IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-20953

______________________

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

EDGAR ROLANDO PALOMO

 Defendant-Appellant

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Appeal from the United States District Court

for the Southern District of Texas

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March 28, 1996

Before: GARWOOD, SMITH and DENNIS, Circuit Judges.

DENNIS, Circuit Judge.

This case raises the question whether a criminal defendant has

a constitutional right to assistance of counsel in a proceeding for

a sentence reduction under Rule 35(b) of the Federal Rules of

Criminal Procedure. Because we find that the right to counsel does

not attach to proceedings initiated by the Government to reduce an

otherwise legal sentence, or negotiations concerning the same, we

affirm the district court's denial of Appellant's motion to vacate,

set aside or correct his sentence pursuant to 28 U.S.C. § 2255.

FACTS AND PROCEEDINGS BELOW

On February 10, 1992, Edgar Rolando Palomo pleaded guilty to

one count of conspiracy to possess with intent to distribute over

five kilograms of cocaine. In exchange for his plea, the
 

1

 With respect to the downward departure, the plea agreement

specifically provided only that "[t]he United States will file a motion for

downward departure under Section 5K1 of the Sentencing Guidelines, should

[Palomo] provide substantial assistance." On direct appeal from his

conviction and sentence, Palomo sought alternatively specific performance

of or to vacate his plea agreement, on the ground that the Government

breached the plea agreement by not affording him the opportunity to provide

substantial assistance through a debriefing interview prior to sentencing. A

panel of this Court rejected this claim, finding that Palomo had in fact been

debriefed. See United States v. Palomo, 998 F.2d 253, 256-57 (5th Cir.), cert. denied,

 U.S. , 114 S. Ct. 358, 126 L.Ed.2d 322 (1993). Moreover, we observed

that Palomo's trial counsel "implicitly agreed that it would be appropriate for

the Government to seek a reduction under Rule 35 if Palomo provided

substantial assistance after sentencing. Having so acquiesced, Palomo

cannot now contend . . . that the Government violated the plea agreement."

Id. at 257.

2

Government agreed to dismiss the remaining count of the superseding

indictment, to stipulate that Palomo had accepted responsibility

for his actions, to recommend that the district court sentence

Palomo at the bottom of the appropriate guideline range, and to

file a motion for a downward departure under § 5K1 of the

Sentencing Guidelines should Palomo render the Government

substantial assistance in the investigation or prosecution of

another person. The Government did not move for a downward

departure prior to Palomo's sentencing hearing on July 2, 1992, but

otherwise complied with the terms of the plea agreement. The

district court sentenced Palomo to 262 months imprisonment (a term

at the bottom of the guideline range of 262 to 327 months), five

years of supervised release, and a special assessment of $50.00.

On July 9, 1992, Palomo filed a notice of appeal. This Court

affirmed his conviction and sentence on August 5, 1993.1 United

States v. Palomo, 998 F.2d 253 (5th Cir.), cert. denied, U.S.

 , 114 S. Ct. 358, 126 L.Ed.2d 322 (1993).

The claim in this case may be attributed to confusion over the
3

identity of Palomo's counsel. At the July 2, 1992 sentencing

hearing, the district court appointed trial counsel, Paul Mewis, to

act as counsel on appeal. Nonetheless, on August 6, 1992, Palomo

was appointed another attorney, Thomas Bevans, following

adjudication of his motion to proceed in forma pauperis and for

appointment of counsel. Although the new appointment is reflected

in the docket sheet, there is no indication that the government was

informed of this change and the information does not appear to have

registered in the Government's collective brain. Consequently,

when the Government sought in early September 1992 to use Palomo's

testimony at the upcoming trial of one of his co-defendants, the

Government attorney contacted Palomo's former counsel instead of

the attorney representing him at the time. The Government also

engaged in ex parte communications with Palomo in negotiating with

him to obtain his testimony and debriefing him prior to his

testifying.

Palomo testified at the trial of his co-defendant on or about

September 9, 1992, without having had the benefit of counsel in

negotiating a sentence reduction in exchange for his testimony. On

September 16, 1992, the Government filed a motion under Rule 35(b)

of the Federal Rules of Criminal Procedure requesting that Palomo's

sentence be reduced by approximately five years. The certificate

of service indicates that the motion was mailed to Palomo's former

counsel, Paul Mewis. On October 26, 1992, the district court

granted the Government's motion and reduced Palomo's sentence by 60

months to a term of 202 months. On October 28, 1992, Palomo's
 

2

 The magistrate recharacterized this claim as a denial of due process, as

petitioner had counsel at the time and his claim was really based on the

Government's failure to timely serve correct counsel with its motion, causing

the opposition to the motion to be filed after the district court had already

adjudicated the motion.

4

appellate counsel, Thomas Bevans, filed a response to the

Government's Rule 35(b) motion requesting the district court to

reduce Palomo's sentence to below 120 months on the following

grounds:

On or about 09/01/92 representations were made to

Defendant and prior counsel, William Paul Mewis by the

United States Attorney's Office that if Defendant

testified for the government, the government would make

a recommendation (Rule 35 Motion) to reduce Defendant's

sentenced below 10 years. DEA made a similar

representation to Defendant.

Defendant's Response to the Government's Motion for Departure (Fed.

R. Crim. P. 35. Palomo did not appeal the district court's order

reducing his sentence by five years.

On March 2, 1994, Palomo filed a motion to vacate, set aside

or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that

he was denied his Sixth Amendment right to the representation of

counsel during negotiations as to the Rule 35 motion and his

appearance in court to testify, as well as the right to oppose or

answer the government's Rule 35 motion. Following an evidentiary

hearing, the United States magistrate hearing the case issued

proposed findings of fact and conclusions of law. The magistrate

found that Palomo was procedurally barred from raising the claim

that he was "denied" counsel to oppose the Government's Rule 35

motion2 because sufficient facts existed at the time to allow him

to appeal the district court's order granting the motion and Palomo
 

3

 Inasmuch as this is a federal prosecution, the Fourteenth Amendment

obviously does not apply. We may presume that Palomo actually intended

to claim a violation of his Fifth Amendment right to due process.

5

had not demonstrated cause and prejudice necessary to overcome the

procedural bar. The magistrate found, however, that Palomo could

not have appealed the district court's sentence reduction based on

the government's alleged failure to comply with the terms of its

Rule 35 negotiations, inasmuch as evidence of any agreement between

the Government and Palomo was a matter outside the appellate

record. On the merits, the magistrate determined that Palomo had

not proven an enforceable agreement regarding his sentence

reduction and that, regardless, a Rule 35 proceeding was not a

critical stage of the criminal process requiring the assistance of

counsel under the Sixth Amendment. The magistrate further observed

that even assuming Palomo had a right to counsel that had been

violated, such error was harmless. Consequently, the magistrate

recommended that the § 2255 motion be denied. The district court

adopted the magistrate's findings and recommendation. This appeal

followed.

DISCUSSION

The crux of Palomo's complaint is that he was denied the

benefit of counsel during negotiations leading up to and

proceedings attending the Government's Rule 35(b) motion to reduce

Palomo's sentence, as well as during his testimony for the

government, all in violation of his Sixth Amendment right to

counsel, his "Fourteenth Amendment" right to due process,3 and his
 

4

 Because this is an appeal from the district court's denial of relief under

28 U.S.C. § 2255, we may only review Palomo's sentence for transgressions

of constitutional rights and a narrow range of injuries that could not have

been brought on direct appeal and which, if condoned, would result in a

miscarriage of justice. United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.

1992)(per curiam). We thus do not address the merits of any nonconstitutional

claims that Palomo could have brought on direct appeal, including whether

Palomo had any common law rights to enforce the alleged September 1992

agreement with the Government for it to seek a greater sentence reduction

in its Rule 35(b) motion .

 

5

 Palomo styles his claim as one challenging the denial of counsel,

although it is clear that at the time of the Rule 35(b) proceedings, he was

being represented by appointed counsel. His real complaint is that he

received ineffective assistance of counsel, or was constructively denied counsel,

by the Government's failure to provide his acting counsel with notice of the

Rule 35(b) proceedings. Inasmuch as the right to effective assistance of

counsel is predicated on an underlying right to counsel, see Wainwright v. Torna, 45

U.S. 586, 587-88, 102 S. Ct. 1300, 1301, 71 L.Ed.2d 475 (1982);Gray v. Lucas,

710 F.2d 1048, 1061 (5th Cir.), cert. denied, 463 U.S. 1237, 104 S.Ct. 211, 77

L.Ed.2d 1453 (1983), we must first determine whether Palomo had a right to

counsel before proceeding to analyze the quality of the assistance he

received.

6

Fifth Amendment right against self-incrimination.4 Palomo does not

challenge the district court's finding that he did not adequately

demonstrate the existence of an enforceable agreement with the

Government regarding his Rule 35(b) sentence reduction. Moreover,

Palomo's claims are not predicated on an alleged failure of the

Government to comply with any representations made with respect to

Palomo's agreement to plead guilty and thus the voluntariness of

that plea is not at issue.

Although the district court correctly found that Palomo is

procedurally barred from challenging the "denial" of counsel5 for

purposes of opposing the Rule 35(b) motion, Palomo's remaining

claim that he had a constitutional right to the assistance of

counsel during his dealings with the government prior to its filing

of the motion is logically dependent on the existence of a right to

counsel for the purposes of the Rule 35(b) motion itself.
7

Consequently, we must determine whether a Rule 35(b) motion is the

type of proceeding to which the right to counsel attaches.

A criminal defendant is constitutionally entitled to

assistance of counsel "at every stage of a criminal proceeding

where substantial rights of a criminal accused may be affected."

Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 257, 19 L.Ed.2d

336 (1967). The right to counsel flows from different

constitutional provisions depending on the nature of the

proceedings. A criminal defendant's right to counsel during

critical stages of the prosecution, as well as at trial, is derived

from the Sixth Amendment. See, e.g., Gideon v. Wainwright, 372

U.S. 335, 342-43, 83 S.Ct. 792, 795-96, 9 L.Ed.2d 799 (1963);

United States v. Taylor, 933 F.2d 307, 312 (5th Cir.), cert.

denied, 502 U.S. 883, 112 S. Ct. 235, 116 L.Ed.2d 191 (1991).

Although less clearly grounded, a defendant's right to counsel on

direct appeal as of right stems from due process and equal

protection interests. See Ross v. Moffitt, 417 U.S. 600, 94 S. Ct.

2437, 41 L.Ed.2d 341 (1974); Meyers v. Collins, 8 F.3d 249, 252 n.4

(5th Cir. 1993). In addition, due process requires the appointment

of counsel in certain post-conviction proceedings in which

fundamental fairness necessitates the assistance of a trained

advocate. See, e.g., Gagnon v. Scarpelli, 411 U.S. 78, 93 S.Ct.

1756, 36 L.Ed.2d 656 (1973)(establishing a case-by-case

determinination of whether due process requires appointment of

counsel in probation revocation proceedings); United States v.
 

6

 In addition, federal law establishes a statutory right to counsel under the

Criminal Justice Act, which provides that "[a] person for whom counsel is

appointed shall be represented at every stage of the proceedings from his

initial appearance . . . through appeal, including ancillary matters appropriate

to the proceedings." 18 U.S.C. § 3006A(c). Palomo did not raise a statutory

right to counsel in the context of Rule 35(b) proceedings and we will not

address it here.

8

Whitebird, 55 F.3d 1007, 1011 n.3 (5th Cir. 1995).6

Palomo asks us to find that the right to counsel attaches to

proceedings in which the Government requests that the sentencing

court reduce an otherwise legal sentence as compensation for

assistance in the prosecution of another person. He argues that

such proceedings constitute a "crucial period" because a Rule 35(b)

motion can affect his sentence. In pertinent part, Rule 35

provides:

Rule 35. Correction or Reduction of Sentence

* * *

(b) Correction of sentence for changed circumstances. The

court, on motion of the Government made within one year after

the imposition of sentence, may reduce a sentence to reflect

defendant's subsequent, substantial assistance in the

investigation or prosecution of another person who has

committed an offense, in accordance with the guidelines and

policy statements issued by the Sentencing Commission pursuant

to section 994 of title 28, United States Code. The court may

consider a government motion to reduce a sentence made one

year or more after imposition of the sentence where the

defendant's substantial assistance involves information or

evidence not known by the defendant until one year or more

after imposition of the sentence. The court's authority to

reduce a sentence under this subsection includes the authority

to reduce such sentence to a level below that established by

statute as a minimum sentence.

Fed.R.Crim.P. 35.

Although Palomo couches his right to counsel primarily as a

Sixth Amendment right, it is clear that Rule 35(b) proceedings,

which allow the Government to seek reduction of a legal sentence
9

due to changed circumstances, occur after judgment has been entered

and a sentence imposed. Consequently, a Rule 35(b) motion is not

a trial-related proceeding and no Sixth Amendment right to counsel

attaches at this stage. See United States v. Gouveia, 467 U.S.

180, 104 S. Ct. 2292, 81 L.Ed.2d 146 (1984)("'core purpose' of the

[Sixth Amendment] counsel guarantee is to assure aid at trial,

'when the accused [is] confronted with both the intricacies of the

law and the advocacy of the public prosecutor.'")(citations

omitted); United States v. Nevarez-Diaz, 648 F.Supp. 1226, 1230

(N.D.Ind. 1986)(former Rule 35(b) motion "is a post-trial

proceeding and, logically, because it is not part of the criminal

prosecution, it is outside the scope of the sixth amendment.").

Rather, any right to counsel at this stage must be grounded either

in equal protection or due process. See Ross v. Moffitt, 417 U.S.

600, 94 S. Ct 2437, 41 L.Ed.2d 341 (1974). 

In Ross, the Supreme Court held that while the Constitution

requires appointment of counsel for direct appeals as of right,

neither due process nor equal protection mandates the appointment

of counsel in state discretionary appeals. Id. See also

Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L.Ed.2d

539 (1987)(no equal protection or due process right to appointed

counsel in postconviction proceedings). If the right to counsel

does not attach to discretionary proceedings challenging the

legality of a sentence or conviction, in which the defendant and

the Government are clearly engaged in an adversarial relationship,

there appears little to justify holding that a convicted inmate has
10

a right to counsel with respect to proceedings brought by the

Government for the purpose of requesting the sentencing court to

reduce that inmate's sentence as compensation for the provision of

information useful to an ongoing government investigation or

prosecution. Cf. United States v. Whitebird, 55 F.3d 1007, 1011

(5th Cir. 1995)(no constitutional right to counsel for reduction of

sentencing proceeding under 18 U.S.C. § 3582(c)(2)); Nevarez-Diaz,

648 F.Supp. at 1231 (no due process right to counsel under former

Rule 35 for reduction of sentence). The fact that a Rule 35(b)

sentence reduction affects the inmate's sentence is of itself

insufficient to trigger a due process right to counsel in the

proceedings -- in a Rule 35(b) proceeding the inmate faces no new

threat of additional loss of liberty and indeed is given the

opportunity to obtain a lighter sentence. The district court did

not err in finding that Palomo did not have Sixth Amendment or due

process right to counsel with respect to his Rule 35(b) motion.

Palomo also suggests that the absence of counsel at his

debriefings with the Government and during his testimony at his codefendant's trial violated his Fifth Amendment right against selfincrimination. Palomo did not raise this claim in his § 2255

motion before the district court and did not brief it here;

consequently, the claim has been waived. Cavallini v. State Farm

Mut. Auto Ins. Co., 44 F.3d 256, 260 (5th Cir. 1995); United States

v. Maldonado, 42 F.3d 906, 910 n.7 (5th Cir. 1995). In any event,

Palomo has not demonstrated that the Government has used any

statements against him in these proceeding. Inasmuch as no harm
11

has been shown, Palomo has not demonstrated an actionable violation

of his right against self-incrimination. See United States v.

Fortna, 796 F.2d 724, 732 (5th Cir.)("A finding of a constitutional

violation [of the right against self-incrimination] would require

assessment of resulting prejudice before any remedy may properly be

determined."), cert. denied, 479 U.S. 950, 107 S. Ct. 437, 93

L.Ed.2d 386 (1986); Wiley v. Doory, 14 F.3d 993, 996 (4th Cir.

1994)("language in these [Supreme Court] cases suggests that the

right against self-incrimination is not violated by the mere

compulsion of statements, without a compelled waiver of the Fifth

Amendment privilege or the use of the compelled statements against

the maker in a criminal proceeding.").

DECREE

Because we find that Palomo had no constitutional right to

counsel with respect to the Government's motion to reduce his

sentence under Rule 35(b) of the Federal Rules of Criminal

Procedure, the district court's denial of his § 2255 habeas corpus

motion is AFFIRMED.