Brock Fay Fish v. United States ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3167
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Brock Fay Fish
Petitioner - Appellant
v.
United States of America
Respondent - Appellee
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: November 15, 2018
Filed: January 15, 2019
[Unpublished]
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Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
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PER CURIAM.
Brock Fay Fish, who is currently serving 240 months in prison for
conspiring to distribute drugs, filed a motion under 28 U.S.C. § 2255 seeking to set
aside his sentence. The district court1 denied the motion and refused to issue a
certificate of appealability on any of the six issues he raised. An administrative
panel of this court granted him a certificate of appealability on one issue:
Brock Fish’s application for a certificate of appealability is
granted on the claim that Fish received ineffective assistance of
counsel in [his criminal case] when counsel advised him to plead
guilty with a stipulation to a base offense level of 38 under the United
States Sentencing Guidelines, despite the possibility that USSG
§ 2D1.1(a)(2) was not applicable in light of Burrage v. United States,
[571 U.S. 204, 218–19] (2014), and the possibility that Fish would not
have pleaded guilty but for the advice. See R. Doc. 593 at 10-21; R.
Doc. 603. The parties also may address whether this claim was
properly raised in the district court in [Fish’s postconviction
proceeding].
(Emphasis added). Upon careful review of the record and the parties’ arguments,
we conclude that Fish forfeited the certified issue by failing to include it in his
section 2255 motion.
Four of the six grounds for relief in the motion identified specific
deficiencies in counsel’s performance: allowing Fish to talk to investigators
without receiving anything in return; failing to tell him about a deadline for
accepting a plea deal; letting him enter into an initial plea agreement without a
specific sentencing recommendation; and remaining silent when the district court
criticized him. A fifth relied on those four to allege “cumulative . . .
ineffectiveness.” Although these theories alleged ineffective assistance of counsel,
none focused upon counsel’s advice that he plead guilty to an offense with a
stipulated base offense level of 38, which is the only question we certified for
review.
1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
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The sixth ground came closer to the certified issue. It alleged that the
district court should not have sentenced him under U.S.S.G. § 2D1.1(a)(2), which
increases the base offense level for selling drugs if they cause “death or serious
bodily injury.” But the question Fish raised in the motion was whether
section 2D1.1(a)(2) applied to him, not whether counsel’s advice on this point fell
“outside the wide range of professionally competent assistance.” Strickland v.
Washington, 466 U.S. 668, 690 (1984). This omission is conspicuous because
each of his other claims questioned counsel’s performance. The district court
cannot be expected to address claims no one properly raises, even when the litigant
is pro se.2 Cf. Saunders v. United States, 236 F.3d 950, 953 (8th Cir. 2001).
Finally, we note that Fish does not limit his arguments to the question we
certified. For example, the certificate of appealability contemplates a challenge to
the guilty plea itself, as indicated by its reference to “the possibility that Fish
would not have pleaded guilty” in the absence of counsel’s advice. On appeal,
however, Fish primarily seeks a new sentencing hearing, not an order setting aside
his plea. Fish also attacks various other decisions made by counsel during his
criminal case, rather than focusing on the single point we identified. To the extent
Fish’s arguments address uncertified issues, they are not properly before us. See
28 U.S.C. § 2253(c)(1)(B), (3).
Fish forfeited the only issue he was authorized to pursue on appeal, so we
affirm the judgment of the district court.
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2
To be sure, Fish eventually connected his argument about section 2D1.1(a)(2)
to his dissatisfaction with counsel’s performance, but he did so only in his reply brief,
too late to properly raise a new issue before the district court. See, e.g., McGhee v.
Pottawattamie County, 547 F.3d 922, 929 (8th Cir. 2008); cf. Hohn v. United States,
193 F.3d 921, 923 n.2 (8th Cir. 1999).
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