Unpublished Disposition, 917 F.2d 566 (9th Cir. 1989)

No. 89-56293.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and POOLE, Circuit Judges and THOMPSON, G.^**  District Judge.

MEMORANDUM^*** 

Michaels appeals from the district court's denial of his motion to vacate, set aside, or correct sentence under 28 U.S.C. 2255. The District Court had jurisdiction under 28 U.S.C. § 2255. This court has jurisdiction on appeal under 28 U.S.C. § 2255. The district court denied the motion in an order filed October 31, 1989. The Notice of Appeal was timely filed on November 14, 1989. We review the district court's denial of a motion pursuant to 28 U.S.C. § 2255 de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989). We affirm the District Court's ruling.

Michaels presents the following claims for review: (1) that his fourth amendment rights were violated by the admission of fingerprint, handwriting and typewriter exemplars taken pursuant to a grand jury subpoena, (2) that consideration of a study and observation Report at sentencing violated Rule 32(c) (3) (D) of the Federal Rules of Criminal Procedure, (3) that the trial court erred in imposing consecutive sentences, (4) that the trial court subjected him to double jeopardy for the same offense in violation of his fifth amendment rights, and (5) that the district court abused its discretion in denying an evidentiary hearing on defendant's motion under 28 U.S.C. § 2255.

Michaels had a full and fair opportunity to present his claim of a Fourth Amendment violation at trial and on direct appeal. Consequently he may not raise the claim on collateral review. United States v. Hearst, 638 F.2d 1190, 1196 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981). Michaels did not raise this issue in his appeal. United States v. Michaels 796 F.2d 1112 (9th Cir. 1986), cert. denied 479 U.S. 1038 (1987). Moreover, the trial record indicates that the trial judge specifically considered the Fourth Amendment claim as to the fingerprint, handwriting, and typewriter exemplars and ruled that the exemplars were admissible. Any objections to this ruling should have been raised by Michaels on direct appeal.

The admission of the exemplars did not violate Michael's Fifth Amendment rights. He claims that because he was in custody and did not receive Miranda warnings, that the exemplars should be excluded. This claim has no merit, as such exemplar evidence is nontestimonial in nature, and there is no Fifth Amendment protection for identifying characteristics. Gilbert v. California, 388 U.S. 263 (1967).

The attack on the sentence under Federal Rule of Criminal Procedure Rule 32(c) (3) (D) is also not properly raised for collateral review. Once the district court has imposed sentence, this court lacks jurisdiction under Rule 32 to hear challenges to a presentence report. U.S. v. Catabran, 884 F.2d 1288, 1289 (9th Cir. 1989). The study and observation report should have been challenged at the time of sentencing. Michaels himself admits that he was given the report to review before sentencing, but did not have time to review it carefully. It is up to Michaels or his attorney to have raised the objection at that time. Michaels did not raise this issue on direct appeal or as part of his Rule 35 motion of December 1986.

Furthermore, in raising his collateral review Michaels must show "cause" excusing his double procedural default, and (2) "actual prejudice" resulting from the errors of which he complains. United States v. Dunham 767 F.2d 1395, 1397 (9th Cir. 1985). Michaels's "cause" for delay is based upon his claim that he did not know the study and observation report was inaccurate until he received a psychological report in 1988 from a Dr. Otero. But Dr. Otero's report does not state that the earlier report was in error; this is Michaels's own conclusion. Even if this was cause for the delay in raising this issue, Michaels fails to show actual prejudice from any alleged error in the study and observation report. He was originally sentenced to 30 years, 20 years less than the 50 year maximum. He makes no specific argument as to how the observation and study report prejudiced his sentence.

The claim that the court erred in imposing consecutive sentences on counts one and three has also not been raised on direct appeal, and Michaels offers no cause as to why this issue is raised for the first time for collateral review. Aside from the procedural defect with this claim, his argument is unconvincing. Michaels was convicted of mailing injurious material pursuant to 18 U.S.C. § 1716 and of possession of an unregistered firearm pursuant to 26 U.S.C. § 5761(d). Where there is no evidence of direct Congressional intent for multiple punishments for a single act or transaction found in these statutes, this court relies on the presumptive test for congressional intent articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932). The test to be applied is: "whether each [statutory] provision requires proof of an additional fact which the other does not." Id. at 304. Each of these offenses requires proof of an additional fact which the other does not. Registration of the pipe bomb is not a necessary element in the charge of mailing injurious material, and mailing the pipebomb is not an element in the charge of possession of an unregistered firearm.

Michaels's claim of double jeopardy fails for the same reasons. First, he did not raise this claim at trial, at the time of sentencing, or on direct appeal.

Second, the Blockburger analysis is used to determine a double jeopardy violation. Simpson v. United States 435 U.S. 6, 11 (1978). Michaels claims double jeopardy in his conviction on counts one and two, for mailing of an explosive device (18 U.S.C. § 1716) and for the interstate transport of an explosive device with the intent to kill (18 U.S.C. § 844(d)). Proof of a crime under the provisions of 18 U.S.C. § 844(d) requires proof that the explosive device was transported interstate. Proof of such a fact is not required for violation of 18 U.S.C. § 1716. Thus, following the rule in Blockburger, the two offenses "are sufficiently distinguishable to permit the imposition of cumulative punishment" Brown v. Ohio 432 U.S. 161, 166 (1977).

Michaels's argues that he was improperly denied an evidentiary hearing on his Sec. 2255 motion. The decision to deny an evidentiary hearing is reviewed for abuse of discretion. Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988). Section 2255 provides: "Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon" and decide the motion. As discussed above, the issues raised were improperly presented for collateral review, and upon a review of the record and pleadings before this court, we find that they conclusively show that Michaels's arguments lack merit. The district court did not abuse its discretion in deciding the motion without a hearing.

AFFIRMED.