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United States v. Leiby

submitted: May 15, 1987.

UNITED STATES OF AMERICA
v.
LEIBY, GLENN, APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 83-00305-02.

Author: Mansmann

Before: GIBBONS, Chief Judge, MANSMANN, Circuit Judge, and McCUNE, District Judge.*fn*

Opinion OF THE COURT

MANSMANN, Circuit Judge.

This matter comes before us on appeal from an order of the district court which denied the appellant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (1982). We find that the district court did not abuse its discretion by denying the motion without a hearing, since the motion presented grounds for relief which the court determined adversely to the appellant on the merits in a previous § 2255 application. Because a direction to consider the merits of the latest motion would not serve the ends of justice as expressed in Sanders v. United States, 373 U.S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963), we will affirm the district court's judgment.

I.

On September 7, 1983, the Government charged the appellant, Glenn Leiby, with conspiracy to manufacture and to distribute methamphetamine in violation of 21 U.S.C. § 846 (1982), manufacturing and distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1) (1982), and engaging in a continuing criminal enterprise in violation of 21 U.S.C. ) 848 (1982). Pursuant to a plea agreement, Leiby pled guilty on January 20, 1984 to one count of conspiracy and to one count of distributing methamphetamine.*fn1

On February 23, 1984, the district court sentenced Leiby to five years imprisonment with five years of special parole and imposed a $15,000 fine on the § 841(a)(1) count. The court further sentenced Leiby to three years probation to run consecutively to the special parole term and fined him $15,000 on the conspiracy count. Leiby raised no immediate objection to the sentence.

On June 18, 1984, Leiby filed a motion for reduction of sentence under Fed. R. Crim. P. 35(b). Following the Government's response, the district court denied the motion. Leiby filed a notice of appeal to this court, but the district court entered an order of voluntary dismissal on October 23, 1984.

On July 5, 1985, Leiby filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion alleged, inter alia, that: (1) "The special parole term of 5 years, if allowed by the plea agreement, was illegal in that the petitioner was not advised of a 5 year special parole term and this renders petitioner's guilty plea involuntary" and (2) "Petitioner's conviction was obtained by a plea of guilty which was unlawfully induced and not made voluntarily in that he plea agreement was violated."

The district court granted the motion in part and denied it in part. By order dated October 18, 1985 the court according amended Leiby's sentence on the § 841(a)(1) count by reducing the special parole term form five to two years. In amending the sentence the court stated:

Mr. Leiby concedes that he court correctly advised him that if he pled guilty to count six, he could receive a sentence of five years followed by a special parole term of at least two years. A special parole term of at least two years is required by the statute.*fn2

Therefore, the defendant and his attorney knew, in fact, and fully contemplated that if sentence was imposed on count six there would have to be a special parole term of at least two years. (Motion to Vacate, Set Aside, or Correct Sentence at 5). In his petition, he states that he bargained for two years special parole, not three. "The plea he was advised of was 5 5 2. At sentencing he received 5 5 3." Id.*fn3

Mr. Leiby cannot reasonably argue that he had a mistaken belief that the United States Attorney or the court could impose a sentence under count six without adding a special parole term. Here, there was in defendant full expectation that if sentenced under count six, there could be the maximum period of incarceration permitted by law but here would have to be the minimum special parole terms permitted under law since the plea agreement did not specify a greater period. To the extent that there was a special parole term of three years imposed on count six, the sentence is illegal since it is at odds with the plea agreement. The court, having power to correct an illegal sentence at any time, will reduce the special parole term to two years.

No appeal was taken from the order of October 18, 1986.

On September 9, 1986, Leiby filed a second § 2255 motion. That motion averred as its sole ground for relief that "Petitioner's conviction was obtained by a plea of guilty which was unlawfully induced and not made voluntarily in that Petitioner was not advised of the imposition of a special parole term as apart of the plea agreement." the district court summarily denied the motion on October 23, 1986. The court specifically found: "Petitioner alleges no new grounds for relief. Petitioner's claims concerning his guilty plea and his plea agreement are identical to those adjudicated on the merits in the previous motion. I find not reason to reconsider the issues raised in the previous action." Leiby v. United States, No. 83-00305-02, final order at 2-3 (E.D. Pa. Oct. 23, 1986). This timely appeal followed.

II.

A.

The Supreme Court in Sanders v. United States formulated guidelines to govern successive applications for federal habeas corpus and motions under 28 U.S.C. § 2255.*fn4

The Court announced:

Controlling weight maybe given to denial of a prior application for federal habeas corpus or § 2255 relief [footnote omitted] only if (1) the same ground presented din the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application

373 U.S. at 15. The Court emphasized, however, that "these rules are not operative in cases where the second or successive application is shown, on the basis of the application, files, and records of the case alone, conclusively to be without merit. [Citations omitted.] In ...


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