Unpublished Disposition Notice: Seventh Circuit Rule 53(B)(2) States Unpublished Orders Shall Not Be Cited or Used as Precedent Except To Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit. Abel S. Branly, Petitioner-Appellant, v. United States of America, Respondent-Appellee., 930 F.2d 25 (7th Cir. 1991)

Federal Circuits, 7th Cir. (April 15, 1991)

Docket number: 88-1703


Permanent Link: http://vlex.com/vid/used-support-any-within-abel-branly-37360590
Id. vLex: VLEX-37360590

Click here to download this article in graphic format (Acrobat Reader)

Document language

Search in this document

Sponsored Ads:


Citations:

FeediconRSS What's this?

Cited by:

U.S. Court of Appeals for the 7th Cir. - Allstate Insurance Company, Plaintiff-Appellee, v. Jerry Lee Brown, Defendant-Appellant, and Frank Orbik Jr., Defendant., 16 F.3d 222 (7th Cir. 1994)

U.S. Court of Appeals for the 7th Cir. - National Fire and Casualty Company, Plaintiff-Appellee, v. Mary A. West, a Minor Child, By and Through Her Parent and Next Friend, Rita Norris, Defendant-Appellant., 107 F.3d 531 (7th Cir. 1997)

U.S. Court of Appeals for the 3rd Cir. - Fed. Sec. L. Rep. P 90,343 Securities and Exchange Commission v. John Gardner Black; Devon Capital Management, Inc.; Financial Management Sciences, Inc., South Butler County School District; Daniel Boone Area School District; Tyrone Area School District; Blacklick Valley School District; Harmony Area School District; Penn Cambria School District; Penns Manor School District; Northern Lebanon School District * , Appellants Bellefonte Area School; Cornwall-Lebanon School District; Cumberland Valley; Fleetwood Area School; North Hills School District; Harrisburg Authority; City of Harrisburg; St Johns Welfare; Lincoln Consolidated School; Nice Community School; Yale Public School; Bradford Regional Medical Center; Ravenswood Hospital Medical Center; University of Scranton ** Penn Manor School District; School District of Lancaster ***, 163 F.3d 188 (3rd Cir. 1998)

U.S. Court of Appeals for the 7th Cir. - 78 Fair Empl.Prac.Cas. (Bna) 1019, 74 Empl. Prac. Dec. P 45,664 Robert H. Tice, Et Al., Plaintiffs-Appellants, Cross-Appellees, v. American Airlines, Inc., Defendant-Appellee, Cross-Appellant., 162 F.3d 966 (7th Cir. 1999)

Text:

Before BAUER, Chief Judge, CUMMINGS, Circuit Judge and ESCHBACH, Senior Circuit Judge.

ORDER

Pro se petitioner Abel Branly appeals from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec . 2255. The district court dismissed the petition because Branly waived his argument regarding the withdrawal of his guilty plea by failing to raise it on direct appeal. We affirm.

Branly pleaded guilty to engaging in a continuing criminal enterprise to distribute cocaine and distributing cocaine to a minor. The district court denied his motion to withdraw his plea and then sentenced him to 20 years imprisonment on each count to run concurrently, a supervised parole term of 15 and a fine of $30,000. On direct appeal, Branly contended that the district court abused its discretion in denying his motion to withdraw his guilty plea. He took exception to the characterization of his criminal activity in the presentence report and to some factual allegations in the indictment. This court affirmed. United States v. Branly, No. 86-1343, unpublished order (Oct. 15, 1986).

After the appeal, the district court denied Branly's motion to reduce his sentence pursuant to Fed.R.Crim.P. 35. He then filed this petition, alleging for the first time that the plea proceedings were inadequate because the district judge did not admonish him that his sentence might include a term of special parole. On appeal he raises still another argument--that the district judge failed to admonish him that his sentence on the continuing criminal enterprise count would be non-parolable. This last issue, not raised in his habeas petition or opening brief in district court, is waived. Gomez v. Greer, 896 F.2d 252, 254 (7th Cir.1990).

The special parole issue is waived for a different reason. A failure to raise a constitutional challenge to a conviction on direct appeal bars a petitioner from raising the same issue in a section 2255 proceeding absent a showing of cause and prejudice. United States v. Theodorou, 887 F.2d 1336, 1339 (7th Cir.1989). This standard applies even when the conviction results from a guilty plea rather than a verdict. Id. Branly has failed to make any showing of cause or prejudice.1

The denial of the petition for a writ of habeas corpus is

AFFIRMED.

1 Even were we to reach the merits, we would hold, as the Supreme Court noted in Hill v. Lockhart, 474 U.S. 52 (1985), that the Constitution does not require states--or in this case the United States--to furnish a defendant with information about parole eligibility in order for the defendant's plea of guilty to be voluntary. Id. at 56. See Fed.R.Crim.P. 11(c); Advisory Committee's Notes on 1974 Amendment to Fed.R.Crim.P. 11, 18 U.S.C.App., p. 22 (federal courts generally are not required to inform defendant about parole eligibility before accepting guilty plea)

Sponsored Ads:




Activate your free trial now

Make your order

Need help? Contact us

Try vLex for FREE for 3 days

Access legal information from United States including:

  • Constitutions
  • Forms and Contracts
  • Legal Books and Journals
  • Case Law
  • News and Business
  • Regulations
  • U.S. Code

Try vLex without any commitment for 3 days and see why you need it.

3

days of Free Access