United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-1415

_____________ Todd Edward Matthews, * * Plaintiff-Appellant, * Appeal from the United States * District Court for the v. * Western District of Arkansas. * United States of America, * * Defendant-Appellee. *

_____________ Submitted: January 16, 1997 Filed: May 21, 1997

_____________ Before HANSEN, Circuit Judge, and FLOYD R. GIBSON and HENLEY, Senior Circuit Judges.

_____________ HANSEN, Circuit Judge.The Honorable Bobby E. Shepherd, United States Magistrate Judge for th e 1 Western District of Arkansas, sitting by consent of the parties pursuant to 28 U.S.C. § 636(c). Matthews also claimed a double jeopardy violation based on the civil forfeiture 2 of his personal and real property that was seized through the execution of a searc h warr ant. At oral argument, however, Matthews conceded that his double jeopard y claim is foreclosed by United States v. Ursery , 116 S. Ct. 2135, 2149 (1996), holding tha t in rem civil forfeitures "are neither 'punishment' nor criminal for purposes of th e Double Jeopardy Clause." Thus, we need not address this claim.
2 Todd Edward Matthews, a federal prisoner, appeals the district cou rt's dismissal 1 of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. He argues that the di strict court erred by rejecting his claims of ineffective assistance of counsel and trial court error in his guilty plea proceeding. We affirm. 2

I. In April 1992, Matthews pleaded guilty to one count of distributing cocain e base, in violation of 21 U.S.C . § 841(a)(1), and one count of money laundering, in violation of 18 U.S.C. § 1956(a)(3)(A). In exchange for his guilty plea, the governmen t dis missed the remaining seven counts of the indictment. The district court sentenced Matth ews to 20 years of imprisonment on the distribution count, 10 years o f imprisonment on the money laundering c ount, and a 3-year term of supervised release. Matthews appealed his sentence to th is court, and we remanded for resentencing. See United S tates v. Matthews , 5 F.3d 1161 (8th Cir. 1993). Upon remand, the distric t court recalculated Matthews' sentence, reducing the 10-year term of imprisonment to 51 m onths and again imposing a 20-year term of imprisonment for the distributio n count and a 3-year term of supervised release. On appeal, we affirmed the judgment of the district court. See United States v. Matthews , 29 F.3d 462 (8th Cir. 1994).3

Matt hews then filed this motion to vacate, set aside, or correct his sentence , pursuant to 28 U.S.C. § 2255. The district court denied the motion. Matth ews appeals.

II.
Matthews contends that his trial counsel was ineffective for failing to ensure that he understo od the consequences of his guilty plea. Matthews also contends that hi s substantial rights were violated by the district court's failure to advise him of the effect of a ter m of supervised release. Matthews did not challenge any aspects of his guilty plea in his direct appeals. In the proceedings below, the government argued tha t Matthews' claims were not cognizable in a § 2255 motion because he did not raise them on direct appeal. Although the district court considered the merits of Matthews' claims, we conclude that he has procedurally defaulted them.

The failure to raise an issue on direct a ppeal acts to bar a petitioner from raising that issue for the first time in a section 2255 motion, and this rule applies equally when the conviction was entered purs uant to a guilty plea. Bousley v. Brooks , 97 F.3d 284, 287 (8th Cir. 1996), petitio n for cert. filed , (U.S. Mar. 18, 1997) (No. 96-8516). This procedural default may be excused only if the petitioner "can show both (1 ) a cause that excuses the default, and (2) actual prejudice from the err ors that are asserted." Id. See United States v. Frady , 456 U.S. 152, 167-68 (1982).
Matthews asserted t

hat his procedural default should be excused on the ground of i neffective assistance of counsel at his plea proceeding. To prove a claim o f ineffective assistance of counsel, a convicted def endant must demonstrate first, that his counsel' s performance was constitutionally deficient and second, that the deficien t performanc e prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 68 7 (1984). Where the conviction was entered on the basis of a gu ilty plea, the second part of the test is slightly modified. In the guilty plea context, the convicted defendant must4

demon strate that "there is a reasonable probability that, but for counsel's errors, h e woul d not have pleaded guilty and would have insisted on going to trial." Hill v

. Lockhart , 474 U.S. 52, 59 (1985); United States v. Prior , 107 F.3d 654, 661 (8th Cir.), petition for cert. filed , (U.S. Apr. 3, 1997) (No. 96-8478). Apply ing this framework, we find it unnecessary to determine if Matthews '
counse lperformed in a deficient manner because we are satisfied that Matthew s suffered no actual prejudice from counsel's alleged errors. Matthews alleged h e pleaded guilty on his trial counsel's assurance that the potential sentencing range would be five to eight years of imprisonment. Regardless of what his trial counsel advise d him c oncerning the length of the potential sentences that might result from his guilty pleas, th e record demonstrates that the trial judge clearly explained the potentia l maximum

sen tence to Matthews at the plea proceeding. The trial court advise d Matthews that he faced a maximum term of 40 years of imprisonme nt on one count and 20 y ears of imprisonment on the other count. (Plea Tr. at 7; Appellee's Adden. at 3.) Th e court further advised Matthews that it was the court's job to independentl y determine what sentence the law required. In each instance, Matthews indicated that he understood, and he proceeded to enter a plea of guilty. There is no indication that Matthews would not have pleaded guilty h ad his counsel, in addition to the trial judge, properly advised him of the maximum potential sentence.
Matthews' claim that the trial court failed to inform him of the effect of supervised release on his sentence is also defaulted, and Matthews alleges no cause and prejudice to excuse this default. Even if we were to address the merits, this claim would no t warrant re lief. While the trial court's failure to advise a defendant of the "effect of any supervise d release term" constitutes error under Rule 11(c) of the Federal Rules o f Crim inal Procedure, United States v. Osment , 13 F.3d 1240, 1243 (8th Cir. 1994), the rule its elf provides that any variance from the procedure set forth in Rule 11 shall b e disregarded unless it affects substantial rights. Fed. R. Crim. P. 11(h). We hav e previously concluded that "a violation of Rule 11 is merely technical, and5

the refore insufficient to justify section 2255 relief, if the violation 'does not presen t exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" Holloway v. United States , 960 F.2d 1348, 1352 (8th Cir. 1992) (q uoting United States v. Timmreck , 441 U.S. 780, 783 (1979)). Such "exceptiona l circumstances" only exist where th e Rule 11 error results in "'a complete miscarriage of justice'" or a situation that is "'inconsistent with the rudimentary demands of fai r procedure.'" Id. The error was harmless in this case, because the maximum sentenc e imposed (even if Matthews were required to serve hi s supervised release term in prison) would amount to 363 months, l ess one day, which does not approach the maximum 40- year sentenceof which the trial court advised Matthews. Cf. Osment , 13 F.3d at 1243 (holding th e failure to advise a defendant of the effect of supervised release was no t harmless error where the ultimate sentence, including the term of super vised release, was gre ater than the potential maximum penalty of which the district court advised th e defendant). Thus, Matthews would not be entitled to section 2255 relief on this issue even if he had successfully alleged cause and prejudice for his default.

III.
Matthews waived his right to collateral review of his section 2255 claims b y failin g to raise them in his direct appeal, and he has not successfully alleged cause and prejudice to excuse his procedural default. We have also considered the claims i n Matthews' suppl ementary pro se brief and find them to be without merit. Accordingly, we affirm the judgment of the dist rict court, dismissing Matthews' section 2255 motion.6

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.