932 F. 2d 973 - United States v. Allred

MEMORANDUM**

Appellant Dale Edwin Allred appeals the denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. Sec. 2255. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

On October 28, 1987, Allred was indicted on one count of conspiracy to file false income tax returns under 18 U.S.C. Sec. 286,1 and five counts of filing false tax returns under 18 U.S.C. Sec. 287.2 Each count of filing a false tax return alleged separate instances of presenting knowingly false claims for tax refunds. On February 10, 1988, a jury found Allred guilty on all six counts. He was sentenced to five years on each count to run consecutively. His conviction was affirmed by this court in an unpublished decision on June 7, 1989.

On April 26, 1989, Allred filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. Sec. 2255. The motion alleged four grounds for relief: (1) he was deprived of the effective assistance of counsel; (2) his sentence was vindictive and grossly disproportionate; (3) violation of the Jencks Act; and (4) cruel and unusual punishment.3

On December 6, 1989, the district court ordered the government to respond to Allred's motion within twenty days and also stated:

Petitioner, within ten days from receipt of service of the Government's response, may reply in writing to any new matter alleged. In the reply, petitioner may include further allegations, argument or authorities either in support of the petition or in opposition to the Government's response.

On January 8, 1990, the government filed its response to the motion. Allred filed a document labeled "Petitioner's Traverse" on January 26, 1990.

On February 5, 1990, Allred filed a document labeled, "Amended Petition for Motion to Vacate, Set Aside, or Correct Sentence" ("amended motion"). The amended motion states, "the Petitioner acting Pro-Se, ... moves before the Court pursuant to Federal Rule Civil Procedure, Rule 15(a) with his amended petition and in support thereof...." The amended motion alleges two grounds not raised in his original motion: (1) that his sentence constitutes double jeopardy, and (2) his trial had begun outside the time period permitted by the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(1). The amended motion does not explicitly or by reference incorporate the allegations in the original motion.

On February 21, 1990, the court ordered the government to respond to the amended order and also included language identical to the above quoted language from the December 6, 1989, order. On March 14, 1990, the government filed a response to the amended motion which addressed the two grounds discussed in the amended motion only.

On March 20, 1990, a Magistrate entered an order stating: "Petitioner's Sec. 2255 motion (# 80) is denied as moot. (on January 16, 1990 petitioner filed an amended motion # 89)." Allred received this order on March 23, 1990.4

Allred filed a second "Traverse" on April 9, 1990. On April 18, 1990, District Judge Redden issued an order stating, "Petitioner's Amended Motion to Vacate, Set Aside or Correct Sentence (doc. # 89) is DENIED."

We first address whether the magistrate properly denied the original motion as mooted by the amended motion. The rules governing Section 2255 proceedings do not address amendments to the pleadings. Rule 12 provides:

If no procedure is specifically prescribed by these rules, the district court may proceed in any lawful manner not inconsistent with these rules, or any applicable statute, and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules.

28 U.S.C. Sec. 2255 foll. Rule 12. This rule grants district courts discretion to apply either the civil or criminal rules, United States v. Frady, 456 U.S. 152, 166-68 n. 15 (1982), and we will not reverse its decision in the absence of abuse of that discretion. Although the magistrate did not cite a procedural rule in its decision, Allred expressly based his amended motion on Federal Rule of Civil Procedure 15(a) and the magistrate apparently relied on this circuit's interpretation of that rule. We have long considered an amended pleading under Federal Rule of Civil Procedure 15(a) as superseding any prior pleadings. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987); see also London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.1981), and cases cited therein. Although we construe pro se pleadings liberally, "pro se litigants must follow the same rules of procedure that govern other litigants." King, 814 at 567.

In King, pro-se plaintiffs filed a section 1983 action challenging the conditions of their institutionalization in an Oregon State Hospital. They later filed an amended complaint alleging constitutional violations different from those in the original complaint. The amended complaint did not incorporate the allegations in the original complaint. The district court "ignored" the original complaint and addressed only the allegations in the amended complaint. We affirmed the district court's failure to address the original complaint stating that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." Id. at 567.

As did the plaintiffs in King, Allred apparently believed that his amended pleading did not supersede the original pleading, but merely added new allegations. Allred relies upon language in the district court's December 6, 1989, order which he interprets as permitting raising new allegations. There are two problems with this argument. First, the language in the order states that Allred "may reply in writing to any new matter alleged [in the government's response]" and "may include further allegations, argument or authorities either in support of the petition or in opposition to the Government's response" (emphasis added). The further allegations were thus limited to the claims made in the original motion or the government's opposition. The allegations in the amended motion were offered as new claims entirely distinct from those in the original motion.

Second, the order states that the "further allegations" are to be made in the petitioner's "reply." Although Allred never filed a document labeled "reply," he did file a document subsequent to the government's response labeled a "traverse."5 The traverse states that it is submitted "in response to the Government's answer" to his original motion. This document is thus the "reply" permitted by the district court's order. The amended motion was filed subsequent to the traverse. This sequence of events indicates that the district court's treatment of the amended motion is supported by both the substance of the document and the procedural posture in which it was presented.

In addition, the original motion was presented on a printed form provided by the district court with only brief statements of the alleged grounds for relief. The amended motion, by contrast, is set forth in pleading format in a detailed and reasoned manner with discussion of and citation to case law. The double jeopardy claim in the amended motion also relied on facts essentially identical to the original motion's cruel and unusual punishment claim. This further supports the magistrate's view that the amended motion was intended to supersede the prior motion. Although we construe pro se pleadings liberally, it is clear that the amended motion was properly interpreted as an amended, and therefore superseding, motion. The magistrate, therefore, did not act inconsistent with the rules governing section 2255 proceedings or abuse its discretion in finding the original motion mooted by the amended motion. 28 U.S.C. Sec. 2255 foll. Rule 12.

We next consider whether the district court erred in denying the amended motion on the merits. The amended motion alleged that Allred's sentence violates the double jeopardy clause of the Constitution, and the Speedy Trial Act. We review the denial of a motion under 28 U.S.C. Sec. 2255 de novo. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986).

A. Double jeopardy.

Allred was convicted of one count of conspiracy to file false income tax returns and five counts of filing false tax returns. He was sentenced to five years on each of the six counts, the sentences to run consecutively. He claims that although he could have been charged with the six different counts, the imposition of separate and consecutive sentences violates the double jeopardy clause of the constitution. We disagree.

There is no double jeopardy where each offense is separate and distinct. "An offense is separate and distinct when conviction under one count 'requires proof of a fact which the other does not.' " United States v. Segall, 833 F.2d 144, 147 (9th Cir.1987) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). Here, the count of conspiracy is separate and distinct from the five substantive counts because conspiracy requires proof of an agreement while the substantive counts do not. The substantive counts require the actual making of a false, fictitious, or fraudulent claim, while the conspiracy count does not. The five substantive counts are also separate and distinct from each other because they each require proof of a different false claim. See United States v. Arbelaez, 812 F.2d 530, 534 (9th Cir.1987); Redfield v. United States, 315 F.2d 76, 82 (9th Cir.1963). Because each count is separate and distinct, the court did not err by imposing consecutive sentences. United States v. Moore, 653 F.2d 384, 390 (9th Cir.), cert. denied, 454 U.S. 1102 (1981).

B. Violation of Speedy Trial Act.

Allred next claims that he was not brought to trial within the time mandated by 18 U.S.C. Sec. 3161(c)(1). This section requires that the trial of a criminal defendant "shall commence within seventy days" from either the date the indictment was filed or the date of the defendant's arraignment, whichever is later. Allred was arraigned on November 27, 1987, and trial began February 9, 1988, ninety-two days later. Section 3161(h) excludes from computation of the seventy days certain types of delays. Sections 3161(h)(1)(F) and 3161(h)(1)(J) exclude from computation periods of delay resulting from any pretrial motion or the time (up to thirty days) the court has the case under advisement.

On November 27, 1987, Allred filed a motion to suppress evidence. A hearing was held on this motion on December 22, 1987, and taken under advisement from that date until January 5, 1988. When these forty days are excluded from computation, Allred was brought to trial within the seventy days mandated by the Speedy Trial Act. The district court properly denied this claim.

AFFIRMED.