Robert B. Marx v. United States ( 1996 )

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No. 95-2823
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Robert B. Marx, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: February 2, 1996
Filed: February 23, 1996
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Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
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PER CURIAM.
Robert B. Marx appeals the district court's denial of his
second 28 U.S.C. § 2255 motion. We affirm in part, and remand only
for the sentencing court to specify the amount of restitution
ordered as a condition of supervised release.
In October 1991, a jury found Marx guilty of three counts of
misapplying bank funds, two counts of money laundering, and three
counts of making a false statement. In January 1992, the district
court sentenced Marx to concurrent prison terms of five years and
63 months, followed by five years supervised release, and ordered
him to "pay restitution to the Federal Deposit Insurance
Corporation (FDIC) in an amount to be resolved by a judge, jury or
settlement in bankruptcy and/or negotiation with the FDIC." We
affirmed Marx's conviction and sentence. United States v. Marx,
991 F.2d 1369, 1375 (8th Cir.), cert. denied, 114 S. Ct. 618
(1993).
In April 1994, Marx filed a pro se section 2255 motion to
vacate, set aside or correct his sentence, alleging various
sentencing errors and several claims of ineffective assistance of
counsel. The district court ordered summary dismissal and Marx
appealed, but he later moved for and was granted dismissal of the
appeal. Marx v. United States, No. 94-2471 (8th Cir. Dec. 20,
1994) (unpublished judgment).
In May 1995, Marx filed this section 2255 motion, raising
seven claims of ineffective assistance of counsel, including a
claim that counsel failed to argue the district court could not
leave open the order of restitution, as his sentence could not be
"increased" at a later time. The district court dismissed Marx's
motion as successive and an abuse of the writ, after giving Marx
the opportunity to show both "cause" and "prejudice" to excuse his
failure to include all claims in the first petition, or a
fundamental miscarriage of justice. See McCleskey v. Zant, 499
U.S. 467, 489-95 (1991); United States v. Fallon, 992 F.2d 212, 213
(8th Cir. 1993).
We conclude that Marx's motion was properly dismissed as an
abuse of the writ, because he failed to show the factual or legal
bases for the claims in his current motion were not reasonably
available to him when he filed his first motion. See McCleskey,
499 U.S. at 493-94, 498; Reed v. Ross, 468 U.S. 1, 16 (1984).
Marx's pro se status and lack of legal knowledge also did not
constitute "cause." See Cornman v. Armontrout, 959 F.2d 727, 729
(8th Cir. 1992). Even if, as Marx argued, he raised only the same
ineffective-assistance claims he raised in his first motion, his
second motion was properly dismissed as successive. See Rules 4(b)
and 9(b) of the Rules Governing Section 2255 Proceedings.
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Although Marx failed to challenge the restitution order on
direct appeal or in his first section 2255 motion, the order
requiring Marx to pay restitution in an amount to be resolved later
was improper. See 18 U.S.C. § 3663(a)(1) (authorizing order of
restitution at time of sentencing); United States v. Prendergast,
979 F.2d 1289, 1293 (8th Cir. 1992) (no authority exists for
sentencing court to leave question of restitution open to uncertain
date). We reach this issue because section 2255 expressly
authorizes relief from a sentence imposed in violation of law. Cf.
United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (per
curiam) (reaching procedurally defaulted issue and remanding for
resentencing where supervised release was imposed in excess of
statutory authorization).
Accordingly, we affirm the judgment of the district court as
to all Marx's claims except the claim challenging the restitution
order. As to that claim, we remand with directions to resentence
consistently with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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