In 1984, Severo Escobar was tried and convicted in absentia of drug related charges. He moves to vacate his sentence under 28 U.S.C. § 2255 on the grounds that his trial in absentia was impermissible under Crosby v. United States, U.S. , 122 L. Ed. 2d 25, 113 S. Ct. 748 (1993), because he was not present at the outset of the trial.
The government answers that Escobar's petition does not present a constitutional violation or fundamental defect to warrant section 2255 relief and that, in any event, under the decision in Teague v. Lane, 489 U.S. 288, 310, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), the decision in Crosby v. United States may not be retroactively applied to cover Escobar's case.
Escobar filed this petition pro se. After the government answered, the Court appointed James M. LaRossa, Esq. as counsel to submit reply papers on Escobar's behalf. These papers have been received.
Not every error of law constitutes grounds for relief under section 2255 motion. Although the Supreme Court has rejected the proposition that only constitutional claims may be asserted on a collateral attack under section 2255, it has confined cognizable errors of law not grounded on the Constitution to those which present "a fundamental defect which inherently results in a complete miscarriage of justice" and "exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Davis v. United States, 417 U.S. 333, 345-46, 41 L. Ed. 2d 109, 94 S. Ct. 2298 (1974) (citations omitted).
The error Escobar alleges does not rise to that level. Although Escobar attempts to portray the change in the law announced in Crosby as having constitutional dimension, it is clear from the text of the decision that the Supreme Court did not decide Crosby on constitutional grounds, but rested its determination solely on an interpretation of Rule 43 of the Federal Rules of Criminal Procedure.
The language, history, and logic of Rule 43 support a straightforward interpretation that prohibits the trial in absentia of a defendant who is not present at the beginning of trial. Because we find Rule 43 dispositive, we do not reach Crosby's claim that his trial in absentia was also prohibited by the Constitution.