Opinion
Submitted March 8, 1999
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of Arizona Robert C. Broomfield, District Judge, Presiding.
Before NOONAN and TASHIMA, Circuit Judges, and RESTANI, Judge.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
This is an appeal pursuant to 28 U.S.C. § 2253 from the March 28, 1996 Order of the United States District Court for the District of Arizona, denying Donald Benally's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The court affirms the Order and Judgment of the District Court.
On May 11, 1994, Benally filed a Motion to Dismiss the indictments for selective and vindictive prosecution, which the district court construed as a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255 (1994).
Procedural Default
Habeas claims may be procedurally barred for failure to have raised them on direct appeal. See United States v. Dunham, 767 F .2d 1395, 1397 (9th Cir.1985). To rehabilitate such a claim, a petitioner must show "cause" for the procedural default and "actual prejudice" due to the alleged error, United States v. Frady, 456 U.S. 152, 168 (1982), even when alleging a fundamental constitutional error, Murray v. Carrier, 477 U.S. 478, 495-96 (1986). Benally has not redeemed his procedural default by a showing of ineffective assistance of counsel because he has failed to establish more than simply his counsel's failure to have raised the claims. See id. at 488.
Procedurally Barred Claims
The bulk of Benally's claims are in procedural default, and not revived by a showing of cause. The defaulted claims include Benally's Speech or Debate clause claim, his selective and vindictive prosecution discovery request, his grand and petit jury discriminatory selection claims, and his speedy trial claim. Defaulted claims also include petitioner's claims regarding the prosecution's use of evidence submitted in camera to the trial judge, the alleged excessiveness of the restitution remedy, and the alleged ex post facto application of the United States Sentencing Guidelines. Also defaulted are Benally's challenges to the trial court's in camera voir dire, his claim of an allegedly prejudicial trial alongside co-defendant Peter MacDonald, and the trial judge's refusal to recuse himself. Finally, Benally's challenge to his conspiracy conviction as a violation of the Commerce clause is in default for petitioner's failure to raise the issue below or on direct appeal.
Together with several co-defendants, Benally appealed his federal criminal conviction on multiple grounds. United States v. Begay, 42 F.3d 486, 489, 497 (9th Cir.1994), cert. denied, 516 U.S. 826 (1995);reh'g denied, 518 U.S. 1038 (1996).
Federal Jurisdiction
On direct review, petitioner challenged the trial court's jurisdiction over the conspiracy charge, arguing that conspiracy is not an offense enumerated in the Major Crimes Act, 18 U.S.C. § 1153 (1994). Begay, 42 F.3d at 497. This court read 18 U.S.C. § 1153 to address only federal enclave law, pursuant to 18 U.S.C. § 1152 (1994), and not laws of general applicability. Id. at 498. The court found that the trial court had jurisdiction because the federal conspiracy statute, 18 U.S.C. § 371 (1994), is a federal criminal law of general applicability and therefore applies in Native American territory. Id. at 498-500.
Here, Benally raises a new claim that the trial court lacked jurisdiction over the charge of aiding and abetting a robbery for the same reason, contending that the district court denied habeas relief in erroneous reliance on Begay, 42 F.3d at 497-49. The decision of the district court is affirmed based on the holding in Begay.
Duplicitous Indictment
Benally claims the first count of his indictment should be dismissed because it was duplicitous in charging in one count conspiracy to commit three separate offenses. Benally claims this violated his constitutional right to proper notice of the charges against him and prevented the jury from separately deciding his guilt or innocence as to each offense, as each count requires proof of different facts and elements, thus raising uncertainty as to whether his conviction was unanimous.
This claim was raised on direct appeal. Begay, 42 F.3d at 501. Recognizing that an indictment that describes a single charge of conspiring to commit multiple offenses is not duplicitous, United States v. Smith, 891 F.2d 703, 712 (9th Cir.1989), this court examined Count One of Benally's indictment de novo and ascertained that Count One charged a single crime, Begay, 42 F.3d at 501. The court in Begay examined the record and determined that a reasonable jury could have found the defendants guilty of a single, rather than multiple conspiracies. Id.
Benally has made no new argument and has not addressed this court's determination on the sufficiency of the evidence. He simply restates his claim. The court therefore declines to revisit this question. See Walter v. United States, 969 F.2d 814, 816 (9th Cir.1992). The district court's refusal to revisit the issue is affirmed.
Closing Argument
Benally claims an inappropriate statement by the prosecutor during closing argument so prejudiced the jury that reversal is required. The prosecutor allegedly pointed his finger at Benally in an angry manner and called him and his co-defendants "criminals." The court will consider this claim, which Benally failed to raise in his § 2255 petition, only if it reveals clear or plain error. See United States v. Bigman, 906 F.2d 392, 395 (9th Cir.1990). The assertion that the single allegedly prejudicial remark, in the context of an entire trial, could have significantly affected the jury's ability to judge the evidence fairly is dubious. See United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir.1985). In light of the considerable latitude this court permits in closing arguments, United States v. Lester, 749 F.2d 1288, 1301 (9th Cir.1984), the court finds no clear or plain error and therefore no need to review this claim.
Evidentiary Hearing
As the bulk of his petition was in procedural default, and the remaining claims received thorough treatment on appeal or are without merit, the court affirms the district court's denial of the writ without an evidentiary hearing.
AFFIRMED.
See Fed. R.App. P. 34(a)(2).