114 F3d 1196 United States v. Madrid

114 F.3d 1196

UNITED STATES of America, Plaintiff-Appellee,
v.
Jaime Gurrola MADRID, Defendant-Appellant.

No. 96-35451.

United States Court of Appeals, Ninth Circuit.

Submitted May 19, 1997.*
Decided May 21, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: FLETCHER, REINHARDT, and FERNANDEZ, Circuit Judges.


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1

MEMORANDUM**

2

Federal prisoner Jaime Gurrola Madrid appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. In that motion, Madrid asked the district court to vacate his guilty-plea conviction for conspiracy to distribute and to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 846 and 18 U.S.C. § 2.

3

Madrid raises numerous issues on appeal. He contends that the district court erred by changing judges between his plea proceeding and his sentencing.1 He also asserts that, for various reasons, his guilty plea was not knowing and voluntary. He finally argues, albeit for the first time in his reply brief,2 that his counsel was ineffective at the plea stage and on direct appeal.

4

Although Madrid raised none of these issues in his direct appeal, he was not, contrary to what the district court concluded, required to show "cause and prejudice" in order properly to raise them in his section-2255 motion. See English v. United States, 42 F.3d 473, 481 (9th Cir.1994) (holding that section-2255 claims are waived for failure to raise them on direct appeal only if (1) a specific procedural rule required the defendant to raise the issues on direct appeal or (2) the failure to raise the issues was a deliberate bypass of direct review). The government points to no specific procedural rule pursuant to which he waived the issues, nor has the government asserted that he deliberately bypassed direct review. See id. The district court thus erred in denying Madrid's motion on procedural grounds. We accordingly reverse and remand for reconsideration in light of our decision in English.

5

REVERSED and REMANDED.

*

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


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1

Because Madrid did not raise this issue in his section-2255 motion, we may not consider it. See Egger v. United States, 509 F.2d 745, 749 (9th Cir.1975)

2

See Eberle v. Anaheim, 901 F.2d 814, 817 (9th Cir.1990)