Summary Calendar UNITED STATES OF AMERICA v. HUBBARD BELL, JR., a/k/a "Hub"

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-10596
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HUBBARD BELL, JR.,
a/k/a "Hub", Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:93 CV 704 E (4:88 CR 099 E))
_________________________________________________________________
March 20, 1995
Before KING, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
Hubbard Bell appeals from the district court's denial of his
second motion to vacate, to set aside, or to correct his sentence
under 28 U.S.C. § 2255. Finding no reversible error in the
district court's determination, we affirm.
I. BACKGROUND

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On May 17, 1989, Bell was convicted in a jury trial on one
count of conspiracy to possess and distribute cocaine in
violation of 21 U.S.C. § 846, and on one count of possession of
cocaine base with intent to distribute in violation of 21 U.S.C.
841(a)(1). He sentenced, inter alia, to 360 months for each
count, with the terms to be served concurrently. Bell
subsequently initiated a direct appeal to this court which was
unsuccessful. While his direct appeal was pending, Bell sought
to vacate, to correct, or to set aside his sentence under 28
U.S.C. § 2255. In his claim, Bell argued that there was
insufficient evidence to support his conviction, that his
sentence was excessive and improperly enhanced under the career
offender provisions of § 4B1.2 of the Sentencing Guidelines, and
that his counsel was ineffective for failing to call certain
witnesses and for failing to appeal the length of his sentence
and the use of the enhancement provisions in computing the
sentence. The district court denied Bell's claims, and we
affirmed. Bell, for the second time, challenged his sentence
under 28 U.S.C. § 2255 in the district court, and that court
again rejected Bell's contentions. Bell once again appeals.
II. STANDARD OF REVIEW
It is well settled that, "[t]he decision whether to dismiss
a motion for abuse of the section 2255 proceedings is committed
to the sound discretion of the district court." United States v.

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Flores, 981 F.2d 231, 234 (5th Cir. 1993). Accordingly, "[w]e
review such a decision only for abuse of discretion." Id.
III. DISCUSSION
Two considerations guide the analysis of a second collateral
challenge to conviction under § 2255. The first is embodied in
the Rules Governing Section 2255 Proceedings, and it provides, in
part, that:
A second or successive motion may be dismissed if the
judge finds that it fails to allege new or different
grounds for relief and the prior determination was on
the merits or, if new and different grounds are alleged
the judge finds the failure to of the movant to assert
those grounds in a prior motion constituted an abuse of
the procedure governed by these rules.
Rule 9(b), Rules Governing Section 2255 Proceedings in the United
States District Court; see also Flores, 981 F.2d at 234 & n.3
(discussing and quoting the rule).
The second consideration stems from the Supreme Court's
decision in McCleskey v. Zant, 499 U.S. 467 (1991), and it more
explicitly addresses claims not raised in the first § 2255
attack. We applied McCleskey's rule to § 2255 cases in Flores,
noting that we generally will not hear claims raised for the
first time in a second or later § 2255 motion. We also described
an exception, however, stating that if a petitioner "can show
cause for failing to raise the claims earlier, and prejudice from
the errors of which he complains, the motion is not subject to
dismissal." Flores, 981 F.2d at 235.

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In the instant case, Bell did not raise all of his current
contentions in his first § 2255 motion. Accordingly, we address
them only if he shows that there was cause for his failure to
raise those claims, and if he demonstrates that he suffered
actual prejudice from the alleged errors included in those
claims. Flores, 981 F.2d at 235; see also McCleskey, 499 U.S. at
494-96 (describing the cause and prejudice standard for a
dismissal for abuse of the writ). The cause prong of this test
requires the petitioner to show that "some objective factor
external to his defense prevented him from raising the claim in
his initial motion." Flores, 981 F.2d at 235; accord McCleskey,
499 U.S. at 493; Murray v. Carrier, 477 U.S. 478, 488 (1986);
Cuevas v. Collins, 932 F.2d 1078, 1083 (5th Cir. 1991). In
McCleskey, the Supreme Court described external objective causes,
listing "interference by officials that makes compliance with . .
. procedural rules impracticable"; "a showing that the factual or
legal basis for a claim was not reasonably available to counsel";
and "constitutionally ineffective assistance of counsel."
McCleskey 499 U.S. at 493-94; accord Cuevas, 932 F.2d at 1082.
In his first § 2255 petition, Bell did not assert his
current claims regarding a faulty superseding indictment, a
failure to receive notice of the government's intention to seek
sentencing enhancement based on prior convictions, and a wrongful
denial of the application of good time and parole laws. In his
reply brief, Bell attempts to explain why he did not raise these
claims, stating that:

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1 Bell clearly knew how to discern his counsel's
effectiveness-- he filed a pro se supplemental brief to his
direct appeal in which he raised additional issues not addressed
by his attorney.
2 The fact that Bell was proceeding pro se in his original
§ 2255 motion does not excuse his failure to include all of his
claims. As we have noted, "McCleskey draws no distinction
between pro se petitioners and those represented by counsel."
Saahir v. Collins, 956 F.2d 115, 118 (5th Cir. 1992); accord
5
cause for failing to raise the issue previously stems
from ineffective assistance of counsel. In relation to
the ground contesting the validity of a conviction on
an indictment not presented to the full Grand Jury,
counsel informed [Bell] that the issue would be raised
in [Bell's] direct appeal. Counsel failed to raise the
issue on direct appeal. Because both the initial Sec.
2255 and the direct appeal were submitted at
approximately the same time counsel's failure caused
the issue to be omitted.
Simply, this is not an acceptable explanation of Bell's failure
to raise these claims in his original § 2255 action.
Although ineffective assistance of counsel is cause for
failure to raise a claim, in the instant case, counsel's alleged
ineffectiveness was on the direct appeal and may have led to the
omission of the issue in that appeal. Such supposed
ineffectiveness, however, does not explain why Bell failed to
raise all of his claims in his first collateral § 2255 attack.
In his original habeas petition, Bell raised issues that were not
included in the appeal filed by his counsel, and Bell also
claimed that his counsel was ineffective at trial and on appeal.1
Bell filed the first § 2255 petition himself and any omissions in
that petition were his responsibility; the district court's
dismissal of the claims that Bell simply failed to assert was not
an abuse of discretion.2

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Flores, 981 F.2d at 236 n.8. Accordingly, pro se status is not
an objective external factor constituting cause for failure to
raise an issue in a § 2255 motion. Saahir, 956 F.2d at 118.
6
Under the rule of McCleskey, "[i]f petitioner cannot show
cause, the failure to raise the claim in an earlier petition may
nonetheless be excused if he . . . can show that a fundamental
miscarriage of justice would result from a failure to entertain
the claim." McCleskey, 499 U.S. at 494; accord Flores, 981 F.2d
at 236; Cuevas, 932 F.2d at 1082. To show a fundamental
miscarriage of justice, a petitioner must allege that a
"constitutional violation has probably resulted in the conviction
of one who is actually innocent." Cuevas, 932 F.2d at 1083
(quoting Murray v. Carrier, 477 U.S. 478, 495 (1986)).
In the instant case, Bell does not assert that he was
convicted of a crime of which he is innocent. Instead, he merely
challenges his sentence. Simply put, such a challenge to a
sentence "does not fit within the narrow category of section 2255
proceedings which implicate a fundamental miscarriage of justice
. . . ." Flores, 981 F.2d at 236. Accordingly, the district
court did not err in dismissing Bell's claims.
Two of Bell's claims must be addressed separately. First,
Bell contends that after his sentence was imposed, the law
surrounding § 4B1.1 of the sentencing guidelines was clarified by
our decision in United States v. Bellazerius, 24 F.3d 698 (5th
Cir.), cert. denied, 115 S. Ct. 375 (1994). In Bellazerius, we
held that the conspiracy to commit controlled substance offenses

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was not within the ambit of § 4B1.1 and could not be used "as a
trigger for career offender enhancement." Id. at 700-01.
In the instant case, however, we need not determine whether
our decision in Bellazerius constitutes an intervening change and
therefore is cause entitling Bell to raise this challenge in a
second habeas proceeding because Bell can show no prejudice from
the change in the law. Bell was convicted and sentenced for
conspiracy as well as for possession with intent to distribute.
Each sentence was for 360 months, and the sentences are to be
served concurrently. As discussed below, there is no question
that Bell was subject to 360 months imprisonment for the
possession with intent to distribute conviction. Thus, even if
his sentence for the conspiracy were reduced, Bell would still be
required to serve 360 months for the possession conviction.
Because he would serve the same amount of jail time even if he
were to prevail in his challenge to enhancement on his conspiracy
conviction, Bell shows no prejudice from his alleged error.
Accordingly the district court did not err in dismissing this
claim.
Second, Bell alleges that an intervening "clarification of
the law" excuses his failure to bring another of his current
claims in his first habeas petition. Specifically Bell points to
amendments to the sentencing guidelines effective on November 1,
1989, and to our holding in United States v. Gaitan, 954 F.2d
1005 (5th Cir. 1992), to support his claim that the law has been
clarified since his first habeas claim. Consequently, according

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to Bell, his sentence should not have been enhanced under the
career offender provisions of § 4B1.2(2) for his prior conviction
for simple possession.
As the district court noted, the amendment to the sentencing
guidelines on which Bell premises his argument went into effect
on November 1, 1989 -- over one month before Bell filed his first
habeas petition. Thus, Bell could have raised the issue in that
first petition. Bell also contends, however, that our decision
in Gaitan, which was handed down after his first petition for
habeas relief, constitutes an intervening change in the law
entitling him to raise his claim for the first time in this
proceeding.
Irrespective of the cause element of his claim, Bell again
fails to show prejudice. Bell was convicted under 21 U.S.C. §
841(b)(1)(A), which provided a punishment of "a term of
imprisonment which may not be less than 10 years or more than
life." 21 U.S.C. § 841(b)(1)(A). Bell was sentenced to 360
months imprisonment, a term well within the range of the statute
under which he was convicted, as well as within the applicable
sentencing guidelines range for his conviction, notwithstanding
the career offender enhancements. Bell simply has failed to
demonstrate that the application of the sentencing guidelines
caused him prejudice in his sentencing. Because Bell fails to
demonstrate prejudice through a misapplication of the sentencing
guidelines, the district court did not err in dismissing the
claim in Bell's second collateral challenge.

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IV. CONCLUSION
For the foregoing reasons, the decision of the district
court is AFFIRMED.

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