935 F. 2d 276 - United States v. Fung

MEMORANDUM**

Appellant Augustine Fung was arrested at the San Francisco international airport after customs officials found over 3.3 kilograms of 70% pure heroin in his suitcase. Fung pleaded guilty to one count of an indictment which charged him with the importation of heroin in violation of 21 U.S.C. Sec. 952. After receiving several sentencing memoranda from the parties, the district court sentenced Fung to a seventy-eight month prison term and a three year period of supervised release. Fung did not appeal his sentence.

On October 3, 1989, Fung filed a habeas petition under 28 U.S.C. Sec. 2255. He attacked his conviction on the grounds that he was a minimal participant in the crime, that he acted under duress, and that the government made an "implied" promise that he would receive only a five year prison term in exchange for his cooperation and his plea. Although the district court noted that these three issues had been briefed and argued at sentencing, the district court reached the merits and denied the petition. The court concluded that Fung had "given the court no reason to reach a different result now." The court also denied Fung's request for counsel and an evidentiary hearing. We affirm.

On August 8, 1988, agents of the Singapore Central Narcotics Bureau became suspicious of the activities of Augustine Fung and Boon Chye Tan at the Changi airport in Singapore. Fung and Tan boarded a Japanese Airlines Flight to San Francisco and officials in Singapore forwarded information about Fung and Tan to United States Customs officials in San Francisco.

When Fung arrived in San Francisco he claimed a Maroon suitcase with a "Fly KLM" sticker on the side. Customs officials at the "Primary" area referred Fung to the "Secondary" area for inspection. Customs officials examined the suitcase and suspected that it contained narcotics; a subsequent search revealed the suitcase contained the equivalent of nearly 2 kilograms of pure heroin with a street value of approximately $3.75 million. Fung was arrested and charged with the importation of heroin in violation of 21 U.S.C. Sec. 952.

We review de novo a district court's denial of a 28 U.S.C. Sec. 2255 motion. United States v. Popoola, 881 F.2d 811, 812 (9th Cir.1989).

First we note that contrary to the government's argument we have jurisdiction over this appeal. The district court's order denying Fung's habeas petition was filed on July 20, 1990. Fung filed his notice of appeal on September 13, 1990. The government contends Fung was required to file his notice of appeal on or before August 20, 1990. However, Federal Rule of Appellate Procedure 4(a)(1) states that in a civil case, when "the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry." FedR.App.P. 4(a)(1) (emphasis added); see United States v. Angelone, 894 F.2d 1129, 1131 (9th Cir.1990). We have jurisdiction because the United States is a party and Fung filed his notice of appeal within the sixty-day limit.

Having established jurisdiction, we hold that Fung has failed to identify any error cognizable under a writ of habeas corpus. "It is old and established law that habeas corpus under the federal statute is not available for every error committed by a trial court." United States v. Knockum, 881 F.2d 730, 732 (9th Cir.1989). While "constitutional claims may be raised in collateral proceedings even if the defendant failed to pursue them on appeal", non-constitutional claims "are proper for collateral attack only when some type of extraordinary discrepancy is alleged." Marshall v. United States, 576 F.2d 160, 162 (9th Cir.1978) (citations omitted); see United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1471 (9th Cir.1988), cert. denied, 110 S.Ct. 51 (1989). As we stated in Knockum, the writ is unavailable when:

[i]t is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present 'exceptional circumstances' where the need for the remedy afforded by the writ of habeas corpus is apparent.

Knockum, 881 F.2d at 732 (citations omitted).

The three alleged errors which form the basis for this petition do not satisfy any of these requirements. The district court's sentencing memorandum shows that Fung raised essentially the same duress, minimal participant, and implied promise claims "in response to the Probation officer's rejection of downward adjustments and departures." Sentencing Memorandum, at 4. The court's sentencing memorandum adequately discusses these claims and its straightforward application of the guidelines explains why they should be rejected. Funk's attempt to frame these same arguments in constitutional terms and thereby create a claim which is cognizable under a writ of habeas corpus is without merit.

AFFIRMED.