Victor Rene Angulo v. Scott Fisher , 262 F. App'x 201 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 11, 2008
No. 07-12203 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00066-CV-3-LAC-MD
VICTOR RENE ANGULO,
Plaintiff-Appellant,
versus
SCOTT FISHER,
Warden,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 11, 2008)
Before ANDERSON, BLACK and HULL, Circuit Judges.
PER CURIAM:
Victor Rene Angulo, a pro se federal prisoner, filed this court access action
against the warden at Federal Prison Camp (FPC) Pensacola alleging he was
denied meaningful access to the courts because FPC Pensacola failed to provide
him with either legal research materials in Spanish or an alternative method to
research potential claims. Specifically, Angulo maintained FPC Pensacola’s lack
of legal aid or research materials for non-English speaking inmates prevented him
from discovering his trial counsel was ineffective when trial counsel did not raise
as a defense the fact that Angulo legally possessed controlled substances in the
normal course of his import-export business.1 Angulo alleged he was forced to
rely on “jailhouse lawyers” to file a 28 U.S.C. § 2255 motion, and he did not assert
his ineffective assistance claim. He only discovered his ineffective assistance
claim after another inmate, who was not at FPC Pensacola when he filed his § 2255
motion, informed him about the claim. The district court dismissed the complaint
sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim
because it did not identify an actual injury, as required by Lewis v. Casey, 116 S.
Ct. 2174 (1996).
We review de novo a § 1915(e)(2)(B)(ii) sua sponte dismissal for failure to
state a claim, viewing the complaint’s allegations as true. Hughes v. Lott, 350 F.3d
1Angulo was convicted by a jury of two counts: (1) conspiracy to import cocaine; and
(2) importation of cocaine into the United States. 21 U.S.C. §§ 963, 952(a).
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1157, 1159-60 (11th Cir. 2003). An inmate asserting an access claim “must
identify within his complaint, a ‘nonfrivolous,’ ‘arguable’ underlying claim,” as
“an access claim is to provide vindication for a separate and distinct right to seek
judicial relief.” Barbour v. Haley, 471 F.3d 1222, 1226 (11th Cir. 2006), cert.
denied, 127 S. Ct. 2996 (2007). A plaintiff can establish actual injury by
demonstrating his “efforts to pursue a nonfrivolous claim were frustrated or
impeded by a deficiency in the prison library or in the legal assistance program.”
Id. at 1225.
We need not decide whether FPC Pensacola’s lack of legal aid or research
materials for non-English speaking inmates prevented Angulo from discovering his
ineffective assistance of counsel claim because his claim is frivolous. Angulo
claimed his trial counsel was ineffective because he did not present the defense that
Angulo was allowed to legally import a controlled substance since it was done in
the normal course of his import-export business. See 21 U.S.C. § 957(b)(1)(B).
However, 21 U.S.C. § 957(b)(1)(b) lists an exemption to those who are required to
register to import a controlled substance under 21 U.S.C. § 957(a). The exemption
does not apply to Angulo’s statutes of conviction, 21 U.S.C. §§ 952(a) and 963.
Thus, Angulo’s claim is frivolous and we affirm the district court’s dismissal.
AFFIRMED.
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