conduct" for purposes

See U.S.S.G.
___

1B1.3(a)(2)

(requiring that relevant conduct be "part of the same

of

conduct

or

conviction").

course

of

common scheme

Over an

conduct

or

plan

as

course

the offense

of

eight-year period, Smullen engaged in

to

fraudulently

-7-

obtain

unentitled

disability benefits.

alone a

constitutionally relevant

for a lower

for a

Smullen's

loss amount.

counsel made no

one, in failing

As it was,

error, let

to argue

defense counsel argued

loss amount significantly lower than

that proposed by

the government or by the probation department.

Smullen's third and only

the ineffective

order for him to

substantial claim is that

assistance of his counsel

pay an amount of

contributed to an

restitution in excess

of

that permitted by

F.2d

1023, 1026

erroneous

law.

See United States

___ _____________

(6th Cir.

restitution

1993) ("A

award, which

v. Ratliff,
_______

refusal to

award

999

appeal an

would have

been

subject to reversal on appeal, would meet the Strickland test

__________

and

would

appeal

the award.")

exceeds

be a

clearly constitute

If

cause

for

[the] failure

Smullen's restitution

the maximum amount which the

obligation

law permits, there may

reasonable probability that counsel's

failure to point

this out contributed to the unfavorable outcome.

It may be, but

restitution

permitted

appear

by law,

Id.
___

we need not decide, that

obligation did,

in

fact,

notwithstanding the

to have prompted it.

to

exceed

the

Smullen's

maximum

basic equities

The Supreme

that

Court has limited

restitution to losses caused by the specific conduct that

the

basis of

States,
______

the offense

495 U.S.

caused by

411,

the conduct

of conviction.

420 (1990)

Hughey v.
______

(holding that

underlying the offense

is

United
______

"the loss

of conviction

-8-

establishes

the

outer

limits

of a

restitution

order").4

Smullen was

ordered to repay $121,377.78

his

verdict

guilty

statements

on

three

submitted to

1989, and 1990.

the

counts

in connection with

relating

Department of

to

false

Labor in

1988,

The $121,377.78 figure represents the entire

amount of loss relating to Smullen's false statements

Department

of

Labor over

fraudulent scheme.

for which

the

the

eight-year

to the

duration of

his

The loss related to the three-year period

government actually

secured convictions

was

approximately $20,250.93.5

____________________

4.

In Hughey, the defendant,

______

charged in several counts with

the use of stolen credit cards, pled guilty to the fraudulent

use

of one.

others.

The order

The Supreme Court

for restitution awards

for

restitution included

reversed, saying the outer

was "the loss

caused by the

use

of

limit
conduct

underlying the offense of

conviction."

Hughey, 495 U.S.

______

at

420.
The
Witness
3663,

statute authorizing
Protection Act

was amended

to

allow broad

No. 101-647,

amendment

does not

offense of

plan,

18 U.S.C.

2509,
apply

Crime Control Act of 1990,

104 Stat.

4789, 4863.

here, however,

of 18 U.S.C.

That

because Smullen's
to a federal

1001, did not

include a

scheme or conspiracy as an element of the offense. See

___

United States v.
_____________
(holding that

Neal, 36
____

F.3d 1190, 1201

a defendant convicted of

of being an accessory after the fact

pay

and

restitution for

conviction, filing false statements

agency in violation

Victim

an element a scheme, a conspiracy, or

pattern of criminal activity."

Pub. L.

the

1982, specifically

in 1990

offenses involving "as

a

of

restitution,

restitution for

offenses

because

conspiracy or

losses
neither

pattern of

1994)

money laundering and

could not be ordered to

not directly
involved

(1st Cir.

proof

related to
of

criminal activity as

those
scheme,

an element),

petitionfor cert. filed, (U.S. July 25, 1996) (No. 96-5380).

_______________________

5.

The

$20,250.93

petitioner.
calculation of

figure

is

the amount

The government does not

the amount of

put

forward

by

put forward a specific

loss specifically attributable

to Smullen's false statements made in 1988, 1989, and 1990.

-9-

As

noted,

this

might

be

attributed

to

the

ineffective assistance of counsel where, as here, counsel not

only

did

not point

out the

relevant

law to

the district

judge, but apparently agreed with the prosecution's erroneous

interpretation.

in an

See
___

Scarpa, 38 F.3d at
______

11 ("Serious errors

attorney's performance, unrelated to

tactical choices

or to

some plausible

performance.").6

powerless in a

strategic aim,

constitute substandard

However, even assuming

proceeding under

relief to Smullen.

this is so, we

28 U.S.C.

2255 to

are

grant

Section 2255 provides:

A prisoner in custody under sentence of a

court

established

by

Act

of

Congress

claiming the right to be released upon

____________________________________
the ground that the sentence
in

violation of the Constitution or laws

of the

United States, or

was without jurisdiction

sentence,

or

excess of the
or

is

attack,
the

was imposed

that the

that the court

to impose
sentence

such
was in

maximum authorized by law,

otherwise

subject to

collateral

may move the court which imposed

sentence

to

vacate, set

aside

or

correct the sentence.

28

U.S.C.

2255 (emphasis supplied).

the statute indicates that

The plain language of

2255 is available to petitioners

____________________

6.

The

government's

attempt

finding

of

ineffective assistance by arguing that Smullen's counsel

may

have

Cf.
___

been acting strategically

to

avoid

need not be

addressed.

United States v. McGill, 11 F.3d 223, 227-28 (1st Cir. 1993)

______________
______
(holding
not

be

that a strategic choice on the part of counsel will

second guessed

by

the

courts); United States

______________

Tabares, 951 F.2d 405, 409 (1st Cir. 1991).

_______

v.

There is little

in the record to suggest that counsel was aware of Hughey and

______
its

progeny,

but

nonetheless

decided not

to

bring

doctrine to the court's attention for strategic reasons.

-10-

this

"in

custody"

custody.

under

who "claim[]

Smullen,

the right

while in

to be

custody at

released" from

the time

he moved

2255, was not "claiming the right to be released" but

was merely claiming the right to a reduced restitution

establishing the

court has

custody,

previously held that

subject

obligation in a

F.2d

5,

sufficient

monetary restitution

(1st

only

2255 action.

Cir. 1990)

restraint on

requirement for

to

2255

he should pay.

a petitioner,

fine

order

cannot

This

no longer

challenge

in

that

United States v. Michaud, 901

_____________
_______

("A

liberty

monetary

to meet

purposes[;]

[n]or

fine

is

not a

the 'in

custody'

does

potential

future incarceration for

failure to pay such

a fine provide

the requisite subject matter jurisdiction.").

The Fifth

analogous to

and Sixth

the present, that

Circuits have held,

a person

in custody

bring an ineffective assistance of counsel

fine because

release"

that

person is

from custody.

1131, 1137

insufficient

not

in cases

cannot

claim challenging

"claiming a

right

to

See United States v. Segler, 37 F.3d

___ _____________
______

(5th Cir. 1994) ("[I]f counsel's constitutionally

assistance

affected

the

trial

court's guilt

determination or the sentencer's imposition of a prison term,

a prisoner's ineffective

within the scope of

the

assistance of

counsel claim

2255; if, as here, it relates

imposition of a fine, his claim falls outside

falls

only to

2255.");

United States v. Watroba, 56

______________
_______

F.3d 28, 29

(6th Cir.), cert.

_____

-11-

denied,
______

116

S.

Ct. 269

(1995);

accord
______

United States
_____________

Gaudet, 81 F.3d 585, 592

______

(5th Cir. 1996).

of any

that, having addressed

court of appeals

We are

v.

not aware

this issue,

has reached a contrary result.7

The Fifth and Sixth

Circuits' interpretation of

2255

not only tracks the literal language of the statute but

also

promotes

defendant,

erroneous

the equal

not

in

treatment

custody,

fine or restitution

of similar

sentenced

to

order because

claims.

an

cannot seek relief

under

Michaud, 901
_______

7, and therefore,

it seems

that a petitioner

fine

or restitution order but

petitions,

able

who is given the

to be

to challenge

attack.

2255,

see
___

congruent

same allegedly erroneous

also happens, at

rightfully imprisoned

his monetary

allegedly

of ineffective

assistance of counsel

F.2d at

the time he

also should

obligation in

not be

a collateral

____________________

7.

This

question

Circuit

has

not

authoritatively

decided by Segler and

______

addressed

Watroba -- whether
_______

the

or not

2255 is a proper avenue for

a person in custody to assert an

ineffective

counsel

assistance

imposition of

fine

unpublished opinions

of

or restitution

WL 443937 (1st
assumed

without deciding

In

7, 1990).
that

force, we have
2255

United States, 1990

_____________
In addition, we

there

the

several

order can be addressed in

See, e.g., Vela-Fossas v.

___ ____ ___________
Cir. Sept.

relating to

order.

lacking in precedential

implied that a restitution

proceedings.

claim

was

jurisdiction

have
to

challenge a restitution order under the

former Fed. R. Crim.

P.

correct an

35 (which

sentence"

permitted

at any time).

the court

to

"illegal

See United States v. Lilly, 80 F.3d

___ _____________
_____

24, 28 (1st Cir. 1996).

-12-

Agreeing

analyses,

we

hold

with

that

the

Fifth

Smullen

restitution obligation in this

Affirmed.
Affirmed
________

and

cannot

Sixth

Circuits'

challenge

2255 proceeding.8

his

____________________

8.

Should Smullen become incarcerated in the future due to

his failure to meet the restitution order as the basis for

his confinement obligations, he may, although we need not
decide for present purposes, be entitled to bring a
action challenging his restitution at that point.

-13-

2255