United States v. Delwayne Brandt ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2898
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of North Dakota.
Delwayne Brandt, *
*
Appellant. *
___________
Submitted: February 11, 1997
Filed: May 7, 1997
___________
Before MAGILL, BEAM, and LOKEN, Circuit Judges.
___________
BEAM, Circuit Judge.
Delwayne Brandt appeals the district court’s order revoking his
probation and sentencing him to eight months in prison. We dismiss this
appeal as moot.
Brandt was indicted by a federal grand jury on two counts of using
interstate communications to threaten injury to an individual, in violation
of 18 U.S.C. § 875(c). Upon advice of counsel, Brandt pled guilty to Count
Two, in exchange for the dismissal of Count One.
The facts underlying Count Two can be briefly summarized. Brandt was
frustrated with what he perceived to be threats and harassment against him
and his family members by a local sheriff. Brandt called the governor’s
office to complain about the alleged harassment. When he eventually spoke
with one of the governor’s aides, Brandt threatened to kill the sheriff.
After accepting Brandt’s guilty plea, the district court sentenced
Brandt to forty-eight months of probation on March 28, 1995. Brandt did
not appeal this conviction or ask to withdraw his guilty plea at that time.
On June 25, 1996, following a state court conviction for attempted criminal
mischief, Brandt’s probation was revoked. He was sentenced to eight months
in prison. On July 5, 1996, Brandt’s counsel filed
a notice of appeal from the district court’s order revoking probation.
Brandt’s counsel was then permitted to withdraw his representation and
Brandt was appointed new counsel. The appeal was based on three claims of
ineffective assistance of counsel. Brandt alleges that his prior counsel
was ineffective in that: (1) he failed to move to dismiss Count Two of the
indictment; (2) he advised Brandt to plead guilty to Count Two despite his
alleged lack of mental culpability; and (3) he failed to call witnesses at
the probation revocation hearing.
Brandt’s notice of appeal was from the district court’s order
revoking probation. On appeal, however, Brandt raises only claims of
ineffective assistance of counsel--two of which are attempts to
collaterally attack his original conviction and a third which relates to
the probation revocation. Except in unusual circumstances, claims of
ineffective assistance of counsel are not properly considered on direct
appeal. United States v. Iversen, 90F.3d 1340, 1342 (8th Cir. 1996).
Consequently, we refuse to deal
-2-
on direct appeal with the ineffective counsel allegation arising from the
revocation of probation. Without that issue, this action would more
properly be considered an appeal from Brandt’s original conviction. Such
an appeal, however, would be untimely. 28 U.S.C. § 2107.
Brandt’s claims of ineffective assistance of counsel, if at all
viable, should have been presented by way of a 28 U.S.C. § 2255 action.
However, we cannot treat this appeal as a habeas action. Because entitled
an “appeal,” this action came directly to our court instead of first being
presented to the district court. Therefore, the district court has not had
the opportunity to rule on or to develop a factual record on these claims.
Iversen, 90 F.3d at 1342. In such a case, it would normally be proper for
us to dismiss the appeal without prejudice to Brandt’s right to bring a
motion for relief under 28 U.S.C. § 2255. In this case, however, such a
dismissal is inappropriate as Brandt was unconditionally released from the
custody of the Bureau of Prisons on February 21, 1997. Therefore, we
dismiss this appeal as moot. See Sesler v. Pitzer, No. 96-2185, 1997 WL
157347, at *1 (8th Cir. Apr. 7, 1997); Leonard v. Nix, 55 F.3d 370, 372-73
(8th Cir. 1995).
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-