United States v. Richard Pulley, Jr. ( 2018 )

FILED
NOT FOR PUBLICATION
AUG 31 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10150
Plaintiff-Appellee, D.C. No.
2:05-cr-00368-JAM-1
v.
RICHARD JAMES PULLEY, Jr., AKA MEMORANDUM*
Khaliq Ali Abdul As Salaam,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Raul A. Ramirez, District Judge, Presiding
Submitted August 17, 2018**
San Francisco, California
Before: BEA and CHRISTEN, Circuit Judges, and McLAUGHLIN,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Mary A. McLaughlin, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Richard James Pulley appeals his conviction, by conditional guilty plea on
remand from this Court, for unlawful possession of a firearm in violation of 18
U.S.C. § 922(g)(1). In a prior appeal, this Court reversed Pulley’s conviction on
the basis that he was denied his Sixth Amendment right of self-representation and
remanded for a new trial. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
First, the district court did not err in denying Pulley’s second motion to
dismiss the indictment under the Speedy Trial Act. Pulley has waived the issue
whether the district court erred by not reaching the merits of the Speedy Trial Act
motion by failing to raise this issue in his opening appellate brief. The district
court did not reach the merits of Pulley’s second motion to dismiss under the
Speedy Trial Act in its May 3, 2016 order, instead finding that Pulley had waived
such arguments by not presenting them in his initial appeal. In his opening brief,
Pulley does not identify any error in that holding. See United States v. Kama, 394
F.3d 1236, 1238 (9th Cir. 2005) (“[A]n issue is waived when the appellant does not
specifically and distinctly argue the issue in his . . . opening brief.”). Rather,
Pulley addresses the merits of the Speedy Trial Act argument, which were not
addressed by the court below.
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Moreover, Pulley could have raised his arguments regarding the factual
bases of the district court’s denial of his motion to dismiss in his first Speedy Trial
Act motion or his first appeal, but failed to do so. Before the first trial, Pulley
moved to dismiss the indictment on the theory that the failure of the court to
articulate explicitly an ends-of-justice finding was fatal to the effective exclusion
of time under the Speedy Trial Act. His initial motion did not challenge the factual
bases underlying the exclusions of time. The district court and this Court rejected
Pulley’s Speedy Trial Act arguments on the merits, and this Court specifically
noted Pulley's failure to challenge the factual bases in question. Because Pulley
did not challenge the factual bases underlying the exclusions of time prior to his
first trial or during the first appeal, he cannot do so in the present appeal. See
United States v. Nagra, 147 F.3d 875, 882 (9th Cir. 1998) (“When a party could
have raised an issue in a prior appeal but did not, a court later hearing the same
case need not consider the matter.”).
Second, in the plea agreement, Pulley waived appeal of the ineffective
assistance of counsel claim that defense counsel failed to challenge the underlying
factual bases in the original motion to dismiss under the Speedy Trial Act. The
plea agreement states that “this Agreement constitutes a complete waiver of all
appellate rights, except for the single issue described in Section II.B [the May 3,
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2016 denial of his motion to dismiss the indictment pursuant to the Speedy Trial
Act].” Accordingly, Pulley’s waiver preserved only two issues on which he could
potentially argue ineffective assistance of counsel: (1) ineffective assistance that
occurred on remand leading up to the May 3, 2016 denial of his Speedy Trial Act
motion, or (2) ineffective assistance affecting the voluntariness of the waiver itself.
United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000) (holding that where
waiver includes right to appeal sentence, it also waives right to argue ineffective
assistance during sentencing); Washington v. Lampert, 422 F.3d 864, 871 (9th Cir.
2005) (a waiver of appellate rights is unenforceable with respect to ineffective
assistance of counsel claims challenging the voluntariness of the waiver itself).
The plea agreement did not preserve Pulley’s ability to argue that previous trial and
appellate counsel (those not involved in litigating the May 3, 2016 denial of his
speedy trial motion or in advising him on entry into the appellate waiver) were
ineffective.
Pulley’s motion requesting that we take judicial notice of General Order No.
479 of the United States District Court for the Eastern District of California is
granted. See Fed. R. Evid. 201(b); United States v. Black, 482 F.3d 1035, 1041
(9th Cir. 2007).
AFFIRMED.
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