§880 Habeas Corpus, 28 U.S.C. §2255 Motions
4th Circuit says before 1996, federal arson statute was not a “crime of violence.” (330)(880) In 1994, defendant pleaded guilty to arson under 18 U.S.C § 844(f), and to using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). In Davis v. U.S., 139 S.Ct. 2319 (2019) struck down the “residual clause” of 18 U.S.C. § 924(c) as unconstitutionally vague. In response, defendant filed 28 U.S.C. §2255 motion challenging his § 924(c) conviction on the ground that § 844(f), before it was amended in 1996, was not categorically a crime of violence because it applied to arson of one’s own property. The Fourth Circuit agreed, holding that before 1996, a violation of § 844(f) was not a “crime of violence.” U.S. v. Davis, __ F.4th __ (4th Cir. Nov. 10, 2022) No. 16-7671.
9th Circuit says declaratory judgment motion cannot substitute for 28 U.S.C. § 2255 motion. (880) Defendant pleaded guilty to carrying a firearm in a crime of violence under 18 U.S.C. § 924(c), pursuant to a plea agreement that waived his right to appeal. After U.S v. Davis, 139 S.Ct. 2319 (2019) held that the “residual clause” in § 924(c) was unconstitutionally vague, defendant filed a motion to clarify the plea agreement and sought a declaratory judgment to interpret the agreement. The district court dismissed these claims, and the Ninth Circuit affirmed. Defendant’s proper remedy was a motion under 28 U.S.C. § 2255 collaterally attacking his conviction. It was improper to substitute a declaratory judgment motion instead. U.S. v. Schlenker, __ F.4th __ (9th Cir. Feb. 1, 2022) No. 20-4584.
10th Circuit says § 2255 motion is timely if filed within one year of restitution order. (880) Under 28 U.S.C. § 2255(f)(1), a defendant has one year from the date a judgment becomes final to file a 28 U.S.C. § 2255 motion. Here, the district court sentenced defendant to prison but deferred restitution until a later date. The Tenth Circuit held that restitution is part of defendant’s criminal sentence, and therefore a § 2255 motion is timely if filed within one year of the date restitution is imposed. Accordingly, defendant’s § 2255 motion was timely filed, and the case was remanded to allow defendant to challenge his conviction and sentence. U.S. v. Anthony, __ F.4th __ (10th Cir. Feb. 8, 2022) No. 20-6134.
4th Circuit bars reliance on convictions that were not identified as ACCA predicates to uphold sentence. (540)(880) Under the Armed Career Criminal Act, a defendant convicted of felon in possession of a firearm who has three prior convictions for a “violent felony” or “serious drug offense” is subject to a 15-year minimum mandatory sentence. On collateral review of defendant’s sentence, the district court found that two of his prior convictions no longer qualified as violent felonies, but denied relief on the ground that defendant had other prior violent felony convictions that were not identified in the presentence report. The Fourth Circuit reversed, relying on U.S. v. Hodge, 902 F.3d 420 (4th Cir. 2018), which held that a district court may not on collateral review rely on prior convictions that were not identified as ACCA predicates at sentencing. U.S. v. Benton, __ F.4th __ (4th Cir. Jan. 24, 2022) No. 19-7471.
6th Circuit allows appeal of motion to extend time to appeal, without Certificate of Appeal. (880) Defendant sought to appeal the district court’s denial of his motion for an extension of time to file a notice of appeal under Fed. R. App. P. 4(a)(5), after the district court denied his motion for a sentence reduction under 28 U.S.C. § 2255. The Sixth Circuit held that defendant did not need a Certificate of Appealability to appeal the district court’s denial of an extension of time. Mizori v. U.S., __ F.4th __ (6th Cir. Jan. 20, 2022) No. 19-2433.
9th Circuit denies successive § 2255 motion for failure to show that “crime of violence” case was retroactive. (880) Defendants filed a successive 28 U.S.C. § 2255 motion arguing that in light of U.S. v. Davis, 139 S.Ct. 2319 (2019), their prior convictions were not “crimes of violence.” Under subsection (h)(2) of § 2255, a “second or successive” motion is permitted only if certified to “contain” a new rule of constitutional law that the Supreme Court has made retroactive. The Supreme Court had not made Davis retroactive, but defendants argued that subsection (h)(2) did not bar relief because it does not have a “relies on” requirement similar to 28 U.S.C. § 2244(b)(2)(A)’s requirement for defendants in state custody. The Ninth Circuit held that § 2255(h)(2) has a “relies on” requirement and affirmed the denial of defendants’ motion. Young v. U.S., __ F.4th __ (9th Cir. Jan. 18, 2022) No. 20-71740.
11th Circuit says granting First Step Act motion is not a “judgment” allowing a new § 2255 motion. (880) The district court granted defendant’s First Step Act motion and reduced his crack sentence from life to 235 months. Defendant then filed a motion under 28 U.S.C. § 2255 challenging the district court’s sentence on his First Step Act motion. The district court denied the motion as a second or successive § 2255 motion. The Eleventh Circuit affirmed, ruling that an order granting a First Step Act motion is not a “new judgment,” that defendant could collaterally attack without permission from the Court of Appeals. U.S. v. Telcy, __ F.4th __ (11th Cir. Dec. 10, 2021) No. 19-13029.
9th Circuit enforces waiver of appeal even though Hobbs Act sentence no longer valid after Davis. (224) (330)(790)(880) Defendant pleaded guilty to conspiracy to commit Hobbs Act robbery and brandishing a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c), and was sentenced to 14 years. Defendant filed a notice of appeal even though his plea agreement waived the right to appeal. While his appeal was pending, the Supreme Court in U.S. v. Davis, 139 S.Ct. 2319 (2019), held that conspiracy to commit Hobbs Act robbery is not a “crime of violence.” Nevertheless, the Ninth Circuit enforced the appellate waiver, refusing to expand the “illegal sentence” exception adopted in U.S. v. Torres, 828 F.3d 1113, 1124–25 (9th Cir. 2016), to include an “illegal conviction” exception to waivers of appeal. The appeal was dismissed. U.S. v. Goodall, __ F.4th __ (9th Cir. Oct 13, 2021) No. 18-10004.
7th Circuit allows substituting new ACCA prior conviction when a prior is no longer a “violent felony.” (540)(880) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based three prior convictions. He later filed a 28 U.S.C. § 2255 motion arguing that one of his priors was no longer a “violent felony.” The district court found that one of his other prior convictions—for delivery of cocaine—could substitute, so he was still subject to a 15-year mandatory minimum sentence. The Seventh Circuit affirmed, finding that defendant had ample notice that his delivery of cocaine conviction could be used under the ACCA and ample opportunity to challenge that conviction before sentencing. White v. U.S., __ F.4th __ (7th Cir. Aug. 9, 2021) No. 20-2749.
7th Circuit says counsel not ineffective in failing to present “inapt” Sentencing Commission data. (880) On appeal from defendant’s 444-month mandatory minimum sentence for sexually abusing two minors, defendant argued that defense counsel was ineffective in failing to cite Sentencing Commission data showing that defendants sentenced under § 2A3.1 who were not career offenders received substantially lower sentences than defendant’s mandatory minimum. The Seventh Circuit rejected the argument, ruling that given defendant’s mandatory minimum sentence, the argument would have been “inapt.” Resnick v. U.S., __ F.4th __ (7th Cir. Aug. 3, 2021) No. 20-1221.
D.C. Circuit finds challenge to “residual clause” was timely because filed within a year after Johnson. (880) In 2000, defendant was sentenced as a career offender to 240 months. Thereafter, Johnson v. U.S., 576 U.S. 591 (2015), struck down the “residual clause” of the Armed Career Criminal Act as unconstitutionally vague. Within one year of Johnson, defendant filed a 28 U.SC. § 2255 motion on the ground that the identical “residual clause” of the career offender guideline was also unconstitutionally vague. The D.C. Circuit found defendant’s § 2255 motion timely because he had filed his motion within one year of Johnson and asserted a right that Johnson recognized. U.S. v. Arrington, __ F.3d __ (D.C. Cir. July 13, 2021) No. 19-3086.
2d Circuit says concurrent sentence doctrine barred collateral attack on sentence. (650)(880) Defendant was serving two life terms plus a concurrent 20-year sentence. He filed a motion under 28 U.S.C. § 2255 collaterally attacking his 20-year sentence. The Second Circuit held that the concurrent sentence doctrine applies on collateral attack, and barred reaching the merits of his claims because defendant would not be released even if he were correct about his 20-year sentence. Kassir v. U.S., __ F.3d __ (2d Cir. July 9, 2021) No. 19-1477.
11th Circuit requires separate certificate of appealability to appeal remedy on remand. (880) In 2010, defendant was convicted of firearms and drug trafficking offenses. He later obtained a certificate of appealability to challenge his sentence in the district court under 28 U.S.C. § 2255, and the parties stipulated that he was no longer eligible for an enhanced sentence under the Armed Career Criminal Act for his firearms conviction. On remand, defendant sought resentencing on all counts, but the district court resentenced only on the firearms count. Defendant filed a new appeal, but the Eleventh Circuit dismissed it, holding that defendant had to obtain a new certificate of appealability even though he was only challenging the district court’s choice of remedy. U.S. v. Cody, __ F.3d __ (11th Cir. May 28, 2021) No. 10-11915.
11th Circuit, despite Davis, finds jury could have based § 924(c) conviction on drugs, not Hobbs Act. (330)(880) In 2010, defendant was convicted of conspiracy to commit Hobbs Act robbery and drug offenses, as well as using a firearm in relation to a “crime of violence” or “drug trafficking,” in violation of 18 U.S.C. § 924(c). Thereafter, U.S. v. Davis, 139 S.Ct. 2319 (2019), held that conspiracy to commit Hobbs Act robbery is not a “crime of violence” under § 924(c). Relying on Davis, defendant filed a 28 U.S.C. § 2255 motion challenging the validity of his § 924(c) conviction. The Eleventh Circuit affirmed the district court’s denial of the § 2255 motion, because the jury had been instructed that it could rest defendant’s § 924(c) conviction on the drug counts as well as the Hobbs Act conspiracy. Accordingly, defendant could not show that his § 924(c) conviction was based on the Hobbs Act conspiracy. Foster v. U.S., __ F.3d __ (11th Cir. May 4, 2021) No. 19-14771.
1st Circuit holds residual clause of pre-Booker career offender guideline unconstitutionally vague (520)(880) In Johnson v. U.S., 576 U.S. 591 (2015), the Supreme Court struck down as unconstitutionally vague the “residual clause” of the Armed Career Criminal Act. There is an identical “residual clause” in the career offender guideline, § 4B1.2, but Beckles v. U.S., 137 S.Ct. 886 (2017) held that the vagueness doctrine does not apply to advisory sentencing guidelines. In the present case, defendant was sentenced before 2005 when the guidelines were still mandatory, before U.S. v. Booker, 543 U.S. 220 (2005) made them advisory. He filed a 28 U.S.C. § 2255 motion, arguing that his pre-2005 career offender sentence was unconstitutional because it was based on the “residual clause” of § 4B1.2. The First Circuit agreed that pre-2005 sentences that are based on the residual clause of § 4B1.2 cannot stand, but remanded to allow the district court to determine whether defendant’s prior convictions satisfied the “force” clause of § 4B1.2. Shea v. U.S., __ F.3d __ (1st Cir. Sept. 28, 2020) No. 17-1899.
6th Circuit reverses for failure to conduct resentencing hearing after § 2255 was granted on appeal. (880) In reversing the district court’s denial of defendant’s motion under 28 U.S.C. § 2255, the Sixth Circuit issued a “general remand” specifically authorizing the district court to conduct resentencing. On remand, however, the district court imposed the same sentence without a hearing. The Sixth Circuit reversed, holding that a resentencing hearing must be conducted on remand. Although 28 U.S.C. § 2255(b) permits a court to “correct” a sentence, the district court did not merely “correct” defendant’s sentence here. U.S. v. Flack, __ F.3d __ (6th Cir. Oct. 23, 2019) No. 18-1676.
7th Circuit says Mathis did not extend one year time to file § 2255 motion. (880) Defendant filed a motion under 28 U.S.C. § 2255 arguing that his prior conviction was not a “crime of violence” and therefore that he was not a career offender. Because he did not file his § 2255 within a year as required by 28 U.S.C. § 2255(f)(1), he argued that the Supreme Court’s decision in Mathis v. U.S., 136 S.Ct. 2243 (2016), recognized a new right that allowed defendant to file his § 2255 motion within a year of that decision. The Seventh Circuit held that Mathis merely codified existing Seventh Circuit practice and had not recognized a new right. Hanson v. U.S., __ F.3d __ (7th Cir. Oct. 22, 2019) No. 18-1149.
7th Circuit says “crime of violence” finding under advisory guidelines is not subject to collateral attack. (520)(880) Defendant was convicted in 2009. At sentencing, the district court found that he was a career offender under guideline § 4B1.2. Defendant filed a motion under 28 U.S.C. § 2255 arguing that his prior conviction was a “crime of violence,” so he was not a career offender, and this was a “miscarriage of justice” requiring relief under § 2255. The Seventh Circuit held that a change in the advisory guidelines regarding what constitutes a “crime of violence” is not cognizable on collateral review. Hanson v. U.S., __ F.3d __ (7th Cir. Oct. 22, 2019) No. 18-1149.
11th Circuit finds resentencing hearing unnecessary in granting § 2255 motion. (880) In 2003, defendant pleaded guilty to firearms offenses, and his prior violent felony convictions qualified him for a 180-month mandatory minimum sentence under the Armed Career Criminal Act. Nevertheless, his guidelines range was 235 to 293 months, and the district court departed upward to 327 months. When the Supreme Court decided Johnson v. U.S., 135 S.Ct. 2551 (2015), defendant filed a motion under 28 U.S.C. § 2255 arguing that his prior convictions no longer qualified as violent felonies. The district court agreed, and reduced his sentence to 293 months. The court did not hold a resentencing hearing, but invited submissions from the parties, and defendant submitted evidence of his post-offense rehabilitation in prison. The Eleventh Circuit affirmed because the district court did not increase defendant’s sentence or vary significantly from defendant’s original sentencing. U.S. v. Thomason, __ F.3d __ (11th Cir. Oct. 10, 2019) No. 17-11668.
5th Circuit finds Davis “crime of violence” decision is a “new rule” that applies retroactively. (330)(880) Under 18 U.S.C. § 924(c), it is a crime to carry a firearm in relation to a “crime of violence.” In U.S. v. Davis, 139 S.Ct. 2319 (2019), the Supreme Court struck down the “residual clause” of the definition of “crime of violence” in § 924(c)(3)(B) as unconstitutionally vague. Relying on Davis, defendant filed a 28 U.S.C. § 2255 motion arguing that his prior convictions no longer qualified as “crimes of violence.” The Fifth Circuit held that Davis announced a “new rule” that applied retroactively to defendant’s final conviction, and remanded for resentencing. U.S. v. Reece, __ F.3d __ (5th Cir. Sept. 9, 2019) No. 17-11078.
6th Circuit says challenge to career offender finding cannot be raised in a § 2255 motion. (520)(880) In 2014, defendant pleaded guilty to drug trafficking and possession of a firearm by a felon. Based on his prior convictions, the district court found that he was a career offender under guideline §4B1.2. In Beckles v. U.S., 137 S.Ct. 886 (2017) the Supreme Court held that because the guidelines are advisory, they are not subject to “constitutional vagueness” challenge. Accordingly, the district court denied defendant’s motion under 28 U.S.C. § 2255 challenging his career offender status. On appeal, the Sixth Circuit affirmed, holding that defendant could not challenge his career offender status in a § 2255 motion because he was not making a constitutional claim. Bullard v. U.S., __ F.3d __ (6th Cir. Sept. 4, 2019) No. 17-3751.
10th Circuit finds motion challenging conviction under 18 U.S.C. § 924(c) timely. (330)(880) In 2007, defendant was convicted of witness retaliation, in violation of 18 U.S.C. § 1513(b)(2), and brandishing a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C § 924(c). In U.S. v. Davis, 139 S.Ct. 2319 (2019), the Supreme Court held the residual clause definition of “crime of violence” in § 924(c)(3)(B) was unconstitutionally vague. Defendant filed a motion under 28 U.S.C. § 2255 arguing that his witness retaliation claim was no longer a “crime of violence” after Davis and that he was actually innocent of the § 924(c) violation. The Tenth Circuit held that the rule in Davis is a new constitutional rule that is retroactive on collateral review and that therefore that defendant’s § 2255 motion was timely. U.S. v. Bowen, __ F.3d __ (10th Cir. Sept. 3, 2019) No. 17-1011.
8th Circuit rejects § 2255 challenge to prior “violent felonies” after Johnson. (540)(880) In 2009, defendant was convicted of possession of a firearm by a felon, found to have four prior “violent felonies,” and sentenced to a 12-year mandatory term under the Armed Career Criminal Act. In Johnson v. U.S., 135 S.Ct. 2551 (2015), the Supreme Court held unconstitutional the “residual clause” of the ACCA’s definition of “violent felony.” Defendant filed a motion under 28 U.S.C. § 2255, arguing that his convictions no longer qualified as “violent felonies.” The Eighth Circuit held that defendant did not qualify for relief under § 2255 because three of his prior convictions were unaffected by Johnson. Moreover, Johnson was not a new rule that was made retroactive by the Supreme Court. Forest v. U.S., __ F.3d __ (8th Cir. Aug. 15, 2019) No. 18-1011.
8th Circuit requires resentencing after prior “violent felony” is vacated under Johnson. (540)(880) Defendant was convicted of drug trafficking and possession of a firearm by a felon. He was sentenced on the firearms count to the 15-year mandatory minimum under the Armed Career Criminal Act based on three prior “violent felony” convictions, and a concurrent 15-year sentence on the drug-trafficking count. Based on Johnson v. U.S., 135 S.Ct. 2551 (2015), defendant filed a motion under 28 U.S.C. § 2255 alleging that his prior convictions were not “violent felonies” under the ACCA. The district court agreed, but held that defendant was not entitled to relief because he had received a concurrent 15-year term on the drug-trafficking count. The Eighth Circuit reversed, holding that the concurrent drug-trafficking sentence did not make the error on the ACCA count harmless. Raymond v. U.S., __ F.3d __ (8th Cir. Aug. 13, 2019) No. 18-2349.
8th Circuit finds it unnecessary to decide if prior was “violent felony,” where sentences were concurrent. (880) At defendant’s sentencing in 2013, the district court found that his prior convictions qualified as “violent felonies” under the Armed Career Criminal Act and as “crimes of violence” under the career offender guideline. Subsequently, the Supreme Court in Johnson v. U.S., 135 S.Ct. 2551 (2015) held that the “residual clause” of the ACCA was unconstitutionally vague, but held in Beckles v. U.S., 137 S.Ct. 886 (2017), that the vagueness doctrine did not apply to the “advisory” career offender guideline. Defendant filed a 28 U.S.C. § 2255 motion, arguing that one of his prior convictions no longer qualified as a “violent felony” or a “crime of violence.” The Eighth Circuit reiterated that Beckles made clear that Johnson had no effect on the definition of “crime of violence” in the guidelines. Moreover, because defendant’s sentences for drug trafficking and possession of a firearm were concurrent, it was unnecessary to decide whether Johnson affected defendant’s ACCA sentence. Smith v. U.S., __ F.3d __ (8th Cir. July 18, 2019) No. 17-3201.
8th Circuit finds collateral challenge to imprisonment was moot. (880) In 2004, defendant was convicted of possession of a firearm by a felon and sentenced as an armed career criminal to 188 months. After the Supreme court decided Johnson v. U.S., 135 S.Ct 2551 (2015), defendant filed a motion under 28 U.S.C. § 2255 arguing that his prior conviction no longer constituted a “violent felony,” and he was not subject to a sentence under the Armed Career Criminal Act. The district court denied the motion, and while defendant’s appeal was pending, defendant was released from prison. The Eighth Circuit held that defendant’s release rendered the appeal moot because defendant challenged only his term of imprisonment. Owen v. U.S., __ F.3d __ (8th Cir. July 19, 2019) No. 17-3487.
11th Circuit allows government to rely on additional prior conviction when original was invalidated by Johnson. (880) At defendant’s 2013 sentencing hearing, the presentence report recommended a sentence under the Armed Career Criminal Act based on three specific convictions, and the district court adopted the PSR without objection. Defendant later filed a motion under 28 U.S.C. § 2255 claiming that one of his three convictions no longer qualified under the ACCA after Johnson v. U.S., 135 S.Ct. 2551 (2015). The district court allowed the government to rely on an offense that was not listed in the PSR to uphold defendant’s ACCA sentence. On appeal, the Eleventh Circuit affirmed, holding that the government had not waived reliance on the additional prior conviction because (1) defendant admitted the prior conviction, (2) defendant did not contest his sentence under the ACCA, and (3) the government is not required to rely on every prior conviction to guard against future changes in the law. Tribue v. U.S., __ F.3d __ (11th Cir. July 11, 2019) No. 18-10579.
6th Circuit grants habeas relief for defendant sentenced under “residual clause” of ACCA (540)(880) In 2006, defendant pleaded guilty to possession of a firearm by a felon. He had three prior convictions for a “violent felony” and was sentenced under the Armed Career Criminal Act to a mandatory minimum of 180 months. After Johnson v. U.S., 135 S.Ct. 2551 (2015) struck down the “residual clause” of the ACCA as unconstitutionally vague, defendant filed a motion under 28 U.S.C. § 2255 alleging that he no longer qualified for a mandatory minimum sentence under the ACCA. The Sixth Circuit held that the “substantive requirement” of § 2255(h) that a defendant advance a new rule of constitutional law is not jurisdictional and did not prevent the court from hearing defendant’s claim. Because the district court relied on the residual clause when it sentenced defendant and a prior Sixth Circuit decision had held that defendant’s prior offense did not qualify as a “violent felony” under the elements clause, the court granted him relief. Williams v. U.S., __ F.3d __ (6th Cir. June 11, 2019) No. 17-3211.
7th Circuit allows challenge to “residual clause” of Career Offender guideline for defendant sentenced when guidelines were mandatory. (520)(880) In 2003, when the guidelines were mandatory, defendant was sentenced as a career offender because the court found that his prior residential burglary convictions under Arkansas Code Ann. § 5-39-101 (1987) constituted “crimes of violence.” After the Supreme Court held that the “residual clause” of the Armed Career Criminal Act was unconstitutionally vague, defendant filed a motion under 28 U.S.C. § 2255 arguing that he had been sentenced under the Career Offender guideline’s identical “residual clause.” Relying on prior precedent, the Seventh Circuit agreed that the “residual clause” of the Career Offender guideline was unconstitutional as applied to the mandatory guidelines. However, because the court could not determine if the district court had relied on the “residual clause” in determining that defendant’s prior convictions were crimes of violence, the case was remanded for resentencing. Shipman v. U.S., __ F.3d __ (7th Cir. June 5, 2019) No. 17-3476.
7th Circuit bars Johnson motion because “crime of violence” finding was based on “elements” clause. (520)(880) In 1995, defendant was sentenced as a career offender under guideline §4B1.2 based on his prior convictions for mailing threatening communications, in violation of 18 U.S.C. § 876. In 2016, he filed a 28 U.S.C. §2255 motion challenging his career offender status based on Johnson v. U.S., 135 S.Ct. 2551 (2015), which struck down the “residual clause” of 18 U.S.C. §924(e) as unconstitutionally vague. Although Beckles v. U.S., 137 S.Ct. 886 (2017) later held that Johnson does not apply to advisory guidelines, the Seventh Circuit held in Cross v. U.S., 892 F.3d 288 (7th Cir. 2018) that Johnson does apply to defendants who were sentenced before the Supreme Court made the sentencing guidelines advisory in U.S. v. Booker, 543 U.S. 220 (2005). Nevertheless, in this case, the Seventh Circuit held that Johnson did not apply because, in finding that defendant was a career offender, the district court relied on the “elements” clause of the career offender guideline, not the “residual” clause. Because defendant was unable to base his claim on Johnson, his petition was barred by the one-year statute of limitations in 28 U.S.C. §2255. Sotelo v. U.S., __ F.3d __ (7th Cir. May 2, 2019) No. 16-4144.
5th Circuit says § 2255 motion did not show “more likely than not” that relief was justified. (880) In Johnson v. U.S., 135 S.Ct. 2551 (2015), the Supreme Court held unconstitutionally vague the portion of the Armed Career Criminal Act that allowed imposition of a mandatory minimum sentence for a defendant who had a prior conviction that “involves conduct that presents a serious potential risk of physical injury to another.” After Johnson, defendant filed a second motion under 28 U.S.C. § 2255 alleging that his ACCA sentence rested in part on the portion of the ACCA that the Court had ruled unconstitutional. The Fifth Circuit found that defendant had to show that it was “more likely than not” that he was sentenced under the unconstitutional provision. Because defendant could not show that it was “more likely than not” that he had been sentenced under the unconstitutional provision, he was not entitled to relief under § 2255. U.S. v. Clay, __ F.3d __ (5th Cir. Apr. 18, 2019) No. 17-60538.
10th Circuit says § 2255 petitioner entitled to relief from ACCA sentence. (880) The Supreme Court held in Johnson v. U.S., 135 S.Ct. 2551 (2015), that the Armed Career Criminal Act was unconstitutionally vague to the extent it allowed imposition of a mandatory minimum sentence for a defendant who had a prior conviction that “involves conduct that presents a serious potential risk of physical injury to another.” After Johnson, defendant filed a second motion under 28 U.S.C. § 2255 alleging that his ACCA sentence rested in part on the portion of the ACCA that the Court had ruled unconstitutional. The Tenth Circuit found that defendant had showed that when he was sentenced in 2008, the district court had relied on the portion of the ACCA that the Supreme Court had found unconstitutional. U.S. v. Copeland, __ F.3d __ (10th Cir. Apr. 23, 2019) No. 17-5125.
4th Circuit says all convictions that show career offender must be identified at sentencing. (520)(880) At defendant’s original sentencing, the district court found him to be a career offender under § 4B1.1 based in part on a finding that a conviction for illegal conveyance of drugs into a detention facility was a “crime of violence.” Defendant filed a motion under 28 U.S.C. § 2255 alleging that his counsel had been ineffective in failing to argue that he was not a career offender based on this conviction. The government conceded that the illegal conveyance conviction did not qualify as a “crime of violence,” but argued that another conviction that the district court had not previously considered rendered defendant a career offender. The district court agreed, but the Fourth Circuit reversed. The court held that the government must identify at the time of sentencing all convictions it wishes to use to support a career offender designation. U.S. v. Winbush, __ F.3d __ (4th Cir. Apr. 23, 2019) No. 17-7148.
11th Circuit remands to allow § 2255 defendant to show that court relied only on “residual clause.” (540) (880) The district court granted defendant’s 28 U.S.C. § 2255 motion, ruling that he no longer qualified as an Armed Career Criminal in light of the Supreme Court’s ruling in Johnson v. U.S., 135 S.Ct. 2551 (2015), that the “residual clause” definition of violent felony in the ACCA was unconstitutionally vague. The government appealed, but before briefing, the 11th Circuit ruled in Beeman v. U.S., 871 F.3d 1215 (11th Cir. 2017), that § 2255 movants were required to show that it was more likely than not that the district court relied only on the residual clause in applying the ACCA enhancement. The Eleventh Circuit concluded that defendant did not meet this standard. However, defendant could not have known that he would be required to meet the heightened Beeman standard on appeal, and the panel could not discern from the record whether the district court relied only on the residual clause. Therefore, the panel remanded allow defendant to make his case under the new standard. U.S. v. Pickett, __ F.3d __ (11th Cir. Feb. 20, 2019) No. 17-13476.
8th Circuit finds remand unnecessary in Johnson collateral attack on ACCA sentence. (540)(880) In Johnson v. U.S., 135 S.Ct. 2551 (2015), the Supreme Court held that the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e), was unconstitutionally vague. In the Eighth Circuit, a defendant who collaterally attacks their conviction based on Johnson, must show that it is “more likely than not” that the district court relied on the residual clause in applying the ACCA enhancement. At her sentencing in 2008, defendant had six convictions for “violent felonies” and conceded that she should be sentenced under the ACCA. The Eighth Circuit found that defendant could not carry her burden to show that her sentence was based on felonies that no longer qualified as “violent felonies” under the ACCA because she conceded that she had two convictions for a “violent felony” and at least one of her other convictions qualified as a “violent felony.” Golinveaux v. U.S., __ F.3d __ (8th Cir. Feb. 11, 2019) No. 17-3099.
8th Circuit finds no error in imposing same sentence after counsel failed to appeal initial sentence. (880) After defendant’s conviction, his counsel did not file a notice of appeal. Defendant filed a motion under 28 U.S.C. § 2255 claiming that counsel was ineffective for failing to file a notice of appeal. The district court agreed and vacated defendant’s judgment so that he could appeal. The district court then sentenced defendant to the same sentence that it had imposed initially. The court told defendant that it had no discretion to reduce his sentence. The Eighth Circuit found no error. It held that when resentencing follows a successful § 2255 motion based on counsel’s failure to appeal, the proper procedure is for the district court to vacate the sentence and reimpose it. U.S. v. Darden, __ F.3d __ (8th Cir. Feb. 12, 2019) No. 17-3373.
8th Circuit rejects collateral challenge to mandatory guidelines as untimely. (880) In 2002, defendant was sentenced as a career offender under then-mandatory guideline section § 4B1.1. That guideline’s “residual clause” is identical to a clause in the Armed Career Criminal Act, 18 U.S.C. §924(e), which was struck down in Johnson v. U.S., 135 S.Ct. 2551 (2015), as unconstitutionally vague. In 2016, defendant filed a motion under 28 U.S.C. § 2255 challenging his career-offender status in light of Johnson. Although the Supreme Court later held in Beckles v. U.S., 137 S.Ct. 886 (2017) that the vagueness doctrine does not apply to discretionary sentencing guidelines, defendant pointed out that in 2002, when he was convicted, the guidelines were mandatory. Nevertheless, the Eighth Circuit rejected defendant’s § 2255 motion as untimely because Johnson did not newly recognize a right under the Due Process Clause to be sentenced without reference to the former residual clause of the then-mandatory sentencing guidelines’ definition of a crime of violence. Peden v. U.S., __ F.3d __ (8th Cir. Jan. 31, 2019) No. 17-3132.
10th Circuit says Johnson “vagueness” case does not allow collateral attack on earlier mandatory guidelines. (880) A defendant who files a second or successive motion under 28 U.S.C. § 2255 must show that he is raising a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. In 1999, defendant was sentenced to 262 months pursuant to the then-mandatory guidelines. In 2015, the Supreme Court in Johnson v. U.S., 135 S.Ct. 2551 (2015) struck down the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. §924(e), as unconstitutionally vague. Defendant filed a second or successive motion under § 2255 arguing that Johnson applied retroactively to his sentence under then-mandatory mandatory sentencing guidelines. The Tenth Circuit held that Johnson did not create a new rule of constitutional law made retroactive to the mandatory guidelines. U.S. v. Pullen, __ F.3d __ (10th Cir. Jan. 29, 2019) No. 17-3194.
8th Circuit bars appeal of denial of § 2255 motion under concurrent sentence doctrine. (650)(880) In 2008, defendant pleaded guilty to drug trafficking and possession of a firearm by a convicted felon. At sentencing, defendant conceded that he had committed three prior “violent felonies” and therefore was subject to a 15-year mandatory minimum under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The district court sentenced defendant to concurrent terms of 220 months on both the drug count and the firearms count. In 2014, defendant filed a motion under 28 U.S.C. § 2255 claiming that one of his prior offenses was no longer a “violent felony” under the ACCA. The Eighth Circuit held that because defendant sought to challenge only his sentence, the concurrent sentence doctrine barred his § 2255 motion. Even if he were successful on this claim, his overall sentence would not be affected. Eason v. U.S. __ F.3d __ (8th Cir. Jan. 9, 2019) No. 17-3299.
10th Circuit holds that government did not waive waiver in plea agreement. (850)(880) Defendant pleaded guilty pursuant to a plea agreement that waived defendant’s right to bring a collateral attack. Despite the waiver, defendant filed a collateral challenge to his conviction. The district court summarily dismissed the motion without giving the government an opportunity to respond. On appeal, the government sought to enforce the waiver, but defendant claimed that the government forfeited the waiver by failing to raise it in the district court. The Tenth Circuit held that the government never had the opportunity to raise the waiver in the district court and that the government timely invoked the waiver. U.S. v. Lopez-Aguilar, __ F.3d __ (10th Cir. Jan. 15, 2019) No. 17-2121.
8th Circuit declines to reach merits of §2255 motion challenging ACCA finding. (880) The Eighth Circuit declined to consider a claim raised in a motion under 28 U.S.C. § 2255 that defendant was improperly sentenced to the 15-year mandatory minimum sentence set by the Armed Career Criminal Act, 18 U.S.C. § 924(e), for a defendant convicted of possession of a firearm by a felon who has three prior “violent felonies.” The court held that defendant had not shown that the Supreme Court had made retroactive to cases on collateral review any right on which defendant sought to rely, as required by 28 U.S.C. § 2255(h). Winarske v. U.S., __ F.3d __ (8th Cir. Jan 14, 2019) No. 17-2367.
11th Circuit finds that § 2255 petitioner cannot raise challenge to firearms statute. (880) Under 18 U.S.C. § 924(c), a defendant is subject to an enhanced sentence if the defendant use or carries a firearm during and in relation to a “crime of violence” or possesses a firearm in furtherance of a “crime of violence.” In Ovalles v. U.S., 905 F.3d 1231 (11th Cir. 2018) (en banc), the Eleventh Circuit held that the residual clause definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is not unconstitutionally vague. Based on that decision, the court held that defendant could not raise in a motion under 28 U.S.C. § 2255 a claim that his convictions were invalidated by a constitutional rule made retroactive on review by the Supreme Court, as required by 28 U.S.C. § 2255(h). Solomon v. U.S., __ F.3d __ (11th Cir. Jan. 8, 2019) No. 17-14830.
D.C. Circuit finds collateral attack on guideline was procedurally defaulted. (460)(880) In 1994, defendant was convicted of racketeering and drug offenses and sentenced to life in prison. His offense level would have been 52, based partly on an increase for reckless endangerment under § 3C1.2, but the guidelines cap offense levels at 43. After the Supreme Court held in Johnson v. U.S., 135 S.Ct. 2551 (2015), that the residual clause in the Armed Career Criminal Act was unconstitutionally vague, defendant claimed that a similar provision in guideline § 3C1.2 was also void for vagueness. The D.C. Circuit held that defendant had procedurally defaulted this claim by failing to raise it at sentencing or on direct appeal. Because the enhancement in § 3C1.2 could not have affected his offense level, defendant could not show actual prejudice. U.S. v. Hicks, __ F.3d __ (D.C. Cir. Dec. 27, 2018) No. 17-3005.
4th Circuit castigates BOP for ignoring its mandate on consecutive sentences. (650)(880) Defendant was convicted of state and federal offenses. At his sentencing on the federal offenses, defendant received 262 months. The district court did not state whether the sentence should be consecutive or concurrent to the state sentence. Defendant then was sentenced on the state offense to 10 years, and the state judge said that defendant’s state sentence should run concurrently to his federal sentence. After he served the state sentence, he returned to federal custody, and the federal Bureau of Prisons treated his federal sentence as beginning when he was received in federal custody. Defendant challenged the BOP decision in a habeas petition, and the Fourth Circuit granted relief in part, finding that the BOP had erred by asking the district court whether defendant’s sentences should be concurrent or consecutive and should instead have deferred to the state court’s view. On remand, BOP again asked the district court for its views, and it ultimately denied defendant’s request. On appeal, the Fourth Circuit castigated the BOP for “disregarding” its mandate by asking for the district court’s views and giving more weight to the district court than the state court. Mangum v. Hallembaek, __ F.3d __ (4th Cir. Dec. 12, 2018) No. 17-7082.
8th Circuit finds no ineffective assistance in failing to tell defendant not to commit perjury. (461)(880) Defendant was convicted of fraud. At sentencing, the district court added two levels under § 3C1.1 based on defendant’s perjury at a bail revocation hearing. After his conviction became final, defendant filed a motion under 28 U.S.C. § 2255 arguing that his counsel was ineffective in not telling him to testify truthfully at the revocation hearing. The Eighth Circuit held that defendant’s oath to testify truthfully was sufficient to inform him that he had a duty to testify truthfully. Adejumo v. U.S., __ F.3d __ (8th Cir. Nov. 7, 2018) No. 16-3050.
6th Circuit holds § 2255 motion cannot be used to challenge career offender calculation. (520)(880) In a motion under 28 U.S.C. § 2255, defendant argued that an intervening change in the law meant that he had been improperly sentenced as a career offender under § 4B1.1. The Sixth Circuit declined to reach this claim, ruling that it was not within the ambit of a § 2255 motion. The court held that § 2255 can be used only to challenge fundamental defects, and defendant’s challenge to a guidelines calculation was not a fundamental defect. Snider v. U.S., __ F.3d __ (6th Cir. Nov. 9, 2018) No. 16-6607.
2nd Circuit reverses reduction for career offender despite vacated predicate conviction. (520)(880) Defendant was classified as a career offender, with a guideline range of 151-188 months. If he were not a career offender, the range would have been 100-125 months. The district court accepted his Rule 11(c)(1)(C) plea agreement and sentenced him to 112 months. After one of his predicate convictions was vacated, the district court granted defendant’s § 2255 motion, and reduced his sentence. The government appealed, and the Second Circuit reversed, noting that the 112-month sentence was well below the career offender guideline range. Indeed, it was in the middle of the guidelines range applicable without a career offender enhancement. U.S. v. Hoskins, __ F.3d __ (2d Cir. Sept. 26, 2018) No. 17-70-cr.
8th Circuit enforces one year limitations period for § 2255 motion challenging prior “crimes of violence.” (520)(880) Defendant was sentenced in 2004 under the then-mandatory guidelines as a career offender. In a 28 U.S.C. § 2255 motion, he argued that in light of Johnson v. U.S., 135 S.Ct. 2551 (2015), he was improperly sentenced as a career offender based on the “residual clause” of § 4B1.2(a)(2). Johnson held that a similar “residual clause” in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague The district court dismissed his § 2255 motion as untimely, and the Eighth Circuit agreed. Johnson did not address the sentencing guidelines, and Beckles v. U.S., 137 S.Ct. 886 (2017), held that the vagueness doctrine does not apply to the guidelines because they are advisory. Thus, the question remained open, and the answer was reasonably debatable. Defendant thus could not benefit from the limitations period in § 2255(f)(3), and the district court correctly dismissed his motion as untimely. Russo v. U.S., __ F.3d __ (8th Cir. Sept. 6, 2018) No. 17-2424.
4th Circuit rejects substituting different prior conviction on collateral review to support ACCA increase. (540)(880) Defendant filed a second motion under § 2255, arguing that his ACCA sentence was invalid in light of Johnson v. U.S., 135 S.Ct. 2551 (2015). The government conceded that defendant’s Maryland reckless-endangerment conviction was no longer a violent felony post-Johnson. However, it argued that his Maryland cocaine conviction qualified as an ACCA predicate, even though the PSR did not identify it as one. The district court denied defendant’s § 2255 motion, finding that his Maryland drug conviction qualified as an ACCA predicate. The Fourth Circuit agreed that Maryland reckless endangerment no longer qualified as a violent felony. However, it also rejected the government’s attempt to revive the ACCA enhancement by arguing for the first time on collateral review that a different conviction could serve as a substitute predicate. When the government or the sentencing court chooses to specify which of the convictions listed in the PSR it is using to support an ACCA enhancement, it thereby narrows the defendant’s notice of potential ACCA predicates. The government failed to provide defendant with sufficient notice of its intent to use this conviction to support an ACCA enhancement. Therefore, it lost its right to use the conviction to prevent defendant from obtaining relief now. U.S. v. Hodge, __ F.3d __ (4th Cir. Aug. 22, 2018) No. 17-6054.
10th Circuit denies § 2255 relief where defendant did not show that court relied on “residual clause.” (540)(880) Relying on Johnson v. U.S., 135 S. Ct. 2551 (2015), which invalidated the residual clause of the Armed Career Criminal Act, defendant moved under 28 U.S.C. § 2255 to vacate his sentence. He contended that his prior burglary conviction under Kansas statute 21-3715 only qualified as a violent felony under the now-void residual clause. The district court denied the petition, and defendant sought a certificate of appealability. The Tenth Circuit granted the COA, but denied the petition on the merits. Although defendant Johnson claim was timely, he failed to show that the district court relied on the “residual clause” in finding that defendant’s prior conviction was for a violent felony. The sentencing court did not articulate which of the three § 924(e)(2) clauses it relied on. Defendant did not meet his burden in showing that the sentencing court more likely than not relied on the residual clause in classifying his Kansas burglary as a predicate crime of violence and, thus, did not establish a Johnson error. U.S. v. Lewis, __ F.3d __ (10th Cir. Sept 13, 2018) No. 17-7033.
3rd Circuit holds Pennsylvania robberies were not categorically violent felonies. (540)(880) In a second § 2255 motion, defendant challenged his 15-year sentence under the Armed Career Criminal Act in light of the Supreme Court’s decision in Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which invalidated the residual clause in the ACCA’s definition of a violent felony. The district court denied the motion, but on appeal, the Third Circuit reversed, holding that the Pennsylvania robbery convictions did not qualify as violent felonies under the ACCA’s “elements” clause. The Pennsylvania robbery statute was divisible, and the least culpable act covered by the statute at the time of defendant’s convictions criminalized physically taking or removing “property from the person of another by force however slight.” 18 Pa. Cons. Stat. § 3701(a)(1)(v). Pennsylvania law interpreted “force however slight” to include “any amount of force applied to a person while committing a theft[,]” including the mere “use of threatening words or gestures, and operates on the mind.” This was insufficient to meet the “physical force” requirement under the ACCA’s elements clause. U.S. v. Peppers, __ F.3d __ (3d Cir. Aug. 13, 2018) No. 17-1029.
3rd Circuit says Johnson did not start a new limitation period for § 2255 motion challenging residual clause in guidelines. (520)(880) At sentencing, the district court found that defendant was a career offender under the residual clause of the then-mandatory Sentencing Guidelines. Later, in a 28 U.S.C. 2255 motion, defendant argued that the residual clause in the career offender Sentencing Guideline was unconstitutionally vague pursuant to Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which voided a similar residual clause in the Armed Career Criminal Act (ACCA). The Third Circuit agreed with the government that the § 2255 motion was untimely, ruling that Johnson did not constitute a newly recognized right that would start anew the one-year limitations period for a § 2255 motion based on a vagueness challenge to the guidelines’ residual clause. Moreover, in Beckles v. U,S., __ U.S. __, 137 S.Ct. 886 (2017), the Supreme Court held that the residual clause in the advisory Sentencing Guidelines was not subject to a void-for-vagueness challenge. U.S. v. Green, __ F.3d __ (3d Cir. Aug. 6, 2018) No. 17-2906.
1st Circuit says Massachusetts ADW, New York attempted second-degree assault, and New York first degree robbery were violent felonies. (540)(880) Relying on Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), defendant moved under § 2255, arguing that he should not have been sentenced under the Armed Career Criminal Act (ACCA). The First Circuit upheld the district court’s denial of his motion, holding that (1) defendant’s Massachusetts conviction for assault with a deadly weapon was a predicate offense under the ACCA’s force clause, (2) his New York conviction for attempted second-degree assault under New York Penal Law § 120.05(7) qualified as a violent felony under the ACCA’s force clause, and (3) his conviction for New York first-degree robbery under New York Penal Law § 160.15(4) qualified as a violent felony. The panel’s analysis was consistent with that of many other circuits, and as to the New York first-degree robbery conviction, consistent with the Second Circuit in Stuckey v. U.S., 878 F.3d 62 (2d Cir. 2017), petition for cert. filed, No. 17-9369 (June 11, 2018). U.S. v. Lassend, __ F.3d __ (1st Cir. Aug. 2, 2018) No. 17-1900.
5th Circuit looks at law at time of sentencing to decide if sentence was based on enumerated offenses or residual clause. (540)(880) In 2003, defendant was sentenced under the Armed Career Criminal Act (ACCA). His first habeas petition, in 2004, was denied. In 2015, the Supreme Court decided Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which held that the ACCA’s residual clause definition of a “violent felony” was unconstitutionally vague. Relying on Johnson, defendant brought a successive habeas petition, arguing that his sentence should not have been enhanced under the ACCA because his Texas burglary conviction, Texas Penal Code § 30.02(a)(3), was no longer a violent felony. The appellate court tentatively granted permission for defendant to file the second motion, stating that “the district court must dismiss the § 2255 motion without reaching the merits if it determines that [defendant] has failed to make the showing required to file such a motion.” On remand, the district court denied defendant’s motion on the merits. In this second appeal, the Fifth Circuit held that the district court lacked jurisdiction to reach the merits of defendant’s motion. Rather, the court should have looked to the law at the time of sentencing to determine whether a sentence was imposed under the residual clause of the ACCA’s definition of violent felony. Defendant could not make that showing here because, in 2003, when defendant was convicted of being a felon in possession, all of § 30.02(a) was considered generic burglary under the enumerated offenses clause of ACCA. U.S. v. Wiese, __ F.3d __ (5th Cir. July 23, 2018) No. 17-50445.
6th Circuit reverses corrected “time served” sentence that exceeded statutory maximum. (540)(880) Defendant was convicted of firearm charges. He was sentenced to 24 years under the Armed Career Criminal Act, which overrode a 10-year statutory maximum for his conviction. While in prison, defendant was convicted of drug charges and sentenced to an additional 151 months, to be served consecutively to his existing 24-year sentence. After the Supreme Court invalidated the ACCA’s residual clause, Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), defendant filed a motion for resentencing under 18 U.S.C. 2255. The district court granted the motion. By the time the court entered defendant’s corrected sentence, defendant had already served 12 years in prison, two years more than the ten-year statutory maximum for his firearm offense. The district court denied defendant’s request for a guidelines-range sentence, and instead imposed a corrected sentence of “time served,” or 12 years. The Sixth Circuit agreed with defendant that the sentence of “time served” exceeded the statutory maximum and had to be set aside. The panel also ruled that corrected sentences imposed on motion to vacate, set aside or correct sentence are subject to reasonableness review. The corrected sentence here was both procedurally and substantively unreasonable. U.S. v. Nichols, __ F.3d __ (6th Cir. July 30, 2018) No. 17-5580.
10th Circuit holds Nebraska burglary was not a violent felony. (540)(880) In 2004, defendant was sentenced as an armed career criminal based on two prior burglary convictions. The sentencing court did not state whether the burglaries counted as violent felonies under the ACCA’s enumerated offenses clause or the residual clause. Defendant then filed this 28 U.S.C. § 2255 motion arguing that it was possible the sentencing court relied on the now-unconstitutional residual clause of the ACCA. See Johnson v. U.S., 135 S. Ct. 2551 (2015). The district court denied the § 2255 motion as untimely. The Tenth Circuit reversed and remanded for resentencing. Under U.S. v. Snyder, 871 F.3d 1122 (10th Cir. 2017), defendant’s § 2255 motion was timely because he asserted a Johnson claim within a year after the decision. As for the merits of defendant’s claim, because Neb. Rev. Stat. § 28-507 included land, it did not categorically fit under the generic offense of burglary, which is limited to buildings or structures. As a result, defendant’s 1988 Nebraska burglary conviction was not a violent felony as defined by the enumerated offenses clause of the ACCA. U.S. v. Driscoll, __ F.3d __ (10th Cir. June 14, 2018) No. 16-8118.
10th Circuit holds Colorado robbery was violent felony, even when committed by threats or intimidation. (540)(880) Defendant was sentenced under the Armed Career Criminal Act (ACCA) based in part on the district court’s finding that his Colorado robbery conviction under Colo. Rev. Stat. §18-4-301(1) was a violent felony. The Supreme Court later held the residual clause definition of a violent felony in the ACCA was unconstitutionally vague, Johnson v. U.S., 135 S.Ct. 2551 (2015). Defendant moved to vacate his sentence under 28 U.S.C. §2255, arguing that his Colorado robbery conviction no longer qualified as a violent felony. The district court denied relief, finding Colorado’s robbery statute satisfied the “elements” clause of the ACCA, because it had as an element the use or threatened use of “physical force” against another. On appeal, the Tenth Circuit affirmed. Colorado cases have made clear that robbery in Colorado requires a “violent taking.” Because Colorado remained committed to the common law definition of robbery, the panel rejected other recent circuit-level decisions concluding that robbery was not a violent felony. U.S. v. Harris, 844 F.3d 1260 (10th Cir. 2017).
7th Circuit remands determine if distribution of fentanyl was “but for” cause of death. (245)(880) Defendant was convicted of distributing fentanyl, and received a mandatory minimum 20-year sentence based the district court’s finding that “death resulted” from her distribution of drugs. See 18 U.S.C. §841(b)(1)(C). However, the district court expressed discomfort with the sentence and its lack of discretion. After her first appeal, the Supreme Court decided Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), which held that facts that increase a mandatory minimum sentence must be submitted to the jury and proved beyond a reasonable doubt. In addition, the Supreme Court held that a defendant cannot be liable under the penalty enhancement provision for distribution of a drug with “death resulting”, unless the use of the drug was a but-for cause of death. Burrage v. U.S., __ U.S. __, 134 S. Ct. 881 (2014). Defendant then filed a petition under 28 U.S.C. §2255. The Seventh Circuit held that Burrage should be applied retroactively, and remanded for de novo sentencing. Given the district court’s language, the panel could not say with any certainty that the court made a finding the fentanyl was a “but for” cause of death. The district court appeared to only require the government to prove that the victim’s death “resulted” from defendant’s actions. Krieger v. U.S., 842 F.3d 490 (7th Cir. 2016).
3rd Circuit bars challenge to federal sentence based on collateral attack on state sentence. (650)(880) Defendant appealed his federal drug sentence on the ground that it was substantively unreasonable for the district court to run his federal sentence consecutively to a separate state sentence that defendant now claimed was itself unconstitutional under Alleyne v. U.S., __ U.S. __, 133 S.Ct. 2151 (2013). Defendant acknowledged that the district court had no authority to correct his illegal state sentence, but he argued that a federal sentencing court imposes a substantively unreasonable sentence if it runs a federal sentence consecutively to an invalid state sentence. The Third Circuit, joining its sister circuits, held that a defendant may not challenge the reasonableness of his federal sentence on appeal by claiming his prior state sentence was invalid. Defendant’s proposed rule was, in fact, exactly the type of collateral attack that he insisted he did not seek – a claim properly raised in a habeas petition, pursuant to 28 U.S.C. 2254. U.S. v. Napolitan, __ F.3d __ (3d Cir. July 19, 2016) No. 15-1602.
11th Circuit allows Armed Career Criminal to file successive motion to vacate after Johnson. (540)(880) Defendant filed an application for permission to file a successive 28 U.S.C. §2255 motion based on Johnson v. U.S., 576 U.S. __, 135 S.Ct. 2551 (2015), which struck down the “residual clause” of 18 U.S.C. 924(e) as unconstitutionally vague. The Eleventh Circuit granted the petition. Defendant’s PSR did not specify which of his prior convictions would serve as predicates for his ACCA sentence. At the sentencing hearing, the judge observed that defendant was convicted of burglary after he was found inside a stolen car. Although burglary is listed under ACCA’s “enumerated crimes clause,” a state burglary crime meets that definition only if the state crime has “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Because defendant was convicted of burglarizing a car rather than “a building or structure,” his crime could not have required those elements. This meant that the district court may have relied on the “residual clause” of the ACCA, which, after Johnson, is invalid. In re Davis, __ F.3d __ (11th Cir. July 21, 2016) No. 16-13779-J.
11th Circuit denies petitions for successive §2255 motion based on Johnson. (520)(880) In four separate cases, defendants were sentenced as career offenders, and sought permission to file successive §2255 petitions based on Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015). Johnson held that the residual clause of the Armed Career Criminal Act (ACCA) was unconstitutionally vague. Most courts have held or assumed that Johnson makes identical language in the career offender guideline, §4B1.2(a)(2), also unconstitutional. The Eleventh Circuit, however, has held otherwise. See U.S. v. Matchett, 802 F.3d 1185 (11th Cir. 2015). Therefore, in the cases here, the Eleventh Circuit denied permission to file a second or successive §2255 motion. Concurring and dissenting judges noted that the Supreme Court has granted certiorari in Beckles v. U.S., 136 S.Ct. 2510 (2016) to decide this issue. In re Anderson, __ F.3d __ (11th Cir. July 22, 2016) No. 16-14125-J; In re Burgest, __ F.3d __ (11th Cir. July 21, 2016) No. 16-14596-J; In re Clayton, __ F.3d __ (11th Cir. July 18, 2016) No. 16-14556-J; In re Hunt, __ F.3d __ (11th Cir. July 18, 2016) No. 16-14756-J.
7th Circuit denies petition for successive §2255 motion based on Johnson. (520)(880) Defendant was convicted of bank robbery and firearms charges, and sentenced as a career offender. He moved under 28 U.S.C. §2244(b)(3), for permission to file a successive motion to vacate under §2255. He sought to challenge his sentence under Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which held that the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii), was unconstitutionally vague. However, he had previously been denied permission to file a successive §2255 motion under Johnson, on the ground that residential burglary in Illinois was equivalent to generic burglary of a dwelling, which was enumerated as a crime of violence in the career offender guideline. See Dawkins v. U.S., 809 F.3d 953 (7th Cir. 2016). This time, defendant also relied on the Supreme Court’s decision in Mathis v. U.S., __ U.S. __, 136 S.Ct. 2243 (2016), which held that whether an offense is “generic” depends on elements, not facts. Nevertheless, the Seventh Circuit upheld the denial of the motion, finding defendant’s claim was barred by 28 U.S.C. 2244(B)(1) because defendant had already been denied permission to file a successive §2255 motion based on Johnson. Dawkins v. U.S., __ F.3d __ (7th Cir. July 15, 2016) No. 16-2683.
11th Circuit says S. Ct. will decide whether Johnson “vagueness” doctrine applies to advisory guidelines. (520)(540)(880) Defendant sought an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. §2255. He argued that under Johnson v. U.S., 576 U.S. __, 135 S. Ct. 2551 (2015), and Welch v. U.S., 578 U.S. __, 136 S. Ct. 1257 (2016), the “residual clause” of the career offender guideline, §4B1.2, was unconstitutionally vague. The Eleventh Circuit rejected the petition, ruling that it was bound by In re Griffin, __ F.3d __ (8th Cir. May 25, 2016) No. 16-12021, which held that the constitutional vagueness doctrine does not apply to the advisory guidelines. However, it noted that the Supreme Court granted certiorari in Beckles v. U.S., 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted, No. 15–8544, __ U.S. __ (U.S. June 27, 2016), to decide whether Johnson applies to the guidelines. In re Sapp, __ F.3d __ (8th Cir. July 7, 2016) No. 15-3031.
11th Circuit grants permission for successive §2255 motion based on Johnson. (540)(880) Defendant was sentenced under the Armed Career Criminal Act. He filed a pro se motion for permission to file a successive motion under 28 U.S.C. §2255 based on Johnson v. U.S., 135 S. Ct. 2551 (2015), which held that the ACCA’s “residual clause” was unconstitutional. The Eleventh Circuit ruled that defendant made a prima facie showing that his application contained a proper claim based on Johnson. His PSR did not specify which of his four convictions were ACCA predicates, and at sentencing, the judge did not announce any findings about which convictions she relied upon to support defendant’s ACCA sentence. Only defendant’s prior federal drug conviction definitely qualified as a predicate. Because no “current binding precedent [made] undeniably clear” that defendant’s other convictions qualified as violent felonies under the ACCA’s “elements clause,” defendant made a prima facie showing that his application contained a Johnson claim. In re Jackson, __ F.3d __ (11th Cir. June 24, 2016) No. 16-13536-J.
11th Circuit grants application for successive §2255 motion even though motion would be filed after one-year deadline. (540)(880) After finding that defendant’s application for a successive §2255 motion stated a prima face case, the Eleventh Circuit noted that it was Friday, and the one-year statute of limitations for §2255 motions based on Johnson expired that weekend. The panel ruled that the fact that defendant’s §2255 motion would be filed after the one-year deadline did not require it to deny him permission to file that motion. The Supreme Court has held that courts “must accord the parties fair notice and an opportunity to present their positions” on the statute of limitations in federal habeas cases. Neither defendant nor the government had any such notice or opportunity. It therefore concluded that whether a §2255 motion will be timely was “not relevant to whether [the applicant] can obtain permission to bring a second or successive §2255 motion,” in cases where the parties have not had “fair notice and an opportunity to present their positions” on the limitations bar. The panel left questions about the timeliness of that motion to the district court to decide in the first instance. In re Jackson, __ F.3d __ (11th Cir. June 24, 2016) No. 16-13536-J.
11th Circuit denies successive Johnson motion based on concurrent mandatory life sentence. (540)(880) Defendant sought authorization to file a successive 28 U.S.C. §2255 motion based on Johnson v. U.S., 576 U.S. __, 135 S. Ct. 2551 (2015), which held that the “residual clause” of the Armed Career Criminal Act (ACCA) was unconstitutionally vague. The Eleventh Circuit rejected the application on the ground that defendant’s Johnson claim did not affect his concurrent mandatory life sentence on Count 1, under 21 U.S.C. §841(b)(1)(A). An applicant must show a reasonable likelihood that he would benefit from the new rule he seeks to invoke in a second or successive petition. Here, defendant was unable to show that Johnson would “benefit” him. In re Williams, __ F.3d __ (11th Cir. June 24, 2016) No. 16-13013-J.
8th Circuit denies authorization for second §2255 petition to apply Johnson to guidelines. (520)(880) Defendant, sentenced as a career offender, sought to file a second or successive motion under 28 U.S.C. §2255(h) based on Johnson v. U.S., 135 S. Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii), was unconstitutionally vague. Defendant argued that under Johnson, the residual clause of guideline §4B1.2(a)(2) was also unconstitutionally vague. The Eighth Circuit denied the motion, noting that it was an open question whether an advisory sentencing guideline was susceptible to a vagueness challenge Defendant’s motion sought to assert a new right that had not been recognized by the Supreme Court or made retroactive on collateral review. Donnell v. U.S., __ F.3d __ (8th Cir. June 20, 2016) No. 15-2581.
7th Circuit grants authorization for successive §2255 petition based on Johnson. (540)(880) Defendant was sentenced as an armed career criminal under 18 U.S.C. §924(e). He sought authorization to file a successive motion under §2255 based on Johnson v. U.S., 135 S. Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act was unconstitutionally vague. The Seventh Circuit granted the petition, ruling that defendant made a prima facie showing that he might be entitled to relief. Defendant argued that his Illinois conviction for attempted robbery, 720 ILCS 5/8-4(a), 18-1(a) no longer qualified as a crime of violence. Although an unpublished opinion, U.S. v. Granados-Marin, 83 Fed.Appx. 834 (7th Cir. 2003), held that attempted robbery was a crime of violence under the “elements clause” of §2L1.2, that decision was non-precedential. Moreover, to determine whether an attempt offense constitutes a violent felony, a court must examine how state courts have applied the general attempt statute to the particular crime attempted. Granados-Marin lacked this analysis. Morris v. U.S., __ F.3d __ (7th Cir. July 1, 2016) No. 16-2407.
7th Circuit rejects successive §2255 motion where prior Illinois offenses were clearly crimes of violence. (520)(880) Defendant was sentenced as a career offender based in part on an Illinois conviction for attempted murder and an Illinois conviction for aggravated discharge of a firearm. He later sought permission to file a successive motion under 28 U.S.C. §2255(a) based on Johnson v. U.S., 576 U.S. __, 135 S. Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act was unconstitutionally vague. The Seventh Circuit rejected the request in a brief order. On reconsideration, the Seventh Circuit again denied the motion. Illinois law made the sentencing range for attempt depend on the crime that was attempted (not necessarily committed), 720 ILCS 5/8–4(c), which in this case was murder and so subjected defendant to punishment for murder even though his attempt failed. His current below-guidelines sentence was proper, and to extend the litigation “to enable him to make a futile plea of mercy in the district court wouldn’t make sense.” Hill v. U.S., __ F.3d __ (7th Cir. June 27, 2016) No. 16-1253.
11th Circuit denies successive §2255 petition where priors were violent felonies under “elements clause” of ACCA. (540)(880) Defendant was sentenced under the Armed Career Criminal Act (ACCA). He later sought authorization from the Eleventh Circuit to file a second or successive 28 U.S.C. §2255 motion, contending that his ACCA sentence was void in light of Johnson v. U.S., 135 S.Ct. 2551 (2015), which held that the “residual clause” of the ACCA was unconstitutionally vague. Here, however, defendant’s prior convictions for aggravated assault and robbery were found to be “crimes of violence” based on the “elements clause” of the ACCA, not the “residual clause.” Defendant’s prior convictions had “as an element the use, attempted use, or threatened use of physical force against the person of another.” Accordingly, the Eleventh Circuit denied defendant’s application for a successive §2255 petition, In re Hires, __ F.3d __ (11th Cir. June 15, 2016) No. 16-12744-J.
5th Circuit declines to apply Johnson “crime of violence” ruling retroactively to successive §2255 motion. (520)(880) Defendant moved for authorization to file a successive 28 U.S.C. §2255 motion based on Johnson v. U.S., 135 S.Ct. 2551 (2015), which held unconstitutionally vague the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii). Defendant argued that the identically-worded residual clause of §4B1.2(a)(2) is also unconstitutionally vague, and his firearms sentence under §2K2.1(a)(1) was based in part on a prior conviction that was found to be a crime of violence under the residual clause of §4B1.2(a)(2). The Fifth Circuit declined to authorize the successive §2255 motion. Johnson did not address §4B1.2(a)(2), and the Supreme Court has not held that an increase in the guidelines range implicates the same due process concerns as an increase in the statutory penalty. Federal courts are divided about whether Johnson applies to the guidelines, and even if Johnson implicated §4B1.2(a)(2), the Supreme Court has not addressed whether this arguably new rule of criminal procedure applies retroactively to cases on collateral review. In re Arnick, __ F.3d __ (5th Cir. June 17, 2016) No. 16-10328.
11th Circuit denies authorization to file successive §2255 petition because Johnson does not apply to guidelines. (520)(880) Defendant sought permission to file a successive motion under 28 U.S.C. §2255 to vacate his sentence, based on Johnson v. U.S., 135 S.Ct. 2551 (2015), which held that the “residual” clause of the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii), was unconstitutionally vague. That clause is identical to the “residual” clause of the career offender guideline in §4B1.2(a)(2), on which defendant’s sentence was based. However, In re Griffin, 823 F.3d 1350 (11th Cir. May 25, 2016), the Eleventh Circuit held that Johnson did not apply to the guidelines for purposes of permission to file a second or successive §2255 petition. Accordingly, the Eleventh Circuit denied defendant’s application. In re McCall, __ F.3d __ (11th Cir. June 17, 2016) No. 16-12972-J.
9th Circuit says filing a second or successive application tolls one-year limitation. (540)(880) Defendant filed a motion under 28 U.S.C. §2255 arguing that his sentence under the Armed Career Criminal Act, 18 U.S.C. §924(e), should be reduced based on Johnson v. U.S., 135 S. Ct. 2551 (2015). Section 2255 motions are subject to a one-year statute of limitations that, in this case, began to run on “the date on which the right asserted was initially recognized by the Supreme Court.” The Ninth Circuit held that filing an application to file a second or successive §2255 motion tolled the running of the one-year statute of limitations. Orona v. U.S., __ F.3d __ (9th Cir. June 22, 2016) No. 16-70568.
10th Circuit authorizes successive §2255 challenge to career offender guideline based on Johnson. (520) (880) Defendant sought to file a second or successive motion under 28 U.S.C. §2255 to challenge his sentence under the career-offender guideline, §4B1.1, relying on Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015), which held that the residual clause in the definition of “violent felony” under the ACCA was unconstitutionally vague. He noted that Welch v. U.S., __ U.S. __, 136 S. Ct. 1257 (Apr. 18, 2016) held that Johnson was a new rule of constitutional law that was retroactive to cases on collateral review. In U.S. v. Madrid, 805 F.3d 1204 (10th Cir. 2015), the Tenth Circuit held that Johnson’s invalidation of the unconstitutionally vague residual clause in the ACCA led to the same result for the career-offender guideline. The Tenth Circuit granted defendant’s petition, finding that defendant’s challenge to his career offender sentence was sufficiently based on Johnson to permit authorization under §2255(h)(2). In re Encinias, __ F.3d __ (10th Cir. Apr. 29, 2016) No. 16-8038.
11th Circuit concurring judge lists 110 cases where prisoners might be entitled to relief under Johnson. (520)(540)(880) Defendant sought to file a second or successive 28 U.S.C. §2255 petition based on Johnson v. U.S., 576 U.S. __, 135 S. Ct. 2551 (2015), which held that the ACCA’s “residual clause” was unconstitutional. The Eleventh Circuit denied the application, because defendant’s ACCA predicate convictions for armed robbery and aggravated battery still qualified as violent felonies under the so-called “elements clause” because they contained as an element the use, attempted use, or threatened use of force. Judge Martin, concurring, noted that dozens of other prisoners had tried to file similar applications based on Johnson, but these applicants were rejected because the Eleventh Circuit had ruled that Johnson was not retroactive. However, under the Supreme Court’s recent decision in Welch v. U.S., __ U.S. __ (Apr. 18, 2016) No. 15–6418, these prisoners might now be entitled to relief. The judge then listed 110 cases in the hope that these prisoners, who filed their applications without a lawyer’s help, would know to refile their applications. In re Robinson, __ F.3d __ (11th Cir. Apr. 19, 2016) No. 16-11304-D.
Supreme Court makes retroactive Johnson’s holding that ACCA “residual clause” is unconstitutionally vague. (120)(340)(520)(540)(880) The Armed Career Criminal Act, 18 U.S.C. §924(e) provides enhanced penalties if the defendant has three or more prior convictions for “a serious drug offense,” or a “violent felony.” In defining “violent felony,” the statute includes a residual clause—”or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B). In Johnson v. U.S., 135 S. Ct. 2551 (2015), the Supreme Court held that this “residual clause” was unconstitutionally vague. In the present case, a prisoner whose conviction became final before the decision in Johnson was handed down, filed a 28 U.S.C. §2255 motion arguing that Johnson should be applied retroactively. In a 7-1 opinion written by Justice Kennedy, the Supreme Court agreed, holding that Johnson announced a substantive rule that applies retroactively to cases on collateral review. Justice Thomas dissented. Welch v. U.S., 136 S. Ct. 1257 (April 18, 2016).
8th Circuit says Alleyne did not apply retroactively on collateral review. (120)(245)(880) Defendant pled guilty to drug charges, and was sentenced to a mandatory minimum ten years. At the time of sentencing, judges were permitted to find, by a preponderance of the evidence, any fact that increased the mandatory minimum sentence. See Harris v. U.S., 536 U.S. 545 (2002). After defendant’s appeal became final, Harris was overruled by Alleyne v. U.S., 570 U.S. __, 133 S. Ct. 2151 (2013), which held that any fact that increases the mandatory minimum sentence must be submitted to a jury and found beyond a reasonable doubt. In a § 2255 petition, defendant argued that she was entitled to re-sentencing under Alleyne because (1) it was plain error to apply the preponderance standard; (2) Alleyne should apply retroactively; and (3) she was entitled to effective assistance of certiorari counsel. The Eighth Circuit rejected all of these arguments. First, the plain error standard is intended for use on direct appeal, not on collateral attack. Second, every other circuit to consider this issue has concluded that Alleyne did not apply retroactively on collateral review. Alleyne did not announce a watershed rule of criminal procedure that “’alter[ed] our understanding of the bedrock procedural elements’ of the adjudicatory process.” Finally, states are not obligated to provide counsel for certiorari petitioners. Ross v. Moffitt, 417 U.S. 600 (1974). Walker v. U.S., __ F.3d __ (8th Cir. Jan. 14, 2016) No. 14-3700.
11th Circuit says Johnson is not retroactive; denies request for successive § 2255 petition. (120)(540)(880) Defendant sought permission to file a second or successive petition under 28 U.S.C. § 2255, arguing that Johnson v. U.S., 135 S. Ct. 2551 (2015), created a new rule of constitutional law that was previously unavailable and that the Supreme Court has made retroactive to cases on collateral review. See 28 U.S.C. § 2255(h). Johnson held that one provision of the ACCA, the so-called “residual clause,” was unconstitutionally vague. Defendant argued that his prior convictions for Florida strong arm robbery fell under the now unconstitutional residual clause, and thus, he no longer had three predicate convictions required for a sentence under the ACCA. The Eleventh Circuit rejected defendant’s request for a successive writ under § 2255, since it had previously held in a published opinion that the Supreme Court had not made the new rule on which defendant relied retroactive for purposes of collateral review. See In re Rivero, 797 F.3d 986 (11th Cir. 2015). Judge Martin dissented. In re Franks, __ F.3d __ (11th Cir. Jan. 6, 2016) No. 15-15456-G.
1st Circuit permits successive § 2255 petition based on Johnson. (540)(880) Defendant sought certification to file in the district court a second or successive 28 U.S.C. § 2255 motion to vacate his sentence. He relied on the Supreme Court’s recent decision in Johnson v. U.S., 576 U.S. ––––, 135 S. Ct. 2551 (2015), which struck down the “residual clause” of the ACCA as unconstitutionally vague. The government conceded that Johnson announced a new rule of constitutional law that was previously unavailable. It further conceded that defendant had at least made a prima facie showing that Johnson had been made retroactive by the Supreme Court. In view of the government’s concessions, the First Circuit certified that defendant had made the requisite prima facie showing that the new constitutional rule announced in Johnson “qualifie[d] as a basis for habeas relief on a second or successive petition,” and allowed him to file his petition with the district court. Pakala v. U.S., __ F.3d __ (1st Cir. Oct. 20, 2015) No. 15-1799.
11th Circuit holds Johnson established new rule of constitutional law, but is not retroactive. (340)(520) (540)(880) Defendant was sentenced as a career offender under the then-mandatory sentencing guidelines. He moved for leave to file a second or successive motion under § 2255 based on the Supreme Court’s recent decision in Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which struck down the ”residual clause” definition of “violent felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e), as void for vagueness. The Eleventh Circuit agreed that Johnson announced a new substantive rule of constitutional law, but rejected the notion that the Johnson opinion required the new rule to be applied retroactively on collateral review. “When the Supreme Court makes a rule retroactive for collateral-review purposes, it does so unequivocally, in the form of a holding.” That did not happen here. Judge Pryor dissented. In re Rivero, __ F.3d __ (11th Cir. Aug. 12, 2015) No. 15-13089-C.
3rd Circuit finds ineffective assistance for improper advice about safety valve. (245)(246)(880) Defendant pled guilty to distributing or manufacturing drugs near a school, in violation of 21 U.S.C. § 860(a). He later claimed that he pled guilty because counsel advised him that he was eligible for a reduced sentence pursuant to the “safety valve.” In a pro se habeas petition, defendant argued that his counsel’s erroneous advice about the safety valve constituted ineffective assistance. The Third Circuit agreed. The record clearly indicated that defendant’s counsel provided him with incorrect advice regarding the availability of the safety valve sentencing reduction in 18 U.S.C. § 3553(f). In fact, counsel filed a motion for a reduction, but at sentencing, counsel withdrew this motion, because U.S. v. McQuilkin, 78 F.3d 105 (3d Cir.1996) held that § 3553(f) did not apply to convictions under 21 U.S.C. § 860. Counsel’s lack of familiarity with an 18-year-old precedent and his erroneous advice, demonstrated performance below prevailing professional norms. The plea colloquy did not remedy counsel’s mistake, since the judge made several statements that reinforced counsel’s incorrect advice. Defendant also showed that but for counsel’s error, he would not have pled guilty and insisted on going to trial. U.S. v. Bui, __ F.3d __ (3d Cir. Aug. 4, 2015) No. 11-3795.
4th Circuit says later-nullified career offender finding is not cognizable on collateral review. (520)(880) Defendant pled guilty to crack cocaine charges and was sentenced to 262 months as a career offender. The Supreme Court later remanded for consideration in light of Kimbrough v. U.S., 552 U.S. 85 (2007). On remand, the district court resentenced defendant to 262 months. Defendant then filed a petition for collateral relief under 28 U.S.C. §2255, arguing that the district court erred in sentencing him as a career offender. While his petition was pending, the Fourth Circuit decided U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Defendant amended his §2255 petition, contending that under Simmons, his 1995 North Carolina conviction was no longer a predicate career offender conviction. The Fourth Circuit held that defendant’s challenge, based on a subsequently-nullified career offender designation, was not a fundamental defect cognizable on collateral review. None of his prior convictions qualifying him as a career offender had been vacated, and he was sentenced under an advisory sentencing scheme. The panel was “hesitant to undermine the judicial system’s interest in finality” to classify a guidelines error as a fundamental defect. U.S. v. Foote, __ F.3d __ (4th Cir. Apr. 27, 2015) No. 13-7841.
7th Circuit allows 28 U.S.C. §2255 relief where crack defendant should have been sentenced under FSA. (192)(250)(880) In 2011, defendant pled guilty to distributing crack cocaine, and was sentenced to 240 months. In Dorsey v. U.S., __ U.S. __, 132 S. Ct. 2321 (2012), the Supreme Court held that the Fair Sentencing Act of 2010 (FSA) applies where the offense was committed before the FSA took effect but sentence was imposed afterward. Defendant fell into that category, and filed a pro se motion asking for a reduced sentence. The district court denied the motion, using a form order for motions under 18 U.S.C. § 3582(c)(2). The Seventh Circuit treated defendant’s motion as a petition for relief under 28 U.S.C. § 2255. The parties negotiated defendant’s sentence under the impression that he was subject to a mandatory minimum sentence of 20 years; when in fact the minimum was only 10 years. Defendant’s plea agreement allowed him to seek to modify his sentence if Congress or the Supreme Court later determined that the FSA applied to cases like his. But neither § 3582(c)(1)(B) or (c)(2) was applicable. The stronger basis for relief was 28 U.S.C. § 2255. U.S. v. Bailey, __ F.3d __ (7th Cir. Jan. 29, 2015) No. 13-3229.
4th Circuit, en banc, says previous case was not new “fact” that extended time for filing § 2255 petition. (880) In a petition under 28 U.S.C. § 2255 filed two years after defendant’s conviction became final, he argued that his career offender sentence should be vacated in light of U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Defendant contended that after Simmons his prior drug offenses no longer qualified as predicate career offender convictions. However, petitions for collateral relief under § 2255 are subject to a one-year statute of limitations in § 2255(f). The one-year clock is triggered by one of four conditions, whichever occurs latest. One of these conditions was the date on which the facts supporting the claim could have been discovered through the exercise of due diligence. Defendant claimed that his § 2255 petition was timely since he filed it less than one year after Simmons was decided. The Fourth Circuit disagreed. Simmons represented a change of law, not fact. It did not directly alter defendant’s status as a prior state offender. Decisions that change the legal significance of certain facts without modifying them do not qualify under § 2255(f)(4). Whiteside v. U.S., __ F.3d __ (4th Cir. Dec. 19, 2014) No. 13-7152 (en banc).
4th Circuit, en banc, says unfavorable precedent is not grounds to equitably toll statute of limitations. (880) Two years after his career offender conviction became final, defendant filed a petition under 28 U.S.C. § 2255 to vacate his sentence based on U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Defendant contended that after Simmons his prior drug offenses no longer qualified as predicate career offender convictions. He argued that even if his petition was untimely under § 2255, the statute of limitations should be equitably tolled. Equitable tolling of petitions for collateral review is available only when a defendant demonstrates “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631 (2010). Defendant claimed that he was prevented from timely filing by the unfavorable precedent that would have governed his claim had he sued prior to Simmons. The Fourth Circuit disagreed. The standard announced in Holland focuses not on whether unfavorable precedent would have rendered a timely claim futile, but on whether a factor beyond the defendant’s control prevented him from filing within the limitations period at all. Although Simmons plainly made a collateral attack on defendant’s sentence more plausible, nothing prevented defendant from filing his petition within the one-year statute of limitations. Whiteside v. U.S., __ F.3d __ (4th Cir. Dec. 19, 2014) No. 13-7152 (en banc).
Supreme Court holds that motion for reduced sentence tolls limitations period. (880) Under 28 U.S.C. § 2244(d)(2), a properly filed application for state “post-conviction or other collateral review” tolls the one-year limitations period for filing a federal habeas petition challenging a state conviction. Defendant was convicted in Rhode Island state court on 10 counts of first-degree sexual assault and sentenced to consecutive life terms of imprisonment. He filed a motion under Rhode Island law seeking a reduction of that sentence. After the trial court denied that motion, defendant filed a federal habeas petition. In a decision by Justice Alito, the Supreme Court held that a motion to reduce sentence under Rhode Island law was a petition for “collateral review” that tolled the one-year limitations period. Wall v. Kholi, 562 U.S. __, 131 S.Ct. 1278 (2011).
Supreme Court says 9th Circuit misapplied AEDPA in nixing California’s Three Strikes law. (880) Under AEDPA, 28 U.S.C. § 2254(d), a federal court may grant a habeas petition only if the state court’s decision upholding the petitioner’s conviction was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” the U.S. Supreme Court. In striking down a sentence under California’s Three Strikes law as a violation of the Eighth Amendment, the Ninth Circuit held that a state court decision involves an “unreasonable application” of federal law if it constitutes “clear error.” In a 5-4 decision written by Justice O’Connor, the Supreme Court held that the “clear error” standard “fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.” Instead, the Court held, a federal court may not grant a habeas petition unless the state court judgment was “objectively unreasonable.” Because, the Court found, its prior Eighth Amendment decisions “exhibit a lack of clarity,” the California court’s application of that law was not unreasonable. Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166 (2003).
Supreme Court bars using § 2255 to claim sentence is based on allegedly invalid priors. (880) Affirming the Ninth Circuit’s decision in U.S. v. Daniels, 195 F.3d 501 (9th Cir. 1999), the Supreme Court, in a 5-4 opinion written by Justice O’Connor, held that – except for convictions obtained in violation of the right to counsel – a motion under 28 U.S.C. § 2255 cannot be used to challenge a federal sentence on the ground that it was enhanced by an allegedly unconstitutional prior conviction. The majority thus extended the rule of Custis v. U.S., 511 U.S. 485, 490-497 (1994), which held that a defendant could not collaterally attack prior state convictions during his federal sentencing proceeding. The majority reasoned that a contrary rule would permit an end run around procedural barriers that would preclude the defendant from attacking the prior conviction directly. Justice Scalia concurred, except for a portion of the opinion recognizing that § 2255 may be available in rare circumstances. Justice Souter dissented, joined by Justices Stevens, Ginsburg and Breyer. Daniels v. U.S., 121 S.Ct. 1578 (2001).
Supreme Court holds that increase of 6 to 21 months shows “prejudice” for ineffective assistance claim. (880) Defendant argued that his attorney was ineffective in failing to argue that the money laundering counts should have been “grouped” for sentencing with the counts for labor racketeering and tax evasion. Absent this ineffective assistance, he argued, his guidelines range would have been 63-78 months. Thus, he claimed his 84-month sentence was an unlawful increase of between six and 21 months. The Seventh Circuit found it unnecessary to decide whether counsel was ineffective, ruling that an increase of 6-21 months was not significant enough to amount to prejudice. In a unanimous opinion written by Justice Kennedy, the Supreme Court reversed, holding that “[a]lthough the amount by which a defendant’s sentence is increased by a particular decision may be a factor to consider in determining whether counsel’s performance in failing to argue the point constitutes ineffective assistance, … it cannot serve as a bar to a showing of prejudice.” The court’s ruling abrogated the Seventh Circuit’s prior decisions in Durrive v. U.S., 4 F.3d 548 (7th Cir. 1993) and Martin v. U.S., 109 F.3d 1177 (7th Cir. 1996), which were based on an incorrect reading of Lockhart v. Fretwell, 506 U.S. 364 (1993). As the court explained last term, Lockhart did not supplant the analysis in Strickland v. Washington, 466 U.S. 668 (1984). The question of whether the counts should have been grouped was left for the lower courts to decide. Glover v. U.S., 531 U.S. 198, 121 S.Ct. 696 (2001).
Supreme Court permits habeas challenge to already-completed consecutive sentence. (880) In a 7-2 decision written by Justice Ginsburg, the Supreme Court held that a prisoner in continuous custody may challenge an already-completed consecutive sentence in a habeas petition. The majority ruled that the prisoner can satisfy the jurisdictional “custody” requirement for federal habeas corpus under 28 U.S.C. §§ 4452(a) and 2241(c)(3) if a successful challenge would shorten his total term of incarceration. Thus, the federal habeas petitioner here was permitted to challenge a state guilty plea to possession of marijuana with intent to distribute, which resulted in a three year state sentence preceding two concurrent state life terms for murder. Justice Thomas, joined by Chief Justice Rehnquist, dissented, arguing that petitioner was no longer “in custody” on the earlier sentence. Garlotte v. Fordice, 515 U.S. 39, 115 S.Ct. 1948 (1995).
1st Circuit upholds reduction of federal sentence following state court order vacating guilty plea. (880) Defendant received one criminal history point for a Massachusetts drug conviction and two additional points based on the court’s finding that defendant had committed the federal offense while under a criminal justice sentence for the state conviction. See U.S.S.G. § 4A1.1(d). While an appeal was pending, defendant filed a motion in state court to vacate his Massachusetts guilty plea. Defendant also obtained an order from the state court terminating the state probationary sentence nunc pro tunc to a date prior to his federal offense. The state court later vacated defendant’s guilty plea. The district court granted defendant’s motion under 28 U.S.C. § 2255, reduced defendant’s criminal history score to zero, and resentenced him. The First Circuit affirmed the district court’s resentencing of defendant so as to eliminate all three criminal history points. However, it did so because of the vacation of the state conviction rather than because of the state’s court’s decision to terminate the probation nunc pro tunc. Unlike the state court nunc pro tunc order which had no stated basis, the state court order vacating defendant’s guilty plea and ordering a new trial rested upon the violation of defendant’s right to have entered a voluntary and knowing plea. Mateo v. U.S., 398 F.3d 126 (1st Cir. 2005).
1st Circuit rejects second habeas petition raising Blakely issue. (880) Defendant sought leave to file a second or successive habeas petition under 28 U.S.C. § 2255 based on Blakely v. Washington, 124 S.Ct. 2531 (2004). A new rule of law can form the basis for a second or successive habeas petition only if that rule is “made retroactive to cases on collateral review by the Supreme Court.” § 2255 para. 8(2). To date, the Supreme Court has not decided whether Blakely is even applicable to the federal Sentencing Guidelines, much less declared its ruling in Blakely to be retroactive to cases on collateral review. Therefore, the First Circuit found the petition premature, and denied it without prejudice. Cuevas v. Derosa, 386 F.3d 367 (1st Cir. 2004).
1st Circuit says counsel was not ineffective in dropping claim in exchange for plea agreement concessions. (880) Under Massachusetts’s former two-tier trial system, defendant waived his right to a jury trial and elected a bench trial. After the judge found him guilty, defendant then appealed, seeking a trial de novo before a jury of six. Under Massachusetts law, this appeal vacated the initial conviction. Defendant was convicted again by a jury. After his initial conviction and appeal, but before his second conviction, he committed the current federal firearms offense. Section 2K2.1(a) (4)(A) mandates an increased offense level of 20 if “the defendant had one prior felony conviction for either a crime of violence or a controlled substance offense.” At the time of defendant’s sentencing, the circuits were split two to one in favor of counting defendant’s Massachusetts’ conviction as a prior conviction. Notwithstanding its disagreement with the majority view, and a 2001 amendment adopting the minority view, the First Circuit held that counsel did not perform deficiently in abandoning the claim that defendant’s state conviction could not be used to increase his offense level. At the time of sentencing, the law on the issue was unclear, and defendant’s plea agreement included a commitment to accept the increase in offense level in exchange for other concessions. The decision to stick with the enhanced offense level “was almost certainly a judgment call to retain the advantages of the plea and to forgo an argument for a lower [offense level] already rejected by two out of three circuits.” Cofske v. U.S., 290 F.3d 437 (1st Cir. 2002).
1st Circuit says court may depart at resentencing, but deportability and expense are not sufficient grounds. (880) Defendant filed this § 2255 motion alleging ineffectiveness of counsel in allowing his appeal to lapse. The district court granted the petition and ordered resentencing to permit defendant to take a direct appeal. However, the court did not mechanically impose the same sentence. Instead, the court departed downward to save the taxpayers money because defendant was to be deported anyway upon release. The government argued that the district court had no right after granting the § 2255 motion to do anything more than reimpose the original sentence. The First Circuit held that the court was free to consider a downward departure for any legitimate reason at the resentencing hearing. Although the reimposing the original sentence would have remedied the constitutional defect, the court was not forbidden from sentencing defendant afresh and imposing a different sentence. However, while the court was free to consider a downward departure for any legitimate reason, it erred in granting a departure on the grounds given. The court said that it was “a waste of taxpayer money” to impose a lengthy prison term on “someone who’s going to be deported.” A deportable alien who commits a crime is still within the “heartland” of the guidelines absent something more. If deportability, expense, or some combination of the two justified a departure, it would have to be based on case-specific findings that made the case unusual. The common facts of a long sentence and likely deportation are not by themselves unusual. U.S. v. Maldonado, 242 F.3d 1 (1st Cir. 2001).
1st Circuit says counsel not ineffective in failing to request criminal history departure. (880) Defendant argued that his attorney was ineffective in failing to request a § 4A1.3 downward departure based on his overstated criminal history category. Defendant did not raise this issue in his § 2255 petition and did so for the first time on appeal of his conviction. Thus, the First Circuit found it “quite unlikely” that the issue had been adequately preserved,” particularly since even on appeal it was only advanced in a minimal way by a few sentences at the very end of the opening brief. Moreover, even if the issue were adequately preserved or could be raised under a plain error standard, there was no basis in the record to conclude that counsel was ineffective for failing to raise this claim. Although a sentencing court may invoke § 4A1.3 to depart downward from the career offender category if it concludes that the category inaccurately reflected the defendant’s actual criminal history, nothing in the record supported such a departure. Defendant not only had two prior felony convictions, but committed the final charged offense only a year and a half after he was released from prison but while still on parole for federal drug trafficking. U.S. v. Hoyle, 237 F.3d 1 (1st Cir. 2001).
1st Circuit says out-of-time notice of appeal proper § 2255 remedy for failure to advise of right to appeal. (880) Defendant brought a § 2255 motion claiming that the district court failed to apprise him of his right to appeal his sentence, as was required under Rule 32(a)(2). The district court agreed, and as a remedy, ordered the issuance of an out-of-time notice of appeal from defendant’s original criminal conviction. Defendant argued that this was not enough, and that he was entitled instead to de novo resentencing. Section 2255 provides that if the court finds that the sentence was not authorized by law “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” The First Circuit ruled that the district court’s order was an appropriate correction of defendant’s sentence. Where the defendant is awarded an out-of-time appeal as a § 2255 remedy for either a Rule 32 or Sixth Amendment violation, the district court is not required to engage in de novo resentencing, but may instead vacate the initial sentence and summarily reimpose a sentencing judgment identical in all respect to the earlier judgment except for the date of entry. Accord U.S. v. Prado, 204 F.3d 843 (8th Cir. 2000); U.S. v. Phillips, 225 F.3d 1198 (11th Cir. 2000). U.S. v. Torres-Otero, 232 F.3d 24 (1st Cir. 2000).
1st Circuit denies Apprendi relief on habeas because any error was harmless. (880) Defendant was convicted of three carjackings in violation of 18 U.S.C. § 2119. At sentencing, the judge found that “serious bodily injury” occurred during the carjacking, and therefore increased his sentence even though this factor was never submitted to the jury. In the present case, defendant sought a certificate of appealability to permit him to file a second 28 U.S.C. § 2255 motion, claiming that under Jones v. U.S., 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the “serious bodily injury” factor should have been submitted to the jury. The First Circuit denied a certificate of appealability, noting that the Supreme Court has not made the Apprendi rule retroactive to cases on collateral review. Moreover, defendant failed to show that he was prejudiced by the failure to submit the question to the jury, because it was undisputed that the victims were shot at multiple times during the course of the car jacking and that one had been hit in the abdomen and the other in the leg, resulting in amputation below the knee. Sustache-Rivera v. U.S., 221 F.3d 8 (1st Cir. 2000).
1st Circuit directs appointment of counsel if defendant brings ineffective assistance claim in § 2255 petition. (880) Defendant argued that his trial counsel mishandled the plea bargaining process by grossly underestimating his potential sentence, and failing to accept a plea offer as instructed, thus allowing the offer to lapse. The First Circuit dismissed the appeal without prejudice to defendant’s right to raise the ineffective assistance claim in a § 2255 proceeding. “Fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court.” The court further noted that this seemed to be one of the rare § 2255 cases in which the appointment of counsel was warranted. Defendant’s allegation of ineffectiveness was serious and the record provided some support for defendant’s claim. Under the initial plea offer, defendant would have received a 46-month sentence. Defendant’s affidavit stated that he had instructed counsel to accept the plea bargain because it was much less severe than the 20-years he was serving in Puerto Rico on related charges. After trial, defendant received a sentence of 37 and 1/2 years, almost ten times the sentence he would likely have received under the proposed agreement. The panel directed the district court, if defendant petitioned for § 2255 relief and demonstrated continued financial eligibility, to appoint counsel for him. U.S. v. Gonzalez-Vazquez, 219 F.3d 37 (1st Cir. 2000).
1st Circuit holds that failure to object to untimely § 851 notice was ineffective assistance. (880) Although the government did not file a § 851(a)(1) information until 19 days after the jury was empanelled, defense counsel did not challenge the timeliness of the notice at sentencing or on direct appeal. In a pro se petition under 28 U.S.C. § 2255, defendant challenged his enhanced sentence. The First Circuit held that defendant showed both “cause” excusing his procedural default and “actual prejudice” resulting from the unpreserved error. Ineffective assistance of counsel constitutes “cause” sufficient to excuse a procedural default. Section 851(a)(1) clearly states that notice must be filed “before trial.” At the time defendant’s case went forward, it was well-settled that “trial,” as used in § 851(a)(1), includes jury selection. Defense counsel was constitutionally deficient for failing to object to the untimely filing. There was absolutely no reason not to object to the late filing. Defendant clearly was “prejudiced” by the error. Had counsel objected to the defect in the § 851(a) information, the court would not have been able to impose a 10-year mandatory minimum sentence. Prou v. U.S., 199 F.3d 37 (1st Cir. 1999).
1st Circuit holds that timeliness of § 851 notice is waivable issue of statutory authorization. (880) Although the government did not file a § 851(a)(1) information until 19 days after the jury was empanelled, defense counsel did not challenge the timeliness of the notice at sentencing or on direct appeal. Defendant, argued, in a pro se petition under 28 U.S.C. § 2255, that the absence of a timely § 851(a)(1) information deprived the sentencing court of jurisdiction to impose the enhanced sentence. The government argued that the timeliness of a § 851(a) notice was not a non-waivable issue of subject matter jurisdiction, but a waivable issue of statutory authorization. Under the latter category, such a claim would require a showing of “cause” and “actual prejudice” if not raised earlier. The First Circuit held the timeliness of a § 851(a)(1) is not a jurisdictional matter, but a question of statutory authorization. Noncompliance with the procedures in § 851(a)(1) deprives a sentencing court of authority to impose an enhanced sentence, but does not divest the court of jurisdiction over the subject matter. Thus, a defendant’s failure to object at sentencing or on appeal to the untimeliness of the § 851(a)(1) information constitutes a procedural default, leaving the issue open to collateral attack only if the defendant can show cause and prejudice. Prou v. U.S., 199 F.3d 37 (1st Cir. 1999).
1st Circuit says proper forum for ineffective assistance claim is 2255 motion. (880) On direct appeal, defendant asserted that he was denied effective assistance of counsel when his attorney advised him that could not receive a lesser sentence by pleading guilty to the crime. The First Circuit rejected the claim for lack of a factual record upon which to judge it, and suggested that the proper forum for this claim was a motion for post-conviction relief under 28 U.S.C. § 2255. U.S. v. Berrios, 132 F.3d 834 (1st Cir. 1998).
1st Circuit permits resentencing on drug counts after vacating § 924(c) in § 2255 case. (880) Defendant successfully moved under § 2255 to vacate his § 924(c) firearm conviction based on Bailey v. U.S., 116 S.Ct. 501 (1995). However, the district court then imposed a § 2D1.1(b)(1) enhancement on the remaining drug counts. The First Circuit affirmed, holding that 28 U.S.C. § 2255 allows a court to correct the sentence where the guidelines contemplate an interdependent relationship between the sentence for the vacated conviction and the sentence for the remaining convictions. The court declined to determine whether this was true where the guidelines do not contemplate such an interdependent sentencing package. The court’s consideration of the conduct underlying the vacated conviction did not violate the Constitution. Given the language of § 2255 and the fact that defendant was still in custody, he could have no settled expectation of finality as to the drug sentence. U.S. v. Rodriguez, 112 F.3d 26 (1st Cir. 1997).
1st Circuit grants § 2255 relief for armed career criminal where predicate convictions were later vacated. (880) Defendant was convicted of being a felon in possession of a firearm and sentenced as an armed career criminal. In 1994, all but one of his prior convictions were vacated by the Massachusetts state courts. In 1995, the district court granted federal habeas corpus relief under 28 U.S.C. § 2255 and reduced his sentence, on the ground that the ACCA was no longer applicable to him. The First Circuit affirmed. Section 2255 was an appropriate vehicle for defendant to use to attack his sentence, since his sentence was either “in violation of the Constitution” or “otherwise subject to collateral attack.” Section 921(a)(20) does not count convictions that have been expunged or set aside; this includes convictions which have been expunged or set aside after federal sentencing. Although the government criticized the state’s procedure for vacating the convictions, a federal court cannot conclude that the state courts wrongly decided the state issue. U.S. v. Pettiford, 101 F.3d 199 (1st Cir. 1996).
1st Circuit holds defendant may not challenge restitution in § 2255 motion. (880) In a 28 U.S.C. § 2255 motion, defendant argued that his counsel was ineffective for failing to challenge a restitution order that included losses outside the time period of his offense of conviction. The First Circuit held that a defendant may not challenge a restitution order in a § 2255 action. Section 2255 provides relief to petitioners “in custody” who claim the right to be released from custody. Although defendant was in custody, he was not claiming the right to be released, but was merely claiming the right to a reduced restitution order. Smullen v. U.S., 94 F.3d 20 (1st Cir. 1996).
1st Circuit finds counsel’s advice not to mention co-defendant did not cost defendant § 5K1.1 motion. (880) In a § 2255 motion, defendant claimed he had received in effective assistance because his lawyer advised him not to tell the government about a co-conspirator’s activities. Counsel also represented the co-conspirator on state charges relating to the same offense. Defendant argued that his failure to discuss the co-conspirator led the government to refuse to file a § 5K1.1 motion and to oppose an acceptance of responsibility reduction. The Second Circuit held that defendant did not establish ineffective assistance. There were valid reasons behind counsel’s suggestion not to mention the co-conspirator’s activities. Moreover, even if defendant had discussed his co-conspirator during his initial debriefing, the government would not have moved for a § 5K1.1 departure. At the time of the debriefing, state authorities were already aware of the co-conspirator’s activities. Even after defendant discussed his co-conspirator at a second debriefing, the government was unimpressed with the information defendant provided to them. Senior Judge Bownes dissented. Carey v. U.S., 50 F.3d 1097 (1st Cir. 1995).
1st Circuit refuses to consider challenge to criminal history and fine brought under § 2255. (880) In a motion under 28 U.S.C. § 2255, petitioner argued that his criminal history score was incorrectly calculated and that the district court abused its discretion in imposing a $15,000 fine. The 1st Circuit declined to consider either claim, since both fell short of the “miscarriage of justice” standard outlined by the Supreme Court for § 2255 claims that do not allege constitutional or jurisdictional errors. Petitioner could have raised the purported error by direct appeal. Although an error in applying the guidelines can constitute a “complete miscarriage of justice,” petitioner’s claims did not meet that standard. Petitioner did not receive ineffective assistance of counsel. Knight v. U.S., 37 F.3d 769 (1st Cir. 1994).
1st Circuit remands where defense counsel was unaware of notice requirement in section 851. (880) The district court imposed the mandatory minimum six-year supervised release term prescribed by 21 U.S.C. section 841(b)(1)(C) for repeat offenders. This was an increased punishment which required the filing of a notice under section 851, which the government failed to file. Defendant did not object below and he did not appeal his sentence. On appeal from the denial of his 28 U.S.C. § 2255 motion, the 1st Circuit remanded for reconsideration. There may have been both cause for, and prejudice from, the procedural default. Defense counsel, apparently unaware of the notice requirement in section 851, invited the court to apply the enhanced recidivist penalties. Such an oversight could constitute sufficient cause to excuse the procedural default. Since this issue was not considered below, remand was required. Suveges v. U.S., 7 F.3d 6 (1st Cir. 1993).
1st Circuit remands to determine whether acceptance of responsibility objection was waived. (880) Defendant originally received an enhancement for obstruction of justice and was denied a reduction for acceptance of responsibility. On appeal of the denial of defendant’s section 2255 motion, the 1st Circuit remanded for reconsideration of the obstruction issue. The government claimed that defendant waived his objection to the acceptance of responsibility issue by not raising it on direct appeal. However, defendant’s counsel may not have pursued the acceptance issue because he believed the argument could not be won after losing the obstruction argument. Thus, the 1st Circuit made a “contingent remand” on the acceptance of responsibility issue. If the district court found that obstruction was not proved, it should determine whether the acceptance of responsibility claim was waived, and if not, then it should determine that claim on the merits. Isabel v. U.S., 980 F.2d 60 (1st Cir. 1992).
1st Circuit rules that defendant need not show he has meritorious issues to obtain right to appeal through habeas corpus. (880) Defendant attempted to appeal his sentence, but because of the dereliction of his counsel, the appeal was dismissed for want of prosecution. In a habeas corpus motion brought under 28 U.S.C. section 2255, the 1st Circuit held that defendant did not have to show that he had a meritorious issue for appeal in order to obtain the right to appeal his conviction and sentence. Defendant was deprived of his constitutional right to appeal because of the dereliction of counsel. This was not a case of “sloppy briefing” or inadequate oral argument. Defendant had the opportunity to appeal. He was entitled to do so and should be treated like any other defendant appealing for the first time. Thus, he did not have to show that there were meritorious issues to be appealed. Bonneau v. U.S., 961 F.2d 17 (1st Cir. 1992).
2nd Circuit rejects ineffective assistance claim despite failure to challenge first-degree unlawful restraint as violent felony. (880) Defendant filed a 28 U.S.C. § 2255 motion to vacate his sentence under the Armed Career Criminal Act, arguing that his counsel was ineffective in failing to challenge the use of his first-degree unlawful restraint conviction as a violent felony. The Second Circuit disagreed. When defendant was sentenced in 2005, the Supreme Court had not yet decided Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), and there was no requirement that an offense be “similar in kind” to the offenses enumerated in the ACCA as violent felonies. Moreover, defendant’s conviction under Connecticut’s first-degree unlawful restraint statute was a violent felony under the ACCA’s residual clause. That statute has as an element that the defendant must have intentionally restrained another person in a way that created a substantial risk of physical injury. The statutory language effectively tracked the language of the ACCA’s residual clause, which defines any crimes involving conduct that “presents a serious potential risk of physical injury to another.” Harrington v. U.S., 689 F.3d 124 (2d Cir. 2012).
2nd Circuit holds that Booker does not apply retroactively to cases on collateral review. (880) A new rule of constitutional law does not apply retroactively to cases on collateral review unless the rule is substantive or a “watershed” rule of procedure that affects “the fundamental fairness and accuracy of the criminal proceeding.” The Second Circuit found that while U.S. v. Booker, 543 U.S. 220 (2005) established a new rule, the new rule was neither a substantive rule nor a watershed rule of procedure, as required to apply retroactively to cases on collateral review. Booker was not a substantive rule – it did not alter the range of conduct subject to any sentence. Booker did not establish a watershed rule. The procedural defect identified in Booker is that sentencing-enhancing factors were found by judges rather than juries, and by a preponderance of the evidence rather than beyond a reasonable doubt. However, the remedy – to render the guidelines advisory – vested greater discretion in judges, not less. Guzman v. U.S., 404 F.3d 139 (2d Cir. 2005).
2nd Circuit denies application to file second 2255 petition based on Booker. (880) Defendant moved for authorization to file a second or successive petition pursuant to 28 U.S.C. § 2255, asserting his sentence was unconstitutional under Blakely v. Washington, 124 S.Ct. 2531 (2004), and further requested the court consider the constitutionality of his sentence in light of any new rules articulated in the then-pending decision in U.S. v. Booker, 543 U.S. 220 (2005). However, a defendant may only raise a successive claim based on new rule of constitutional law if such rule has been “made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2244(B)(2). A new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive. Tyler v. Cain, 533 U.S. 656 (2001). Because the Supreme Court has not clearly made Blakely or Booker retroactively applicable to cases on collateral review, the Second Circuit denied the application. Green v. U.S., 397 F.3d 101 (2d Cir. 2005).
2nd Circuit refuses to grant successive § 2255 petition absent Supreme Court pronouncement making Blakely retroactive. (880) Relying on Blakely v. Washington, 124 S.Ct. 2531 (2004), defendant requested authorization to file a second or successive § 2255 petition. However, an applicant may not raise a new claim in a second or successive § 2255 petition unless there is newly discovered evidence, or he can show that his claim is based on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. Blakely itself stated nothing about its retroactivity, and to date, the Supreme Court has not, in any other case, announced Blakely to be a new rule of constitutional law, nor has the Court held it to apply retroactively on collateral review. Therefore, the Second Circuit ruled that it would refuse to consider granting authority to file second/ successive petitions until the Supreme Court makes Blakely retroactive on collateral review. Carmona v. U.S., 390 F.3d 200 (2d Cir. 2004).
2nd Circuit holds that appeal waiver was enforceable where ineffective assistance claim had no merit. (880) Notwithstanding her promise not to appeal her sentence if the court imposed a prison term of 121 months or less, defendant appealed, contending that the appeal waiver was unenforceable because she was denied effective assistance of counsel. The Second Circuit rejected the notion that an appeal waiver becomes unenforceable simply because a defendant “claims” ineffective assistance of counsel. An appeal waiver is unenforceable only if the record revealed that the ineffective assistance claim was meritorious. Here, there was no merit to the claim. The defense attorney’s statement of regret as to the suppression motion and putting defendant on the stand at the suppression hearing did not prove deficient performance. Therefore, the waiver of appeal was enforceable. U.S. v. Monzon, 359 F.3d 110 (2d Cir. 2004).
2nd Circuit instructs court to vacate judgment and enter new judgment from which appeal can be taken. (880) Defendant requested his counsel to file a notice of appeal, but counsel did not file the appeal until several months after expiration of the maximum allowable 40-day period. See Fed. R. App. P. 4(b). Thus, the Second Circuit lacked jurisdiction over defendant’s appeal. Rather than simply dismissing the appeal for lack of jurisdiction, and forcing defendant to bring a § 2255 motion to challenge the existing judgment, the Second Circuit dismissed the appeal as untimely and remanded to the district court with instructions to vacate the judgment and enter a new judgment from which a timely appeal may be taken. While this might appear to run afoul of the usual rule that a court may not circumvent appellate time limits by entering a new judgment, the strictness of that rule need not apply where the judgment is vulnerable to being set aside in any event to remedy a denial of constitutional right. U.S. v. Fuller, 332 F.3d 60 (2d Cir. 2003).
2nd Circuit holds that Apprendi rule does not apply retroactively to initial § 2255 motions. (880) At sentencing, the district court found, by a preponderance of the evidence, that defendant possessed more than 50 grams of cocaine, subjecting him to a mandatory minimum term of 20 years’ imprisonment. More than a year after his appeal was denied, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Defendant then filed a § 2255 motion arguing that his sentence violated Apprendi. The court found that all of defendant’s claims were time-barred under the one-year statutory of limits adopted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). However, the AEDPA contains special provisions for § 2255 motions that are based upon new constitutional rules. The Second Circuit joined at least seven other circuits in holding that the Apprendi rule is a new, but not a watershed, criminal procedural rule, and therefore it does not apply retroactively to initial § 2255 motions for habeas relief. Coleman v. U.S., 329 F.3d 77 (2d Cir. 2003).
2nd Circuit says that ineffective assistance claim was not procedurally barred. (880) Defendant filed a motion pursuant to 28 U.S.C. § 2255 contending that his trial counsel’s failure to object to the calculation of his base offense level constituted ineffective assistance. The district court denied the motion in its entirety, concluding that the claim was procedurally barred. The Second Circuit held that the ineffective assistance of counsel was not procedurally barred. The district court misapplied Graziano v. U.S., 83 F.3d 587 (2d Cir. 1996), which held that § 2255 claims not raised on direct review are procedurally barred unless they raise constitutional or jurisdictional claims or result in “a complete miscarriage of justice.” Because defendant’s challenge to the calculation of his base offense level took the form of a Sixth Amendment ineffective assistance of counsel claim, the district court erred by holding that Graziano barred his claim. Johnson v. U.S., 313 F.3d 815 (2d Cir. 2002).
2nd Circuit holds that counsel’s failure to object to calculation of drug quantity was ineffective assistance. (880) Defendant sold 48.3 grams of crack to a confidential informant who was under direction from federal agents to purchase two ounces (56.7 grams) of crack from defendant. At trial the parties disagreed on whether defendant ever agreed to sell two ounces of crack. The PSR recommended a finding that defendant had agreed to sell over 50 grams of cocaine base. Defense counsel did not object, and the district court sentenced him accordingly, resulting in a guideline range of 151-188 months, and a 151-month sentence. Defendant filed a § 2255 motion, contending that his trial counsel’s failure to object to the calculation of his base offense level constituted ineffective assistance. The Second Circuit agreed. Under Note 12 to § 2D1.1, where an offense involves an agreement to sell a controlled substance, “the agreed-upon quantity … shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense.” (emphasis added). Here, where the sale was completed and there was no evidence that the 48.3 grams actually sold did not represent the “scale of the offense,” counsel plainly should have objected. Such an objection was close to “a dead-bang winner.” Defendant was prejudiced by counsel’s lapse in representation, even though the 151-month sentence fell within either guideline range. At sentencing, the judge commented favorably on defendant and expressly imposed the guideline minimum. There was a reasonable probability that the judge would not have sentenced defendant to the same 151-month period which was at the top of the proper guideline range (121-151 months). Johnson v. U.S., 313 F.3d 815 (2d Cir. 2002).
2nd Circuit says challenge to standard of proof did not present substantial issue as required for COA. (880) Defendant moved for a certificate of appealability to appeal the denial of his § 2255 motion to vacate his drug sentence based on the court’s use of relevant conduct. The court’s consideration of relevant conduct resulted in a sentence almost double the top of the otherwise applicable sentencing range. Defendant argued that the severity of the increase warranted a standard of proof more rigorous than a preponderance of the evidence. The Second Circuit ruled that the contention did not present a substantial issue on collateral attack because defendant challenged the sentencing judge’s fact-finding on direct review, and the appellate court rejected that challenge. Beatty v. U.S., 293 F.3d 627 (2d Cir. 2002).
2nd Circuit construes letter as notice of appeal, but rejects § 2255 motion. (880) Defendant brought a consolidated direct appeal and appeal from the denial of his § 2255 motion. Defendant filed no formal notice of appeal with the district court from the denial of his § 2255 motion. However, the Second Circuit ruled that defendant’s August 18 letter to the court requesting reinstatement of the direct appeal sufficed as a notice of appeal from the denial of his § 2255 motion as well. The reinstatement letter’s discussion of how best to consolidate an appeal of the § 2255 motion with the direct appeal specified the party, order, and court involved in the appeal. However, defendant failed to secure a certificate of appealability (COA), as required by 28 U.S.C. § 2253(c). The district court denied a COA and defendant presented no request for a COA to the appellate court as permitted by Fed. R. App. P. 22(b). Construing defendant’s August 18 letter as a request for a COA, the panel further denied the COA on the basis of his briefings. U.S. v. Outen, 286 F.3d 622 (2d Cir. 2002).
2nd Circuit holds that waiver applied to grounds that arose both before and after defendant made waiver. (880) Defendant pled guilty under a plea agreement in which he expressly agreed not to appeal or attack his conviction under 28 U.S.C. § 2255 if he was sentenced within or below a stipulated range. The sentence imposed was within that range. Defendant did not appeal his sentence, but later brought a § 2255 action attacking his conviction and sentence on numerous grounds. The Second Circuit held that defendant entered into the plea agreement knowingly and voluntarily, and with knowledge of his waiver of appeal and collateral attack. Moreover, the existence of the waiver of appeal did not constitute “cause” for not taking a direct appeal. See U.S. v. Pipitone, 67 F.3d 34 (2d Cir. 1995). The certificate of appealability authorized defendant to raise the question of whether a waiver of collateral attack effectively waives an attack based on grounds that arise after the waiver is entered. The Second Circuit said yes, ruling that the waiver applied to grounds that arose after, as well as before, defendant made the waiver. There is no policy reason to read such a limitation into the agreement. There was every reason to believe the parties intended to waiver to apply to claims of error at sentencing as well as to claims relating to pre-pleading events since, for a defendant who pleads guilty, the main contested issues are ordinarily about sentencing. Garcia-Santos v. U.S., 273 F.3d 506 (2d Cir. 2001).
2nd Circuit holds that Apprendi does not apply retroactively to cases on collateral review. (880) Defendant filed an application for leave to file a second or successive § 2255 motion, arguing that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), and that Apprendi announced a “new rule of constitutional law” warranting retroactive application under the principles established by Teague v. Lane, 489 U.S. 288 (1989). However, in Tyler v. Cain, 121 S.Ct. 2478 (2001), the Supreme Court held that a new rule is “made retroactive to cases on collateral review” only if the Supreme Court itself holds it to be retroactive. Given that no pronouncement has been made yet by the Supreme Court on the retroactivity of Apprendi, the Second Circuit denied rejected the petition. Forbes v. U.S., 262 F.3d 143 (2d Cir. 2001).
2nd Circuit considers challenge to prior conviction on direct appeal rather than requiring habeas motion. (880) About a year after defendant was sentenced in federal court, a state court vacated one of defendant’s prior convictions. On direct appeal of defendant’s sentence, he sought to reduce his sentence based on the dismissal. He also asserted that his counsel was ineffective in permitting him to plead guilty to the state charges, since she should have been aware of the potential federal sentencing consequences of pleading guilty. The government argued that the court should defer consideration of defendant’s claims until he filed a petition under 28 U.S.C. § 2255. The Second Circuit held that it could properly consider these issues on direct appeal. The government’s argument struck “a somewhat dissonant chord,” since it usually argues that a petitioner must show “a complete miscarriage of justice” in order to raise and have considered, on § 2255 review, nonconstitutional and non-jurisdictional sentencing issues that were not raised on direct appeal. It would be inappropriate to hold that the appellate court should not consider that claim now, since it was straightforward and easily resolved upon additional fact-finding. U.S. v. Cox, 245 F.3d 126 (2d Cir. 2001).
2nd Circuit remands for further fact-finding surrounding guilty plea to prior offense. (880) The district court included in defendant’s criminal history a prior state conviction to which defendant had already pled guilty but had not yet been sentenced. Defense counsel did not object to the use of this conviction. On appeal of his federal conviction, defendant argued that permitting him to plead guilty to the state charges constituted ineffective assistance of counsel. He contended that his lawyer should have been aware of the federal sentencing consequences that might result from pleading guilty to the state charges before the federal sentencing had taken place. Since the case was being remanded on other grounds for further fact-finding, the Second Circuit exercised its discretion and remanded to the district court to determine the precise circumstances surrounding defendant’s guilty plea to the state drug charges, including the role of counsel in advising him to do so. Should the district court find that defendant’s lawyer gave constitutionally ineffective assistance, the court should fashion a remedy specifically tailored to that error, in order to restore the defendant to the circumstances that would have existed absent the error. U.S. v. Cox, 245 F.3d 126 (2d Cir. 2001).
2nd Circuit defers to district court’s credibility findings in rejecting ineffective assistance claim. (880) Defendant argued that he received ineffective assistance from Ogundele, a Nigerian attorney. He claimed that his lead attorney, Levenson, had recommended that defendant accept a plea bargain offered by the government, under which he would have received a sentence of 30-37 months. Ogundele, however, allegedly told defendant that Levenson could not be trusted because he was white and because he might be in league with the prosecutors. Defendant claimed Ogundele urged him to rejected the plea offer, and insisted, contrary to Levenson’s advice, that defendant’s chances of succeeding at trial were quite good. The district court conducted a two-day evidentiary hearing in order to gather information on defendant’s claim of ineffective assistance. Relying heavily on credibility assessments, the court concluded that defendant had failed to prove that counsel’s representation fell below an objective standard of reasonableness. The Second Circuit gave deference to this credibility determination, and thus upheld the court’s rejection of defendant’s ineffective assistance claim. U.S. v. Champion, 234 F.3d 106 (2d Cir. 2000).
2nd Circuit holds that counsel not ineffective in advising defendant about plea offers. (880) After defendant rejected two plea offers (one involving a 24-30 month sentence and the other a 27-33 month sentence), he went to trial, was convicted, and sentenced to 78 months’ imprisonment. Counsel then failed to file a notice of appeal on defendant’s behalf. Defendant later filed a petition under 28 U.S.C. § 2255 arguing that he had received ineffective assistance at sentencing and on appeal. After an evidentiary hearing, the district court ruled that counsel was not ineffective at sentencing, finding that counsel explained the guidelines to defendant, the plea offers were translated to defendant in Spanish, and counsel “literally begged” defendant to accept the offers. However, counsel’s failure to prosecute defendant’s appeal did fall below objective standards. Ultimately, his right to appeal was reinstated. On direct appeal, defendant again alleged ineffective assistance of counsel at sentencing. The Second Circuit elected to decide the merits of the ineffective assistance claim on direct appeal, given defendant’s limited ability to file an additional habeas petition, and the fact that the earlier evidentiary hearing provided sufficient evidence on the matter. Based on the district court’s fact-finding in the habeas proceeding, the panel denied defendant’s direct appeal for substantially the same reasons. Defendant’s counsel explained the guidelines to him, and defendant had an adequate understanding of the sentence he would face if convicted. U.S. v. Pena, 233 F.3d 170 (2d Cir. 2000).
2nd Circuit rejects ineffective assistance claim where defendant did not suggest appropriate sentence. (880) Defendant argued that trial counsel should have brought to the court’s attention the 1995 commentary to § 5G1.3(c). This commentary states that “the court shall impose a consecutive sentence to the extent necessary to fashion a sentence resulting in a reasonable incremental punishment for the multiple offenses,” and observes that “a consecutive sentence is not required” “where such incremental punishment can be achieved” with a concurrent sentence. Defendant claimed this commentary supported making his federal sentence concurrent with his state sentence, and that if trial counsel had brought this commentary to the court’s attention, the court would have been more receptive to his departure motion. The Second Circuit rejected the ineffective assistance claim, since defendant did not suggest what a reasonable incremental punishment for his current offense should have been. The claim was speculative, particularly in light of the district court’s decision, announced after the denial of his downward departure motion, to impose a concurrent sentence rather than a consecutive sentence. Because defendant failed to show what an appropriate sentence would have been, he did not demonstrate that counsel’s failure to invoke the commentary caused him prejudice. U.S. v. Amezquito Acevedo, 229 F.3d 350 (2d Cir. 2000).
2nd Circuit rejects safety valve for defendant who received gun as collateral for drug debt. (880) Defendant argued that his counsel was ineffective in allowing him to enter a plea agreement that did not grant him safety valve relief. The Second Circuit ruled that defendant was not entitled to safety valve relief because he possessed a weapon “in connection with the offense.” § 5C1.2(2). Defendant received a gun as collateral for a drug debt. The “in connection with” language of § 5C1.2(2) is equivalent to the “in relation to” language of 18 U.S.C. § 924(c)(1), and thus is satisfied “when the government establishes, by a preponderance of the evidence, that the firearm ‘served some purpose with respect to’ the offense.” Here, the firearm served as a form of payment in the drug transaction and thus clearly facilitated the drug conspiracy. The fact that the gun was not used for the protection of defendant’s drug business was irrelevant. Because defendant could not satisfy all of the eligibility requirements of § 5C1.2, defense counsel’s failure to pursue relief under this provision was not ineffective assistance. U.S. v. DeJesus, 219 F.3d 117 (2d Cir. 2000).
2nd Circuit says departure not proper remedy for ineffective assistance of counsel. (880) Upon defendant’s § 2255 petition, the district court found that defendant’s counsel had provided constitutionally ineffective assistance by failing adequately to advise defendant whether to accept the government’s initial plea offer. Defendant eventually entered a guilty plea under a plea offer less favorable than the government’s initial offer. Defendant argued that the district court abused its discretion in granting him a two-level downward departure as a remedy for this constitutional violation. The Second Circuit agreed, holding that the resentencing must be specifically tailored to the constitutional error. Ineffective assistance is a constitutional violation of a defendant’s rights and not a mitigating factor to be considered at sentencing or resentencing. However, this did not mean that a defendant is necessarily entitled to specific performance of a previously spurned plea offer whenever his counsel is ineffective in failing to advise him whether to accept the offer. After an appropriate hearing, the court might find that the defendant would have spurned the offer, or that, if the offer was accepted, the court would have imposed a sentence that differed from the government’s recommendation. U.S. v. Carmichael, 216 F.3d 224 (2d Cir. 2000).
2nd Circuit remands rather than require defendant to use up only § 2255 petition. (880) Defendant argued on appeal that counsel was ineffective in failing to adequately advise him about a plea agreement, and requested remand for an evidentiary hearing on this issue. The government, citing Billy-Elko v. U.S., 8 F.3d 111 (2d Cir. 1993), argued that such claim should be made later in a § 2255 habeas corpus petition. The Second Circuit held that, given the simplicity of defendant’s ineffective assistance claim, it would exercise its discretion to remand to the district court for further fact-finding, rather than to dismiss the appeal and force defendant to use up his only post-conviction relief petition. Although there is a “baseline aversion to resolving ineffective assistance claims on direct appeal,” an appellate court always has the discretion to either (a) decline to hear the claim, permitting defendant to raise the issue in a later § 2255 petition; (2) remand the case for further fact-finding; or (3) decide the claim on the record before it. Changes in the federal habeas law since Billy-Elko, severely restricting a defendant’s ability to file more than one habeas petition, may suggest a preference for the second option rather than the first. U.S. v. Leone, 215 F.3d 253 (2d Cir. 2000).
2nd Circuit says that resentencing as result of failure to advise defendant of right to appeal should be de novo. (880) The district court granted defendant’s § 2255 petition, ruling that the sentencing court’s failure to inform defendant of his right to appeal was a per se error under Fed. R. Crim. Proc. 35(a)(2). The court vacated his sentence “in all respects” and ordered the case scheduled for resentencing. The court denied defendant’s request for de novo sentencing, reasoning that since the sentence was vacated on grounds unrelated to the sentence itself, and since the purpose of the resentencing was only to permit defendant to be advised of his right to appeal, it was unnecessary for the court to consider new issues that were not raised at the original sentencing. The Second Circuit ruled that under Soto v. U.S., 185 F.3d 48 (2d Cir. 1999) and Krevsky v. U.S., 186 F.3d 237 (2d Cir. 1999), resentencing as a result of a sentencing court’s failure to advise defendant of his right to appeal should be de novo. Soto held that a court’s failure to comply with Rule 32(c)(5) required remand to determine by clear and convincing evidence whether Soto was aware of his right to appeal. The court further held that if Soto was not so aware, then “he shall be resentenced de novo—and advised of his appellate right—so that he may exercise his right to appeal.” U.S. v. Harris, 209 F.3d 156 (2d Cir. 2000).
2nd Circuit rules counsel was not required give opinion on whether defendant should take plea offer. (880) Defendant claimed his attorney improperly failed to advise him of certain statements by the prosecutor and failed to advise him to accept a guilty plea. The Second Circuit found no ineffective assistance. First, it was reasonable for counsel not have told defendant of the prosecutor’s comment that he “didn’t know of any case where a white collar criminal with those guidelines had gone to jail with Judge Burns or Judge Dorsey.” Counsel had recently represented a client in such a situation who had received a prison term from Judge Dorsey. Defendant’s decision to forgo specifically telling defendant whether he should accept the government’s plea offer was also within the range of professional reasonableness. Counsel repeatedly advised defendant of the strength of the government’s case against him, and defendant himself testified that he understood that his task at trial would be “very difficult.” In light of defendant’s steadfast protestations of innocence, these actions reasonably fulfilled counsel’s obligations to advise defendant. The court rejected as dicta language in Boria v. Keane, 99 F.3d 492 (2d Cir. 1996) suggesting a per se rule that counsel must advise a client whether to take a plea offer. Purdy v. U.S., 208 F.3d 41 (2d Cir. 2000).
2nd Circuit says court could not reject magistrate’s credibility finding without hearing. (880) In a § 2255 motion, defendant alleged that his trial counsel was ineffective by not informing him of the details of a plea bargain. Defendant testified before the magistrate that if defense counsel had discussed the sentencing guidelines with him, he would have pled guilty and taken the five-year sentence offered instead of taking the chance on a 121-151 month sentence. The magistrate recommended granting the § 2255 motion, concluding that defense counsel had rendered ineffective assistance that prejudiced defendant. The district court, without taking testimony, rejected the recommendation, ruling that defendant had “failed to show a reasonable probability” that but for counsel’s error, he would have accepted the plea agreement. The Second Circuit ruled that without an evidentiary hearing, the district court could not reject the magistrate’s proposed credibility finding that defendant would have accepted the plea bargain if fully informed. A district judge should normally not reject a proposed finding of a magistrate judge that rests on a credibility finding without having the witness testify before the judge. To avoid the appearance of impropriety, the case was remanded to a new judge to consider the matter de novo. Cullen v. U.S., 194 F.3d 401 (2d Cir. 1999).
2nd Circuit rejects ineffective assistance of counsel as grounds for downward departure. (880) Defendant claimed that his original attorney’s erroneous advice about the maximum sentence he faced prevented him from entering into serious plea discussions with the government. At sentencing, defendant’s new counsel moved for a downward departure due to ineffective assistance of counsel. The Second Circuit refused to review the merits of defendant’s claim, holding that ineffective assistance of counsel is not a basis for a downward departure. A finding that a convicted defendant has received ineffective assistance of counsel necessarily calls into question the validity of the conviction. By contrast, the imposition of a sentence and the entry of judgment necessarily assumes the validity of the conviction. A downward departure on ineffective assistance grounds is impermissible because it simultaneously assumes the validity of a defendant’s conviction and conspicuously calls its validity into doubt. U.S. v. Bicaksiz, 194 F.3d 390 (2d Cir. 1999).
2nd Circuit finds issues in probation violations were so novel that plain error rule did not apply. (880) Defendant was originally convicted of money laundering and sentenced to probation. The district court later revoked the probation after he committed three separate probation violations. Contrary to § 7B1.1(b), the court sentenced defendant separately for each violation, rather than only the most serious violation, The government argued that because defendant did not raise this issue below, the appellate court could only review the district court’s decision for plain error. The Second Circuit ruled that the issues were sufficiently novel and complex to fall within the exception to plain error analysis. Whether a sentencing court, when applying a guideline policy statement, is obliged to interpret it correctly has not previously been considered by the Second Circuit. The Circuit also has not directly confronted the issue of whether § 7B1.1(b) precludes consecutive sentences. Thus, the court decided to consider the merits of defendant’s appeal. U.S. v. Kingdom (U.S.A.), Inc., 157 F.3d 133 (2d Cir. 1998).
2nd Circuit upholds jurisdiction to review order granting new trial under § 2255. (880) Defendant pled guilty to firearms charges. After sentencing, he filed a § 2255 motion to vacate his convictions and for a new trial on the basis of ineffective assistance of counsel. The district court held a hearing and then granted defendant’s motion. The Second Circuit upheld its jurisdiction to review the district court’s order granting defendant a new trial under § 2255. An order granting a new trial to a criminal defendant under § 2255 constitutes a final judgment and is therefore appealable. U.S. v. Gordon, 156 F.3d 376 (2d Cir. 1998).
2nd Circuit rules grossly underestimating sentence was ineffective assistance. (880) Defendant was indicted on various firearms charges. Defense counsel informed defendant that conviction would result in a 120-month sentence, but that the government’s plea offer would expose defendant to an 84-month sentence. Defendant decided to take his chances at trial and was convicted. The PSR recommended a guideline range of 262-327 months. Defense counsel notified the court of his mistake and was relieved as counsel. The district court ultimately determined defendant had a guideline range of 210-262 months, and imposed a 210-month sentence. After sentencing, defendant moved under § 2255 to vacate his conviction based on ineffective assistance of counsel. The district court granted the motion, and the Second Circuit affirmed Defense counsel’s gross underestimation fell below prevailing professional norms. Defendant suffered prejudice because his reliance on the incorrect advice affected the outcome of the proceedings. Defendant said that but for the bad advice, he would have taken whatever plea had been offered. U.S. v. Gordon, 156 F.3d 376 (2d Cir. 1998).
2nd Circuit rejects departure to achieve concurrent sentences where other sentence was vacated. (880) Defendant was convicted of fraud and sentenced to 47 months. He then filed a 28 U.S.C. § 2255 motion, claiming that the district court erroneously believed that the Bureau of Prisons would credit a substantial portion of pre-sentence federal detention to his federal sentence, so that his federal sentence would effectively run concurrently with a California sentence for offenses taken into account in calculating his federal sentence. The BOP had properly refused to credit defendant’s presentence federal detention to the federal sentence because it had already been credited to the California sentence, and § 3585(b) bars double-counting. The district court granted defendant’s motion, and resentenced him to time served. The Second Circuit reversed. Prior to resentencing on the 2255 motion, the California court had vacated its four-year sentence and resentenced defendant to probation. This rendered inconsequential the district court’s misunderstanding of § 3585(b) at the original sentencing, and left the court with no proper rationale for its downward departure. Even if a court may depart downward under § 5K2.0 to achieve a sentence concurrent with a discharged state sentence, this was not possible at the time of the resentencing, because the California court had vacated his original four-year sentence and resentenced him to probation. Werber v. U.S., 149 F.3d 172 (2d Cir. 1998).
2nd Circuit does not presume prejudice when counsel fails to advise defendant about appeal. (880) Defendant brought a § 2255 motion claiming he received ineffective assistance of counsel because his attorney did not file an appeal of his sentence or advise him of his right to do so. He contended that prejudice should be presumed where counsel fails to advise the defendant about the right to appeal after sentencing. The Second Circuit refused to presume prejudice. A lawyer’s failure to advise his client of the right to appeal after sentencing is not so often prejudicial that a case-by-case inquiry into prejudice is not worth the cost. Defendant could not establish prejudice under the Strickland standard. His lawyer testified that before sentencing, he discussed defendant’s right to appeal and expressed his opinion that an appeal would be futile even if the judge overruled defendant’s objection to a firearm enhancement. The lawyer expected that if defendant wanted to appeal, he would communicate that desire to the lawyer after sentencing. Moreover, immediately after sentencing the lawyer discussed the issue of a potential appeal with defendant’s father, whom the lawyer had met several times before. Morales v. U.S., 143 F.3d 94 (2d Cir. 1998).
2nd Circuit says § 2255 motion limited to amended sentence was not “successive” under AEDPA. (880) In 1991, defendant pled guilty to drug charges and was sentenced to 250 months. In 1993, he moved for resentencing under 28 U.S.C. § 2255, claiming he had not been advised at the original sentencing of his right to appeal. The district court granted the petition. At resentencing in 1994, defendant attempted to raise new arguments concerning the calculation of his guideline range, but the judge declined to consider them. The court then imposed the same 250-month sentence. Defendant filed the present § 2255 motion in July 1996 based on the court’s failure to distinguish between d-meth and l-meth. The district court transferred the petition to the appellate court for approval. The Second Circuit held that defendant’s § 2255 petition was not a “second or successive” petition for purposes of the gate keeping requirements of the AEDPA because it only challenged aspects of his sentence that were amended by the new judgment. Under Galtieri v. U.S., 128 F.3d 33 (2d Cir. 1997), a subsequent § 2255 petition will be regarded as a “first” petition to the extent that it seeks to vacate new, amended components of a sentence, and will be regarded as a “second” petition to the extent that it challenges the underlying conviction or seeks to vacate any component of the original sentence that was not amended. Defendant’s current § 2255 petition sought to vacate his new sentence on grounds opened by the resentencing. Esposito v. U.S., 135 F.3d 111 (2d Cir. 1997).
2nd Circuit allows resentencing on drug count after vacating gun count. (880) Defendant successfully moved under 28 U.S.C. § 2255 to vacate his conviction under 18 U.S.C. § 924(c) for “using” a firearm in relation to drug trafficking. However, the district court then increased his sentence on the drug count by two levels under § 2D1.1(b)(1)for “possessing” the firearm. The Second Circuit held that under U.S. v. Gordils, 117 F.3d 99 (2d Cir. 1997), the district court had jurisdiction under § 2255 to resentence defendant on the drug count. Resentencing did not violate the Double Jeopardy clause. It merely put defendant in the same position he would have occupied had he not been convicted under § 924(c) in the first place. Resentencing also did not violate the Due Process Clause. There is no vindictiveness in a resentencing that results in the same sentence that would have been imposed in the absence of a § 924(c) conviction. Moreover, defendant’s resentencing left him with an aggregate sentence four years less than that originally imposed. U.S. v. Mata, 133 F.3d 200 (2d Cir. 1998).
2nd Circuit says no certificate of appealability is required for pre-AEDPA motions. (880) In 1991, defendant pled guilty to drug charges and was sentenced to 130 months. The court later resentenced him to 125 months. In October 1994, defendant filed the present motion to reconsider the sentence. The district court denied the motion, and the government argued that the appeal should be dismissed because defendant did not obtain a certificate of appealability (COA) under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The Second Circuit held that a COA was not required because the underlying motion was filed before April 24 ,1996, the effective date of the AEDPA. To the extent that U.S. v. Lozada, 107 F.3d 1011 (2d Cir. 1997) was inconsistent with this conclusion, it will no longer be followed. U.S. v. Perez, 129 F.3d 255 (2d Cir. 1997).
2nd Circuit resentences on drug count after firearm count vacated in § 2255 motion. (880) Defendant was originally convicted of drug and firearms charges. He successfully petitioned the court under § 2255 to vacate the § 924(c) firearm conviction in light of the Supreme Court’s decision in Bailey v. U.S., 116 S.Ct. 501 (1995). The district court then resentenced defendant on the drug count, imposing a § 2D1.1(b)(1) enhancement. The Second Circuit held that a court has jurisdiction to resentence an unchallenged drug conviction after a successful § 2255 challenge of a § 924(c) conviction. Every circuit to consider the issue has agreed with this view. The term “sentence” in § 2255 is not as narrow as defendant contended. Since the mandatory five year sentence imposed under § 924(c) runs consecutively to the drug sentence, defendant was currently serving the “sentence” for the drug crime. Defendant was only able to challenge the § 924(c) conviction by accepting some form of an aggregate sentence theory. This outcome makes good sense, given the interdependence of the two sentences. U.S. v. Gordils, 117 F.3d 99 (2d Cir. 1997).
2nd Circuit finds drug and firearms sentences interdependent despite judge’s statement. (880) Defendant was convicted of drug and firearms charges. After he successfully challenged his firearm conviction under § 2255, the district court concluded that it lacked jurisdiction to resentence him on the remaining drug count. The Second Circuit reversed, ruling that the court did have jurisdiction to resentence defendant under U.S. v. Gordils, 117 F.3d 99 (2d Cir. 1997), decided the same day as this opinion. In stating that she lacked jurisdiction, the judge said she had originally sentenced defendant to individual sentences for each count rather than a single sentencing package. Defendant argued that the judge explicitly took into account his possession of a weapon in determining his original drug sentence, and therefore she could not now enhance his sentence under § 2D1.1(b)(1). This argument was meritless. The guidelines establish a truly interdependent relationship between the mandatory consecutive firearm sentence and the sentence for the underlying drug count. At the original sentencing, because of the § 924(c) conviction, the government could not seek, nor could the court impose, the two level enhancement called for by § 2D1.1(b)(1). Given that legal relationship, the district judge’s subjective belief that the sentences were separate was not sufficient to defeat jurisdiction under § 2255 to resentence defendant on the drug count. Rodriguez v. U.S., 116 F.3d 1002 (2d Cir. 1997).
2nd Circuit directs resentencing where written judgment differed from oral sentence. (880) At sentencing, the court said that it was imposing a 48-month sentence consecutive with a state robbery sentence. However, the written judgment stated that defendant’s sentence was 63 months, 48 of which was consecutive with the state sentence. Defendant did not raise this issue in his unsuccessful direct appeal. When he was granted early parole on the state conviction, the Bureau of Prisons determined that his federal sentence would run for 63 months from the date of sentencing. The district court denied defendant’s Rule 36 motion to correct the written judgment, but on appeal, the Second Circuit held it was error to enter a written judgment greater than the oral sentence. However, the invalidity of the written judgment did not automatically entitle defendant an order conforming the written judgment to the oral sentence, because it was unclear how the court arrived at its 48-month sentence. Therefore, the district court was directed to resentence defendant, give an explanation for its sentence if it chooses to depart, and to enter a written judgment in accordance with the oral sentence. U.S. v. DeMartino, 112 F.3d 75 (2d Cir. 1997).
2nd Circuit finds defendant waived challenge to probation office’s failure to interview him. (880) Defendant’s PSR stated that due to circumstances beyond the probation office’s control, defendant was not available to be interviewed. Defense counsel received the report the day before sentencing and discussed the report with defendant immediately prior to sentencing. At sentencing, counsel told the court that he had reviewed the report with defendant and did not object to the lack of an interview or the timing of the report’s delivery. The Second Circuit held that defendant waived his objection to the procedures followed in connection with his PSR. Counsel was not ineffective for consenting to the late delivery of the PSR and the failure to interview defendant. Defendant did not prove prejudice from counsel’s actions. Given defendant’s undisputed history of criminal and violent conduct, there was no reasonable probability that his sentence would have been different if he had been interviewed by the probation officer. U.S. v. Workman, 110 F.3d 915 (2d Cir. 1997).
2nd Circuit finds no ineffective assistance in failing to seek departure for deportation. (880) Defendant argued that his counsel was ineffective in failing to seek a downward departure in exchange for defendant’s waiver of a deportation hearing. Six months before sentencing, the Attorney General recommended that federal prosecutors agree to a one or two level downward departure for non-citizen defendants who agree to automatic deportation after completing their term of imprisonment. The Second Circuit found no ineffective assistance since there was no evidence that such a policy was implemented in that district at the time of defendant’s sentencing. There was no reason to believe that the district court would have been willing to depart further downward on that basis. U.S. v. Prince, 110 F.3d 921 (2d Cir. 1997).
2nd Circuit says notice of appeal from non-appealable order did not deprive district court of jurisdiction. (880) On June 8, 1992, the district court sentenced defendant. On June 16, defendant moved to reopen the judgment. On June 17, the court vacated defendant’s sentence. On August 20, the court rejected defendant’s claim but failed to resentence him. On September 10, defendant filed a notice of appeal from the denial of his motion for a new sentence. On October 28, the court reinstated the original sentence, and judgment was entered on October 30. Defendant did not appeal this judgment. On October 29, defendant’s earlier notice of appeal was withdrawn by stipulation. On November 25, defendant filed a motion to reopen the October 30 judgment. On November 28, 1995, the district court denied the motion. Defendant then filed this appeal. He claimed that the September 10 notice of appeal automatically divested the district court of jurisdiction to resentence until after the appeal was dismissed October 29. The Second Circuit held that the district court had jurisdiction on October 28 when it resentenced defendant. At the time defendant filed his September 10 notice of appeal, his sentence had been vacated and therefore there was no final order to appeal. A notice of appeal from a non-appealable district court order does not divest the district court of jurisdiction. Because defendant failed to file a timely appeal from the reinstated sentence, defendant’s second motion to reopen judgment was a collateral attack pursuant to 28 U.S.C. § 2255. Defendant failed to show cause for or prejudice from his failure to raise his claim on direct appeal. U.S. v. Rodgers, 101 F.3d 247 (2d Cir. 1996).
2nd Circuit refuses to consider guideline claim that defendant failed to raise on direct appeal. (880) In a § 2255 motion, defendant made three challenges to a $250,000 fine imposed by the district court. The Second Circuit rejected two of the challenges on the merits and found the third one barred because defendant failed to raise it on direct appeal. The district court’s consideration of the factors in 18 U.S.C. § 3573(a) was shown by its statement that it had “considered the financial implications [of imposing a fine.]” The fine was authorized under 18 U.S.C. § 3571(b)(3), which provides that an individual convicted of any felony may be fined up to $250,000. Defendant’s claim that the fine exceeded the applicable guideline range was procedurally barred due to his failure to raise it on direct appeal. Since guideline claims are neither constitutional or jurisdictional, absent a complete miscarriage of justice, such claims will not be considered on a § 2255 motion where the defendant failed to raise them on direct appeal. Since defendant was informed that he faced a $250,000 fine before he pled guilty, there was no “complete miscarriage of justice.” Graziano v. U.S., 83 F.3d 587 (2d Cir. 1996).
2nd Circuit says failure to challenge use of first degree guideline was not ineffective assistance. (880) Defendant was convicted of RICO charges. One of the racketeering acts was the crime of murder in the second degree under the law of New York. Defendant argued that his counsel was ineffective for failing to challenge the application of § 2A1.1, which applies to federal first degree murder, rather than § 2A1.2, which applies to federal second degree murder. The Second Circuit found no ineffective assistance, since there may have been potential disadvantages that led counsel to make a strategic decision not to raise this claim. For example, in responding to the issue of premeditation, the government might have been able to produce evidence damaging defendant’s sentencing prospects. Although the record was undeveloped as to counsel’s decision‑making process, remand was not the best course. Defendant could raise this argument in a § 2255 proceeding. Counsel’s failure to raise an ineffective assistance claim on direct appeal only bars a § 2255 proceeding where the record is fully developed on the ineffective assistance issue. U.S. v. Workman, 80 F.3d 688 (2d Cir. 1996).
2nd Circuit says § 2255 relief cannot be based on judge’s change of heart. (880) Defendant originally received a 50-year sentence based on his participation in a violent racketeering organization. The court later reduced the sentence to 35 years under former Fed. R. Crim. P. 35. The reduction was based on the judge’s change in perception of the appropriate punishment for defendant, given a more culpable associate also received a 50-year sentence. After the associate’s sentence was reduced to 40 years, defendant petitioned under 28 U.S.C. § 2255 to reduce his sentence to 25 years to maintain the 15-year difference. The Second Circuit held that the district court lacked authority under § 2255 to further reduce defendant’s sentence. Relief is available under § 2255 only for constitutional error, lack of jurisdiction, or an error of law or fact that results in a complete miscarriage of justice. Absent extraordinary circumstances, a defendant has no constitutional or fundamental interest in whether a sentence reflects relative culpability with respect to co-defendants. U.S. v. Bokun, 73 F.3d 8 (2d Cir. 1995).
2nd Circuit says misunderstanding did not provide “cause” for failure to raise issue earlier. (880) Defendant had a guideline range of 63-78 months. Defendant’s attorney asked for defendant to be placed in a special prison program open to inmates serving up to 30 months. He misinterpreted the policy as permitting an inmate to enter the program after completing all but 30 months of his sentence. The district court imposed a 63-month sentence, and recommended that defendant be admitted to the program when he had 30 months left on his sentence. Defendant then learned that the Bureau of Prisons had expanded the program to inmates serving up to 60 months. He filed a § 2255 petition, requesting a three-month departure so that he would be eligible for the program. The district court granted the petition, but the Second Circuit reversed, holding that the petition was procedurally barred. Defendant could not show “cause” for his failure to request the departure earlier. Attorney ignorance or inadvertence is not “cause” because the attorney is the petitioner’s agent, and the petitioner bears the risk of attorney error. Also, defendant explicitly agreed in his plea agreement not to appeal a sentence that fell within the 63-78 month range. U.S. v. Pipitone, 67 F.3d 34 (2d Cir. 1995).
2nd Circuit bars defendant from raising ineffective assistance claim that was rejected on direct appeal. (880) Defendant pled guilty to drug charges. He appealed his conviction and sentence on various grounds, including ineffective assistance of counsel. In an unpublished opinion, the Second Circuit affirmed the conviction and sentence, and rejected his ineffective assistance claims. Defendant then moved to vacate his sentence under 28 U.S.C. § 2255. The Second Circuit held that defendant could not now contend that counsel was deficient for failing to explain the sentencing guidelines to him, because that ground was rejected by the court on defendant’s direct appeal. His current claim was a slightly altered re-articulation of his previous claim that he was not informed of the consequences of his guilty plea and had received ineffective assistance at the sentencing hearing. Nevertheless, defendant’s claim that his counsel had a conflict of interest that led him to plead guilty could be raised in this § 2255 motion. Riascos-Prado v. U.S., 66 F.3d 30 (2d Cir. 1995).
3rd Circuit finds counsel deficient in failing to object to classification of simple assault as crime of violence. (880) Defendant pled guilty to illegal reentry after deportation, and received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A)(ii) based on a prior Pennsylvania conviction for simple assault. In a pro se motion under 28 U.S.C. § 2255, Defendant argued that simple assault is not a crime of violence, and that his trial counsel was ineffective for failing to raise the issue or to object to the PSR. In Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005), the Third Circuit held that an alien’s conviction under Pennsylvania’s simple assault statute did not constitute a crime of violence under 18 U.S.C. § 16(a). Because a Pennsylvania simple assault violation requires a minimum mens rea of recklessness, it is not a crime of violence. Popal limits categorical crimes of violence to offenses committed through intentional use of force against another than reckless or grossly negligent conduct. Section 16(a)’s definition of “crime of violence” is identical to the definition in § 2L1.2. Therefore, the Third Circuit found that Popal applies to the relevant crime of violence definition in § 2L1.2. Defendant’s attorney performed unreasonably in failing to object to the 16-level enhancement. On its face, the state statute did not require the “use of force” when “causing bodily injury.” Moreover, several decisions were readily available to counsel that endorsed a categorical approach. There was no sound strategy in counsel’s failure to object to the 16-level enhancement. U.S. v. Otero, 502 F.3d 331 (3d Cir. 2007).
3rd Circuit says Booker not grounds for second § 2255 petition. (880) Defendant filed an application seeking permission to file a second or successive motion under 28 U.S.C. § 2255 to vacate his sentence. The Third Circuit held that U.S. v. Booker, 543 U.S. 220 (2005) cannot be grounds for permission to file the second or successive § 2255 petition. For a new rule of constitutional law to be grounds for a second or successive petition, the Antiterrorism and Effective Death Penalty Act of 1996 mandates that it be made retroactive to cases on collateral review by the Supreme Court. A new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive. Since the Supreme Court has not expressly held that Booker is applicable to cases on collateral review, the Third Circuit denied without prejudice defendant’s application to file a second or successive habeas corpus motion and granted the U.S.’s motion to dismiss. In re Olopade, 403 F.3d 159 (3d Cir. 2005).
3rd Circuit says counsel was deficient in stipulating to drug quantity. (880) Defendant and an associate negotiated with cooperating witnesses to purchase cocaine. The amount involved was in question, although it could have been as much as five kilograms of cocaine, plus five more on credit. Defendant’s plea agreement stipulated that he had attempted to purchase ten kilograms, and defense counsel never raised the issue of the applicability of Note 12 to U.S.S.G. § 2D1.1, which excludes from sentencing calculations drugs “that the defendant establishes that he or did not intend to provide or was not reasonably capable of providing.” The circuits appear to be split on whether Note 12 applies to reverse stings. However, defense counsel could have advanced arguments in favor of Note 12 rather than surrender the stipulation in defendant’s plea. At the very least, Note 12 requires a court to determine the “agreed-upon quantity of the controlled substance.” By failing to develop the record or challenge the government on the agreed-upon quantity, the Third Circuit found that defendant’s counsel’s performance fell below the Strickland standard of “reasonableness under prevailing professional norms.” Strickland v. Washington, 466 U.S. (1984). However, the record was insufficient to resolve whether defendant was prejudiced by counsel’s deficient performance. On remand, the district court should hold a prompt hearing to determine the issue. The reasonable probability of any decrease in defendant’s sentence would establish prejudice. U.S. v. Smack, 347 F.3d 533 (3d Cir. 2003).
3rd Circuit holds that it may review district court’s issuance of certificate of appealability. (880) The government argued that the district court erroneously issued the certificate of appealability because defendant did not make a “substantial showing of the denial of a constitutional right,” as required by § 2253(c)(2). Several circuits have held that an erroneously issued certificate of appealability satisfies the requirements of § 2253(c)(2). See Young v. U.S., 124 F.3d 794 (7th Cir. 1997) No. 99-3047; U.S. v. Talk, 158 F.3d 1064 (10th Cir. 1998). These courts have reasoned that a certificate is a screening device, and thus “dismissing an appeal after a certificate of appealability has already issued would be of little utility, installing [the appellate court] as a gate keeper for the gate keeper would be redundant.” U.S. v. Soto, 185 F.3d 48, 52 (2d Cir. 1999). The Third Circuit rejected these cases, holding that it could review the district court’s issuance of a certificate of appealability. In Hohn v. United States, 524 U.S. 235 (1998), the Supreme Court upheld its jurisdiction to review decisions of courts of appeals denying applications for certificates of appealability, holding that such decisions are judicial in nature rather than merely an administrative function of the court. An appellate court is not bound by the district court’s issuance of the certificate of appealability. The issuance of the certificate is not merely an exercise of judicial gate-keeping, but rather, “the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeal.” U.S. v. Cepero, 224 F.3d 256 (3d Cir. 2000).
3rd Circuit holds district court erroneously granted certificate of appealability. (880) Under § 2253(c)(1), unless a judge issues a certificate of appealability, a defendant may not appeal from a final order in a proceeding under § 2255. Section 2253(c)(2) says that a certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a “constitutional right.” Defendant argued that Congress intended the phrase to mean “federal right,” inasmuch as it intended to codify Barefoot v. Estelle, 463 U.S. 880 (1983), a § 2254 case in which the Court used the expression “substantial showing of the denial of a federal right.” The denial of a federal right would encompass rights under the U.S. Constitution and under federal statutes such as the Sentencing Guidelines. The Third Circuit found that under Slack v. McDaniel, 120 S.Ct. 1595 (2000), the use of the phrase “constitutional right” must be given effect. “Congress had before it the meaning Barefoot had given to the words it selected; and we give the language in § 2253(c) the meaning ascribed to it in Barefoot, with due note for the substitution of the word ‘constitutional.’” Defendant claimed that the sentencing court misapplied the Sentencing Guidelines, which was not a constitutional issue under § 2253(c). Thus, the district court erred under § 2253(c)(2) by issuing a certificate of appealability. U.S. v. Cepero, 224 F.3d 256 (3d Cir. 2000).
3rd Circuit rejects coram nobis petition for prisoner unable to meet AEDPA’s gate keeping requirements. (880) Defendant unsuccessfully filed a petition under 28 U.S.C. § 2255 in 1997. In 1999, defendant sought permission to file a second § 2255 petition, but the motion was denied. He later filed a motion for relief from judgment under Fed. R. Civ. P. 60(b), but the district court denied the motion in part as an impermissible attempt to file a successive § 2255 motion without prior authorization. Defendant then filed the instant petition for a writ of error coram nobis in yet another attempt to have his guidelines claims heard. The Third Circuit summarily affirmed the order denying the coram nobis petition. Coram nobis has traditionally been used to attack convictions with continuing consequences when the petitioner is no longer “in custody.” It is an extraordinary remedy, and a court’s jurisdiction to grant relief is of limited scope. There was no basis for relief here , because defendant was still in custody. The procedural barriers erected by the Antiterrorism and Effective Death Penalty Act (AEDPA) are not sufficient to enable a petitioner to resort to coram nobis simply because he is unable to meet AEDPA’s gate keeping requirements. U.S. v. Baptiste, 223 F.3d 188 (3d Cir. 2000).
3rd Circuit holds failure to challenge drug quantity finding was ineffective assistance. (880) The district court held defendants accountable for the amount of heroin distributed throughout the life of the drug conspiracy, including amounts distributed before they joined the conspiracy. In a § 2255 petition, defendants argued that counsel was ineffective in failing to appeal the district court’s lack of individualized drug quantity findings. The Third Circuit agreed that the court’s findings did not conform to Amendment 78 of the guidelines or its holding in U.S. v. Collado, 975 F.2d 985 (3d Cir. 1992), and that counsel’s failure to challenge the findings constituted ineffective assistance. The amendment to Note 1 to § 1B1.3 provides that “[w]here it is established that the conduct was neither within the scope of the defendant’s agreement, nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake,” such conduct should not be included in the relevant conduct. Collado requires “a searching and individualized inquiry into the circumstances surrounding each defendant’s involvement in the conspiracy … to ensure that the defendant’s sentence accurately reflects his or her role.” Absent unusual circumstances, “conduct that occurred before the defendant entered into an agreement cannot be said to be in furtherance of or within the scope of that agreement.” Counsel’s failure to pursue this issue was not reasonable. Defendants suffered prejudice from the error, since there was a reasonable probability that, if the issue had been properly raised on appeal, the court would have vacated the defendants’ sentences. U.S. v. Mannino, 212 F.3d 835 (3d Cir. 2000).
3rd Circuit says use of AEDPA gatekeeper provisions did not violate ex post facto clause. (880) Defendant filed a second § 2255 motion after AEDPA’s effective date, claiming that the government had failed to prove that his crime involved crack rather than another form of cocaine base. Defendant’s first § 2255 motion was filed in 1991, before the AEDPA took effect. The Third Circuit held that applying the AEDPA’s gate keeping provision to defendant’s second § 2255 motion would not have a impermissible retroactive result since the district court would have denied defendant’s second § 2255 motion under pre-AEDPA law. See In re Minarik 166 F.3d 591 (3d Cir. 1999) (relevant question is whether the application of the gate keeping provisions would produce a genuine retroactive effect in the particular case at hand, not whether it would generally do so in a broader class of cases). In the present case, although defendant had “cause” for not raising the crack/cocaine base distinction in his first § 2255 motion (the legal distinction between “crack” and “cocaine base” did not exist for sentencing purposes until November 1, 1993), he could not establish “prejudice.” Defendant waived the argument that he pled guilty to distributing a form of cocaine base other than crack. Moreover, the government proved that the substance was crack. Counsel was not ineffective for failing to raise this issue, since defense counsel has no general duty to anticipate changes in the law. U.S. v. Roberson, 194 F.3d 408 (3d Cir. 1999).
3rd Circuit permits resentencing on drug count after vacating firearm conviction. (880) In U.S. v. Davis, 112 F.3d 118 (3d Cir. 1997), the Third Circuit held that a district court has jurisdiction to resentence a § 2255 petitioner on unchallenged counts where the petitioner successfully attack a § 924(c)(1) conviction under Bailey v. U.S., 116 S.Ct. 501 (1995). In a case pending when Davis was decided, the Third Circuit found that it was bound by internal operating rules to follow Davis. However, Judge Sloviter filed a concurring opinion in which she disagreed with the holding in Davis. U.S. v. Martin, 116 F.3d 702 (3d Cir. 1997).
3rd Circuit allows gun increase on drug counts after § 924(c) count is vacated. (880) Defendant successfully moved under 28 U.S.C. § 2255 to vacate his § 924(c) conviction. However, In resentencing defendant, the district court imposed a § 2D1.1(b)(1) enhancement for possessing a firearm during a drug crime. The Third Circuit held that after vacating the § 924(c) conviction, the district court had jurisdiction under § 2255 to resentence on the remaining drug counts. The language “correct the sentence” in § 2255 is not limited to the portion of the sentence directly associated with the vacated conviction. The § 924(c) offense and the underlying offense are interdependent and result in an aggregate sentence, not sentences that may be treated discretely. Resentencing did not violate defendant’s due process rights because defendant had no legitimate expectation of finality in his sentence. U.S. v. Davis, 112 F.3d 118 (3d Cir. 1997).
3rd Circuit rejects ineffective assistance claim where mandatory minimum applied. (880) Defendant argued that his counsel failed to object to a miscalculation of his sentence under the guidelines. He contended that he was eligible for a minimum sentence of 87 months under the guidelines. The Third Circuit rejected the ineffective assistance claim, because the mandatory minimum sentence for his offense was 120 months. Under § 5G1.1(c)(2), where the statutory minimum sentence exceeds the defendant’s guideline range, the court is required to impose the statutory minimum sentence. A court is powerless to impose a sentence below the statutory minimum without a government motion. Santana v. U.S., 98 F.3d 752 (3d Cir. 1996).
3rd Circuit says counsel’s failure to advise defendant of career offender status in rejecting plea may be ineffective assistance. (880) Defendant was sentenced as a career offender and received a 22-year sentence. In 2255 petition, he claimed that he had received ineffective assistance of counsel in refusing to accept an offer of a five-year sentence because his counsel had mistakenly advised him that he faced only an 11-year maximum sentence if he went to trial. He was not advised of the effect career offender status would have on his potential sentence. The district court dismissed the petition without holding a hearing. The 3rd Circuit reversed, holding that the substandard performance of counsel could have prejudiced defendant. “Familiarity with the structure and basic content of the [guidelines] (including the definition and implications of career offender status) has become a necessity for counsel who seek to give effective representation.” Even though defendant received a fair trial, he still could have suffered prejudice, because the right to effective assistance of counsel guarantees more than a right to a fair trial. U.S. v. Day, 969 F.2d 39 (3rd Cir. 1992).
3rd Circuit rejects claim that district court was unaware of its ability to depart downward. (880) In a petition brought under 28 U.S.C. section 2255, defendant argued that the district court was unaware of its ability to depart downward based upon the overrepresentation of his criminal history. The district court dismissed the section 2255 petition. The 3rd Circuit affirmed, since the district judge who ruled on defendant’s petition was the same judge who had sentenced him, and his opinion confirmed that he recognized his power to depart. U.S. v. Day, 969 F.2d 39 (3rd Cir. 1992).
4th Circuit permits collateral review of incorrect application of career offender increase. (880) As a career offender, defendant was subject to a guideline range of 262-327 months, and a mandatory minimum sentence of 20 years. Based on the government’s § 5K1.1 motion, the district court sentenced him to 210 months. In 2011, the Fourth Circuit decided U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Under Simmons, defendant’s predicate convictions were not punishable by more than a year in prison. Thus, if he had been sentenced post-Simmons, he would not qualify as a career offender or be subject to the 20-year minimum penalty. Defendant filed a 28 U.S.C. § 2255 motion to vacate his sentence, but the district court dismissed the motion. The Fourth Circuit remanded for resentencing. Although a § 2255 petitioner ordinarily has one year to file a motion to vacate, defendant satisfied the requirements for equitable tolling of the statute of limitations. The erroneous application of the career offender enhancement worked a gross miscarriage of justice. Defendant pursued his rights diligently by filing his § 2255 motion within a year of Simmons. Finally, the erroneous career offender increase was a fundamental miscarriage of justice that was cognizable on collateral review. U.S. v. Whiteside, 748 F.3d 541, rehearing en banc granted, __ Fed.Appx., __ (4th Cir. July 10, 2014) No. 13-7152.
4th Circuit holds appeal waiver precluded defendant from raising Booker claim on collateral review. (880) Following defendant’s guilty plea but prior to sentencing, the Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004). The court sentenced defendant under the then-mandatory guidelines to 262 months. Despite the broad waiver of appeal contained in his plea agreement, defendant filed an appeal challenging his sentence based on Blakely. While the appeal was pending, the Supreme Court decided Booker. The appellate court dismissed defendant’s appeal, concluding that the waiver included any challenges under Blakely or Booker. Defendant then filed a petition for relief under §2255. The Fourth Circuit upheld the denial of the §2255 petition. Defendant was correct that his conviction was not “final” until the Supreme Court denied certiorari. However, defendant’s challenges under Blakely and Booker were within the scope of his plea agreement’s knowing and voluntary direct appeal waiver. Defendant could not circumvent a proper ruling on his Booker challenge on direct appeal by re-raising the same challenge in a §2255 motion. U.S. v. Linder, 552 F.3d 391 (4th Cir. 2009).
4th Circuit holds that Booker does not apply retroactively to cases on collateral review. (880) The Fourth Circuit granted a certificate of appealability to consider whether defendant could raise a Booker claim for the first time in her § 2255 motion when her judgment of conviction became final before the Supreme Court decided Booker. The panel held that Booker does not apply retroactively to cases on collateral review. The rule announced in Booker was a new rule, for purposes of the retroactivity analysis in Teague v. Lane, 489 U.S. 288 (1989). Booker is not, however, a watershed rule. The practical net result of Booker is minimal – defendants’ sentences are determined in the same way, the only change is the degree of flexibility judges enjoy in applying the guideline system. U.S. v. Morris, 429 F.3d 65 (4th Cir. 2005).
4th Circuit holds that Amendment 645 could not be applied retroactively to case which prompted it. (880) At defendant’s original sentencing, the district court departed downward to credit defendant for a portion of the time he had served for a prior related conviction. In U.S. v. McHan, 101 F.3d 1027 (4th Cir. 1996), the court reversed on the grounds that § 5G1.3 did not apply to defendant’s sentence because his prior term of imprisonment had been discharged. In 2002, and with express reference to McHan, the Sentencing Commission amended the commentary to § 5G1.3 (Amendment 645) to explain that a downward departure based on a discharged sentence was permissible under that section. Defendant, who had already pursued post-conviction relief under § 2255, filed a motion in the district court under § 3582(c)(2) seeking resentencing under Amendment 645. The Fourth Circuit held that resentencing under Amendment 645 is not available on a § 3583 (c)(2) motion. Amendment 645 is not listed in § 1B1.10(c) and therefore may not be applied retroactively. Defendant also would not be entitled to relief if he re-characterized his plea for relief as a § 2255 motion. Defendant had already unsuccessfully pursued a § 2255 motion, and his resentencing claim was not cognizable on a successive motion under that provision because it did not relate to “newly discovered evidence,” or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” U.S. v. McHan, 386 F.3d 620 (4th Cir. 2004).
4th Circuit holds that Apprendi does not apply retroactively to cases on collateral attack. (880) Defendant argued that his Apprendi claim was not time-barred under 28 U.S.C. § 2255(3), which permits a habeas petition to be brought within one-year after “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” The Fourth Circuit, agreeing with the Ninth Circuit, Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000), and the majority of district court to consider the issue, held that Apprendi does not apply retroactively to cases on collateral attack. New rules of constitutional criminal procedure are generally not applied retroactively on collateral review, Teague v. Lane, 289 U.S. 288 (1989), unless they fall within one of two narrow exceptions, neither of which were applicable here. U.S. v. Sanders, 247 F.3d 139 (4th Cir. 2001).
4th Circuit holds that defendant procedurally defaulted Apprendi claim. (880) Defendant did not raise the argument at sentencing or on appeal that a jury should have determined beyond a reasonable doubt the types or quantities of drugs involved in his conspiracy. See Apprendi v. New Jersey, 530 U.S. 466 (2000). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’“ Bousley v. U.S., 523 U.S. 614 (1998). The Fourth Circuit ruled that defendant could not demonstrate “cause.” Although a claim that is “so novel that its legal basis is not reasonably available to counsel” may constitute cause for a procedural default, defendant’s Apprendi claim was not novel, because ‘the foundation for Apprendi was laid long before [defendant was sentenced]. Other defendants have been making Apprendi-like arguments ever since the Sentencing Guidelines came into being, and in McMillan v. Pennsylvania, 477 U.S. 79, (1986), the Court addressed on the merits an argument along similar lines.” U.S. v. Smith, 241 F.3d 546 (7th Cir. 2001). “The germs of [defendant’s] Apprendi claim had sprouted at the time of his conviction and there [was] no reason why he could not have raised it then.” U.S. v. Sanders, 247 F.3d 139 (4th Cir. 2001).
4th Circuit holds that Rule 35(b) resentencing did not extend one-year period for filing habeas petition. (880) On January 15, 1998, the district court entered a judgment against defendant, and he did not appeal. On December 15, 1998, in light of defendant’s substantial assistance in other prosecutions, the government moved for a Rule 35(b) sentence reduction. On April 16, 1999, the court granted the government’s motion and reduced defendant’s sentence to 1988 months. On December 27, 1999, defendant filed a petition for collateral relief under 28 U.S.C. § 2255. The district court ruled that defendant’s petition was untimely under § 2255’s one-year statute of limitations, noting that his conviction was final in January 1998. Defendant contended that his petition was timely, arguing that the one-year limitations period did not begin to run until the completion of his resentencing under Rule 35(b). The Fourth Circuit disagreed, holding that defendant’s conviction became final on the date that the district court entered its judgment, and the Rule 35(b) resentencing did not extend the one-year limitations period for filing a habeas petition. The plain text of 18 U.S.C. § 3582(b) establishes that a modification of a sentence does not affect the finality of a criminal judgment. U.S. v. Sanders, 247 F.3d 139 (4th Cir. 2001).
4th Circuit finds no double jeopardy in resentencing after completing drug sentence. (880) Defendant was sentenced to 168 months on drug counts, and a consecutive 60-month sentence for using a firearm, under 18 U.S.C. § 924(c). Thereafter, the district court granted the government’s Rule 35(b) motion and reduced the drug sentence to 37 months, leaving in place the 60-month § 924(c) sentence. Defendant then successfully challenged the § 924(c) conviction on the ground that he did not actively employ the firearm, as required by Bailey v. U.S., 116 S.Ct. 501 (1995). Nevertheless, at resentencing on the drug counts, the court granted the government’s request for a two-level enhancement under guideline section 2D1.1(b)(1) for possessing the firearm, and imposed an overall 89-month sentence. The Fourth Circuit affirmed, relying on U.S. v. Hillary, 106 F.3d 1170 (4th Cir. 1997). Resentencing did not violate double jeopardy, even though defendant had already served 37 months on his drug sentence. The double jeopardy clause only bars resentencing where the sentence has been fully discharged. Under the sentencing package theory, defendant was serving one “unified term of imprisonment” of 97 months when he was resentenced. U.S. v. Smith, 115 F.3d 241 (4th Cir. 1997).
4th Circuit says court may order resentencing on drug count after vacating firearm conviction. (880) Defendant was originally convicted of drug and firearms charges. In light of Bailey v. U.S., 116 S.Ct. 501 (1995), the district court granted his 28 U.S.C. § 2255 motion and vacated the § 924(c) firearms conviction However, it refused to order resentencing on the drug count, which would have allowed the government to argue for a § 2D1.1(b)(1) forearms enhancement. Since the defendant only sought relief from his § 924(c) sentence, the district court believed it lacked jurisdiction under § 2255 to do anything to the drug sentence. The Fourth Circuit held that the “sentence” conferring § 2255 jurisdiction included the sentence for the drug conviction, and therefore the district court had authority to direct the district court to resentence on the drug count. Where a sentencing issue was not actually litigated in the original proceeding, and the failure to litigate it was directly caused by the error in the judgment of which the § 2255 petitioner complains, it is appropriate for the district court to resolve the issue. U.S. v. Hillary, 106 F.3d 1170 (4th Cir. 1997).
4th Circuit remands to decide whether burglaries shared modus operandi or would have been consolidated. (880) Defendant had six prior burglary convictions. The burglarized residences were in close proximity to each other and the offenses all occurred within a one month period. Five burglaries were in a town and one was in the adjoining county. The five city burglaries were tried together, and defendant pled guilty to the county burglary in a separate court. In the present drug case, defendant argued that his counsel was ineffective for failing to argue that all six crimes were related. The Fourth Circuit agreed that because the five city burglaries were consolidated for a single jury trial, counsel’s failure to argue that they were related was inadequate representation. However, there was no prejudice unless the county burglary was also related. The case was remanded for findings as to whether the six offenses shared a modus operandi. If they did, they should be regarded as having been part of a common scheme or plan. Also, the court should determine whether all six burglaries would have been consolidated for trial but for geography. If so, then they should be treated as related for purposes of the career offender guideline. U.S. v. Breckenridge, 93 F.3d 132 (4th Cir. 1996).
4th Circuit rules court corrected misinformation from attorney about sentence. (880) Defendant argued his attorney was ineffective when he advised defendant that by pleading guilty he would avoid a sentence as a career offender. The Fourth Circuit found no prejudice, since any misinformation defendant may have received was corrected by the trial court at the Rule 11 hearing. During the Rule 11 hearing, the trial court specifically informed defendant of the maximum penalties he faced. Thus, even if defendant’s trial counsel provided defendant with incorrect information about sentencing, defendant was in no way prejudiced. The court also rejected defendant’s claim that his attorney’s failure to file an appeal was ineffective assistance. Nothing in the record suggested that defendant ever asked his attorney to file an appeal. U.S. v. Foster, 68 F.3d 86 (4th Cir. 1995).
4th Circuit says waiver of appeal and habeas did not waive right to claim ineffective assistance in § 2255 motion. (880) On direct appeal, defendant argued that she received ineffective assistance of counsel. She argued that she had to raise her claim on direct appeal because that was the only option available under the plea agreement in which she waived her right to challenge her sentence on appeal or in a § 2255 motion. The 4th Circuit disagreed. Her plea agreement should be interpreted to mean that she waived her right to appeal under 18 U.S.C. § 3742 and waived her right to collaterally attack her sentence under 28 U.S.C. § 2255 on any grounds other than ineffective assistance. Because defendant could have brought her claim under § 2255 and because the record did not conclusively demonstrate that she received ineffective assistance, the appeal was dismissed. U.S. v. Hoyle, 33 F.3d 415 (4th Cir. 1994).
4th Circuit applies actual innocence exception to cause and prejudice requirement for collateral challenge to sentence. (880) During his presentence interview, defendant mischaracterized a prior state conviction as involving violence. Based on this, he was incorrectly sentenced as a career offender, without objection. After sentencing, he filed a motion to vacate his sentence under 28 U.S.C. § 2255. The district court dismissed the motion, finding defendant had failed to show cause for his procedural default. The 4th Circuit reversed, concluding that although the Frady cause and prejudice standard applies to collateral challenges to unappealed guilty pleas, the record showed that defendant was actually innocent of one of the predicate career offender requirements. Where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default. The Supreme Court has applied the “actual innocence” exception to the sentencing phase of a capital trial, and the same rationale should extend to sentencing of non-capital cases. U.S. v. Maybeck, 23 F.3d 888 (4th Cir. 1994).
4th Circuit rejects waiver of appeal where defendant claimed waiver was tainted by ineffective assistance. (880) Defendant appealed the denial of his motion to withdraw his guilty plea, claiming that he received ineffective assistance of counsel prior to pleading guilty. The 4th Circuit rejected the government’s contention that defendant knowingly and voluntarily waived his right to appeal. Where the waiver of appeal itself is challenged by the motion to withdraw the guilty plea, dismissal of the appeal is not warranted. The court also rejected the government’s contention that defendant’s claims could only be pursued through a habeas corpus petition. Where a defendant urges the ineffectiveness of counsel only for its relevance to the determination of whether there was a “fair and just reason” for allowing plea withdrawal, and not as an independent constitutional basis for reversal, the issue is properly brought on direct appeal. U.S. v. Craig, 985 F.2d 175 (4th Cir. 1993).
4th Circuit refuses to consider ineffective assistance claim brought on direct appeal. (880) Defendant contended that he was denied effective assistance of counsel at sentencing because his lawyer failed to move for a downward departure based upon a number of factors. The 4th Circuit rejected without prejudice the ineffective assistance claim. Ordinarily, claims of ineffective assistance must first be presented in the district court in a 28 U.S.C. section 2255 proceeding. The issue may be confronted on direct appeal only when the records supports an ineffective assistance claim. This was not such a case. U.S. v. Underwood, 970 F.2d 1336 (4th Cir. 1992).
4th Circuit treats motion improperly brought under Rule 35 as motion to vacate sentence under 28 U.S.C. section 2255. (880) Defendant appealed from an order denying his motion under Fed. R. Crim. P. 35(a) challenging the legality of his sentence. The 4th Circuit found that the motion could cause defendant’s sentence was not illegal and the motion was not brought within the 120-day time limit. However, because defendant’s claims could have been raised in the district court by a motion to vacate sentence under 28 U.S.C. section 2255, the appellate court decided to treat the action as one brought under 2255 for purposes of the appeal. U.S. v. Pavlico, 961 F.2d 440 (4th Cir. 1992).
5th Circuit holds that Booker does not apply retroactively on collateral review for purposes of initial § 2255 motion. (880) In In re Elwood, 408 F.3d 211 (5th Cir. 2005), the Fifth Circuit held that U.S. v. Booker, 543 U.S. 220 (2005), may not apply retroactively to cases on collateral review for purposes of a successive § 2255 motion. Here, the Circuit joined several other courts of appeals to hold that Booker does not apply retroactively to initial § 2255 motions. Federal habeas corpus petitions generally may not rely on new rules of criminal procedure decided after their convictions have become final on direct appeal. Exceptions must satisfy the three-prong analysis in Teague v. Lane, 489 U.S. 288 (1989). Booker did not fit into either of the two Teague exceptions to non-retroactivity: it was not a new rule “forbidding criminal punishment of certain conduct for a class of defendants because of their status or offense,” and it was not a “watershed rule of criminal procedure implicating fundamental fairness and accuracy of the criminal proceeding.” The rule did not meet the second exception because it merely changed the degree of flexibility that judges enjoy in applying the guidelines. U.S. v. Gentry, 432 F.3d 600 (5th Cir. 2005).
5th Circuit holds that attorney’s underestimation of sentencing exposure by 27 months would be deficient performance. (880) Defendant argued that his attorney incorrectly advised him to reject the government’s plea offer, which would have subjected him to a 48-month sentence. The recommendation was based on the attorney’s misunderstanding that if convicted at trial, defendant faced only a 51-month maximum guideline sentence. In actuality, defendant faced a sentencing range of 78-97 months. The district court found that even if these allegations were true, defendant received a sentence “only” 27 months higher than the maximum estimated by his lawyer, and this was not deficient performance. The Fifth Circuit disagreed. An attorney who underestimates his client’s sentencing exposure by 27 months performs deficiently because he does not provide his client with the information needed to make an informed decision about accepting a plea offer or going to trial. Moreover, a 27-month increase in a sentence constitutes prejudice under Strickland v. Washington, 466 U.S. 668 (1984). U.S. v. Herrera, 412 F.3d 577 (5th Cir. 2005).
5th Circuit says Booker does not apply retroactively on collateral review. (880) Defendant sought leave to file a second or successive § 2255 petition, contending that his sentence was unconstitutional in light of U.S. v. Booker, 543 U.S. 220 (2005). A second or successive § 2255 petition must be certified as provided in 28 U.S.C. § 2244 by a panel of the court of appeals to contain either newly discovered evidence, or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Since Booker has not been made retroactive to cases on collateral review by the Supreme Court, the Fifth Circuit denied defendant’s petition. In re Elwood, 408 F.3d 211 (5th Cir. 2005).
5th Circuit finds no ineffective assistance where defendant not eligible for safety valve protection. (880) Defendant filed a petition under 28 U.S.C. § 2255, claiming that his attorney was deficient by failing to inform defendant about the 10-year mandatory minimum for his crime. He argued that, prior to trial, his attorney assured him that he would receive at most four to five years in prison, and that if his attorney had properly advised him, he would have pled guilty instead of standing trial. The Fifth Circuit found no ineffective assistance, because defendant could not demonstrate that he was prejudiced by his counsel’s allegedly deficient performance. The prosecutor made clear that she would only have permitted defendant to plead to the indictment. As a result, even if he had pled guilty, defendant would still have faced the ten-year mandatory minimum sentence. Defendant could only demonstrate prejudice if he could prove that the sentencing court could and would have departed below the statutory minimum sentence. However, defendant was not eligible for safety valve protection under U.S.S.G. § 5C1.2. The district court found in light of defendant’s alleged memory problems, he lacked credibility, and thus could not have satisfied the requirement in § 5C1.2 that he testify “truthfully.” U.S. v. Ridgeway, 321 F.3d 512 (5th Cir. 2003), abrogation on other grounds recognized by U.S. v. Grammas, 376 F.3d 433 (5th Cir. 2004).
5th Circuit holds that ineffective assistance claim survives waiver of appeal only when it directly affects validity of waiver. (880) Defendant brought a petition under 28 U.S.C. § 2255 claiming that his attorney’s failure to challenge the quantity of drugs used to sentence him constituted ineffective assistance of counsel. However, his plea agreement contained a waiver of the right to appeal, expressly including a waiver of the right to challenge his sentence under § 2255. Following the other circuits to address this issue, the Fifth Circuit held that an ineffective assistance of counsel argument survives a waiver of appeal only when the claimed assistance directly affects the validity of that waiver or the plea itself. An impermissible bootstrapping arises where a waiver is sought to be enforced to bar a claim that the waiver itself, or the plea agreement of which it was a part, was unknowing or involuntary. However, where the movant’s claim does not involve that sort of bootstrapping, there is no need to except ineffective assistance claims from the general rule allowing defendants to waive their statutory rights so that they can reach a plea agreement. U.S. v. White, 307 F.3d 336 (5th Cir. 2002).
5th Circuit holds that failure to object to calculation of P2P was ineffective assistance. (880) Police found in defendant’s methamphetamine lab a flask containing a detectable amount of phenylacetone (P2P), which is an input in the production of meth. The flask did not contain pure P2P, but a mixture containing 1.5 milligrams of P2P per milliliter of the mixture. The district court found that the offense involved 2500 milliliters of P2P, and did not, as required by the sentencing guidelines, subtract from the P2P mixture the volume of non-usable byproduct. See Application Note 1 to § 2D1.1. The Fifth Circuit found that the sentencing court clearly erred in concluding that defendant’s offense involved 2500 milliliters of P2P. Moreover, defense counsel was ineffective in failing to object to the court’s drug quantity finding. The amendment to the guidelines, defining what materials the court should exclude before weighing an illicit mixture, became effective about 19 months before defendant’s sentencing. By the time of sentencing, this circuit had ruled that non-consumable substances should be excluded from a sentencing calculation. See U.S. v. Towe, 26 F.3d 614 (5th Cir. 1994). The amount of P2P directly affected defendant’s sentence, and was prejudicial. U.S. v. Stricklin, 290 F.3d 748 (5th Cir. 2002).
5th Circuit dismisses § 2241 petition brought after unsuccessful § 2255 petition. (880) After defendant’s sentence became final, the Fifth Circuit held in U.S. v. Bellazerius, 24 F.3d 698 (5th Cir. 1994), that the Sentencing Commission exceeded its authority in defining a controlled substance offense. Defendant filed a § 2255 motion to vacate his sentence, but the court held that defendant’s claim, which challenged the trial court’s misapplication of the Sentencing Guidelines, was not cognizable in a § 2255 motion. Defendant then brought the current § 2241 motion, arguing that his Bellazerius claim was cognizable because the remedy under § 2255 was inadequate or ineffective. The Fifth Circuit affirmed the dismissal of the § 2241 petition. A § 2241 petition attacks the manner in which a sentence is carried out or the prison authorities’ determination of its duration, while defendant was attacking the manner in which his sentence was determined. Such a claim must be brought under § 2255. Defendant could not demonstrate that his case fell within § 2255’s “savings clause,” i.e. that “the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of his detention.” The fact that any of defendant’s subsequently filed § 2255 motions likely would be considered “successive” and thus barred under the AEDPA was insufficient to render § 2255 an inadequate remedy. Defendant’s claim that he was actually innocent of being a career offender in light of Bellazerius was not the type of argument that courts have recognized may warrant review under § 2241. Defendant did not allege that he was innocent of the conspiracy charge itself. Kinder v. Purdy, 222 F.3d 209 (5th Cir. 2000).
5th Circuit holds that limitations period for filing § 2255 petition was equitably tolled. (880) In December 1996, defendant filed a § 2255 petition. On April 14, 1997, he moved to voluntarily withdraw his petition without prejudice “so that he could find an experience[d] writ writer” and file his § 2255 petition on “a later date.” The court granted the motion. Defendant filed a new § 2255 petition nearly a year later. The district court dismissed it as time-barred, referring to April 24, 1997 as the last possible day for filing. See U.S. v. Flores, 135 F.3d 1000 (5th Cir. 1998) (prisoners challenging sentences that became final before the effective date of the AEDPA are given until April 24, 1997, one year after its effective date, to file for § 2255 relief). The Fifth Circuit held that the limitations period for filing a § 2255 petition was equitably tolled by the district court’s actions when it allowed defendant to withdraw his original motion without prejudice. Defendant’s original § 2255 petition was timely filed within the one-year grace period. The district court granted his request to dismiss the motion without prejudice with the understanding that he could file a subsequent § 2255 petition. At the time, he and the district court were under the mistaken impression that he would not be time-barred from filing another § 2255 petition. Defendant relied to his detriment on the court’s granting of his request to dismiss the initial, timely filed § 2255 petition. In fact, on the date the court dismissed defendant’s § 2255 petition (April 30, 1997), any future filings would have been time-barred. These circumstances were sufficiently rare to warrant equitable tolling of the grace period until April 30, 1998. U.S. v. Patterson, 211 F.3d 927 (5th Cir. 2000).
5th Circuit holds that AEDPA applies even though first § 2255 motion filed before effective date. (880) In 1995, defendant filed his first habeas corpus petition under § 2255. On April 24, 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act (AEDPA), which made it significantly harder for prisoners filing second or successive federal habeas corpus petitions to obtain hearings on the merits of their claim. In 1997, defendant filed the current § 2255 petition. Defendant argued that the district court erred in applying AEDPA’s more stringent standards to his 1997 petition, since his only prior habeas petition was filed before the AEDPA’s enactment date. The Fifth Circuit, agreeing with the First, Second, Fourth, and Tenth Circuits, held that the AEDPA applies to all § 2255 petitions filed after April 24, 1996, regardless of when the previous petitions were filed. See, e.g. Trice v. Ward, 196 F.3d 1151 (10th Cir. 1999); Taylor v. Lee, 186 F.3d 557 (4th Cir. 1999); Mancuso v. Herbert, 166 F.3d 97 (2d Cir. 1999); Pratt v. United States, 129 F.3d 54 (1st Cir. 1997). U.S. v. Orozco-Ramirez, 211 F.3d 862 (5th Cir. 2000).
5th Circuit holds that claims about trial counsel were “second or successive” under AEDPA; claim about appellate counsel was not. (880) In 1995, defendant filed a § 2255 petition asserting only that counsel had been ineffective in failing to file an appeal. The court granted the petition and ordered an out-of-time appeal. In 1997, defendant filed the current § 2255 petition, alleging ineffective assistance of counsel at sentencing, ineffective assistance of counsel rendering his guilty plea involuntary, and ineffective assistance of counsel in the course of his out-of-time direct appeal. The district court ordered the motion not be filed, finding it was “second or successive” under the AEDPA. The Fifth Circuit ruled that a subsequent motion is “second or successive” under the AEDPA when it: (1) raises a claim challenging the petitioner’s conviction or sentence that was or could have been raised in an earlier petition; or (2) otherwise constitutes an abuse of the writ. Defendant’s claims relating to trial counsel’s performance were available to him and could have been raised in his initial habeas motion. Thus, they were “second or successive” under the AEDPA and the district court properly dismissed them. However, the facts underlying defendant’s claim of ineffective assistance of counsel during the appeal did not occur until after defendant filed his initial habeas petition and thus could not have been raised in that motion. Thus, this claim was not “second or successive” under the AEDPA. The court rejected In re Goddard, 170 F.3d 435 (4th Cir. 1999), which broadly held that a § 2255 motion used solely to reinstate the right to direct appeal does not count against a defendant. U.S. v. Orozco-Ramirez, 211 F.3d 862 (5th Cir. 2000).
5th Circuit rules that failure to challenge obstruction enhancement on appeal was ineffective assistance. (880) Defendant alleged in a § 2255 petition that his trial counsel was ineffective in failing to challenge an obstruction of justice enhancement on appeal. The Fifth Circuit agreed. The enhancement was based on false statements defendant made to arresting officers. In general, “making false statements, not under oath, to law enforcement officers” is not obstructive. See Note 4(b) to § 3C1.1. While “providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense” justifies the increase, see Note 3(g), defendant’s statements did not significantly obstruct the investigation. His claim that he had poor memory and his denial of ownership of his car did not relate to the drug investigation at all. Those that did relate—defendant’s claim not to know who owned the drugs or the station wagon he was driving and his refusal to clarify his relationship with his common-law wife—were mere denials of guilt. Thus, a challenge to the enhancement would have been meritorious and appellate counsel was deficient for not raising it on appeal. Defendant was prejudiced by counsel’s error. The enhancement increased defendant’s offense level from 32 to 34, placing him in a sentencing range of 151-188 months. Had the enhancement not applied, his range would have been 121-151 months. U.S. v. Phillips, 210 F.3d 345 (5th Cir. 2000).
5th Circuit rejects claim of ineffective assistance of counsel at sentencing. (880) Defendant was convicted of drug trafficking charges. He claimed that he received ineffective assistance of counsel at sentencing because his attorney continually sought withdrawal from the case during the time the probation office was compiling the PSR. He alleged that his attorney “forbade” the probation office from interviewing him, and that his attorney never provided any information regarding sentencing to the probation office. At sentencing, his counsel did make several objections to the PSR, including objections to the credibility of witnesses on which the drug-quantity calculation was based. However, counsel did not offer any evidence in support of those objections. The Fifth Circuit rejected the ineffective assistance claim. Defendant did not suggest any specific evidence that would have aided his argument and there was nothing further defense counsel could have done for his client. U.S. v. Martinez, 151 F.3d 384 (5th Cir. 1998).
5th Circuit denies certificate of appealability on ineffective assistance claim. (880) Defendant sought to appeal the denial of his 28 U.S.C. § 2255 motion claiming ineffective assistance of counsel. He argued that counsel on direct appeal should have claimed that the district court (1) used an incorrect legal standard to determine loss, (2) miscalculated the loss, and (3) erred in finding defendant created a reckless risk of serious bodily injury. The Fifth Circuit upheld the district court’s denial of defendant’s request for a certificate of appealability. Defendant failed to make a substantial showing that he was entitled to relief. Given the court’s wide latitude in determining loss, there was no reasonable probability that defendant’s sentence would have been different if counsel had challenged the court’s loss calculation on appeal. Defendant’s other arguments fared no better given the district court’s finding that defendant sold defective pipe that caused a serious accident during the construction of an offshore drilling platform. U.S. v. Kimler, 150 F.3d 429 (5th Cir. 1998).
5th Circuit says failure to seek continuance was not ineffective assistance. (880) Defendant pled guilty to drug charges. In August 1995, the district court sentenced him under the safety valve provision to a term that was ten months less than the otherwise applicable mandatory minimum. At the time of sentencing, the Sentencing Commission had proposed § 2D1.1(b)(4), which provided for a two level reduction for defendants who met the safety valve criteria. The guideline became effective on November 1, 1995. If defendant had been sentenced when § 2D1.1(b)(4) was in effect, he would have qualified for the reduction. The Fifth Circuit rejected defendant’s claim that his counsel was ineffective for failing to seek a continuance so that defendant could be sentenced after § 2D1.1(b)(4) took effect. Defendant could not show prejudice. Even if counsel acted improperly by failing to request a continuance, there was no evidence that the court would have granted the motion. Moreover, defendant’s theory would require attorneys to move for continuances in a substantial number of cases scheduled for sentencing between May and November, if a proposed guideline might affect the result. U.S. v. Flores-Ochoa, 139 F.3d 1022 (5th Cir. 1998).
5th Circuit denies relief where affidavits supporting ineffective assistance claim were filed late. (880) Defendant’s guilty plea included a waiver of the right to appeal her sentence. The appellate court dismissed her direct appeal based on the waiver. She then filed a § 2255 petition, raising sentencing issues and alleging that defense counsel had induced her to plead guilty by misrepresenting what her sentence would be. The district court denied relief, holding that sentencing issues were not cognizable under § 2255 and that the sentencing hearing refuted any claim of inducement. The Fifth Circuit agreed that defendant’s sentencing claims were not cognizable in a § 2255 motion, and held that the district court properly rejected defendant’s ineffective assistance claim without an evidentiary hearing. Defendant submitted affidavits from her sisters regarding the alleged promises of her trial counsel. The district court refused to consider the affidavits because the government had already filed a responsive pleading, and defendant had not sought leave of court, as required by Rule 15. The district court did not abuse its discretion in refusing to consider the affidavits. U.S. v. Cervantes, 132 F.3d 1106 (5th Cir. 1998).
5th Circuit holds that frustration of judge’s expectation of parole did not warrant § 2255 relief. (880) In 1987, defendant was convicted of drug charges. The district court imposed a 30-year sentence. Under the ADAA, passed several months before defendant committed the offense, Congress amended 21 U.S.C. § 841 to eliminate parole. In a 28 U.S.C. § 2255 motion, defendant claimed that the district court was not aware that the amendments to § 841(a) applied to him, and sentenced him to a longer term of imprisonment than he would have had he understood that defendant was not eligible for parole. Defendant cited a letter the judge sent to defendant’s mother in which he wrote that defendant would be eligible for parole in 10 years. The district court denied the § 2255 petition, and the Fifth Circuit refused to issue a certificate of appealability under § 2253. Defendant’s claim was not cognizable under § 2255. A court may vacate or modify a sentence under § 2255 only if the sentencing court lacked jurisdiction to impose the sentence or the sentence violated the law or the Constitution. The frustration of the judge’s expectation that defendant would be paroled did not make his otherwise constitutional sentence unconstitutional and subject to collateral attack. U.S. v. DeLario, 120 F.3d 580 (5th Cir. 1997).
5th Circuit upholds resentencing after successful § 2255 petition even though sentence had been served. (880) Defendant was convicted of drug and firearms charges. He successfully petitioned under 28 U.S.C. § 2255 to vacate the firearms conviction, and the district court resentenced him on the unchallenged, underlying drug convictions. The court applied a § 2D1.1(b) enhancement, which had previously been unavailable because of the § 924(c) conviction. The Fifth Circuit upheld the court’s ability to resentence on the remaining drug convictions after a § 924(c) conviction is vacated under § 2255. The resentencing did not violate the double jeopardy clause. When a defendant challenges one of interdependent convictions, he has no expectation of finality in his original sentence, having put at issue the validity of the entire sentence. Defendant had no legitimate expectation of finality in his drug sentence, even though he claimed he “completed” the term of imprisonment allocated to that offense. He did not receive separate and distinct sentences for his drug and firearms convictions, but one aggregate sentence. Moreover, defendant had not completed, much less begun, the mandatory 3-year term of supervised release. U.S. v. Benbrook, 119 F.3d 338 (5th Cir. 1997).
5th Circuit upholds authority under § 2255 to resentence drug count after vacating § 924(c) count. (880) Defendant was originally convicted of drug and firearms counts. He later filed a successful § 2255 petition to vacate the § 924(c)(1) conviction. Following U.S. v. Rodriguez, 114 F.3d 46 (5th Cir. 1997) the Fifth Circuit held that after a § 2255 vacatur of a § 924(c) conviction, the court may impose a § 2D1.1(b)(1) enhancement on the remaining drug count. This does not violate double jeopardy because of the defendant’s lack of a legitimate expectation of finality in the original sentence. Nor does this conflict with the circuit’s en banc decision in U.S. v. Henry, 709 F.3d 298 (5th Cir. 1983). The sentences involved in Henry were separable and did not present a case of intertwined illegality in sentencing. U.S. v. Hernandez, 116 F.3d 725 (5th Cir. 1997).
5th Circuit permits resentencing on drug count after vacating § 924(c) conviction. (880) Defendant was originally sentenced for drug and firearms charges. He successfully filed a § 2255 petition to vacate the § 924(c) conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). The district court then resentenced him on the remaining drug offenses, applying a § 2D1.1(b)(1) enhancement for using a possessing a firearm in connection with the offenses. The Fifth Circuit upheld the district court’s jurisdiction under § 2255 to resentence defendant on the remaining drug counts. It did not violate double jeopardy to consider the firearms at resentencing. The Constitution only prohibits resentencing if a defendant has a legitimate expectation of finality in his original sentence. Defendant did not have such an expectation because he challenged two of his four interrelated convictions, placing the validity of his entire sentence at issue. U.S. v. Rodriguez, 114 F.3d 46 (5th Cir. 1997).
5th Circuit refuses to consider sentencing claims rejected on direct appeal. (880) In a 28 U.S.C. § 2255 motion, defendant made a series of arguments challenging the district court’s application of the sentencing guidelines. The Fifth Circuit refused to consider the sentencing claims on collateral review, since each of these claims was raised and rejected in defendant’s direct appeal. U.S. v. Rocha, 109 F.3d 225 (5th Cir. 1997).
5th Circuit holds that guideline application questions are not cognizable under § 2255. (880) Defendant filed a § 2255 motion based in part of the district court’s alleged errors in applying the sentencing guidelines. He claimed he should have been given a reduction for acceptance of responsibility and that the amount of drugs attributed to him was too large. The Fifth Circuit held that the guideline application claims were not cognizable under § 2255. Relief under § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that would not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. Non-constitutional claims that could have been raised on direct appeal but were not may not be asserted in a collateral proceeding. A district court’s technical application of the guidelines does not give rise to a constitutional issue. U.S. v. Payne, 99 F.3d 1273 (5th Cir. 1996).
5th Circuit dismisses ineffective assistance claim in direct appeal. (880) Defendant contended that the waiver of his right to appeal in his plea agreement was invalid because he received ineffective assistance of counsel. Defendant’s counsel admitted that she failed to advise defendant that the government could elect not to give him the opportunity to provide substantial assistance. The Fifth Circuit dismissed the claim without prejudice to defendant’s right to raise it in a future 28 U.S.C. § 2255 proceeding. Defendant made no motion to withdraw his plea, nor did he assert ineffective assistance of counsel below. Therefore, there was no opportunity to develop the record regarding the claimed ineffective assistance. U.S. v. Price, 95 F.3d 364 (5th Cir. 1996).
5th Circuit rejects second § 2255 motion for failure to raise ineffective assistance claim in initial pro se motion. (880) Defendants were convicted of robbery and did not appeal their convictions or sentences. They then filed pro se § 2255 motions challenging their sentences. The district court denied the motions because defendants failed to show cause for failing to raise the issues on direct appeal. Defendants then filed a second § 2255 motion claiming ineffective assistance of counsel. The Fifth Circuit upheld the dismissal of these motions, finding that defendants’ failure to raise these claims in their first writs amounted to “abuse of the writ.” Neither defendant demonstrated adequate cause for their failure to raise the ineffective assistance claims in their first § 2255 motion. For abuse of the writ purposes, the fact that a petitioner is pro se does not amount to “cause.” U.S. v. Espinoza, 82 F.3d 640 (5th Cir. 1996).
5th Circuit says counsel not ineffective in failing to argue that embezzlement was straddle offense. (880) Defendant pled guilty to 23 counts of embezzlement. The district court applied pre‑guidelines law to the first 18 counts and applied the sentencing guidelines to the remaining five counts. In a § 2255 motion, defendant argued that his counsel was ineffective in failing to pursue a “straddle offense” theory, i.e., that all of the counts were subject to the guidelines. The Fifth Circuit found no ineffective assistance. The only case indicating that embezzlement was a straddle offense was decided after defendant was sentenced. Counsel’s failure to move to withdraw defendant’s plea when it became apparent that the court had not accepted the straddle theory was also not ineffective assistance. Counsel said he never believed in the theory, but he felt there was a possibility that the court would follow the public policy embodied in the guidelines and apply the guidelines anyway. This is the kind of strategic choice that a court may not second‑guess. U.S. v. Gaudet, 81 F.3d 585 (5th Cir. Apr. 30, 1996).
5th Circuit says amendment requires exclusion of material that must be separated from controlled substance before use. (880) Defendant pled guilty to a methamphetamine conspiracy and his sentence was based on the 9,892 grams of material found in a 2 1/2 gallon plastic container, even though only 5.96 grams of the material was methamphetamine. Thereafter, the Sentencing Commission adopted amendment 484 to guideline § 2D1.1, excluding from the guideline calculation any material that must be separated from a controlled substance before it can be used. The Commission made this amendment retroactive. Defendant then filed a 28 U.S.C. § 2255 motion to be resentenced under the new amendment. The district court denied relief. On appeal, the Fifth Circuit reversed, holding that although the § 2255 motion was not the proper remedy, the court should have reconsidered defendant’s sentence under 18 U.S.C. § 3583(c)(2), which gives a court power to resentence where a guideline amendment has been made retroactive by the Commission. The government conceded that the disputed material here had to be separated from the remaining liquid before it could be used. U.S. v. Levay, 76 F.3d 671 (5th Cir. 1996).
5th Circuit says agreement to stipulate drug quantity was not ineffective assistance. (880) Defendant and his co-defendant sold methamphetamine to undercover agents. The PSR recommended also holding him accountable for 11 gallons of phenylacetone found in a storage unit rented by his co-defendant. This resulted in a guideline range of 235-293 months. Before sentencing, the government offered not to use the phenylacetone at sentencing if defendant stipulated to the amount of methamphetamine involved. Defendant agreed. This resulted in a guideline range of 121-151 months. In a § 2255 motion, defendant claimed the amount of methamphetamine used in sentencing was incorrect and not supported by the lab reports. He contended his agreement was the result of ineffective assistance. The Fifth Circuit held that defense counsel’s stipulation was reasonable, given the difference in sentence if the phenylacetone had been considered at sentencing. Moreover, defendant was unable to show that he suffered any prejudice considering the relevant conduct eliminated by the stipulation. U.S. v. Walker, 68 F.3d 931 (5th Cir. 1995).
5th Circuit finds no ineffective assistance in failure to argue that D,L-meth is different from D-meth. (880) The district court sentenced defendant for possessing 9.761 grams of D-methamphetamine. However, a lab report showed that two of the three samples of methamphetamine tested were D,L-methamphetamine. In a 28 U.S.C. § 2255 motion, defendant argued that the government failed to prove the quantity of D-meth, as opposed to L-meth, in the samples used to calculate his sentence. He further contended that his counsel was ineffective for failing to raise this issue at sentencing. The Fifth Circuit rejected this argument. Defendant’s first claim could have been raised on direct appeal and was not. Section 2255 does not reach errors not of a constitutional or jurisdictional magnitude that could have been raised in a direct appeal. Counsel’s failure to object to treating D,L-meth like D-meth was not unreasonable, given the absence of any reference to D,L-methamphetamine in the guidelines and the lack of case law at the time on the subject. Judge Garza dissented. U.S. v. Seyfert, 67 F.3d 544 (5th Cir. 1995).
5th Circuit holds counsel’s failure to object to finding that defendant smuggled crack was not ineffective assistance. (880) In a § 2255 motion, defendant argued that his trial counsel was ineffective for failing to object to the PSR’s finding that he smuggled crack into the U.S., as opposed to powder cocaine or cocaine base. The Fifth Circuit rejected the claim since defendant failed to prove that counsel acted unreasonably or that his failure to object affected the case. Defendant made no objections even though he was asked at the sentencing hearing if he had read the PSR and had any objections. Also, before trial, defendant’s counsel received a scientific report from the DEA that the substances had been tested and was identified as crack. This report, and expert testimony by the DEA agent, undoubtedly caused counsel to limit his argument at sentencing to a plea for leniency. The district court’s finding that defendant smuggled crack was not clearly erroneous. The finding was supported by the DEA agent’s testimony, which defendant failed to rebut. U.S. v. Samuels, 59 F.3d 526 (5th Cir. 1995).
5th Circuit refuses to consider in § 2255 motion failure to apply guideline amendment. (880) In a § 2255 motion, defendant raised several challenges to his sentence, including a claim that the court should have applied a recent guideline amendment and that he was improperly denied an interpreter at his sentencing hearing. The Fifth Circuit refused to consider these two claims. Defendant’s argument regarding the guideline amendment was not of constitutional or jurisdictional magnitude. Thus, it could only be considered if it could not have been raised on appeal and would result in a complete miscarriage of justice. Although defendant could not have raised the issue on appeal due to timing, the failure to consider the amendment was not a miscarriage of justice—since the amendment was not a clarifying amendment, it would not be given retroactive application. Defendant’s interpreter argument also could not be considered, since defendant did not make this allegation during his direct appeal or in his original § 2255 motion. U.S. v. Samuels, 59 F.3d 526 (5th Cir. 1995).
5th Circuit says failure to question whether drug was D-meth might be ineffective assistance. (880) In a § 2255 motion, defendant contended that his trial counsel was ineffective in failing to argue at sentencing that the methamphetamine involved in his offense was L-methamphetamine (“L-meth”) rather than D-methamphetamine. He also sought discovery of a lab report that he argued would conclusively establish the type of methamphetamine involved. The Fifth Circuit remanded to allow defendant to prove, beyond his mere naked allegation, that the drug involved was L-meth. L-meth is grossly different from other forms of methamphetamine and the guidelines treat it far less severely. If the drug involved actually was L-meth, then prejudice did occur. Thus, if defendant could prove that the drug involved was L-meth, he would be entitled to a hearing on the issue of ineffective assistance. U.S. v. Acklen, 47 F.3d 739 (5th Cir. 1995).
5th Circuit finds defendant failed to establish prejudice from counsel’s failure to challenge use of PSR. (880) In a § 2255 motion, defendant contended that his appellate counsel provided ineffective assistance by failing to appeal the denial of his motion for a sentencing hearing and failing to challenge the district court’s reliance on information in the PSR. The Fifth Circuit held that defendant failed to show prejudice under Strickland v. Washington, 466 U.S. 668 (1984). Although defendant challenged the reliability of the information in the PSR, he never provided the district court with any evidence supporting his bald allegations. The district court did not abuse its discretion in denying the requested evidentiary hearing. Moreover, in the absence of rebuttal information, the district court did not err in relying on the information in the PSR. Finally, defendant received a copy of the PSR, and thus had adequate notice of the information that the district court intended to rely on to determine his sentence. U.S. v. Patten, 40 F.3d 774 (5th Cir. 1994).
5th Circuit holds that government reports did not negate grounds for upward departure. (880) Defendant, the president of a defense contractor, filled orders by substituting cheaper products than the ones ordered and providing stale or outdated products that were altered to appear fresh. In a habeas corpus motion, defendant argued that the government improperly withheld reports showing that the company’s customers found the products to be of acceptable quality. Defendant argued that these reports would have vitiated the basis for the court’s upward departure. The Fifth Circuit disagreed. The departure was based on defendant’s conduct, which put at risk multimillion dollar military equipment and the lives of American servicemen. An essential element of the government’s case was that the inferior materials would, over time, deteriorate more rapidly than expected by the user, creating commensurate risk to both equipment and personnel. The qualified satisfaction of a few customers did not negate this concern. U.S. v. Dula, 39 F.3d 591 (5th Cir. 1994).
5th Circuit says ineffective assistance claim must relate to custody rather than fine. (880) Defendant argued, in a 28 U.S.C. § 2255 motion, that counsel’s failure to challenge a $30,000 fine constituted ineffective assistance. The 5th Circuit held that the claim was outside the scope of § 2255 because it did not relate to defendant’s custody. To prove ineffective assistance, a defendant must show both that counsel’s performance was deficient, and that defendant was thereby prejudiced. To meet the prejudice requirement in a § 2255 motion, the harm must relate to his custody. A claim that relates only to the imposition of a fine does not relate to a prisoner’s custody, and therefore is not within the scope of § 2255. U.S. v. Segler, 37 F.3d 1131 (5th Cir. 1994).
5th Circuit refuses to consider career offender challenge brought for first time in § 2255 motion. (880) Defendant argued in a § 2255 motion that the district court erroneously sentenced him as a career offender. The 5th Circuit held that the issue was not cognizable in a § 2255 motion. The career offender sentence did not implicate any constitutional issues, and the claim could have been raised on direct appeal. U.S. v. Segler, 37 F.3d 1131 (5th Cir. 1994).
5th Circuit refuses § 2255 reconsideration of issue raised on direct appeal. (880) In a motion under 28 U.S.C. § 2255, defendant argued that his sentence should be reduced because a recent guideline amendment made it clear that the district court should not have calculated his base offense level using the entire quantity of acetone seized by police. The 5th Circuit refused to address the issue since it was considered on direct appeal. However, defendant was free to raise the issue in a motion to apply the amended guideline retroactively under 18 U.S.C. § 3582(c)(2). U.S. v. Segler, 37 F.3d 1131 (5th Cir. 1994).
5th Circuit says 2255 motion should have been treated as retroactivity motion under 3582(c)(2). (880) In a 28 U.S.C. § 2255 motion, defendant sought resentencing under the retroactive amendment to § 2D1.1 excluding the weight of waste materials used in manufacturing amphetamine. The district court denied the motion. On appeal, the 5th Circuit agreed that defendant’s claim was not cognizable under § 2255, but said the court should have treated it as a motion to modify his sentence under 18 U.S.C. § 3582(c)(2). It was unclear whether defendant was sentenced based on 28.26 pounds of phenylacetone, or based on 28.26 pounds of a substance containing 12 percent phenylacetone. On remand the district court should determine the actual amount of controlled substance in light of the amendment. U.S. v. Towe, 26 F.3d 614 (5th Cir. 1994).
5th Circuit holds defendant waived right to post-conviction relief as part of plea bargain. (880) In the plea agreement, defendant waived his right to appeal his sentence on direct appeal and agreed not to contest “his sentence or the manner in which it was determined in any post-conviction proceeding, including, but not limited to, a proceeding under 28 U.S.C. § 2255.” The 5th Circuit held that an informed and voluntary waiver of post-conviction relief is generally effective to bar such relief. There is no principled reason to distinguish such a waiver from the waiver of a right to appeal. Although such a waiver may not always apply to a collateral attack based upon ineffective assistance of counsel, here, the appropriateness of the waiver was beyond question. Defendant fully understood the waiver of his right to appeal and waived post-conviction motions at the time the plea was accepted. Defendant’s attorney was not deficient for failing to raise claims knowingly and voluntarily waived in the process of plea bargaining. U.S. v. Wilkes, 20 F.3d 651 (5th Cir. 1994).
5th Circuit says that attack on upward departure is not cognizable in §2255 action. (880) In a §2255 motion, defendant argued that an upward departure was improper, and the judge failed to articulate his reasons for the departure. The 5th Circuit held that an attack on an upward departure is not cognizable in a §2255 action. Defendant’s claim posed no constitutional, statutory or jurisdictional question, nor did she claim her sentence was in excess of the statutory maximum. Defendant’s claim could only be considered if it was “otherwise subject to collateral attack.” A challenge to an upward departure is outside these parameters. U.S. v. Faubion, 19 F.3d 226 (5th Cir. 1994).
5th Circuit rules that failure to appeal was not ineffective assistance of counsel. (880) Defendant argued that her counsel’s assistance was ineffective because he advised her not to appeal her conviction and sentence. In particular, she contended that the failure to appeal an upward departure was deficient, since the judge failed to give adequate notice of it. The 5th Circuit rejected the claim since there was no legitimate basis on which to appeal. The law at the time of sentencing was that no reversible error existed if the defendant had the opportunity to comment on the departure, even if the court gave no prior notice. U.S. v. Faubion, 19 F.3d 226 (5th Cir. 1994).
5th Circuit rules that advice to go to trial was not ineffective assistance. (880) In a §2255 motion, defendant argued that her attorney provided ineffective assistance when he advised her to go to trial despite the overwhelming evidence against her. If she had pled guilty, defendant contended that she would have received a reduction at sentencing for acceptance of responsibility. The 5th Circuit found that the advice to go to trial did not constitute ineffective assistance. The government did not offer defendant a deal. Thus it was reasonable for the attorney to believe that there was nothing to gain by pleading guilty. Moreover, there was no reasonable probability that defendant would have received the reduction if she had pled guilty. Here, defendant’s pre-trial and pre-arrest conduct demonstrated the opposite of acceptance of responsibility, and led to an enhancement for obstruction of justice. U.S. v. Faubion, 19 F.3d 226 (5th Cir. 1994).
5th Circuit refuses to consider meritorious argument raised for first time on appeal from denial of § 2255 motion. (880) In the appeal of the district court’s denial of her motion to vacate her sentence under 28 U.S.C. § 2255, defendant argued that she was improperly held accountable for drugs distributed by a conspiracy prior to her entry into the conspiracy. The 5th Circuit found that this issue, if raised in a proper setting, would have “substantial persuasive force.” Recent caselaw has held that the reasonable foreseeability requirement of section 1B1.3 is prospective only for purposes of determining relevant conduct in conspiracy cases. However, defendant’s argument was not raised until the denial of her § 2255 motion. Therefore, the appellate court could not consider it. U.S. v. Madkins, 14 F.3d 277 (5th Cir. 1994).
5th Circuit refuses to reconsider issue decided on direct appeal. (880) In a motion to vacate sentence under 28 U.S.C. §2255, the 5th Circuit refused to consider defendant’s claim that his leadership enhancement was based on an incorrect interpretation of the requirements for such an enhancement. This challenge was raised and disposed of on direct appeal; it would not be reconsidered on a section 2255 motion. U.S. v. Santiago, 993 F.2d 504 (5th Cir. 1993).
5th Circuit upholds dismissal of second motion as abuse of the section 2255 procedure. (880) The district court denied petitioner’s first motion to vacate his sentence under 28 U.S.C. section 2255. Petitioner then brought a second motion making several new claims. The 5th Circuit affirmed the dismissal of the second motion on the grounds that it was an abuse of the section 2255 procedure, pursuant to Rule 9(b), Rules Governing Section 2255 Proceedings for the U.S. District Court. Petitioner could have raised all of the claims in his second motion when he filed his first section 2255 motion. In McCleskey v. Zant, 111 S.Ct. 1454 (1991), a second or subsequent habeas corpus petition which raises a claim for the first time is generally regarded as an abuse of the writ. The failure to raise a ground for relief in an initial petition will be excused if the petitioner can show (a) cause for the failure to raise the claim, and prejudice from the errors, or (b) that the court’s refusal to hear the claim would result in a fundamental miscarriage of justice. This standard applies to section 2255 motions as well as section 2254 motions. Petitioner could not meet this standard. U.S. v. Flores, 981 F.2d 231 (5th Cir. 1993).
5th Circuit refuses habeas corpus review of guidelines issues which could have been raised on direct appeal. (880) In an action brought under 28 U.S.C. section 2255, defendant argued that the district court incorrectly increased his sentence under the guidelines for discharging a firearm and for obstruction of justice. The 8th Circuit found that defendant’s claims were not cognizable under the limited scope of relief available under 28 U.S.C. section 2255. They were not of constitutional dimension, could have been raised on direct appeal, and there was no showing as to why they were not. U.S. v. Vaughn, 955 F.2d 367 (5th Cir. 1992).
5th Circuit remands because district court was under mistaken belief that three-year term of supervised release was mandatory. (880) Defendant was convicted of conspiracy under the pre-amendment version of 21 U.S.C. § 846. This version did not provide for a term of supervised release. However, because defendant committed a Class C felony, the guidelines required a term of supervised release of at least two years but not more than three years. The presentence report erroneously indicated that the amended version of § 846 governed defendant’s conviction, requiring a minimum three-year term of supervised release. The judge sentenced defendant on this basis. The 5th Circuit remanded for resentencing. Although defendant’s sentence was within the proper guideline range, it was proper to remand the case because the district court was unaware of its discretion to sentence defendant to a two year term of supervised release. U.S. v. Badger, 925 F.2d 101 (5th Cir. 1991).
5th Circuit rules that appellate court has jurisdiction over facially non-frivolous sentencing appeals. (880) The government argued that the court of appeal had no jurisdiction over the appeal because the sentence was not outside the arguably applicable guideline range. The 5th Circuit disagreed, holding that appellate jurisdiction under 18 U.S.C. § 3742(a)(3) exists where, as here, “the defendant makes facially nonfrivolous arguments that place the given sentence outside the applicable range.” U.S. v. Davis, 868 F.2d 1390 (5th Cir. 1989).
6th Circuit limits collateral attack on conviction to claims of denial of right to counsel. (880) Defendant pled guilty to illegal reentry after deportation. Based on an Ohio felony conviction for forgery and tampering, defendant received a four-level increase under § 2L1.2(b) (1)(D). At sentencing, defendant argued that his Ohio conviction should not have been considered because it was void. The Sixth Circuit held that the federal sentencing proceeding was not the proper forum to challenge the Ohio conviction, and therefore it was unnecessary to determine whether defendant’s forgery conviction was void in Ohio. Under Custis v. U.S., 511 U.S. 485 (1994), a defendant cannot collaterally attack a state court conviction used for enhancement under the ACCA unless the challenge is based on a violation of the right to counsel. See U.S. v. Lalonde, 509 F.3d 750 (6th Cir. 2007). U.S. v. Aguilar-Diaz, 626 F.3d 265 (6th Cir. 2010).
6th Circuit holds Booker was a “new rule”; not retroactive to sentences after Blakely. (880) Defendant was sentenced in 2002 to 188 months, the lowest available sentence under the Guidelines. In 2005, his 18 U.S.C. §2255 motion to vacate his sentence was denied, but the court granted a certificate of appealability on whether he was entitled to be resentenced in the wake of Booker. The Sixth Circuit held that Booker was a “new rule” that did not apply retroactively on collateral review to sentences imposed after Blakely v. Washington, 542 U.S. 296 (2004). The circuit had previously held that Booker was not retroactive back to Apprendi v. New Jersey, 530 U.S. 466 (2000). Although the argument that Blakely dictated Booker was considerably stronger, the panel still found that Booker was a new rule. The court noted that the Seventh Circuit in McReynolds v. U.S., 397 F.3d 479 (7th Cir. 2005) had also held that Booker was not retroactive back to Blakely, and declined to create a circuit split. U.S. v. Duncan, 552 F.3d 442 (6th Cir. 2009).
6th Circuit holds that raising sentencing issue on direct appeal did not permit application of Booker to conviction that was final before Booker. (880) Defendant was convicted in 1992 of drug conspiracy charges. In 2000, the district court vacated defendant’s conviction and ordered that he be resentenced. He was resentenced in June 2001. He later moved for relief under § 2255 arguing that his June 2001 sentence was unconstitutional because of the holdings of Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (2005). The district court denied the motion, holding that Booker was not retroactive and thus did not apply to defendant because his resentencing became final before Blakely was decided. Defendant argued that Booker applied retroactively to his case because of the Supreme Court’s holding in Davis v. U.S., 417 U.S. 333 (1974). The Sixth Circuit disagreed. Other cases have suggested that Davis only permits a petitioner moving under § 2255 to relitigate substantive changes in the law. This court has never relied on Davis to hold that a petitioner with a procedural claim, who raised that claim on direct appeal, and had the claim determined against him, was entitled to relief on a § 2255 motion after his direct appeal had become final because a change in the law vindicated the procedural claim. Lang v. U.S., 474 F.3d 348 (6th Cir. 2007).
6th Circuit holds that counsel was ineffective in failing to argue general conspiracy verdict limited sentence. (880) Defendant was convicted under a general conspiracy verdict that did not specify what controlled substances defendant was transporting. The judge found that defendant was involved only in the distribution of cocaine, which resulted in her receiving a higher sentence than she would have if she had distributed only marijuana. She later moved under 28 U.S.C. § 2255 to vacate her sentence, claiming she received ineffective assistance of counsel due to the failure to her attorney to raise issues under Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts that increase sentence beyond statutory maximum must be submitted to jury) and U.S. v. Dale, 178 F.3d 429 (6th Cir. 1999) (general verdict limits sentence to object of conspiracy that had least harsh consequences). The Sixth Circuit agreed. Given that a co-defendant successfully briefed and won those same issues on appeal, and that the co-defendant’s brief was available to defendant’s appellate counsel, the performance was objectively unreasonable. The district court plainly erred in sentencing defendant based on the jury’s general verdict, and the error “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Therefore, the failure to defendant’s appellate counsel to raise Dale and Apprendi issues on appeal had a direct effect on prejudicing the outcome of her appeal. Ballard v. U.S., 400 F.3d 404 (6th Cir. 2005).
6th Circuit says failure to request downward departure based on post-offense behavior and disproportionality not ineffective assistance. (880) Defendant argued that his trial counsel rendered ineffective assistance by failing to request a downward departure at sentencing based upon his crime-free post-offense conduct and based upon the disproportionality between his sentence and those of his co-defendants. Neither ground is mentioned in the Sentencing guideline as a basis for departure; thus, it can only warrant a departure if present to an extraordinary degree. Defendant’s lack of involvement in drug activity or other criminal conduct since his arrest did not constitute “extraordinary post-offense behavior.” Because defendant failed to show that he was prejudiced by his counsel’s failure to move for a departure based upon either ground, the Sixth Circuit affirmed the district court’s denial of relief. Campbell v. U.S., 364 F.3d 727 (6th Cir. 2004).
6th Circuit says defendant could not show prejudice where she admitted involvement with 500 pounds of marijuana. (880) In a § 2255 motion, defendant argued that because her indictment failed to allege a specific quantity of marijuana, the district court could not sentence her beyond the default statutory maximum under Apprendi v. New Jersey, 530 U.S. 466 (2000). However, in Goode v. U.S., 305 F.3d 378 (6th Cir. 2002), the Sixth Circuit held that Apprendi is not retroactively applicable to initial § 2255 motions, because it did not create a new “watershed rule” that improved the accuracy of determining the guilt or innocence of a defendant. Moreover, even if defendant were entitled to bring her Apprendi claim, she would still need to show cause and prejudice as to why she did not pursue this claim in the district court or on direct appeal. Even if she could show cause, the Sixth Circuit found the prejudice hurdle “insurmountable,” since defendant admitted her involvement with nearly 500 pounds of marijuana. Regalado v. U.S., 334 F.3d 520 (6th Cir. 2003).
6th Circuit holds that attorney was not ineffective in failing to request reweighing of drugs. (880) Defendant and a co-defendant were indicted for aiding and abetting in the distribution of 50.3 grams of cocaine base. Counsel for the co-defendant requested a reweighing of the drugs prior to sentencing. Defendant’s counsel did not make a similar request. The co-defendant was sentenced based on 38 grams and defendant was sentenced on the original weight, over 50 grams. Defendant claimed that his attorney was ineffective for failing to request a reweighing when the amount of drug was so close to the threshold amount of 50 grams. The Sixth Circuit found no error, because the proper weight for determining a sentence is the weight at the time of the offense, not some later weight. The computation of the amount of drugs attributable to defendant was entirely proper, whether or not his attorney sought a reweighing. No error occurred at defendant’s sentencing, even if his co-defendant got a benefit to which he was not entitled. Kinnard v. U.S., 313 F.3d 933 (6th Cir. 2002).
6th Circuit holds that counsel’s failure to challenge improper restitution constituted ineffective assistance. (880) Defendant was charged with tax evasion in connection with his 1990-1994 federal income tax returns. He pled guilty only to the count relating to 1993, and the remaining four counts were dismissed. The district court ordered, as a condition of supervised release, that defendant pay $370,624 in restitution, the total tax loss for all five years. In a § 2255 petition, defendant argued, in part, that his counsel was ineffective in failing to challenge and appeal the restitution order. The Sixth Circuit agreed. Absent a specific provision in the plea agreement to pay full restitution, the district court could only order restitution for the tax loss related to the offense of conviction. A refusal to appeal an erroneous restitution award, which award would have been subject to reversal on appeal, would meet the Strickland test and clearly constitute cause for [petitioner’s] failure to appeal the award.” Ratliff v. U.S., 999 F.2d 1023, 1026 (6th Cir. 1993). Here, not only did trial counsel refuse to appeal the erroneous restitution order, but he compounded the problem by objecting that the guilty plea did not include the 1994 tax year. Thus, this objection appeared to concede that defendant was liable for tax years 1990-1993. The deficiencies in counsel’s performance not only met, but went beyond, the standard set forth in Ratliff. Weinberger v. U.S., 268 F.3d 346 (6th Cir. 2001).
6th Circuit holds that defendant waived right to bring ineffective assistance claim. (880) In his plea agreement, defendant waived his right to appeal his sentence and conviction except in two limited circumstances not applicable here. He filed a habeas petition under 28 U.S.C. § 2255, contending that his counsel was ineffective in failing for argue for a dismissal of the money laundering conviction and in failing to seek a downward departure. The Sixth Circuit held that defendant’s waiver of appeal effectively foreclosed his right to bring a § 2255 petition based on the claim of ineffective assistance of counsel. When a defendant knowingly, intelligently and voluntarily waives the right to collaterally attack his sentence, he is precluded from bringing a claim of ineffective assistance of counsel under 28 U.S.C. § 2255. U.S. v. Davila, 258 F.3d 448 (6th Cir. 2001).
6th Circuit holds that sentencing challenge did not fall within savings clause. (880) Defendants pled guilty to drug charges. They each filed an unsuccessful appeal and several unsuccessful collateral attacks under 28 U.S.C. § 2255 challenging their sentences. After a co-conspirator’s resentencing, they filed the instant § 2241 petition, arguing that there had been an intervening change in the law and that § 2255 (whose statute of limitations and restriction on successive petitions barred their claims) was inadequate and ineffective to redress the wrong. 2The district court granted their petitions, finding that the law had changed since the original sentencing to require individualized findings for drug conspirators’ sentences. The Sixth Circuit reversed the grant of habeas relief. A federal prisoner may challenge the validity of his sentence under § 2241 if § 2255 is “inadequate or ineffective to test the legality of his detention,” according to the savings clause of § 2255. However, the unavailability of § 2255 relief does not alone establish inadequacy or ineffectiveness under the savings clause. Under Charles v. Chandler, 180 F.3d 753 (6th Cir. 1999), if petitioners do not make a claim of actual innocence, they are not entitled to relief through § 2255’s savings clause. U.S. v. Peterman, 249 F.3d 458 (6th Cir. 2001).
6th Circuit holds that resentencing court should address objections to new PSR. (880) Defendant did not object when his first PSR held him responsible for between 5 and 15 kilograms of cocaine. The court later vacated one of his convictions and his sentence on unrelated grounds. The court ordered resentencing and directed the probation department to create a new PSR. The second PSR attributed between 5 and 15 kilograms of cocaine to defendant, but also listed the drugs involved in the overt acts charged in the indictment. Defendant objected. At resentencing, the district court refused to address the drug quantity issue. The Sixth Circuit held that the district court erred in failing to consider defendant’s drug quantity challenge. On remand following a direct appeal, a district court can consider de novo any argument regarding sentencing if the remand order does not limit its review. Although the resentencing here arose from a successful § 2255 motion, the same concerns applied. In the present case, the district court ordered the preparation of a new PSR without limitation, and the new report set forth a statement regarding the amount of drugs that differed from the original PSR. District courts should address any objections that a defendant might have to a “new” report that contains materially different information than the first PSR, even if those objections come during resentencing. U.S. v. Saikaly, 207 F.3d 363 (6th Cir. 2000).
6th Circuit requires cause and prejudice to excuse failure to raise government’s breach of plea agreement. (880) In a § 2255 motion, defendant claimed that the government breached the terms of his plea agreement by failing to file a § 5K1.1 motion for a substantial assistance departure. Defendant did not raise this claim either at sentencing or on direct appeal. He argued that under U.S. v. De La Fuente, 8 F.3d 1333 (9th Cir. 1993), the Frady cause and prejudice standard does not apply to a claim that the government breached the plea agreement. The Sixth Circuit rejected De La Fuente; Supreme Court decisions in the past decade suggest that the cause and prejudice test should be uniformly applied to all procedural defaults. See, e.g. Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-8 (1992). Thus, defendant was required to demonstrate cause and prejudice to excuse his procedural default. The only arguable cause for the default would be a claim of ineffective assistance of counsel, but defendant did not raise such a claim. Defendant’s conclusory statement in his brief in support of his § 2255 motion was insufficient to raise the issue of ineffective assistance. Defendant also did not raise this issue on appeal of the district court’s denial of the § 2255 motion. Although the government failed to raise defendant’s default, the Sixth Circuit found it was justified to raise this issue sua sponte. Elzy v. U.S., 205 F.3d 882 (6th Cir. 2000).
6th Circuit says court properly used misdemeanors that received sentences of conditional discharge. (880) Defendant argued that he was denied effective of assistance of counsel because his lawyer failed to object to the inclusion of two Ohio misdemeanor convictions in his criminal history score. One conviction was for driving with a suspended license and the other was for disorderly conduct. Under § 4A1.2(c)(1), a conviction for either of these offenses should not be counted unless the conviction resulted in a sentence of probation of at least one year or imprisonment of at least 30 days. Defendant was sentenced to “2 years PNC” on one conviction and “1 year PNC” on the other. Ohio courts use “PNC” as shorthand for “provided no convictions”—a condition on which a sentence of imprisonment is suspended. As a form of conditional discharge, a PNC sentence is the “functional equivalent of unsupervised probation.” Thus, the Sixth Circuit concluded that a sentence of one or more years “PNC” qualifies under § 4A1.1(c) as a term or probation of at least one year. Because an objection to the use of defendant’s misdemeanor convictions would have been futile, defendant could not show that his attorney was constitutionally “ineffective.” Harris v. U.S., 204 F.3d 681 (6th Cir. 2000).
6th Circuit holds that clarifying amendment should be applied retroactively even though not listed as such. (880) Defendant challenged the denial of his § 2255 petition, claiming that a recent amendment to § 3B1.1 required the district court to grant him a new sentencing hearing. Amendment 500, effective a year after defendant was sentenced, added an application note to § 3B1.1 stating that the enhancement is only justified where the defendant has organized, led, or supervised at least one other participant. According to the Sentencing Commission, the amendment “clarifies” the operation of the section. The district court found that although Amendment 500 was an intervening change in the law, it was not applicable to defendant because it was not listed as retroactive in § 1B1.10. The Sixth Circuit held that Amendment 500 was a clarifying amendment and the district court erred in not applying it to defendant. The Commission probably did not see the need to list Amendment 500 in § 1B1.10(c), because the amendment is supposed to be a clarification of the law rather than a substantive change. A petitioner is entitled to receive the sentence he would have received had the Commission initially drafted an unambiguous provision. Jones v. U.S., 161 F.3d 397 (6th Cir. 1998).
6th Circuit rejects ineffective assistance of counsel claim. (880) Defendant claimed he received ineffective assistance of counsel because his attorney failed to advise him that the court could consider relevant conduct to enhance his sentence. He also claimed counsel rejected a five-year plea offer before consulting him, and advised defendant this was a good case to argue because defendant had no prior convictions and the substance he actually purchased was not cocaine. The Sixth Circuit agreed with the district court’s conclusion that defense counsel’s advice did not fall below an objective standard of reasonableness. Although counsel could have been more explicit in his advice to defendant, the record did not suggest that his performance was deficient. However, counsel’s failure to inquire further about his client’s past conduct or to advise him of the consequences of relevant conduct came close to being objectively unreasonable. Finally, even if counsel failed to advise defendant that relevant conduct could affect his sentence, defendant did not show that he would have accepted the plea offer. Jones v. U.S., 161 F.3d 397 (6th Cir. 1998).
6th Circuit holds government forfeited right to claim that waiver barred appeal of denial of § 2255 motion. (880) Defendant pled guilty to drug charges. His plea agreement provided that he waived the right to appeal his sentence. He did not file a direct appeal, but did file a § 2255 motion to vacate his sentence on various grounds. The district court denied the petition, although it recognized that it had failed to make explicit findings of fact regarding the amount of drugs attributable to defendant. It then held a hearing, made additional factual findings, and imposed the same sentence. The government argued that the appeal-waiver provision in the plea agreement barred the appeal. The Sixth Circuit held that the government forfeited its right to rely on the appeal-waiver provision because it did not raise this issue below. The government did not argue during the § 2255 hearing that defendant waived his appeal rights. If the appeal waiver provision foreclosed a collateral attack, the collateral attack would be foreclosed at its inception, not just on appeal. Hunter v. U.S., 160 F.3d 1109 (6th Cir. 1998).
6th Circuit holds that dissatisfaction with plea- bargained sentence did not show ineffective assistance. (880) Defendant pled guilty to drug charges. He did not file a direct appeal, but instead filed a § 2255 motion to vacate his sentence on various grounds. The district court denied the petition. The Sixth Circuit ruled that defendant’s relevant conduct and criminal history challenges were straight sentencing issues that it would not address in a § 2255 petition. Relief is not available in a § 2255 petition for a claim of nonconstitutional, sentencing-guideline error when that error was procedurally defaulted through the failure to bring a direct appeal. However, the court rejected defendant’s ineffective assistance of counsel claim on the merits. Defendant claimed, in essence, that although his attorney was accurate about the consequences of pleading guilty versus going to trial, counsel was ineffective because defendant believed he could have gotten a better deal. However, defendant made a fully informed bargain, and while he may have later decided that he could have done better, his dissatisfaction did not establish a constitutionally ineffective counsel. Hunter v. U.S., 160 F.3d 1109 (6th Cir. 1998).
6th Circuit requires permission to file second § 2255 motion even though first was filed before AEDPA. (880) Defendant pled guilty to firearms charges. On September 12, 1995, he filed a § 2255 motion to vacate his sentence. The district court denied his motion. Thereafter, on March 6, 1997, he sought permission to file a second § 2255 motion, along with a § 2244 motion. A panel of the Sixth Circuit denied permission in June. In October 1997, he sought to reopen his case in light of In re Hanserd, 123 F.3d 922 (6th Cir. 1997), which held that the new limits on successive motions in the Anti-Terrorism and Death Penalty Act of 1996 (AEDPA) apply only if the previous § 2255 motion was filed on or after the effective date of the Act, April 24, 1996. Defendant pointed out that his first § 2255 motion was filed before April 24, 1996. The Sixth Circuit held that Hanserd was limited to motions challenging firearms convictions under Bailey v. U.S., 116 S.Ct. 501 (1995). Applying AEDPA retroactively in Bailey cases would affect pre-AEDPA conduct by barring a second motion even though, before AEDPA, a second motion would have been permitted. In the present case, defendant merely raised a sentencing guideline issue, on which successive motions were barred even before AEDPA, based on the old “abuse of the writ” standard. In re Sonshine, 132 F.3d 1133 (6th Cir. 1997).
6th Circuit upholds authority under § 2255 to resentence on remaining drug count. (880) The district court granted defendant’s § 2255 petition and vacated his conviction for using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). However, it then added two levels to his sentence on the drug count, under guideline § 2D1.1(b)(1). The Sixth Circuit affirmed, upholding the district court’s authority under § 2255 to resentence defendant on the unchallenged conviction after vacating the § 924(c) count. Every circuit that has considered this issue has agreed with this holding. At the original sentencing, the § 924(c) conviction precluded the court from applying the § 2D1.1(b)(1) enhancement. Resentencing simply put defendant in the same position he would have occupied if he had never been convicted of the § 924(c) count. Even though he had already served the portion of his sentence allocated to the drug charge, he lost any expectation of finality when he challenged one of two interrelated convictions and placed the validity of his entire sentence at issue. U.S. v. Pasquarille, 130 F.3d 1220 (6th Cir. 1997).
6th Circuit refuses second § 2255 motion where new case and guideline amendment existed at time of first § 2255 motion. (880) Petitioner brought a § 2255 motion arguing that the decision of U.S. v. James, 78 F.3d 851 (3d Cir. 1996) and a 1993 amendment to § 2D1.1(c) should be retroactively applied to his case. The Sixth Circuit held that petitioner was not entitled to file a second § 2255 motion. James simply adopted the Eleventh Circuit’s opinion in U.S. v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994). Both the Munoz-Realpe decision and the guideline amendment existed prior to the 1995 denial of defendant’s first § 2255 motion. In re Sims, 111 F.3d 45 (6th Cir. 1997).
6th Circuit says Teague does not bar retroactive application of cases interpreting guidelines. (880) In a § 2255 petition, defendant sought retroactive application of U.S. v. Stevens, 25 F.3d 318 (6th Cir. 1994), which held that the enhancement for marijuana plants should not be used if the plants were harvested before arrest. The district court held that retroactive application of Stevens was impermissible under Teague v. Lane, 489 U.S. 288 (1989). The Sixth Circuit held that Teague did not apply because Stevens did not announce a new constitutional rule of criminal procedure. Teague does not bar the retroactive application of caselaw interpreting the federal sentencing guidelines. In any event, the court held that Stevens did not apply to the facts of this case. Oliver v. U.S., 90 F.3d 177 (6th Cir. 1996).
6th Circuit says record not sufficiently developed to raise effectiveness of counsel on direct appeal. (880) Defendant argued for the first time on appeal that he was denied effective assistance by his counsel’s failure to raise certain sentencing issues. The Sixth Circuit held that the record was not adequately developed to resolve this claim on direct appeal. Generally, a defendant may not raise ineffectiveness of counsel claims for the first time on direct appeal, since there has not been an opportunity to develop and include in the record evidence bearing on the merits of the allegations. Some courts will consider the merits of defendant’s allegations when the record is adequate to assess it. Here, the record was not sufficiently developed. To prevail on an ineffectiveness claim, a defendant must show that he was prejudiced by the inadequate performance. The record did not show whether defendant would have prevailed if his counsel had raised the issues identified here. U.S. v. Tucker, 90 F.3d 1135 (6th Cir. 1996).
6th Circuit says co‑defendant’s remand did not justify relitigation of issues raised on direct appeal. (880) Defendant was convicted of possessing two kilograms of cocaine, but the district court held him accountable for an additional two or three kilograms as relevant conduct. Defendant challenged this assessment on appeal and the appellate court affirmed his sentence. Defendant then filed a motion to correct his sentence under 28 U.S.C. § 2255, alleging that he should not be held accountable for the additional cocaine because the Sixth Circuit, in a separate appeal, remanded his jointly‑tried co‑defendants for resentencing. The Sixth Circuit denied the petition because defendant’s claim was identical to the issue resolved in his direct appeal. A § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances. There were no exceptional circumstances here. DuPont v. U.S., 76 F.3d 108 (6th Cir. 1996).
6th Circuit holds that nonconstitutional claims not raised at trial or on appeal are waived. (880) A presentence report found defendant accountable for 50 kilograms of cocaine distributed by members of her conspiracy. Defendant did not challenge the finding and the court accepted the 50-kilogram figure. On direct appeal, defendant challenged her conviction but asserted no sentencing errors. Then, in a § 2255 petition defendant argued for the first time that the court failed to make an explicit factual finding as to the scope of the criminal activity she had agreed to undertake, as required by amended § 1B1.3. The Sixth Circuit held that defendant waived the claim: nonconstitutional claims not raised at trial or on direct appeal are waived for collateral review except where the errors amount to something akin to a denial of due process. Thus, mistakes in the application of the sentencing guidelines will rarely, if ever, warrant relief from the consequences of waiver. Defendant’s claim fell short of indicating a denial of due process. Grant v. U.S., 72 F.3d 503 (6th Cir. 1996).
6th Circuit rejects § 2255 motions for ordinary guideline questions absent miscarriage of justice. (880) Defendant was sentenced as a career offender based in part upon a 1985 conviction. On direct appeal, he argued that consideration of this conviction violated his plea agreement and 21 U.S.C. § 851. After he lost the appeal, he brought a motion under 28 U.S.C. § 2255, arguing that the 1985 conviction did not qualify as a predicate career offender crime. The Sixth Circuit held that issues of guideline interpretation are not proper § 2255 claims unless they rise to the level of being a miscarriage of justice. A § 2255 motion is not a substitute for direct appeal. Defendant’s claim should have been brought on direct appeal. Auman v. U.S., 67 F.3d 157 (6th Cir. 1995).
6th Circuit says relevant conduct may not be used in finding amount of funds structured. (880) Defendant structured a transaction to avoid reporting requirements by purchasing a $123,500 home with currency and cashier’s checks. The court held him accountable for structuring more than $100,000 under § 2S1.3(b)(2). The Sixth Circuit held that the court should have excluded $29,000 from two cashier’s checks for which defendant and his brother filled out the reporting forms. The enhancement would have been proper under Fifth Circuit law, which allows a court to consider all funds involved in the same course of conduct or common scheme or plan as the offense of conviction. However, under U.S. v. Wright, 12 F.3d 70 (6th Cir. 1993), the relevant conduct adjustment does not apply where a guideline provision restricts its application to specific conduct. Defense counsel’s failure to object to the additional point was not ineffective assistance because there was no prejudice. Defendant was already serving a 420-month drug sentence that ran concurrently with the 57-month sentence he received on the structuring charge. Green v. U.S., 65 F.3d 546 (6th Cir. 1995).
6th Circuit holds that fine does not meet “in custody” requirement of § 2255 motion. (880) In a motion to vacate his sentence under 28 U.S.C. § 2255, petitioner argued that the district court erred in imposing a § 5E1.2(i) cost of imprisonment fine. The Sixth Circuit held that petitioner was barred from raising his challenge in a § 2255 motion because a monetary fine does not meet § 2255’s “in custody” requirement. Section 2255 is only available to prisoners who claim a right to be released from custody. Moreover, petitioner failed to establish cause or prejudice for his failure to raise this issue before the trial court. U.S. v. Watroba, 56 F.3d 28 (6th Cir. 1995).
6th Circuit remands for hearing on whether oral plea agreement required Rule 35 motion. (880) Two years after sentencing, defendant moved to withdraw his plea, alleging that FBI agents told him that if he cooperated in ongoing investigations, the government would file a Rule 35 motion to reduce his sentence, and that he would serve only two years. The district court summarily dismissed the motion, but the 6th Circuit remanded for an evidentiary hearing. The government acknowledged the existence of an oral plea agreement that went beyond the terms of defendant’s written agreement. Contrary to Rule 11(d), the judge never asked defendant whether there were any promises apart from the written plea. Given this record, the government was required to present evidence in support of its motion for summary dismissal. The government’s unverified responses were plainly inadequate. On remand, if defendant was successful, his remedy would be to withdraw his plea. The government could not now be required to file a delayed Rule 35 motion. Judge Batchelder dissented. Peavy v. U.S., 31 F.3d 1341 (6th Cir. 1994).
6th Circuit finds no ineffective assistance in failing to advise that substantial assistance departure was at government’s discretion. (880) Defendant claimed that his counsel’s failure to advise him that the government was under no obligation to request a substantial assistance departure was ineffective assistance, rendering his guilty plea involuntary. The 6th Circuit found that even if counsel had failed to so advise him, it did not constitute ineffective assistance. Defendant failed to meet the “competence” prong of Strickland — there was no showing that counsel’s performance was not competent. He also did not meet the “prejudice” prong — there was no indication that had he known more, he would not have pled guilty. Although it would have been better if defendant had been specifically told that any motion for a downward reduction was at the government’s discretion, it could not be said that the failure to do so amounted to ineffective assistance. Sullivan v. U.S., 11 F.3d 573 (6th Cir. 1993).
6th Circuit upholds refusal to hold evidentiary hearing on section 2255 motion where no factual dispute. (880) The 6th Circuit upheld the district court’s denial of petitioner’s 28 U.S.C. section 2255 motion without an evidentiary hearing. Petitioner raised no issues in his motion that raised factual disputes. Thus, under Rule 4(b) of the Rules Governing Section 2255 Proceedings, there was no need for any type of evidentiary hearing. Mathews v. U.S., 11 F.3d 583 (6th Cir. 1993).
6th Circuit affirms denial of motion to vacate plea for attorney’s incorrect advice about sentence. (880) The district court denied defendant’s motion to vacate his guilty plea under 28 U.S.C. section 2255 despite his allegation that his attorney incorrectly advised him he would only face a sentence of probation. The 6th Circuit affirmed, holding the district court did not abuse its discretion in failing to hold an evidentiary hearing on his motion. The promise that defendant claimed his attorney made was refuted by the record. Defendant was given the correct sentencing information by the judge. Defendant expressly denied the existence of any other representations or promises. Moreover, the district court held an immediate hearing on the record as soon as defendant challenged his plea and sentence. Defendant was given ample opportunity to address the court regarding his contentions, and his claims were unequivocally refuted by both his own attorney and his co-defendant’s attorney. U.S. v. Todaro, 982 F.2d 1025 (6th Cir. 1993).
6th Circuit says Rule 32(d) provides no jurisdiction to withdraw plea after sentencing. (880) After defendant was sentenced, he filed a motion to vacate his guilty plea pursuant to both Fed. R. Crim. P. 32(d) and 28 U.S.C. section 2255. The 6th Circuit held that because the request was made after his sentence was imposed, Rule 32(d) did not provide a vehicle to challenge the plea. However, because defendant’s motion to vacate his plea was also brought under 28 U.S.C. section 2255, the court considered his argument under that provision. U.S. v. Todaro, 982 F.2d 1025 (6th Cir. 1993).
6th Circuit reviews sentencing issues raised in amendment to motion to vacate sentence. (880) In an appeal of the district court’s denial of defendant’s motion under section 2255 to vacate his sentence, the government argued that the appellate court was not required to address defendant’s challenges to the calculation of his sentence under the guidelines because defendant failed to raise the issues below. The 6th Circuit found that a review of the district court’s application of the guidelines was appropriate because defendant filed an amendment to his motion to vacate sentence in which he specifically raised the guidelines issues. Fields v. U.S., 963 F.2d 105 (6th Cir. 1992).
6th Circuit reverses upward departure when order giving reasons was issued four weeks after sentencing. (880) The district court departed upward in sentencing defendants for bank robbery, citing use of a weapon and the defendants’ criminal history. The court did not state what events in the defendants’ criminal histories it felt were inadequately represented by their criminal history category. The defendants appealed and four weeks later the district court filed an order justifying its departure. The 6th Circuit reversed, holding that the district court lost jurisdiction when the appeals were filed. The court stated that reasons for an upward departure must be given in open court at the time of sentencing so that a defendant can evaluate the reasons for departure and be able to challenge them on appeal. Orders issued after sentencing to clarify the reasons for departure will not suffice. U.S. v. Fitzwater, 896 F.2d 1009 (6th Cir. 1990).
7th Circuit holds sentence reduction did not reset limitations period or allow successive § 2255 motion. (880) A jury convicted defendant of distributing crack, and he was sentenced to 360 months. He filed and lost a collateral attack under 28 U.S.C. § 2255. Defendant later moved under 18 U.S.C. § 3582(c) for a sentence reduction based on the recent crack amendments. The judge reduced defendant’s sentence to 292 months. Nine months later defendant filed another § 2255 petition, contending that his sentence was too high because the guideline range set in 2006 was improperly calculated. The district court dismissed the petition under 28 U.S.C. § 2244 and § 2255(h) as a “second or successive” petition. Defendant argued that his sentence reduction in 2012 not only restarted the clock under § 2255(f) but also reset to zero his count of collateral attacks. The Seventh Circuit disagreed. A reduction under § 3582(c) is not a “resentencing.” The judge was forbidden to reexamine the effect that the enhancements and reductions he challenged had on his guideline range. No error subject to collateral review occurred in 2012, and the clock did not reset for purposes of § 2244 and § 2255, when his sentence was reduced. White v. U.S., __ F.3d __ (7th Cir. Mar. 14, 2014) No. 13-3396.
7th Circuit holds that Begay “crime of violence” error was cognizable in § 2241 proceeding. (880) In 1996, defendant was convicted of drug charges and sentenced as a career offender. He first filed an unsuccessful motion under 28 U.S.C. § 2255. He later filed a petition under 28 U.S.C. § 2241, contending that under Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), his prior Delaware arson conviction did not qualify as a crime of violence. The district court dismissed the petition, finding that the savings clause in § 2255(e) “requires a claim of actual innocence directed to the underlying conviction, not merely the sentence.” The Seventh Circuit reversed. A federal prisoner may petition under § 2241 “if his section 2255 remedy ‘is inadequate or ineffective to test the legality of his detention.'” In re Davenport, 147 F.3d 605 (7th Cir. 1998), established three conditions for this exception to apply: First, the prisoner must show that he relies on a statutory-interpretation case, rather than a constitutional case. Second, the prisoner must show that he relies on a retroactive decision that he could not have invoked in his first § 2255 motion. Third, the sentence enhancement must have been a grave enough error to be deemed a miscarriage of justice. If the Davenport conditions are present, a petitioner may use the savings clause to challenge the misapplication of the career offender guidelines, at least where as here, the defendant was sentenced in the pre-Booker era. 7th Cir. 2013).
7th Circuit holds that Begay applies retroactively to collateral review. (880) Defendant was sentenced under the Armed Career Criminal Act based in part on his prior Illinois conviction for aggravated fleeing or attempting to elude a police officer. He brought a motion under 28 U.S.C. § 2255 to vacate the sentence, arguing that the offense was not a violent felony. The district court denied the motion, but on appeal, the Seventh Circuit considered whether the Supreme Court’s decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) applied retroactively. Begay held that in order to qualify as a violent felony under the ACCA, a crime must be similar in kind to the enumerated offenses. New substantive rules apply retroactively on collateral review, but procedural rules generally do not apply. Teague v. Lane, 489 U.S. 288 (1988). Here, the Seventh Circuit held that the Begay rule is retroactive on collateral review. That decision narrowed substantially defendant’s exposure to a sentence of imprisonment, and therefore was a substantive change, not a procedural device. Welch v. U.S., 604 F.3d 408 (7th Cir. 2010).
7th Circuit rejects challenge to sentence for supervised release violation based on alleged Apprendi violation in original sentence. (880) The maximum sentence for a defendant who violates the terms of his supervised release depends on the permissible maximum sentence for the offense for which supervised release was imposed. In 1994, defendant pleaded guilty to drug trafficking, in violation of 21 U.S.C. § 841(b)(1)(A) and was sentenced to 15 years’ imprisonment. The maximum penalty for a violation of § 841(b)(1)(A) is determined by the quantity of drugs involved in the offense. After violating the terms of his supervised release on his 1994 conviction, defendant argued that drug quantity was not submitted to a jury when he was convicted in 1994 and therefore that under Apprendi he actually faced a maximum sentence of five years. On that basis, defendant argued that the maximum sentence for his supervised release violation was one year. The Seventh Circuit held that defendant’s Apprendi rights were not violated in 1994 because he stipulated to the drug quantity involved in his offense and that even if an Apprendi violation occurred, defendant could not raise it in challenging the sentence imposed on his supervised release violation. U.S. v. Flagg, 481 F.3d 946 (7th Cir. 2007).
7th Circuit rules that Booker does not apply retroactively to cases on collateral review. (880) Defendants sought collateral relief under 28 U.S.C. § 2255, contending that their sentences were invalid because the juries did not determine the precise amount of drugs that led to their sentences. The district court denied the request, and defendant sought a certificate of appealability. The Seventh Circuit concluded that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005. “That date, rather than June 24, 2004, on which Blakely v. Washington, 124 S. Ct. 2531 (2004), came down, is the appropriate dividing line; Blakely reserved decision about the status of the federal Sentencing Guidelines … so Booker itself represents the establishment of a new rule about the federal system.” McReynolds v. U.S., 397 F.3d 479 (7th Cir. 2005).
7th Circuit refuses to recall mandate in light of Blakely. (880) Defendant asked the appellate court to recall the mandate in his direct criminal appeal in light of Blakely v. Washington, 124 S.Ct. 2531 (2004) and U.S. v. Booker, 375 F.3d 508 (7th Cir. 2004), reversed, 125 S.Ct. 738 (2005). The Seventh Circuit ruled that defendant failed to set forth any reason to justify recalling the mandate. Following his direct appeal, defendant filed a motion pursuant to 28 U.S.C. § 2255, which the district court dismissed with prejudice. Defendant did not seek permission to take an appeal from this decision. Motions to recall the mandate in a direct criminal appeal cannot be used to avoid the successive petition restrictions of 28 U.S.C. § 2255. Thus, the mandate could only be recalled if the court would authorized a second or successive collateral attack under 28 U.S.C. § 2244(b) and § 2255. That was not the case here. Even if the Supreme Court announced a new constitutional rule in Blakely and defendant’s sentence violated that rule, defendant’s claim was premature. The Supreme Court has not made the Blakely rule applicable to cases on collateral review as required by § 2244(b)(2)(A) and § 2255. U.S. v. Ford, 383 F.3d 567 (7th Cir. 2004).
7th Circuit says counsel’s failure to proffer not completely truthful statement was not ineffective assistance. (880) In a motion under 28 U.S.C. § 2255, defendant argued that his counsel was ineffective in failing to proffer defendant’s written statement about the offense, and that because of this failure, he did not receive safety valve protection under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. Because the Seventh Circuit concluded that his proffer would have been insufficient even if it had been submitted to the government, defendant could not show prejudice. It was defendants’ burden to prove that he would have been eligible for the safety valve reduction if the proffer had been correctly made. However, the proffer was not truthful and complete. Defendant contended that he was initially duped into assisting a heroin supplier in smuggling heroin into the U.S. The government, however, contended that he must have known all along that the supplier was smuggling heroin because defendant had previously been involved with dealing drugs with a different source. The district court accepted the findings of the probation officer, who believed the government’s version of the events. While it was possible the district court might have decided this issue differently had it been squarely presented for resolution via a safety valve proffer, the record did not support a finding that the written statement was entirely truthful. Therefore, any error was harmless. Emezuo v. U.S., 357 F.3d 703 (7th Cir. 2004).
7th Circuit finds insufficient evidence to support ineffective assistance of counsel claims. (880) Defendant pled guilty to drug conspiracy charges and was sentenced to 360 months’ imprisonment. He filed a motion under 28 U.S.C. § 2255 claiming ineffective assistance of counsel. First, he claimed that counsel erroneously advised him that there would be an evidentiary hearing regarding the drug quantities. Second, he claimed that counsel failed to contest the drug amounts attributed to him. The main contention underlying these two claims was that even if defendant had proceeded to trial, the greatest sentence he could have received was no more than 30 years, which was exactly what he got by pleading guilty. The Seventh Circuit found a lack of evidence to support defendant’s claim. A mere allegation by the defendant that he would have insisted on going to trial is insufficient to establish prejudice. Defendant had to establish through objective evidence that a reasonable probability existed that he would have gone to trial. He offered no evidence that he would have presented had an evidentiary hearing taken place. Defendant’s claim of ineffective assistance at sentencing had the same fault – lack of evidentiary support. He failed to point to any evidence he would have presented that would create a reasonable probability that the result of the proceedings would have been different. Berkey v. U.S, 318 F.3d 768 (7th Cir. 2003).
7th Circuit holds that defendant was not denied effective assistance of counsel at pleading or sentencing. (880) Defendant’s plea agreement contained a stipulation that “the weight of the drugs for the purpose of calculating the guideline range includes 3 kilograms of cocaine relative to the defendant’s conduct in or around March 1997, and an additional 14 ounces as a historical amount.” At sentencing, the prosecution proffered that defendant’s relevant conduct involved 11 kilograms of cocaine. The district court accepted the government’s position. Defendant brought a motion under 28 U.S.C. § 2255 claiming that his counsel was ineffective at both the plea hearing and at sentencing. The Seventh Circuit disagreed. Defendant’s claim was based on the faulty premise that the stipulation placed a cap on defendant’s relevant conduct. There was not a single word or inference that suggested the relevant conduct was limited to this weight. It was reasonable for defendant’s counsel to conclude that there was no agreement between defendant and the government regarding a drug weight cap. Coleman v. U.S., 318 F.3d 754 (7th Cir. 2003).
7th Circuit holds that defendant could not expand certificate of appealability to include Apprendi claim. (880) In 1994, defendant received a life sentence after being convicted of conspiring to import and distribute over 1000 kilograms of marijuana. He moved to have his sentence reviewed under 28 U.S.C. § 2255, claiming that he was denied his right to counsel. The court denied his § 2255 petition and he filed a motion to amend the judgment. While this motion was pending, defendant moved to amend his § 2255 petition to include a claim under Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court denied both motions and granted defendant a certificate of appealability limited to the ineffective assistance of counsel claim. He then petitioned the appeals court to expand the certificate of appealability (COA) to include his Apprendi claim. The Seventh Circuit rejected the petition, holding that defendant was procedurally barred from raising his Apprendi claim. First, defendant failed to raise that claim in his original § 2255 petition before the district court. Although defendant was tried and sentenced before Apprendi, “the novelty of Apprendi does not constitute cause for failing to raise the issue earlier because ‘the foundation for Apprendi was laid long before 1992.’“ Defendant’s motions to amend his application to include an Apprendi claim did not cure the waiver because the motions were properly denied due to the fact that they were late and did not relate back to this original petition. Rodriguez v. U.S., 286 F.3d 972 (7th Cir. 2002).
7th Circuit holds that attorney’s concession not ineffective where evidence of crack was overwhelming. (880) On direct appeal, in U.S. v. Valenzuela, 150 F.3d 664 (7th Cir. 1998), the Seventh Circuit ruled that defense counsel’s admission that 50 grams of crack were attributable to defendant waived defendant’s right to challenge the fact that he dealt crack cocaine. Defendant then filed the instant petition under 28 U.S.C. § 2255, claiming that his counsel was ineffective in admitting that 50 grams of crack were attributable to him. The Seventh Circuit rejected the claim. Even if it was objectively unreasonable for his attorney to make this concession, it was unlikely that the outcome of the proceeding would have been different. There was an abundance of evidence showing that some, if not all, of the drugs distributed by defendant were crack rather than powder cocaine. In addition to the testimony of police officers involved in the investigation and the lab reports suggesting the presence of crack cocaine, defendant himself admitted that he distributed crack cocaine on tape to the undercover officers and at his plea hearing when he agreed to the government’s description of the crime. Valenzuela v. U.S., 261 F.3d 694 (7th Cir. 2001).
7th Circuit holds that belated Apprendi challenge was successive § 2255 attack on original sentence. (880) Defendant’s first § 2255 petition claimed that one of his prior convictions did not qualify as a predicate offense under the ACCA. The appellate court agreed and vacated his sentence. In 1998, the district court found that defendant still had at least three predicate convictions, and reimposed the same sentence. Defendant’s second § 2255 petition argued that under Apprendi v. New Jersey, 530 U.S. 466 (2000), his status as an armed career criminal should have been determined by a jury. Prior appellate approval is required for a “second or successive motion” under § 2255. Defendant’s previous collateral challenge related to his 1995 conviction and sentence, but he was entitled to another to the extent he attacked a different conviction or sentence. See Walker v. Roth, 133 F.3d 454 (7th Cir. 1997). However, defendant did not object to an error made in 1998 – the argument he now sought to present could have been raised at trial or on appeal from the original sentence. Thus, the Seventh Circuit ruled that defendant’s proposed challenge was not an initial collateral attack. A belated challenge to events that precede a resentencing must be treated as a collateral attack on the original conviction and sentence, rather than as an initial challenge to the latest sentence. Therefore, defendant needed permission to bring the current § 2255 petition. Defendant’s application did not meet the statutory standard for a second or successive collateral attack. Under Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the issue of prior convictions need not be submitted to the jury. Dahler v. U.S., 259 F.3d 763 (7th Cir. 2001).
7th Circuit rules defendant failed to show cause and prejudice for failure to preserve Apprendi claim. (880) Defendant originally sought resentencing under 18 U.S.C. § 3582(c) based on a retroactive change in the guidelines. The district court reduced defendant’s sentence under the amendment, but rejected defendant’s request to cut his sentence further based on the fact that the judge, not the jury, had determined drug quantity. The Seventh Circuit affirmed, but the Supreme Court remanded for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi established that the district court erred in 1992 when it failed to instruct the jury to determine whether defendant was accountable for more than 50 grams of crack, or some lesser amount. Defendant did not raise this issue in 1992, so plain error would be the standard if this were a direct appeal. However, because defendant did not raise his claim at trial or on direct appeal, the Seventh Circuit treated the action as a collateral attack under § 2255. To obtain collateral relief, defendant was required to show “cause and prejudice” for his failure to raise the drug quantity issue at his 1992 trial. He could not. The lack of precedent differs from “cause” for failing to make a legal argument. Although the lack of any reasonable legal basis for a claim may constitute “cause,” the foundation for Apprendi was laid long before 1992. See, e.g. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Moreover, it was by no means clear that Apprendi is retroactively applicable on collateral attack. U.S. v. Smith, 241 F.3d 546 (7th Cir. 2001).
7th Circuit rejects ineffective assistance claim where defendant received minimum sentence under ACCA. (880) Defendant argued that he received ineffective assistance of counsel at sentencing. However, defendant received the absolute minimum sentence of 180 months under the Armed Career Criminal Act, 18 U.S.C. § 924(e). As a result, the Seventh Circuit ruled that defendant could not establish prejudice because no matter how well counsel performed, there was no lesser sentence available to defendant under § 924(e U.S. v. Woods, 233 F.3d 482 (7th Cir. 2000).
7th Circuit holds that waiver of appeal did not apply to claim that plea was involuntary. (880) Defendant promised as part of his plea agreement that he would not contest his sentence either by direct appeal or in a collateral proceeding. However, after sentencing, he filed a motion under 28 U.S.C. § 2255, alleging that his counsel was ineffective in inaccurately advising him on how much time he would serve, thus rendering his guilty plea involuntary. He also claimed that counsel was ineffective in failing to call an eyewitness at sentencing. The Seventh Circuit held that because defendant only agreed not to contest his sentence, the waiver did not apply to defendant’s collateral attack on the voluntariness of his guilty plea, which was a challenge to his conviction, not his sentence. However, although he did not waive the claim, the claim was patently without merit. Counsel’s alleged miscalculation, standing alone, will never demonstrate deficient performance unless the inaccurate advice resulted from the attorney’s failure to undertake a good-faith analysis of all of the relevant facts and applicable legal principles. As to defendant’s allegations about counsel’s performance at sentencing, however, the plea agreement waiver was effective. Bridgeman v. U.S., 229 F.3d 589 (7th Cir. 2000).
7th Circuit says Apprendi not applicable where aggravating factors did not increase statutory maximum. (880) Based on the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), defendant requested authorization to file a second or successive motion for relief under 28 U.S.C. § 2255. Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Seventh Circuit noted potentially meritorious claims that rely on new rules of constitutional law are not ripe for presentation until the Supreme Court has ruled on the retroactivity issue. In such a case, it generally would dismiss the application without prejudice to re-filing at such time as the Court renders a decision in favor of retroactivity. Dismissal without prejudice was not required here, however, because even if Apprendi were retroactive, it would be of no help to defendant. Defendant was convicted of conspiracy to kidnap and kidnapping under 18 U.S.C. § 1201(a) and (c). The facts that supported upward adjustments under the guidelines, such as his demand for ransom, were sentencing factors that did not increase the prescribed statutory maximum for his crimes. The kidnapping statute clearly authorizes a sentence for “any term of years or for life” for the both the substantive offense and the conspiracy offense. Because the aggravating factors considered by the court did not increase the statutory maximum, Apprendi was not applicable. The aggravating factors were sentencing factors, not elements of the offense. Hernandez v. U.S., 226 F.3d 839 (7th Cir. 2000).
7th Circuit will reject successive § 2255 petitions until Supreme Court announces Apprendi is retroactive. (880) Based on the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), defendant requested authorization to file a second or successive motion for relief under 28 U.S.C. § 2255. Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Seventh Circuit held it will not authorize a successive petition under Apprendi unless and until the Supreme Court announces that Apprendi applies retroactively. “[A] new decision of the Supreme Court justifies a second or successive attack only if it establishes ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.’” Under Bennett v. U.S., 119 F.3d 470 (7th Cir. 1997), that retroactive application must be declared by the Supreme Court itself. If the Supreme Court ultimately declares that Apprendi applies retroactively on collateral attack, then the Seventh Circuit will authorize successive collateral review of cases to which it applies. “Until then prisoners should hold their horses and stop wasting everyone’s time with futile applications.” Moreover, prisoners considering initial collateral attacks based on Apprendi should reconsider, because a loss will require the appellate court’s approval to launch a later collateral attack. Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000).
7th Circuit suggests collateral review of claim that lawyer prevented defendant from pleading guilty. (880) Defendant went to trial and denied the prosecution’s factual allegations. While a challenge to the legal basis for a charge does not preclude the possibility of an acceptance of responsibility reduction, the “adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” USSG § 3E1.1, Application Note 2. Defendant tried to justify her failure to come forward with the truth earlier by arguing that she wanted to plead guilty but was told by her lawyer that he was too busy and that the government did not want to talk to her. The record did not support these claims. The Seventh Circuit noted that defendant’s alleged problems with her representation could be addressed on collateral review via an ineffective assistance of counsel claim. The record here supported the denial of the acceptance of responsibility reduction. U.S. v. Hamzat, 217 F.3d 494 (7th Cir. 2000).
7th Circuit holds that Custis applies to challenges brought during § 2255 proceedings. (880) In 1995, defendant was sentenced as a career offender based in part on a 1980 Illinois armed robbery conviction. He argued that the 1980 plea was involuntary, but the appellate court ruled that Custis v. U.S., 511 U.S. 485 (1994) precluded an indirect collateral attack on the state sentence, and that the 1980 conviction counted for career-offender purposes whether defendant’s plea was voluntary or not. Under Custis, only the lack of counsel permits such an indirect collateral attack. Defendant then launched two collateral attacks, one of the 1980 conviction, the other on the 1995 federal sentence. One district court dismissed the challenge to the 1980 conviction since defendant was no longer “in custody.” A second district court dismissed the challenge to the federal sentence, ruling that Custis was as applicable to a § 2255 petition as it was to sentencing and direct appeal. The Seventh Circuit agreed that Custis also barred a collateral challenge brought during a § 2255 petition. A sentence imposed following the approach of Custis is lawful and thus not subject to collateral attack under 28 U.S.C. § 2255 as long as the prior convictions remain undisturbed. A prior conviction is conclusive for purposes of recidivist sentencing. By disdaining the Illinois courts when he had the chance, defendant lost any entitlement to obtain a federal declaration that his 1980 conviction was invalid. Ryan v. U.S., 214 F.3d 877 (7th Cir. 2000).
7th Circuit says counsel not ineffective in failing to obtain plea agreement. (880) Defendant argued that his former attorney was ineffective by failing to procure a plea agreement with the government. The Seventh Circuit ruled that counsel’s representation did not fall below an objective standard of reasonableness. The successful negotiation of a plea agreement involves factors beyond the control of counsel, including the cooperation of his client, which was absent here, as well as the cooperation of the prosecutor, who has no obligation to offer such an agreement. The district court found that both the government and defendant were “intractable” about plea negotiations. The attorney testified that his attempts to successfully negotiate a plea agreement were stymied by defendant himself, through his unreasonable demand that despite his extensive drug activity, he avoid any and all jail time. Moreover, although defendant presented affidavits from friends and family stating that defendant would have accepted a plea agreement if one had been offered, defendant did not dispute the fact that the government never offered a plea agreement. U.S. v. Hall, 212 F.3d 1016 (7th Cir. 2000).
7th Circuit holds that defendant waived right to seek post-conviction relief. (880) Defendant’s plea agreement provided that he waived his right to appeal as well as his right to attack his sentence in any separate proceeding at a later time. Nonetheless, defendant brought a § 2255 petition on the grounds of ineffective assistance of counsel, arguing that he would have received a lower sentence had his counsel made certain arguments at sentencing. As to his waiver, he contended that no defendant may ever waive the right to seek post-conviction relief on the grounds of ineffective assistance of counsel. However, in Jones v. United States, 167 F.3d 1142 (7th Cir. 1999), the court found that a waiver of the right to file a § 2255 petition is enforceable only if it is knowing and voluntary and if the defendant cannot establish a claim of ineffective assistance of counsel in connection with negotiating the agreement. Because defendant’s ineffective assistance of counsel claim related only to his attorney’s performance at sentencing, and had nothing to do with the negotiation of the waiver, the Seventh Circuit ruled that defendant waived his right to seek post-conviction relief. Mason v. U.S., 211 F.3d 1065 (7th Cir. 2000).
7th Circuit decides statutory issues not raised in certificate of appealability. (880) Defendant filed a motion under 28 U.S.C. § 2255 contending that his federal sentence was improperly made consecutive to a state sentence that was not in existence at sentencing. The district court denied the motion, but issued a certificate of appealability. Section 2253(c)(2) provides that the certificate must indicate the constitutional issue presented. The certificate issued here did not identify any constitutional issue, since a federal court’s authority to choose between concurrent and consecutive terms depends on federal statutes, not the Constitution. Moreover, defendant’s brief ignored the certificate of appealability and briefed two different issues. The government did not raise these deficiencies, and chose to litigate on defendant’s terms. Under Young v. United States, 124 F.3d 794 (7th Cir. 1997), when the district judge and the parties all disregard § 2253(c)(2), and the case is fully briefed on statutory questions, the appellate court will proceed to decide them. Thus, the Seventh Circuit held that the government forfeited the benefits of § 2253 and it could decide the issues raised. Romandine v. U.S., 206 F.3d 731 (7th Cir. 2000).
7th Circuit says petition not successive despite previous motions. (880) Between the time of sentencing and his filing of the current § 2255 motion, defendant filed four motions seeking clarification, modification or a declaration regarding the sentence. The Seventh Circuit held that the current § 2255 petition should not be treated as a second or successive collateral attack because none of defendant’s prior filings met the statutory description of a § 2255 petition. Defendant’s first petition merely asked the judge to clarify defendant’s understanding of the sentence but did not seek its alteration. The next two requested lower sentences, but not on any of the grounds mentioned in § 2255. The “motion for reconsideration,” in which defendant asked for a lower sentence because subsequent developments had defeated the judge’s expectations about how long defendant would remain in prison, came the closest. However, under U.S. v. Addonizio, 442 U.S. 178 (1979), a defendant’s request for a break because events after the judgment affected the judge’s “expectations” cannot be characterized as a collateral attack on the judgment. Romandine v. U.S., 206 F.3d 731 (7th Cir. 2000).
7th Circuit rejects ineffective assistance of counsel claim. (880) Defendant claimed that his attorney was ineffective because he did not file any pretrial motions, did not try to reconcile confusion in the PSR as to how much cocaine was attributable to defendant, and failed to withdraw defendant’s guilty plea. The Seventh Circuit ruled that the defendant did not show that his attorney’s performance was unreasonable. Counsel stated that he did not file pretrial motions for tactical reasons. Given the evidence against defendant, it was reasonable for the attorney to decide to cooperate with the government. The attorney also was not remiss in accepting the PSR without challenge. The PSR actually helped defendant, because it held him responsible for the lower of several possible amounts of cocaine. The trial record furnished no reason to second-guess counsel’s decision not to withdraw defendant’s guilty plea. Finally, even if counsel’s performance was unreasonable, defendant did not show that he was prejudiced by counsel’s actions—he did not show a reasonable probability that the result of his proceeding would have been different without the alleged errors. Defendant was sentenced to 120 months, the lowest in a 120-135 month range. He received a full three-level reduction for acceptance of responsibility. If counsel had not helped defendant to accept early responsibility, defendant might have done much worse. U.S. v. Godwin, 202 F.3d 969 (7th Cir. 2000).
7th Circuit rules court applied wrong test to determine whether ineffective assistance caused prejudice. (880) Defendant was convicted of drug charges and sentenced to 121 months’ imprisonment. In a § 2255 motion, he claimed that defense counsel was ineffective during plea negotiations because he told defendant that he could only be held responsible for the two kilograms of cocaine with which he was caught, and that his sentence would be the same whether he pled guilty or went to trial. Defendant argued that but for this deficient advice, he would have accepted a five-year deal offered by the government. The district court found that even assuming deficient representation, defendant could not show prejudice since the difference between the actual sentencing range and the potential range was not “significant.” The Seventh Circuit held that the district court applied the wrong test to determine whether defendant suffered prejudice. The proper test, described in Toro v. Fairman, 940 F.2d 1065 (7th Cir. 1991), is whether defendant established (1) through objective evidence that (2) there was a reasonable probability that he would have accepted the alleged proposed plea agreement absent defense counsel’s advice. Paters v. U.S., 159 F.3d 1043 (7th Cir. 1998).
7th Circuit says attorney’s failure to challenge drug quantity was not ineffective assistance. (880) In a § 2255 petition, defendant claimed he was denied effective assistance of counsel because his attorney failed to object to the PSR’s finding that he was responsible for the entire quantity of cocaine distributed during the course of the conspiracy. The Seventh Circuit found no ineffective assistance. A defendant is responsible for the acts of his co-conspirators so long as those acts were reasonably foreseeable and were in furtherance of the conspiracy. The distribution of between 15 and 50 kilograms of cocaine was foreseeable because it was in furtherance of defendant’s role as a leader in the drug trafficking conspiracy. Recorded conversations between defendant and a co-conspirator demonstrated that defendant was actively involved in the conspiracy’s leadership since the earliest days of the group’s drug dealing. Thus, the sale of several kilos of cocaine by other members of the conspiracy was reasonably foreseeable to him. Gray-Bey v. U.S., 156 F.3d 733 (7th Cir. 1998).
7th Circuit holds certificate of appealability not proper for claim based on later guideline amendment. (880) In a § 2255 petition defendant argued that, due to a change in the Sentencing Guidelines after his direct appeal, the district court abused its discretion in failing to remand his case for resentencing. The Seventh Circuit held that this was not an appropriate case for a certificate of appealability. A certificate of appealability is not permitted unless the applicant makes a substantial showing of the denial of a constitutional right. Defendant was arguing that a subsequent amendment to the guidelines after his direct appeal made it improper to include certain drug quantities in his sentence. This argument did not raise any constitutional issues, and the issuance of a certificate of appealability was therefore inappropriate. Buggs v. U.S., 153 F.3d 439 (7th Cir. 1998).
7th Circuit rejects ineffective assistance claim where counsel made same arguments as defendant. (880) Defendant argued in a § 2255 petition that his counsel was ineffective for failing to argue that district court should not have considered four ounces of heroin that he negotiated to sell to an informant. He argued that he was unable to obtain the heroin and that the cocaine and marijuana he was carrying when he was arrested was a substitute for the negotiated amount of heroin. Thus, counting these “substitute “ drugs and the negotiated heroin resulted in double counting. The Seventh Circuit found that defendant failed to meet the first prong of the ineffective assistance of counsel test. Both at sentencing and on direct appeal, defense counsel presented the precise arguments defendant argued here. Therefore, counsel’s performance did not fall below an objective standard of reasonableness. Buggs v. U.S., 153 F.3d 439 (7th Cir. 1998).
7th Circuit permits judge to hold evidentiary hearing before ruling on § 2255 motion. (880) Defendant pled guilty to a crack cocaine conspiracy. He filed a motion under 28 U.S.C. § 2255 based on recent caselaw requiring the government to prove that a defendant is involved with crack rather than powder cocaine in order for the enhanced crack penalties to apply. The district judge held an evidentiary hearing on the motion to determine whether the substance involved in defendant’s crime was crack. The judge found that defendant possessed crack, and denied the § 2255 motion. Defendant argued that it was error for the court to conduct such a hearing and that it should have made its decision on the basis of the record as it existed before he filed the § 2255 motion. The Seventh Circuit ruled that defendant’s claim that the judge was stuck with the record as it existed when his motion was filed was meritless. Defendant’s argument elevated form over substance because the judge could simply grant the motion, vacate the sentence, and then open a new sentencing hearing where the determination that the cocaine was crack would follow. Biami v. U.S., 144 F.3d 1096 (7th Cir. 1998).
7th Circuit finds no ineffective assistance even though counsel did not predict obstruction enhancement. (880) Defendant pled guilty to money laundering on his counsel’s advice that his sentencing level would be 28. His counsel failed to take into account the possibility of an obstruction of justice enhancement arising from the fact that defendant jumped bond. The Seventh Circuit rejected defendant’s ineffective assistance of counsel claim. Although normally such claims are not reviewed on direct appeal, the appellate court made an exception because the record was sufficiently developed to decide the issue. Defendant showed only that his trial counsel did not accurately predict his sentencing level. He relied heavily on his characterization of his trial counsel as “experienced and highly regarded lawyers” who should have accurately predicted his obstruction of justice enhancement. However, defendant did not show that trial counsel’s scrutiny was made in bad faith. U.S. v. Gwiazdzinski, 141 F.3d 784 (7th Cir. 1998).
7th Circuit upholds jurisdiction to resentence more than 3 months after granting 2255 motion. (880) Defendant was originally convicted of drug and firearms charges. On October 31, 1996, the district court granted defendant’s § 2255 petition to vacate the firearm conviction, and instructed the government to notify the court by December 1 whether it intended to retry defendant on the § 924(c) charge. On December 5, the government finally advised the court that it did not intend to retry defendant. On February 11, the court scheduled a sentencing hearing, and on March 14, the court resentenced defendant on the drug count, applying a § 2D1.1(b)(1) enhancement. The Seventh Circuit upheld the court’s jurisdiction to resentence defendant more than 3 months after deciding the merits of defendant’s collateral attack. There is no rule or statute implying a limit on the court’s jurisdiction to recalculate a sentence when one count is vacated. Even if there is a point at which the court might lose the power to resentence on an undisturbed count, that point was not reached here. A court must be given a reasonable time to recalculate the sentence. U.S. v. Walker, 118 F.3d 559 (7th Cir. 1997).
7th Circuit refuses to review § 2255 claims where lawyer’s conduct did not lead to “significant” sentence increase. (880) In a § 2255 petition, petitioner raised several challenges to his sentence. The Seventh Circuit found that § 2255 relief was not available on his Sentencing Guideline claim. Under Scott v. U.S., 997 F.2d 340 (7th Cir. 1993), arguments based on the Sentencing Guidelines must be raised on direct appeal or not at all, unless a fundamental miscarriage of justice would result. Although petitioner claimed his lawyer’s failure to pursue sentencing issues on appeal was ineffective assistance of counsel, under Durrive v. U.S., 4 F.3d 548 (7th Cir. 1993), to satisfy the “prejudice” component of Strickland v. Washington, 466 U.S. 668 (1984), a petitioner must demonstrate that counsel’s deficient performance led to a “significant” increase in the sentence. Petitioner’s complaint about a single criminal history level was not significant. Martin v. U.S., 109 F.3d 1177 (7th Cir. 1997).
7th Circuit holds failure to support challenge to loss amount was not ineffective assistance. (880) Defendant committed bankruptcy fraud by concealing the existence of property belonging to the bankruptcy estate, including jewelry, furs, gemstones, and cash. The district court found the value of the concealed assets totaled $181,092. Defense counsel objected that the concealed property was “nowhere near $181,092,” but offered no support for that assertion. The Seventh Circuit held that counsel’s failure to support his challenge to the loss calculation was not ineffective assistance. Counsel was well within the bounds of reasonable representation when he chose not to pursue an objection that was inconsistent with defendant’s plea agreement. Moreover, there was no prejudice. Under the grouping rules, defendant’s adjusted offense level for the bankruptcy offense, without or without the loss enhancement, had no effect on his combined adjusted level for the entire case. U.S. v. Madoch, 108 F.3d 761 (7th Cir. 1997).
7th Circuit affirms resentencing on drug count even though § 2255 petition only challenged gun count. (880) Defendant successfully petitioned the court under § 2255 to vacate his § 924(c) firearm conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). At resentencing, the district court imposed a § 2D1.1(b)(1) firearm enhancement to his sentence for the drug offense. Defendant argued that the district court could not resentence him on a count not attacked in his § 2255 petition. The Seventh Circuit, relying on U.S. v. Smith, 103 F.3d 531 (7th Cir. 1996), held that the vacation of the § 924(c) portion of defendant’s sentence “unbundled” his sentencing package and entitled the court to effectuate its original sentencing intent by resentencing defendant and adding a § 2D1.1(b)(1) firearm enhancement. Thus, in a § 2255 proceeding, the district court has the authority to restructure a defendant’s entire sentence even when the prisoner’s petition attacks the validity of just one of the counts of conviction. U.S. v. Binford, 108 F.3d 723 (7th Cir. 1997).
7th Circuit bars successive § 2255 motion for newly discovered evidence where only challenge is to sentence. (880) Petitioner originally sought to vacate his sentence under § 2255, and the motion was denied. He then sought to bring a second § 2255 motion on the basis of newly discovered evidence. Under recent amendments made to the statute by the Anti-terrorism and Effective Death Penalty Act of 1996, this can only be done if the evidence would enable the movant to show that “no reasonable fact finder would have found the movant guilty of the offense” of which he had been convicted. However, the only nonfrivolous issue petitioner presented was whether his sentence was properly enhanced for being a career criminal. The Seventh Circuit held that a successive § 2255 motion may not be filed on the basis of newly discovered evidence unless the motion challenges the conviction and not merely the sentence. Therefore, petitioner could not file a successive § 2255 motion. Hope v. U.S., 108 F.3d 119 (7th Cir. 1997).
7th Circuit allows revision of sentence in 2255 motion when one count is vacated. (880) After the Supreme Court decided Bailey v. U.S., 116 S.Ct. 501 (1995), defendant filed a 28 U.S.C. § 2255 petition requesting that his § 924(c) conviction for “use” of a firearm be vacated. The district court granted the petition, but then revised his sentence on the remaining counts to reflect possession of the firearm. Defendant argued that the district court had no jurisdiction to revise the entire “sentencing package,” but could only deal with the invalid count. The Seventh Circuit upheld the court’s authority on a § 2255 petition to revise the entire sentence. A multi-count sentence is a package, and severing part of the total sentence usually will unbundle the entire package. The resentencing did not violate double jeopardy, even though at the time the § 924(c) count was vacated defendant had served his time on the other counts under the original sentence. U.S. v. Smith, 103 F.3d 531 (7th Cir. 1996).
7th Circuit says counsel not ineffective in failing to seek recusal after judge said victims were “good people.” (880) Defendant embezzled $324,000 from the attorney for whom she worked as an executive assistant. At sentencing, the judge noted that he knew the attorney and the firm and that they were “good people” and “fine folks.” Defendant argued that her counsel was ineffective in failing to respond to these remarks with an immediate motion for recusal. The Seventh Circuit disagreed, since the judge’s favorable impression of the victims did not prejudice him against defendant. In a sense, his favorable impression of the victims had the opposite effect. The judge was discussing the abuse of trust enhancement. The judge’s favorable comments of the victim and his firm suggested that he thought they were capable of managing their own affairs in a way that would not require them to grant discretion to employees in defendant’s position. The judge’s comments did not reflect a thought process infected with prejudice against the defendant that would lead to unfavorable rulings in the other aspects of sentencing. U.S. v. Jaroszenko, 92 F.3d 486 (7th Cir. 1996).
7th Circuit says failure to seek continuance to obtain benefit of amended guideline was not ineffective assistance. (880) The judge pronounced sentence on defendants on October 27 and 28, 1991, and based their sentences on the guidelines in effect on those days. On November 1, 1993, amendments to the guidelines lowered the base offense level for offenses involving crack. The Seventh Circuit held that defense counsel was not ineffective for failing to ask the judge to delay the sentencing beyond November 1. Defendant did not suggest any ground that his lawyer might have had for asking for a delay. U.S. v. Evans, 92 F.3d 540 (7th Cir. 1996).
7th Circuit finds counsel was not ineffective in failing to advise of career offender status. (880) The Seventh Circuit held that counsel was not ineffective for failing to advise defendant of his career offender status before pleading guilty. A mistaken prediction about a sentence does not by itself show deficient performance, even when that mistake is great. Here, several circumstances suggested that defense counsel may not have taken the utmost care in advising his client. At the time of the plea, counsel did not know about a parole revocation on defendant’s record. It might have been appropriate for a defense attorney to carefully analyze his client’s criminal record in light of the offered plea. And because defendant’s change of plea hearing occurred immediately after plea bargaining ended, it is possible that counsel did not or could not undertake this kind of careful analysis. However, the circumstances of defendant’s plea only suggested this possibility; they did not prove that counsel did not undertake a good faith investigation earlier. U.S. v. Barnes, 83 F.3d 934 (7th Cir. 1996).
7th Circuit says failure to seek concurrent sentence was not ineffective assistance. (880) While on probation for a pre‑guidelines offense, defendant was convicted of mail fraud and sentenced to 27 months under the guidelines. He then brought a § 2255 motion claiming he received ineffective assistance of counsel because his attorney failed to argue that § 5G1.3(c) applied and required a concurrent sentence. The Seventh Circuit rejected the claim, finding § 5G1.3(c) inapplicable because a term of probation is not the same as an undischarged term imprisonment. At the time defendant was being prosecuted in the second district, he was still on probation for the pre‑guidelines offense. Section 5G1.3(c) applies when a defendant is subject to “an undischarged term of imprisonment.” Probation is not the same as imprisonment for these purposes. Moreover, it was not clear that applying § 5G1.3(c) would result in a shorter sentence. The 1990 version of § 5G1.3 refers to an “unexpired,” rather than an “undischarged” term of imprisonment. The term of imprisonment, not the sentence, must be unexpired or undischarged to gain the benefit of § 5G1.3(c). Under either version, § 5G1.3(c) no longer applied to defendant. Prewitt v. U.S., 83 F.3d 812 (7th Cir. 1996).
7th Circuit says double jeopardy argument was available as early as Halper in 1989. (880) In his second § 2255 petition, defendant raised a double jeopardy forfeiture issue for the first time. The government said this was an abuse of the writ because the double jeopardy claim could have been raised in his first petition. Defendant claimed he was unaware of the issue until Montana v. Kurth Ranch, 511 U.S. 767 (1994) was decided after his first petition was denied by the district court. The Seventh Circuit held that the double jeopardy argument may have been available as early as 1989, when the Supreme Court decided U.S. v. Halper, 490 U.S. 435 (1989). Halper held that a civil sanction may be punitive and thus barred by double jeopardy if a criminal conviction has already been obtained for the same offense. Also, in June 1993, five months before defendant filed his first § 2255 petition, the Supreme Court held in Austin v. U.S., 113 S.Ct. 2801 (1993) that the civil forfeiture of drug‑related assets is at least in part punitive. Haley v. U.S., 78 F.3d 282 (7th Cir. 1996).
7th Circuit says failure to seek 3E1.1 reduction was not ineffective assistance. (880) Police discovered a gun in defendant’s car, and he was convicted of being a felon in possession of a firearm. He argued that his counsel was ineffective in failing to seek a reduction for acceptance of responsibility because defendant admitted at trial that he possessed the gun (although he testified the possession arose from circumstances beyond his control and he never intended to possess it). The Seventh Circuit found no ineffective assistance. Defendant contested his factual guilt at trial, i.e. his intent to possess the weapon. When a defendant denies his guilt, and puts the government to its burden of proof at trial, he is generally not eligible for the reduction. Defendant steadfastly maintained at trial that he was unaware of the gun’s presence in the car. However, he had admitted to the arresting officer that he knew the gun was in the car and only later recanted the admission. The trial attorney made a rational tactical decision to forego requesting the reduction. U.S. v. Bradford, 78 F.3d 1216 (7th Cir. 1996).
7th Circuit holds that Teague does not bar late double jeopardy claim. (880) Defendant argued for the first time in a § 2255 petition that prior forfeitures growing out of his marijuana trafficking constituted jeopardy and therefore his criminal convictions violated double jeopardy. The government argued that this claim was barred by Teague v. Lane, 489 U.S. 288 (1989), which held that a habeas claim may not be based on a new constitutional rule established after conviction. The Seventh Circuit held that Teague did not bar the double jeopardy claim, since it was derived from a constitutional rule that had been evolving at least since U.S. v. Halper, 490 U.S. 435 (1989). Halper was decided before defendant was indicted. Smith v. U.S., 76 F.3d 879 (7th Cir. 1996).
7th Circuit finds incorrect advice about mandatory minimum and supervised release was not ineffective assistance. (880) Defendant contended that he received ineffective assistance when his trial counsel incorrectly advised him that there was a ten‑year mandatory minimum. The Seventh Circuit found that any such error did not amount to ineffective assistance because it did not prejudice defendant. Defendant knew that under the guidelines the lowest sentence he could receive was 12-1/2 years. The misinformation he allegedly received was therefore irrelevant. Trial counsel’s failure to inform defendant that a term of supervised release was applicable was also not prejudicial since defendant’s sentence, when combined with the term of supervised release, was within the maximum sentence made known to defendant when he entered his plea. The district court’s failure to correctly advise him at his plea hearing did violate Rule 11, but the errors were harmless. McCleese v. U.S., 75 F.3d 1174 (7th Cir. 1996).
7th Circuit requires evidentiary hearing on ineffective assistance claim. (880) In a § 2255 motion, defendant claimed his attorney’s failure to object to the amount of drugs attributed to him at sentencing was ineffective assistance. The Seventh Circuit held that the district court erred in refusing to hold an evidentiary hearing on the claim. At sentencing, the court adopted the recommendation of the PSR that 50 kilograms of cocaine were attributable to defendant, even though the report contained no supporting data. No evidence of the amount of cocaine attributable to defendant was presented at the sentencing hearing, and the district court’s statement contained no analysis to support its conclusion. Moreover, the record did not prove that 50 kilograms were reasonably foreseeable to defendant. Although the conspiracy was involved in trafficking cocaine for two years, defendant participated only one month before he was arrested. Defendant was not responsible for any drug dealing that took place before he joined the conspiracy. Nichols v. U.S., 75 F.3d 1137 (7th Cir. 1996).
7th Circuit finds no cause for failure to raise career offender challenge in first habeas petition. (880) In a motion under 28 U.S.C. § 2255, petitioner argued that the Sentencing Commission lacked authority to make drug conspiracies a predicate offense for career offender status. Petitioner did not raise this claim on direct appeal or in a previous § 2255 petition. The Seventh Circuit affirmed the dismissal of the petition because petitioner did not demonstrate sufficient cause for his failure to present his claim in the earlier proceedings. Petitioner’s claim was not so “novel” that its legal basis was not “reasonably available” to counsel. Moreover, the availability of novelty as an excuse for claims not raised in a collateral attack appears to have been eviscerated by the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288 (1989). There was no fundamental miscarriage of justice. Petitioner was claiming legal innocence rather than actual innocence. Boyer v. U.S., 55 F.3d 296 (7th Cir. 1995).
7th Circuit rules counsel was aware of mandatory minimum sentence. (880) In a 28 U.S.C. § 2255 motion, defendant argued that his counsel was ineffective and his plea was involuntary because his counsel was unaware that defendant faced a mandatory minimum 10-year sentence. The 7th Circuit concluded that counsel was aware of the mandatory minimum. Counsel acknowledged his awareness of the minimum before requesting a sentence below it. Although the court was without authority to grant such a sentence, no constitutional injury resulted from the request. Defendant also was aware of the 10-year minimum he was facing. The plea agreement stated that he faced this minimum penalty, defendant acknowledged that he had read and understood the agreement, and the district court advised defendant of the minimum and maximum penalties at the plea hearing. U.S. v. Soto, 37 F.3d 252 (7th Cir. 1994).
7th Circuit remands for hearing on whether counsel was incompetent in recommending plea agreement. (880) Defendant pled guilty to a single drug conspiracy that lasted from early 1986 until the end of March 1989. In a 28 U.S.C. § 2255 motion, he argued that his counsel was ineffective in advising him to plead guilty, since the government’s theory that he engaged in a single long-term conspiracy was mistaken. That theory exposed defendant to the guidelines and a mandatory minimum sentence because his drug trafficking activities spanned the effective dates of both of those schemes. The 7th Circuit remanded for an evidentiary hearing on this issue. The strength of the government’s theory was unclear from the offer of proof they gave at his plea hearing. The court agreed that if the government’s evidence of a single conspiracy was tenuous, a reasonably competent counsel might have advised his client not to plead guilty, in light of the severe sentencing consequences. U.S. v. Soto, 37 F.3d 252 (7th Cir. 1994).
7th Circuit holds that Rule 32(c)(3)(D) and relevant conduct issues are not grounds for § 2255 motion. (880) Defendant did not pursue a direct appeal of his sentence. Instead, he brought a 28 U.S.C. § 2255 motion alleging that the district court did not resolve contested issues as required by Fed. R. Crim. P. 32(c)(3)(D) and that the district court erroneously calculated his relevant conduct. The 7th Circuit refused to address the issues, since a court’s compliance with Rule 32 and its calculation of relevant conduct under the guidelines are not, except under rare circumstances not present here, recognized grounds for a § 2255 attack. U.S. v. Soto, 37 F.3d 252 (7th Cir. 1994).
7th Circuit finds defendant failed to prove government promised to file Rule 35(b) motion. (880) In a § 2255 motion, defendant alleged that he did not appeal his sentence because the government promised it would move to reduce his sentence under Rule 35(b) for his assistance in further drug prosecutions. The 7th Circuit held that it had jurisdiction under 28 U.S.C. § 2255 to review the claim, but upheld dismissal of the petition. Defendant satisfied the jurisdictional requirement under 28 U.S.C. § 2255 because he was, in essence, claiming his incarceration was unconstitutional. His failure to directly appeal his sentence did not bar the habeas petition because he alleged that the promise induced him to forego his appeal. Nonetheless, the petition was properly dismissed because he failed to present any evidence that the government promised to file a Rule 35(b) motion. His mere allegation of an understanding or promise was insufficient to merit an evidentiary hearing. Bischel v. U.S., 32 F.3d 259 (7th Cir. 1994).
7th Circuit says failure to seek reduction for minor role or aberrant behavior was not ineffective assistance. (880) Defendant argued that his attorney’s failure to seek a minor role reduction or an aberrant behavior departure was ineffective assistance. The 7th Circuit rejected the claim since defendant could not show that he had a reasonable probability of receiving the reductions. His actions were far from the single, unplanned, spontaneous acts associated with aberrant behavior. Defendant planned to fly to Houston to obtain cocaine. When he encountered car trouble en route to his plane, he arranged alternate transportation. He went to Houston, obtained the drugs, packaged them, and shipped them back to Rockford, Illinois. In sentencing defendant, the district court noted that he played a significant part in bringing the cocaine to Rockford, and there was no evidence that he was merely a “mule.” This made it unlikely the district court would have granted defendant a minor role reduction even if his counsel had sought one. U.S. v. Partee, 31 F.3d 529 (7th Cir. 1994).
7th Circuit upholds jurisdiction to hear appeal of mandatory minimum issue. (880) The government appealed the district court’s finding that defendant did not have the requisite prior conviction to enhance his sentence under § 841(b)(1)(B). Defendant argued that 21 U.S.C. § 851(d)(2), which provides for an appeal before sentencing, was the exclusive avenue for appellate review. The 7th Circuit found appellate jurisdiction under 18 U.S.C. § 3742(b)(1), which permits the United States to appeal from any sentence imposed in violation of law. When Congress enacted § 851(d)(2) a pre-sentence appeal made sense because there could be no post-sentence appeal by either side. U.S. v. Gomez, 24 F.3d 924 (7th Cir. 1994).
7th Circuit says attorney’s advice to accept drug quantity finding was not deficient. (880) Petitioner claimed that counsel was ineffective in advising him to accept a sentencing range based on cocaine transactions involving between 500 to 2000 grams, when some of the cocaine was for personal use. The 7th Circuit found that the attorney’s advice was based on an accurate assessment of the evidence. In his proffer, petitioner stated that the total amount of cocaine was at least 1400 grams. The cocaine he obtained for his personal use was his commission for selling cocaine on his supplier’s behalf. Thus, any cocaine petitioner received for his personal use was intertwined with the success of the distribution. The attorney was not ineffective in failing to argue for a mitigating role reduction. Knowing the government intended to prove that defendant received cocaine as payment for his distribution services, the attorney could have reasonably determined that asking for a mitigating role reduction would be futile. Precin v. U.S., 23 F.3d 1215 (7th Cir. 1994).
7th Circuit finds no prejudice despite possible ineffective assistance. (880) Petitioner argued that his lawyer misinformed him of the consequences of his guilty plea and therefore his plea was involuntary. The 7th Circuit upheld the denial of petitioner’s 28 U.S.C. § 2255 motion, finding that even if advice from counsel led petitioner to misunderstand the consequences of his guilty plea, the misunderstanding was cured by the trial court. The district court informed petitioner that the amount of drugs was not a substantive element of the conspiracy offense. Furthermore, petitioner heard the government’s proffer before he entered his plea and knew the basis of the government’s claim that at least five kilograms of cocaine were involved in the conspiracy. The district court and the government informed petitioner several times at his plea hearing that he was facing a sentencing range of thirty years to life. In light of such clear explanations, any reliance on his counsel’s contrary statements was unreasonable. Barker v. U.S., 7 F.3d 629 (7th Cir. 1993).
7th Circuit rejects ineffective assistance claim where defendant’s testimony at sentencing was irrelevant. (880) Defendant argued that he was denied effective assistance of counsel when his former counsel called him to testify at sentencing. While testifying, defendant invoked his 5th Amendment right not to incriminate himself and was denied a reduction for acceptance of responsibility. The 7th Circuit rejected this claim, since even assuming counsel was deficient, it did not change the outcome of the proceeding. The district court explicitly noted that defendant’s testimony at sentencing was irrelevant. Defendant did not accept responsibility; throughout the proceedings below, he maintained his innocence. Even in his 28 U.S.C. section 2255 petition, he attempted to prove his lack of involvement in the offenses. Degaglia v. U.S., 7 F.3d 609 (7th Cir. 1993).
7th Circuit holds that technical failure to comply with Rule 32 does not justify 2255 relief. (880) In a motion brought under 28 U.S.C. § 2255, defendant claimed that the sentencing court violated Fed. R. Crim. P. 32(c)(3)(D) by failing to resolve a factual dispute that arose during sentencing and failing to attach its finding to the presentence report. The 7th Circuit held that defendant’s claim was not cognizable, since a mere “technical” violation of Rule 32 cannot be corrected in a proceeding under section 2255. Defendant made no claim that the court’s failure to comply with Rule 32 violated due process. Basile v. U.S., 999 F.2d 274 (7th Cir. 1993).
7th Circuit precludes petition under 28 U.S.C. §2255 for most guidelines errors. (880) Defendant failed to appeal his guidelines sentence, but after the time for filing an appeal passed, he filed a petition under 28 U.S.C. §2255 seeking relief in the district court. The 7th Circuit held that such petitions will be available to contest guidelines application only in extraordinary cases — for example, when the district court refuses to implement a guideline “designed for the defendant’s benefit” and there is “cause” for the failure to file an appeal. Ineffective assistance might constitute “cause.” Scott v. U.S., 997 F.2d 340 (7th Cir. 1993).
7th Circuit finds no cause and prejudice for failure to raise sentencing issues on direct appeal. (880) Defendant brought a motion under 28 U.S.C. section 2255 to vacate his sentence, claiming for the first time that (a) the prosecutor’s decision to prosecute him under federal rather than state law violated due process, (b) the statute under which he was sentenced was unconstitutionally vague, and (c) the district court should have applied the rule of lenity in interpreting the sentencing statute. The 7th Circuit declined to reach the merits of these claims, ruling that defendant did not demonstrate cause and prejudice for his failure to raise these issues on direct appeal. Reed v. U.S., 985 F.2d 880 (7th Cir. 1993).
7th Circuit holds that 18 U.S.C. 3742 provides no jurisdiction to review refusal to depart downward. (880) The 7th Circuit held that under § 3742(e) and (f) of the guidelines, an appellate court does not have jurisdiction to review a district court’s refusal to depart downward from a sentence dictated by the sentencing guidelines. “So long as a sentence is lawfully imposed and the Guidelines are applied correctly, a defendant has nothing left to appeal.” U.S. v. Leuddeke, 908 F.2d 230 (7th Cir. 1990).
7th Circuit rules that disparity of sentence between co-defendants is not a basis for appeal. (880) Defendant argued that his sentence was excessive because it was more severe than that of his co-defendants. The 7th Circuit rejected the argument, ruling that 18 U.S.C. sections 3742(e) and (f) “clearly mandate” that defendant’s sentence be affirmed “despite its disparity with his co-defendant’s sentences.” U.S. v. Guerrero, 894 F.2d 261 (7th Cir. 1990).
8th Circuit rejects collateral attack on career offender sentence as not cognizable. (880) Defendant was convicted of crack charges, and sentenced as a career offender to life in prison. In 2010, he filed a 28 U.S.C. § 2255 motion, arguing that his prior Minnesota conviction for manslaughter in the second degree was not a crime of violence. The Eighth Circuit ruled that defendant’s argument was not cognizable under § 2255. A federal prisoner may file a § 2255 motion if he claims that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” An error of law provides a basis for collateral attack only when the claimed error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” Defendant did not contend that his sentence exceeded the statutory maximum or that the sentencing court lacked jurisdiction. Furthermore, defendant’s opening brief did not allege that his sentence violated the Constitution. Defendant’s life sentence did not exceed the statutory maximum. Additionally, defendant’s attorney conceded during oral argument that the guidelines range of 360 months to life under which defendant received his sentence was identical to the guidelines range that would have applied absent the career-offender enhancement. U.S. v. Meirovitz, 688 F.3d 369 (8th Cir. 2012).
8th Circuit, en banc, rejects Begay collateral attack on career offender sentence. (880) Defendant was originally sentenced as a career offender to 360 months in prison. He later filed a § 2255 motion to vacate his sentence, alleging that the career offender determination violated Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) (which held that drunk driving is not a violent felony). The district court dismissed the motion as time-barred because, under § 2255(f)(3), Begay did not recognize a right “made retroactively applicable to cases on collateral review.” An Eighth Circuit panel reversed, concluding that Begay announced a new substantive rule that, under Teague v. Lane, 489 U.S. 288 (1989), applied retroactively to career offender decisions. Sun Bear v. U.S., 611 F.3d 925 (8th Cir. 2010). On rehearing en banc, the Eighth Circuit vacated the panel decision, holding that defendant’s collateral attack to his sentence under the career offender guideline was not cognizable in a motion to vacate. Under § 2255, an error of law does not provide a basis for collateral attack unless the error was a fundamental defect that results in a complete miscarriage of justice. The panel had found the miscarriage-of-justice exception applied because defendant’s claim was based on a post-conviction change in the law that made the sentence unlawful. The en banc court disagreed. Defendant’s 360-month sentence was not unlawful. It was well-within the statutory maximum authorized for the offense of second-degree murder, and within the initial guidelines range of 292-365 months. Sun Bear v. U.S., 644 F.3d 700 (8th Cir. 2011) (en banc).
8th Circuit says appeal waiver barred challenge to sentence in § 2255 proceeding. (880) In a motion brought under 28 U.S.C. § 2255, defendant successfully argued that the district court erroneously calculated his criminal history score by assessing a criminal history point for a conviction involving possession of drug paraphernalia, and that this point caused him to fall into a higher criminal history category and made him ineligible for safety valve protection. The government argued that the district court erred in vacating defendant’s sentence, because his plea agreement included a waiver of his right to seek collateral relief under § 2255, and the court cited no valid reason to avoid the waiver. The Eighth Circuit agreed. Defendant’s agreement did not, as he claimed, include an exception for the right to appeal an “illegal sentence.” Moreover, defendant’s sentence was within the statutory range. Ackerland v. U.S., 633 F.3d 698 (8th Cir. 2011).
8th Circuit grants habeas relief for lack of proof that offense involved more than five kilos of cocaine. (880) The PSR noted that “there is not enough evidence to support that the defendant was involved with five kilograms of cocaine.” Inexplicably, however, the PSR applied the ten year mandatory minimum for distribution of five kilograms. At sentencing the district court agreed that five kilograms was not supported by the evidence, but nevertheless imposed the mandatory 120-month sentence for five kilograms or more of cocaine. Defendant did not appeal his sentence and the error was discovered only in a later habeas corpus proceeding. In a 2-1 opinion, the Eighth Circuit granted habeas relief and remanded the case for resentencing on the amount of cocaine the district court found to have been proved. Chief Judge Riley dissented, arguing that defendant was not prejudiced because he was liable for a mandatory minimum ten year sentence for 50 grams of cocaine base in an uncharged crack cocaine conspiracy. Theus v. U.S., 611 F.3d 441 (8th Cir. 2010).
8th Circuit finds appellate counsel ineffective where direct appeal was dismissed based on unenforceable waiver. (880) Defendant was sentenced as a career offender and appealed. His direct appeal was dismissed on the basis of an appeal waiver in his plea agreement. The agreement preserved the right to raise a claim of ineffective assistance of counsel. Defendant brought a § 2255 petition, arguing that only one of his prior felonies was a career offender predicate. Although the Eighth Circuit determined that defendant’s argument had merit, it was reluctant to find that defendant’s attorney was unconstitutionally ineffective for failing to raise the guideline argument at sentencing. However, defendant was entitled to relief for a different reason – his appellate attorney’s performance cost him the opportunity to present his meritorious argument on direct appeal. His appeal was dismissed based on the waiver in his plea agreement. The waiver should not have been enforced, because it was conditioned upon defendant being sentenced according to the agreed upon sentencing recommendations contained in the plea agreement, and he was not. The dismissal of defendant’s direct appeal on the basis of an unenforceable waiver was plain error. King v. U.S., 595 F.3d 844 (8th Cir. 2010).
8th Circuit holds that defendant could not collaterally attack sentence under Booker. (880) In a petition under 28 U.S.C. § 2255, defendant argued that his 220-month sentence was imposed in violation of U.S. v. Booker, 543 U.S. 220 (2005). The Eighth Circuit held that defendant could not collaterally attack his sentence based on Booker. When a Supreme Court decision results in a “new rule” of criminal procedure, that rules applies to all criminal cases still pending on direct review, but, as to convictions that are already final, the rule applies only in limited circumstances. New substantive rules generally are applied retroactively. However, new procedural rules generally do not apply retroactively unless the rule is of “watershed” magnitude implicating the “fundamental fairness and accuracy of the criminal proceeding,” or unless the rule prevents the lawmaking authority from criminalizing certain kinds of conduct. Permitting a judge-found fact to affect the sentence imposed after a valid conviction does not result in “a fundamentally unfair criminal proceeding.” The rule announced in Booker does not apply to convictions that became final before the rule was announced, and thus did not benefit movants in collateral proceedings. Never Misses A Shot v. U.S., 413 F.3d 781 (8th Cir. 2005).
8th Circuit says failure to challenge use of second, uncharged drug type to trigger higher minimum was ineffective assistance. (880) Defendant was convicted of marijuana conspiracy charges. The court held defendant accountable for 1149 kilograms of marijuana by aggregating two different drug types, 809.2 kilograms of marijuana and 12 ounces of methamphetamine, which the court converted to its marijuana equivalent of 340.2 kilograms. See Drug Table in U.S.S.G. § 2D1.1. Offenses involving 1000 kilograms or more of marijuana for defendants with prior felony drug convictions are subject to a 20-year mandatory minimum under 21 U.S.C. § 841(b)(1) (A)(vii). Every circuit to consider the issue has concluded that a second, uncharged drug type cannot be added to the charged drug type in order to trigger a higher statutory penalty range. See U.S. v. Santos, 195 F.3d 549 (10th Cir. 1999) (collecting cases). The Eighth Circuit held that defendant’s lawyer performed deficiently by failing to raise this issue at sentencing or on appeal. Defendant was prejudiced by his lawyer’s deficient performance, since an error increasing a defendant’s sentence by as little as six months can be prejudicial. On remand, the district court was instructed to determine what sentence it would have imposed when originally sentencing defendant if it had been faced with the correct guideline range of 210-262 months. Alaniz v. U.S., 351 F.3d 365 (8th Cir. 2003).
8th Circuit rejects arguments raised or based on arguments resolved in earlier appeal and in denial of COA. (880) Defendant was convicted of drug and gun-related offenses. On defendant’s appeal, the court upheld his conviction and sentence, including a § 3A1.2 increase for assaulting a police officer and a § 3C1.2 increase for chase-related conduct that created a risk of injury to other drivers. Defendant filed a motion to vacate his sentence under 28 U.S.C. § 2255. The district court denied the motion on all grounds, including defendant’ challenge to the grouping of the counts at sentencing, except the limited issue that defendant’s sentence exceeded the 20-year maximum on Counts II and VII. The appellate court denied defendant’s motion for a certificate of appealability (COA) based on the grouping of the counts for sentencing purposes. After the limited resentencing on Counts II and VII, defendant appealed, arguing that the court committed error in increasing his offense level under §§ 3A1.2 and 3C1.2. Defendant also argument that Count V should not have been grouped with the other counts. The Eighth Circuit found that these arguments were precluded because they raised or were essentially based on arguments it resolved in defendant’s earlier appeal and in the denial of the COA. U.S. v. Miner, 345 F.3d 1004 (8th Cir. 2003).
8th Circuit holds that defendant waived ineffective assistance claim by withdrawing previous motion. (880) Defendant’s plea agreement calculated a guideline range of 140-174 months. However, the PSR treated defendant as a career offender, resulting in a guideline range of 262-327 months. Defendant obtained new counsel, who filed a motion to withdraw defendant’s guilty plea, alleging that defendant’s first attorney had rendered ineffective assistance by misadvising defendant that the penalties were the same for cocaine base and powder cocaine, inducing him to plead guilty to trafficking cocaine base when he had in fact been involved with only powder cocaine. After meeting with defendant, the judge agreed not to treat defendant as a career offender and thereby abide by the guideline range anticipated in the plea agreement, if defendant withdrew his motion. Defendant agreed, and the court sentenced defendant at the bottom of the guideline range. Defendant later filed a § 2255 motion claiming that he had been induced to plead guilty by the ineffective assistance of his first lawyer who misadvised him that the penalties were the same for cocaine base and powder cocaine. The Eighth Circuit upheld the denial of the § 2255 motion. The claim defendant asserted in his § 2255 motion was the same claim he asserted in his plea withdrawal motion, which he withdrew before the district court could rule on it. Defendant’s decision to withdraw his plea withdrawal motion was the result of a conscious choice, not inadvertence or inaction, which waived the ineffective assistance claim he raised in it and precluded further review. Williams v. U.S., 343 F.3d 927 (8th Cir. 2003).
8th Circuit holds that defendant did not establish that incorrect advice caused him to reject plea agreement. (880) Defendant filed a 28 U.S.C. § 2255 motion, alleging that he received ineffective assistance of trial. He contended that trial counsel misadvised him about his sentencing exposure if he accepted the government’s plea offer and his sentencing exposure if he was found guilty at trial, which caused him to proceed to trial and receive a longer sentence than he would have received if he had pleaded guilty. The Eighth Circuit ruled that defendant was not denied effective assistance of counsel. The court agreed that defendant was misadvised about his sentencing exposure. However, this misinformation did not make defendant any less likely to accept the plea offer than he would have been if he had received accurate advice. First, defendant was advised that by pleading guilty, he would limit his exposure to 36-48 months, which was a more enticing prospect than the 60 months he would have been told he faced if counsel had been accurate. Second, trial counsel’s inaccurate numbers nonetheless accurately conveyed the concept that by pleading guilty, defendant would limit his exposure to about 1/3 of the sentence he would face if found guilty at trial. Moreover, trial counsel’s affidavit described his impressions of defendant’s unwillingness to consider pleading guilty. The record corroborated this impression since defendant maintained his innocence at all the states of his criminal prosecution and showed no indication that he would be willing to admit his guilt. Sanders v. U.S., 341 F.3d 720 (8th Cir. 2003).
8th Circuit holds that counsel’s stipulation that substance was crack was not ineffective assistance. (880) During trial, defendant’s counsel stipulated that the controlled substance found in the apartment with defendant was crack cocaine and that defendant had been convicted of three previous felonies. This subjected defendant to a mandatory minimum 20-year sentence. Defendant argued that because the lab reports indicated that the substance was merely “cocaine base,” his counsel rendered ineffective assistance by failing to hold the government to its burden of proving that he specifically possessed crack. The Eighth Circuit ruled that counsel’s actions were not unreasonable and did not result in prejudice to defendant. Counsel’s decision to stipulate was part of a reasonable trial strategy in which counsel sought to disprove the element of possession rather than the drug type. The stipulation did not result in prejudice to defendant because the lab report explicitly stated that defendant possessed “cocaine base,” which is all that was necessary to support the 240-month statutory minimum sentence that defendant received under 21 U.S.C. § 841(b)(1)(A). Lemon v. U.S., 335 F.3d 1095 (8th Cir. 2003).
8th Circuit holds that ineffective assistance of counsel is not grounds for downward departure. (880) Defendant argued that the district court should have granted him a downward departure under § 5K2.0 because the attorney who represented him prior to his flight from justice labored under a conflict of interest and provided ineffective assistance of counsel. The Eighth Circuit found that defendant failed to demonstrate either an actual conflict or constitutionally substandard performance and resulting prejudice as required by Strickland v. Washington, 466 U.S. 668 (1984). Moreover, even assuming that defendant were able to establish an ineffective assistance of counsel claim, a § 5K2.0 departure would not be his remedy. The fact that a defendant received ineffective assistance of counsel does not speak to “the nature and circumstances of the offense and the history and characteristics of the defendant.” Ineffective assistance of counsel is not a valid ground for a downward departure under § 5K2.0. U.S. v. Young, 315 F.3d 911 (8th Cir. 2003).
8th Circuit holds that counsel was not ineffective for failing to make Apprendi-like argument. (880) In a petition under 28 U.S.C. § 2255, defendant argued that his counsel was ineffective for failing to make an argument like the one raised in Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any factor, other than a prior conviction, which increases a sentence beyond the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Apprendi was decided a few months after defendant was sentenced. Defendant relied on U.S. v. Moss, 252 F.3d 993 (8th Cir. 2001), which held that an Apprendi-type argument was “reasonably available” prior to the Supreme Court’s decision. The Eighth Circuit held that counsel’s failure to raise an Apprendi-like argument, which was unsupported by then-existing precedent, did not constitute ineffective assistance of counsel. The Constitute guarantees only adequate, not exceptional, counsel. Brown v. U.S., 311 F.3d 875 (8th Cir. 2002).
8th Circuit holds that counsel’s failure to object to drug quantity did not prejudice defendant. (880) The PSR held defendant accountable for three kilograms of powder cocaine and 1.5 kilograms of crack cocaine. Defendant’s attorney did not object to the report, and defendant was sentenced to 290 months. In a motion under 28 U.S.C. § 2255, defendant claimed that his counsel was ineffective because he did not object to the quantity of crack assigned in the PSR. The district court denied the motion, finding that defendant was not prejudiced by his counsel’s failure to object. The Eighth Circuit agreed. Notwithstanding its findings, the court stated that it was limiting its analysis to the 1.5 kilograms of crack seized by authorities. The court recalled the testimony of a chemist who analyzed and weighed the drugs at issue. The total weight reported by the chemist was 1492.2 grams, well within the range of a 38 base offense level. The district court properly found that the government would have been able, even if counsel had objected at the time of sentencing, to satisfy its burden of proof by a preponderance of the evidence regarding the drug quantity. U.S. v. Lindsey, 310 F.3d 606 (8th Cir. 2002).
8th Circuit holds that consecutive sentence recommendation was not breach of plea agreement. (880) At the time of the current sentencing, defendant had been sentenced to a four-year probation revocation sentence, and a consecutive 57 months for a counterfeiting charge. After defendant and the government presented their oral plea agreement to the court, the government declared that it had no opposition to the current sentence running concurrently. During the later sentencing hearing, the court asked the parties whether their prior agreement as to a concurrent sentence referred to defendant’s probation revocation sentence, his counterfeiting sentence, or both. The parties admitted that they had not specifically discussed that issue. In light of the confusion, the government urged the court to run the new sentence consecutively to the probation revocation sentence. The Eighth Circuit held that the recommendation by the government was not a breach of the plea agreement. In the order denying defendant’s § 2255 motion, the district court clearly stated that there had been no agreement between the parties on whether defendant’s current sentence should run consecutively to the probation revocation sentence. Moreover, even if the parties had agreed to concurrent sentences, the district court was not bound by the agreement. Finally, U.S.S.G. § 5G1.3 mandated that the current sentence run consecutively to the probation revocation sentence. White v. U.S., 308 F.3d 927 (8th Cir. 2002).
8th Circuit reaffirms that Apprendi does not apply retroactively to initial post-conviction motions. (880) Defendant filed his initial § 2255 petition arguing that the district court acted unconstitutionally by using drug type and quantity to increase his punishment above the statutory maximum despite the absence of jury findings on those issues. After he filed that petition, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any fact (except a prior conviction) that increases the penalty for a crime above the statutory maximum must be proved to a jury beyond a reasonable doubt. The district court held the portion of defendant’s sentence attributable to drug quantity and type unconstitutional and resentenced him. While noting that new rules of constitutional law are normally not retroactive on collateral review, Teague v. Lane, 489 U.S. 288 (1989), the district court concluded that Apprendi fell under the narrow Teague exception for watershed rules of procedure implicating the fundamental fairness and accuracy of a criminal proceeding. While the case was pending, another Eighth Circuit panel decided U.S. v. Moss, 252 F.3d 993 (8th Cir. 2001), which held that Apprendi does not apply retroactively on collateral review. The Eighth Circuit found that Moss was “fatal” to defendant’s claim for relief under Apprendi. Murphy v. U.S., 268 F.3d 599 (8th Cir. 2001).
8th Circuit finds counsel’s failure to seek departures for alien in drug case was not ineffective. (880) Defendant argued that his counsel was ineffective in not moving for a downward departure based on his willingness to waive resistance to deportation, and because of the effect on his sentence of being a deportable alien. Under U.S. v. Cruz-Ochoa, 85 F.3d 325, 325-26 (8th Cir. 1996), a sentencing court may depart downward based on a defendant’s willingness to waive resistance to deportation. However the Eighth Circuit has not decided whether the effect on incarceration of being a deported alien can warrant a downward departure. The Second, Fifth, Tenth and Eleventh Circuits hold it is not a basis for departure, while the Seventh, Ninth and D.C. Circuits have approved departures on this ground. The panel ruled that “[f]ailure to move for a downward departure on the basis not adopted in this circuit cannot be said to be outside the broad range of reasonable assistance.” Moreover, failure to request a departure based on defendant’s status was not ineffective given counsel’s strategy to avoid the risk of diverting the court’s “focus” from his successful drug quantity arguments. U.S. v. Sera, 267F.3d 872 (8th Cir. 2001).
8th Circuit reaffirms that Apprendi not applicable retroactively on collateral review. (880) Defendant appealed the district court’s refusal to reconsider his 28 U.S.C. § 2255 petition challenging his life sentence for drug trafficking offense. After his § 2255 petition was denied, he filed a post-judgment motion arguing that his sentence should be vacated in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court denied the motion on the ground that this argument could have been raised before judgment. Defendant argued that he should have been allowed to raise his new argument in the court below, and that Apprendi should be applied retroactively to vacate his sentence since his jury did not make a finding of drug quantity. The Eighth Circuit noted that this argument was foreclosed by U.S. v. Moss, 252 F.3d 587 (6th Cir. 2001), which held that Apprendi was not a decision of such “watershed magnitude” that it would apply retroactively on collateral review. Therefore, the general rule of nonretroactivity in Teague v. Lane, 489 U.S. 288 (1989) conclusively barred defendant, whose conviction became final before Apprendi, from raising an Apprendi claim in a § 2255 petition. Jarrett v. U.S., 266 F.3d 789 (8th Cir. 2001).
8th Circuit rules that government retained discretion over whether to seek § 3553(e) reduction in addition to § 5K1.1 reduction. (880) The government requested a substantial assistance departure under § 5K1.1, but did not seek a more substantial reduction under 18 U.S.C. § 3553(e). Defendant argued that his attorney was ineffective in failing to seek specific performance of the plea agreement, which defendant contended required the government to recommend a departure under § 3553(e). The agreement provided, in pertinent part, that if the government determined that defendant provided substantial assistance, then it would request that defendant received a sentence “under the applicable statutes and/or sentencing guidelines pursuant to 28 U.S.C. § 994(n), 18 U.S.C. § 3553(e), and sentencing guidelines, section 5K1.1.” Although the Eighth Circuit found this clause written awkwardly, it ruled that the clause “and/or” sufficiently conveyed the intent of the government to retain discretion over whether to seek a § 3553(e) reduction “and/or” a § 5K1.1 reduction. This position was bolstered by the last sentence of the paragraph, in which the government reserved “the right to make the sole determination … whether to request a reduction generally or a specific sentence or sentence reduction.” This evidenced the government’s strong intent to retain the right to determine the specific form of sentencing reduction. Accordingly, defendant’s counsel was not objectively unreasonable in failing to act on defendant’s particular interpretation of the plea agreement. U.S. v. Taylor, 258 F.3d 815 (8th Cir. 2001).
8th Circuit rules Apprendi not watershed rule requiring retroactive application on collateral review. (880) Defendant moved under 28 U.S.C. § 2255 to set aside his 360-month sentence for violating Apprendi v. New Jersey, 530 U.S. 466 (2000). The Eighth Circuit ruled that defendant was foreclosed from collaterally attacking his sentence under Apprendi, finding that it presented a new rule of constitutional law inapplicable to cases on collateral review. See Teague v. Lane, 489 U.S. 288 (1989). Although there is an exception in Teague for watershed rules, ones which “implicate the fundamental fairness of the trial,” Apprendi is not such a watershed rule. To fall within the exception, the rule must impart a fundamental procedural right that, like the right to counsel, is a necessary component of a fair trial. “Permitting a judge-found fact to affect the sentence imposed after a valid conviction, even if it is found under a more lenient standard, cannot be said to have resulted in a fundamentally unfair criminal proceeding.” Moreover, even assuming the Apprendi challenge was not Teague- barred, defendant could not challenge his sentence on Apprendi grounds because he failed to raise the argument in his direct appeal. The Apprendi claim was not a “novel” one which justifiably could be raised for the first time in a collateral proceeding. As far back as 1987, this circuit addressed the exact argument defendant now raised. U.S. v. Moss, 252 F.3d 993 (8th Cir. 2001).
8th Circuit holds that failure to seek evidentiary hearing on leadership increase was not ineffective. (880) Defendant’s theory of defense at trial was that co-conspirator Newsome was the leader of the drug conspiracy. After defendant was convicted, his attorney filed a motion requesting a evidentiary hearing on whether he should receive a leadership increase. At sentencing, defendant’s attorney advised the court that an evidentiary hearing would not be necessary. He then argued that the trial evidence established that Newsome was the leader, and pointed to evidence supporting this position. The district court nonetheless applied the § 3B1.1(c) increase. In the current § 2255 petition, defendant claimed that his counsel improperly waived the evidentiary hearing. The district court denied the petition, and the Eighth Circuit affirmed. At sentencing, defendant’s attorney reminded the court about the evidence presented at trial. The district court indicated that it was fully aware of this evidence, and found there was substantial evidence that defendant was a leader in the conspiracy. Since most of the evidence defendant claimed would have been uncovered by an evidentiary hearing was highlighted by his attorney and already known by the court, he could not show a reasonably probability that if the court had held an evidentiary hearing, he would not have received the increase. U.S. v. Etheridge, 241 F.3d 619 (8th Cir. 2001).
8th Circuit says objection to drug quantity finding would not have helped defendant. (880) Defendant argued in a § 2255 petition that his attorney’s failure at his original sentencing to challenge the amount of drugs attributed to him constituted ineffective assistance. The district court had sentenced defendant on the basis of the full quantity of drugs involved in the conspiracy, more than 100 kilograms, and defendant did not appeal that determination. The Eighth Circuit found no ineffective assistance because defendant could not demonstrate prejudice: an objection to the court’s drug quantity determination would not have helped him. Defendant was responsible for reasonably foreseeable drugs within the scope of jointly undertaken criminal activity. USSG § 1B1.3. The government proved the quantity involved in the overall conspiracy by summing the amounts derived from the testimony of witnesses and corroborating evidence and by extrapolating from the dollar amounts of drug proceeds and other financial information the quantity involved. Defendant’s role as “the primary retail dealer/customer in the conspiracy, in addition to directing the activities of various other dealers,” was consistent with being sentenced for the full amount of the conspiracy-related cocaine. U.S. v. Pruitt, 233 F.3d 570 (8th Cir. 2000).
8th Circuit treats Apprendi appeal as § 2255 petition where defendant filed late notice of appeal. (880) Defendant challenged his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt). However, at oral argument, defense counsel informed the court that defendant’s notice of appeal had been filed late and requested that the court consider his appeal as a petition for post-conviction relief under 28 U.S.C. § 2255. Because the government did not oppose such treatment, and because substantial constitutional issues were at stake, the Eighth Circuit granted defendant’s request. This did not preclude the court from applying Apprendi because defendant had not previously collaterally attacked his sentence. Cf. Rodgers v. United States, 229 F.3d 704 (8th Cir. 2000) (holding that Apprendi does not apply retroactively to second or successive § 2255 motion). U.S. v. Nicholson, 231 F.3d 445 (8th Cir. 2000).
8th Circuit holds that ordinary sentencing credit claim not cognizable in § 2255 proceeding. (880) In a § 2255 petition, defendant argued that he was entitled to credit under § 5G1.3(b) against his federal drug sentence for the time that he served in state custody on a drug possession charge. Defendant failed to raise this claim on direct appeal. Thus it could not be brought properly in a § 2255 proceeding unless he met one of the three possible exceptions to the rule that ordinary guideline questions not raised on direct appeal do not present cognizable § 2255 claims. See Auman v. U.S., 67 F.3d 157 (8th Cir. 1995). The Eighth Circuit ruled that defendant did not meet any of these exceptions. The first exception, for ineffective assistance of counsel, was not available because no certificate of appealability was granted on this issue. The second exception, for cases involving a sentence in excess of the statutory maximum, was not applicable because the claim involved a “garden-variety” guideline application issue. The third exception, for guideline claims that rise to the level of a “miscarriage of justice,” was not applicable because defendant was not entitled to the credit he claimed under § 5G1.3(b). That provision did not apply because defendant committed the current offense while on parole for his state conviction. Section 5G1.3(a), not § 5G1.3(b), applies if the defendant committed the current offense while on parole for a prior offense. See U.S. v. Jones, 195 F.3d 379 (8th Cir. 1999). U.S. v. Perales, 212 F.3d 1110 (8th Cir. 2000).
8th Circuit holds that court not required to advise of possibility of departure for consenting to deportation. (880) Defendant argued that the district court failed to inform him at the change-of-plea hearing that he could receive a downward departure by consenting to deportation, and his counsel failed to argue for such a departure at sentencing. The Eighth Circuit held that in taking his plea, the district court was not required to advise defendant of the possibility of receiving a downward departure by consenting to deportation. To the extent defendant sought to raise ineffective assistance of counsel, such a claim should be pursued in a 28 U.S.C. § 2255 proceeding. Defendant also contended that he was never informed of his eligibility for a downward departure based on the sentencing disparity that arises from differing prosecution and plea bargaining practices among federal districts. However, the case defendant relied on, U.S. v. Banuelos-Rodriguez, 173 F.3d 741 (9th Cir. 1999), has been withdrawn and is not the law of this circuit. Accordingly, no error occurred when defendant was not informed of his eligibility for a departure on this basis, since, in fact, he was not eligible for such a departure. U.S. v. Guzman-Landeros, 207 F.3d 1034 (8th Cir. 2000).
8th Circuit holds that defendant denied right to appeal is not entitled to de novo resentencing. (880) Defendant filed a § 2255 motion to vacate his sentence, claiming that he had received ineffective assistance of counsel at sentencing because his attorney did not tell him he had a right to appeal his sentence. The district court agreed, vacated the judgment, ordered resentencing, and reimposed defendant’s original sentence. Defendant argued that he was entitled to de novo resentencing, including preparation of a PSR and the opportunity to be heard on resentencing. The Eighth Circuit disagreed. When a defendant has been unconstitutionally deprived of appellate review due to ineffective assistance, the prescribed procedure is for the district court to vacate the sentence and then reimpose it, allowing the defendant ten days to appeal from the imposition of the new sentence. The district court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea, given that the initial sentence was vacated only to reinstate defendant’s right to a direct appeal. U.S. v. Prado, 204 F.3d 843 (8th Cir. 2000).
8th Circuit holds that counsel reasonably relied on defendant’s admission to possessing crack. (880) In a § 2255 petition, defendant argued that his counsel was ineffective in failing to require the government to prove that his offense involved crack cocaine. The Eighth Circuit ruled that it was not unreasonable for counsel to accept defendant’s admissions that the substance was crack. Defendant repeatedly admitted in both his plea agreement and during the colloquy before the court that he was in possession of crack cocaine at the time of his arrest and on a separate relevant conduct occasion. Defendant also acknowledged during the colloquy that the government had performed lab tests on the seized substances, and that they were found to be crack. Finally, defendant told the officer who prepared the PSR that the substances at issue were crack. It was not unreasonable for counsel to rely on these admissions. Cases cited by defendant involved admissions to possessing “cocaine base,” whereas defendant specifically admitted possessing crack cocaine. Burkhalter v. U.S., 203 F.3d 1096 (8th Cir. 2000).
8th Circuit rejects ineffective assistance claim where no formal plea agreement offer was ever made. (880) Defendant argued that his trial counsel was ineffective regarding an alleged plea offer by advising him inaccurately as to his sentencing exposure. The government contended that no plea agreement offer was ever made, while defendant alleged in an affidavit that a plea offer was made and communicated to him by his trial counsel, Price. The government contended that upon conducting the proffer it found that defendant was being uncooperative and thus a formal plea offer never materialized. The government submitted the affidavit of Price to corroborate its version of the events. The Eighth Circuit held that the record conclusively showed that a formal plea offer was never made. The two parties necessarily privy to the offer both denied the existence of a plea offer. An evidentiary hearing is necessary only where the court is presented with some reason to question the evidence’s credibility. No facts casting genuine doubt upon the veracity of Price’s affidavit were presented. By contrast, the veracity of defendant’s own supporting affidavits recited inconsistent facts regarding the substance of the alleged plea agreement offer. Kingsberry v. U.S., 202 F.3d 1030 (8th Cir. 2000).
8th Circuit finds no prejudice from counsel’s failure to seek departure for victim’s wrongful conduct. (880) Late one night a man and three others went to defendant’s trailer home seeking money defendant allegedly owed the man. An argument ensued and defendant walked to his father’s nearby trailer, retrieved a shotgun, and returned. When a scuffle broke out, the shotgun discharged, killing the man. In a § 2255 motion, defendant claimed that his counsel was ineffective at sentencing for not requesting a downward departure under § 5K2.10 because the victim’s wrongful conduct contributed significantly to provoking the offense. The Eighth Circuit affirmed the denial of relief because defendant could not show prejudice. These facts were presented to the district court and to the appellate court on direct appeal in support of defendant’s request for a justification defense, which was rejected as a matter of law. Although a defendant need not prove the elements of a justification defense in order to obtain a § 5K2.10 downward departure, the district court’s findings showed that it would not have departed based on the victim’s wrongful conduct. Although the victim provoked the confrontation, he was not armed and presented no serious threat of harm. Blankenship v. U.S., 159 F.3d 336 (8th Cir. 1998).
8th Circuit says adopting original PSR’s use of higher meth equivalency was not plain error. (880) Defendant was originally convicted of drug and firearms charges. The court later granted his § 2255 petition to vacate the firearm conviction and resentenced him on the drug counts. The guidelines in effect at the time of his original sentence distinguished between the types of methamphetamine involved. The guidelines were later amended to eliminate the difference, and currently use the higher equivalency for all types. Defendant argued that the government offered no evidence as to the type of methamphetamine, and therefore the court at his resentencing improperly used the higher marijuana equivalency. The Eighth Circuit found no plain error. Defendant did not raise this issue below, so the court did not address it. Instead, it adopted the sentencing guideline calculation in the original PSR. Under U.S. v. Griggs, 71 F.3d 276 (8th Cir. 1995), it is not plain error to adopt the calculation in a PSR and thus implicitly find that the relevant meth type was the one with the higher marijuana equivalency, even though the government offered no evidence. The standard of review for plain error on a collateral challenge is even more deferential to the district court than on a direct appeal. U.S. v. Jacobs, 136 F.3d 1187 (8th Cir. 1998).
8th Circuit says failure to object to harsher crack penalties was not ineffective assistance. (880) Defendant claimed that his attorney’s failure to challenge the PSR’s use of the harsher penalties for crack cocaine constituted ineffective assistance. The Eighth Circuit held that the failure to object to the harsher crack penalties were not ineffective assistance. This court has repeatedly held that the disparity between crack and powder cocaine sentences is not a basis for a downward departure. Patterson v. U.S., 133 F.3d 645 (8th Cir. 1998).
8th Circuit remands for resentencing on drug counts after 924(c) gun count reversed. (880) Defendants were originally convicted of drug and firearms charges. Thereafter, they moved to vacate their § 924(c)(1) convictions. The government conceded that the § 924(c)(1) convictions should be vacated, but requested resentencing on the underlying drug convictions in order to apply a § 2D1.1(b)(1) gun enhancement. The district court granted the motion to vacate the § 924(c) convictions, but denied the government’s motion for resentencing. The Eighth Circuit remanded for reconsideration, because the court erroneously believed it lacked authority to resentence the drug counts. Although the law was unclear when the district court ruled, several intervening circuit cases have held that in an motion under § 2255, a district court has authority to resentence on a drug trafficking conviction after vacating a related § 924(c) conviction. Cooper v. U.S., 129 F.3d 1013 (8th Cir. 1997).
8th Circuit refuses to review ineffective assistance of counsel raised on direct appeal. (880) Defendant argued for the first time on direct appeal that he was denied ineffective assistance of counsel when his defense counsel failed to request an evidentiary hearing prior to sentencing. The Eighth Circuit refused to review the claim because the record was not sufficiently developed. Ineffective assistance claims are ordinarily raised in collateral proceedings because facts outside the record generally must be developed in order to resolve the claim. U.S. v. Heath, 122 F.3d 682 (8th Cir. 1997).
8th Circuit rules incorrect advice causing defendant to reject plea was not ineffective assistance. (880) Defendant was indicted on three drug charges. The government first offered him an 18-month sentence in return for his guilty plea on one count and his testimony against his co-defendants. When he rejected this offer, the government proposed an agreement under which he would not have to testify but would receive an 8-year sentence. He rejected this and received a 360-month sentence on each count. In a § 2255 petition, defendant claimed that he only rejected the government’s second offer because his counsel incorrectly told him that he faced a maximum sentence of 14 years. The Eighth Circuit rejected the ineffective assistance claim because even if defendant’s allegations were true, the deal he was offered was not one the trial court could have accepted. The statute under which the government charged defendant carried a minimum sentence of 10 years. Even if the government’s offer had been the 10-year statutory minimum, the court would still have had to reject it because defendant was a career offender who faced a minimum sentence of 30 years. This was precisely the sentence he received after trial. Nimrod v. U.S., 122 F.3d 660 (8th Cir. 1997).
8th Circuit holds resentencing on served portion of interdependent sentences did not violate double jeopardy. (880) Defendant originally was convicted of drug and firearms charges. The district court vacated the § 924(c) conviction in light of Bailey v. United States, 116 S.Ct. 501 (1995). The district court then recalculated defendant’s sentence on the related drug trafficking charge. Recent Eighth Circuit cases have upheld a district court’s authority in a § 2255 action to resentence a prisoner on a drug trafficking offense after vacating a related § 924(c) conviction. However, at the time of defendant’s resentencing, he had completed the 60-month drug trafficking sentence, and had begun the § 924(c) sentence. Defendant argued that because the drug trafficking sentence had expired, he had a legitimate expectation of finality in that sentence. The Eighth Circuit held that resentencing on the served portion of the two interdependent sentences did not violate double jeopardy. Defendant’s sentence on the drug charge had not expired because he was still in custody and subject to supervised release on that charge at the end of his imprisonment on the § 924(c) count. Also, the consecutive sentences for the related drug and firearms counts constituted a unified sentencing package. Judge Gibson dissented. U.S. v. Alton, 120 F.3d 114 (8th Cir. 1997).
8th Circuit upholds resentencing on drug count after § 924(c) conviction vacated. (880) Defendants were convicted of using a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) and related drug crimes. They successfully moved to vacate their § 924(c) convictions in light of the Supreme Court’s decision in Bailey v. U.S., 116 S.Ct. 501 (1995). In two cases decided the same day, the Eighth Circuit relied on U.S. v. Harrison, 113 F.3d 135 (8th Cir. 1997) to hold that a district court has authority under § 2255 to resentence a prisoner on related convictions and to apply the § 2D1.1(b)(1) enhancement when it has vacated a § 924(c) conviction. Such a resentencing does not violate double jeopardy. Gardiner v. U.S., 114 F.3d 734 (8th Cir. 1997); Dossett v. U.S., 113 F.3d 148 (8th Cir. 1997).
8th Circuit upholds resentencing on drug count after firearms conviction is vacated. (880) In a § 2255 petition, defendant successfully challenged his 18 U.S.C. § 924(c) firearm conviction. The district court vacated the mandatory 60-month firearm conviction, but then applied a § 2D1.1(d)(1) firearm enhancement to the drug sentence. It imposed a 151-month sentence, 30 months less than defendant’s total original sentence. The Eighth Circuit held that the district court had jurisdiction under § 2255 to resentence defendant on the drug count, even though defendant had not challenged the drug conviction or sentence in his § 2255 motion. Section 2255 gives district courts broad and flexible remedial authority to resentence a defendant and correct a sentence as appropriate. It is appropriate to allow the court to impose the sentence it would have imposed but for the challenged error. The gun conviction and the firearm enhancement on the drug conviction are interdependent, and therefore the terms of imprisonment imposed on the gun and drug counts constitute a single “sentence” under § 2255. Resentencing does not violate double jeopardy or due process. Judge Heaney dissented. U.S. v. Harrison, 113 F.3d 135 (8th Cir. 1997).
8th Circuit rules that § 5K2.13 provides sole basis for downward departure based on defendant’s mental condition. (880) Defendant argued in a § 2255 motion that his trial counsel was ineffective for failing to argue for a downward departure under § 5H1.3 based upon defendant’s mental condition. At sentencing, defense counsel requested a downward departure under § 5K2.13 because of defendant’s significantly reduced mental capacity. The district court denied the request because defendant’s bank robberies were violent offenses. The Eighth Circuit found no ineffective assistance because § 5K2.13 provides the sole basis for a downward departure based on a defendant’s mental condition. Section 5H1.3 is not an independent source of departure authority. The Sentencing Commission adequately considered diminished mental capacity when it formulated § 5K2.13, thus foreclosing consideration of diminished capacity under § 5K2.0. Premachandra v. U.S., 101 F.3d 68 (8th Cir. 1996).
8th Circuit holds Rule 11(c)(1) claim was procedurally defaulted. (880) Defendant argued that the district court violated Rule 11(c)(1), Fed. R. Crim. P., by failing to explain the ramifications of supervised release before accepting his guilty plea. The Eighth Circuit held that the claim was procedurally defaulted because it was not raised on direct appeal. Defendant made no showing of cause and prejudice that would excuse his procedural default. Premachandra v. U.S., 101 F.3d 68 (8th Cir. 1996).
8th Circuit finds counsel not ineffective in failing to object to D‑meth at sentencing. (880) Defendant contended in a § 2255 motion that his trial counsel was ineffective for failing to object to the assumption at sentencing that the offense involved D‑methamphetamine rather than L‑methamphetamine. The Eighth Circuit held that defendant did not show a reasonable probability that the result would have been different had his counsel objected. The sole basis for defendant’s claim that his offense involved L‑methamphetamine was his own sworn statement that the drugs he used had a caffeine‑like effect with no long‑term effects. Defendant’s statement was unsupported and self-serving and did not establish a basis for relief. The government’s evidence showed that defendant was a drug dealer who obtained drugs from one of the large methamphetamine dealers in town. The government witnesses included several long‑time users who testified that they had purchased drugs from defendant. U.S. v. Apfel, 97 F.3d 1074 (8th Cir. 1996).
8th Circuit says failure to challenge all drugs in courier’s luggage was not ineffective assistance. (880) Police arrested a courier carrying eight kilograms of crack cocaine. Defendant was arrested at the courier’s hotel when he came to purchase the crack. In a § 2255 petition, defendant argued for the first time that his counsel was ineffective for failing to challenge the PSR’s conclusion that he was responsible for all of the crack cocaine found in the courier’s luggage. The district court concluded that his claim was procedurally barred because he failed to raise it on direct appeal. The Eighth Circuit held that the claim was not barred, because claims of ineffective assistance of counsel should be raised for the first time in a § 2255 motion, rather than on direct appeal. The claim, however, lacked merit. Although defendant was only carrying $1000, and the courier stated that she was to be paid $3000, this did not mean defendant was only going to purchase one third of the drugs. It was not ineffective assistance to fail to object to a PSR that did not draw the unlikely conclusion that the amount of money a defendant is carrying at the time of arrest conclusively determines the scope of the conspiracy. Garrett v. U.S., 78 F.3d 1296 (8th Cir. 1996).
8th Circuit says counsel’s failure to object to foreseeability did not prejudice defendant. (880) Defendant was convicted of conspiracy and attempt to manufacture methamphetamine after delivering glassware to a methamphetamine laboratory. Defendant objected to the PSR’s finding that the laboratory could have produced 37.5 kilograms, but did not object to its finding that the lab’s production capacity was “reasonably foreseeable.” In U.S. v. Montanye, 996 F.3d 190 (8th Cir. 1993), an en banc court affirmed. Defendant then filed a § 2255 motion claiming his lawyer was ineffective for failing to object to the PSR’s foreseeability finding. The Eighth Circuit rejected the ineffective assistance claim, finding no prejudice because defendant’s sentence would have been the same even if only ten kilograms were foreseeable. The 37.5 kilogram estimate was “conservative” based on the assumption that the glassware would be used only five times. The district court found it was foreseeable that the lab would be used several times and that it would produce at least ten kilograms. Judge Bright dissented. Montanye v. U.S., 77 F.3d 226 (8th Cir. 1996).
8th Circuit rejects ineffective assistance claim where no evidence that defendant would have pled guilty if properly advised. (880) Defendant rejected a proposed plea agreement under which he would plead guilty to one count of the indictment and the remaining charges against him and his wife would be dropped. He went to trial and was convicted on all counts. In a 28 U.S.C. § 2255 petition, he claimed that his counsel was ineffective for failing to inform him about the applicable guidelines and mandatory minimums, and the advantages of accepting the plea. The Eighth Circuit rejected the ineffective assistance claim, since there was no evidence that, but for his counsel’s advice, defendant would have accepted the plea. Defendant testified at trial and maintained his innocence of the crimes alleged. In letters written after the trial, defendant continued to assert his innocence and said he would like to request a new trial. Further, defendant did not assert that he would have pled guilty if his counsel had provided him with additional information concerning the risks of trial. Thus, defendant failed to show any prejudice. Engelen v. U.S., 68 F.3d 238 (8th Cir. 1995).
8th Circuit holds that failure to raise sentence challenge earlier barred § 2255 attack. (880) Defendant pled guilty to manufacturing methamphetamine. His sentence was based on 989 grams of D-methamphetamine. Defendant argued for the first time in a motion under 28 U.S.C. § 2255 that the drug was actually L-methamphetamine, a substance that carries a lesser penalty. The Eighth Circuit held that defendant’s claim was procedurally barred. Defendant did not make this argument at sentencing or on direct appeal from his conviction. A point not properly preserved at trial or on appeal cannot be reached in a § 2255 proceeding unless the petitioner can show both cause for not raising the point and prejudice from the claimed legal error. Defendant did not attempt to show either cause or prejudice. Defendant’s claim that he was “actually innocent” of the sentence failed. Under defendant’s theory, every issue of fact material to a guidelines sentence could be litigated or relitigated on collateral attack. U.S. v. Ward, 55 F.3d 412 (8th Cir. 1995).
8th Circuit says failure to challenge extent of upward departure was not ineffective assistance. (880) Defendant was convicted of drug charges and attempting to kill a government witness. The district court departed upward from a maximum guideline sentence of 108 months to 180 months. The appellate court affirmed the reasons for the departure on appeal. In a § 2255 motion, defendant argued that his counsel was ineffective at sentencing for failing to object to the extent of the departure. The Eighth Circuit found no ineffective assistance because the district court did not abuse its discretion in determining the extent of the upward departure. The 180-month sentence for the combined drug offenses and the attempt to kill a witness was still five years less than the statutory maximum of 20 years for the attempted murder conviction alone. Defendant also did not show he was prejudiced by counsel’s failure to present character witnesses at sentencing. Drew v. U.S., 46 F.3d 823 (8th Cir. 1995).
8th Circuit refuses to hear ineffective assistance claim brought on direct appeal. (880) On direct appeal, defendant argued that he received ineffective assistance of counsel because his attorney did not request a downward departure. The 8th Circuit held that the claim was premature. Except in rare circumstances, claims of ineffective assistance of counsel should be raised for the first time in collateral proceedings under 28 U.S.C. § 2255 and not on direct appeal. U.S. v. Jackson, 41 F.3d 1231 (8th Cir. 1994).
8th Circuit says failure to advise of career offender status was not ineffective assistance. (880) In a 28 U.S.C. § 2255 motion, petitioner argued that he was denied effective assistance of counsel in the plea proceedings because his lawyer did not advise him that he could be sentenced as a career offender under the guidelines. The 8th Circuit rejected this claim. When his PSR recommended career offender status, petitioner challenged only that recommendation and did not seek to withdraw his guilty plea. At the beginning of the sentencing hearing, he stated that he was “satisfied” with his counsel’s representation. Petitioner also did not show that he would not have pled guilty but for his attorney’s failure to advise him about career offender status. Thomas v. U.S., 27 F.3d 321 (8th Cir. 1994).
8th Circuit holds that abuse of the writ was not excused. (880) Petitioner’s first § 2255 motion was denied on the merits. He brought a second 2255 motion, alleging various sentencing errors that were not alleged in the first 2255 motion. The 8th Circuit held that defendant’s abuse of the writ was not excused either by ineffective assistance of post-conviction counsel or by a change in the law. A successive petition must be dismissed as an abuse of the writ unless the petitioner can show external cause and prejudice, or a fundamental miscarriage of justice. Neither reason offered by petitioner excused his abuse of the writ. Post-conviction counsel’s ineffective assistance may not constitute cause. The case cited by petitioner may have represented a change in the law in another circuit, but not in this one. Dyer v. U.S., 23 F.3d 1421 (8th Cir. 1994).
8th Circuit rules that persuading defendant to abandon appeal was not ineffective assistance. (880) At sentencing, the trial court imposed an enhancement for abuse of trust and for a vulnerable victim, but refused to depart based on extreme psychological injury. When defendant advised he would appeal, the court stated that one reason it did not depart was because it had imposed the vulnerable victim enhancement and abuse of trust enhancement. If either of these enhancements were rejected by the appellate court, then there might be more reason for a departure. Based on these remarks, defense counsel advised defendant not to appeal, and defendant later withdrew his appeal. The 8th Circuit rejected defendant’s claim that his counsel was ineffective for advising him to withdraw his appeal. The sentencing court’s comments did not unconstitutionally chill defendant’s right to appeal. The court did not threaten defendant with a greater sentence if he successfully appealed. Rather, the court correctly noted the sentencing issues of enhancement and departure were interrelated. Counsel properly took the court’s caution into account in advising defendant regarding the appeal. U.S. v. Phillips, 23 F.3d 1389 (8th Cir. 1994).
8th Circuit finds burglaries committed on different days and places were separate. (880) In a motion under 2255, petitioner claimed that his counsel was ineffective in failing to argue that his six state burglary convictions were related offenses for sentencing purposes. The 8th Circuit suggested that this third 2255 motion might constitute an abuse of the writ, but nonetheless addressed the merits of petitioner’s claim because the district court did. The claim was without merit. The offenses, which occurred on different days, at different locations, and within a span of several weeks, were separate and distinct criminal episodes. Section 924(e) does not require separate prosecutions; it is enough that the offenses occurred at different times. Rodriguez v. U.S., 17 F.3d 225 (8th Cir. 1994).
8th Circuit finds no cause and prejudice for failure to raise sentencing claim on direct appeal. (880) The 8th Circuit affirmed the denial of defendant’s challenge to his sentence under 28 U.S.C. section 2255, since defendant procedurally defaulted by not filing a direct appeal. He showed no cause and prejudice to excuse the default nor did he make any showing of factual innocence. The court also rejected his claim that his plea was involuntary because he received ineffective assistance of counsel. During the change of plea hearing, defendant indicated that he understood the plea agreement, was satisfied with his lawyer’s services, and was pleading guilty without coercion. He further stated that the prosecutor’s summary of facts was correct, and he understood the maximum sentence was 20 years — a sentence significantly higher than the 53-month sentence actually imposed. Ramey v. U.S., 8 F.3d 1313 (8th Cir. 1993).
8th Circuit says court lacked jurisdiction under 18 U.S.C. § 3742(a) to modify sentence. (880) After his conviction was affirmed on appeal, defendant moved to modify his sentence. The 8th Circuit rejected defendant’s claim that the district court had jurisdiction under 18 U.S.C. sections 3742(a)(1) and (2) and sections 3582(b)(2) and (c)(2) to modify his sentence. Section 3742(a)(1) and (2) provides for appellate review of sentences; it does not permit district court review. Section 3582(b) merely defines a final judgment. Section 3582(c)(2) does permit a district court to reduce a sentence if the guideline range is subsequently lowered by the Sentencing Commission. But the amendment on which defendant sought to rely had not been given retroactive effect by the Commission. The appellate court refused to consider defendant’s motion as brought under 28 U.S.C. section 2255, since there was nothing to suggest that the district court considered defendant’s motion to be a section 2255 motion. U.S. v. Auman, 8 F.3d 1268 8th Cir. 1993).
8th Circuit vacates enhanced sentence where government failed to file §851 information. (880) Prior to the entry of defendant’s guilty plea, the government had not filed an information stating that it would rely on a prior drug conviction to enhance his sentence, as required by 21 U.S.C. §851a)(1). Defendant purported to waive this non-compliance after a colloquy at which neither the district court nor defense counsel advised him that his sentence could not be enhanced without the filing of the information. In a 28 U.S.C. §2255 petition, the 8th Circuit held that the court erred in enhancing defendant’s sentence under §841(b)(1)(B). This was an error that could be remedied under §2255, both because defendant’s counsel was ineffective in permitting him to waive §851(a)(1) non-compliance and in not appealing the unlawfully enhanced sentence, and also because §2255 expressly makes relief available if “the sentence was in excess of the maximum authorized by law.” Neary v. U.S., 998 F.2d 563 (8th Cir. 1993).
8th Circuit remands for hearing on whether counsel was ineffective in failing to appeal obstruction enhancement. (880) The district court summarily denied defendant’s motion to vacate his sentence under 28 U.S.C. §2255. The 8th Circuit remanded for an evidentiary hearing to consider defendant’s claim that counsel was ineffective in failing to appeal an enhancement for obstruction of justice. The record appeared on its face insufficient to support the enhancement: the enhancement was based on providing “material falsehoods” to the probation officer, yet it was not apparent how defendant’s interview answers impeded the investigation, and the district court simply accepted the probation officer’s unsupported assertion of materiality. There was no explanation of why counsel, having properly raised this issue at sentencing, failed to raise it on appeal. In these circumstances, the claim of ineffective assistance required an evidentiary hearing. Neary v. U.S., 998 F.2d 563 (8th Cir. 1993).
8th Circuit grants relief from illegal term of supervised relief despite procedural default. (880) In a §2255 motion, defendant argued that his four-year term of supervised release exceeded the maximum authorized by law. The 5th Circuit agreed. Defendant was convicted of violating section 21 U.S.C. section 841(d), which is a Class C felony. Unless a statute authorizes a longer term, the authorized supervised release term for a Class C felony is not more than three years. Although defendant had procedurally defaulted this claim, §2255 makes relief available if the sentence was in excess of the maximum authorized by law. Relief should be granted to avoid “manifest injustice.” U.S. v. Wilson, 997 F.2d 429 (8th Cir. 1993).
8th Circuit refuses habeas review of sentencing errors not raised on direct appeal. (880) The 8th Circuit ruled that defendant was barred from raising sentencing errors in his 28 U.S.C. section 2255 motion because he could have raised these issues on direct appeal and did not show cause and prejudice to excuse his procedural default. Although in his petition he summarily mentioned ineffective assistance as cause to excuse his default, he failed to show that appellate counsel performed deficiently in failing to raise these issues on direct appeal, and that counsel’s deficient performance prejudiced him. Ford v. U.S., 983 F.2d 897 (8th Cir. 1993).
8th Circuit refuses to consider in habeas action challenge not brought on direct appeal. (880) The 8th Circuit affirmed the district court dismissal of defendant’s 28 U.S.C. section 2255 motion to vacate his sentence. The claim that he was entitled to a decrease in offense level under section 2K2.1(b)(1) could have been raised on direct appeal and was not. Schneider v. U.S., 981 F.2d 989 (8th Cir. 1992).
8th Circuit refuses to consider in habeas action issues resolved against defendant on direct appeal. (880) On appeal from the district court’s denial of his motion under 28 U.S.C. section 2255, petitioner raised several sentencing guidelines issues which he had previously raised in his direct appeal. The 8th Circuit refused to consider these issues, since issues which were raised and decided on direct appeal cannot be relitigated on a motion to vacate under 28 U.S.C. section 2255. Dall v. U.S., 957 F.2d 571 (8th Cir. 1992).
8th Circuit vacates sentence at top of guideline range because district court improperly considered defendant’s alien status. (880) Defendant was a Nigerian citizen who committed insurance fraud. The district court sentenced defendant at the top of the applicable guideline range because (a) the crime could have resulted in a much greater loss if the victims had failed to discover it, (b) defendant failed or refused to identify other participants in the fraud, and (c) defendant was not a citizen of the United States. The third factor was only in the judge’s oral statements, and not his written order. The 8th Circuit found that because the district court’s consideration of defendant’s alien status was both an incorrect application of the guidelines and a violation of law, it had authority to review his sentence under 18 U.S.C. § 3742(e). Although two of the reasons mentioned by the judge were permissible bases for the sentenced imposed, the third was not. Because the appellate court could not be sure that the district court would have imposed the same sentence absent the impermissible consideration, the sentence was vacated, and the case remanded for reconsideration. U.S. v. Onwuemene, 933 F.2d 650 (8th Cir. 1991).
8th Circuit rejects collateral attack where defendant failed to challenge non-guidelines sentence in direct appeal. (880) At sentencing, the district court held the guidelines unconstitutional, and gave defendant a 15-year non-guidelines sentence for his drug conviction. Following the Supreme Court’s decision in Mistretta v. U.S., 488 U.S. 361 (1989), the 8th Circuit reversed the ruling that the guidelines were unconstitutional, but affirmed defendant’s non-guidelines sentence. Defendant did not seek review of that decision, but later attacked his sentence in this habeas corpus action, arguing that his sentence exceeded the appropriate guideline range. The 8th Circuit rejected argument, ruling defendant’s failure to challenge his sentence in the direct appeal meant that he could not now collaterally attack his sentence. U.S. v. Serpa, 930 F.2d 639 (8th Cir. 1991).
8th Circuit rejects collateral attack where defendant failed to challenge non-guidelines sentence in direct appeal. (880) At sentencing, the district court held the guidelines unconstitutional, and gave defendant a 15-year non-guidelines sentence for his drug conviction. Following the Supreme Court’s decision in Mistretta v. U.S., 488 U.S. 361 (1989), the 8th Circuit reversed the ruling that the guidelines were unconstitutional, but affirmed defendant’s non-guidelines sentence. Defendant did not seek review of that decision, but later attacked his sentence in this habeas corpus action, arguing that his sentence exceeded the appropriate guideline range. The 8th Circuit rejected argument, ruling defendant’s failure to challenge his sentence in the direct appeal meant that he could not now collaterally attack his sentence. U.S. v. Serpa, 930 F.2d 639 (8th Cir. 1991).
8th Circuit hears sentencing appeal even though defendant misdesignated it as 28 U.S.C. 2255 motion. (880) Defendant’s main brief claimed that he was appealing his sentence under 28 U.S.C. § 2255. The 8th Circuit rejected the government’s argument that it was without jurisdiction to hear the appeal. The right of appeal is not affected by failure to designate the grounds for jurisdiction in the notice of appeal. Therefore defendant’s right of appeal was not affected by his inadvertent misdesignation of the grounds for jurisdiction in his main brief. The court had jurisdiction under over this sentencing appeal under 18 U.S.C. § 3742. U.S. v. Frondle, 918 F.2d 62 (8th Cir. 1990).
9th Circuit grants mandamus to defendant denied passport after sentence served. (880) After completing his sentence and term of supervised release, defendant applied for a passport. The district court apparently took jurisdiction over defendant’s application and ordered it denied. Defendant filed a motion for a writ of coram nobis. Construing the application as a request for a writ of mandamus, the Ninth Circuit granted it. The court held that the district court engaged in a judicial usurpation of power and ordered that defendant be allowed to apply for a new passport. U.S. v. Faherty, 749 F.3d 835 (9th Cir. 2014).
9th Circuit says § 2241 cannot be used to claim “actual innocence” of Guidelines calculation. (880) After the denial of his petition under 28 U.S.C. § 2255, defendant, a federal prisoner, filed a petition under 28 U.S.C. § 2241, arguing that he was “actually innocent” of the district court’s finding at sentencing that he was a career offender. The Ninth Circuit held that a defendant cannot file a § 2241 petition to argue that he is “actually innocent” of a Guidelines calculation because the “actual innocence” exception to the rule against using § 2241 for a collateral attack does not apply to legal claim. Marrero v. Ives, 682 F.3d 1190 (9th Cir. 2012).
9th Circuit upholds BOP regulation barring firearms felons from sentence reduction. (880) Under the Residential Drug Abuse Treatment Program, the Bureau of Prisons may reduce the sentence of a defendant convicted of a nonviolent offense by one year if the defendant completes the requisite drug or alcohol counseling. The BOP enacted a regulation disqualifying any defendant who was incarcerated for being in a felon in possession of a firearm, under 18 U.S.C. § 922(g), and any defendant who had a prior conviction for certain specified crimes of violence. The Ninth Circuit held that the regulation had been validly promulgated under the Administrative Procedures Act and that the BOP was not required to support the regulation with statistics or other empirical evidence. Peck v. Thomas, 697 F.3d 767 (9th Cir. 2012).
9th Circuit finds failure to advise on guidelines’ grouping rules was deficient performance. (880) Defendant entered into a plea agreement to resolve his drug-trafficking charges. The agreement stated that the parties would recommend to the district court that defendant’s guidelines offense level be set at 34 and that the government would recommend a three-level reduction for acceptance of responsibility. Applying the guidelines’ grouping provisions, the presentence report (PSR) calculated defendant’s offense level as 38, and it recommended against an acceptance reduction. The district court found that 38 was the correct offense level and sentenced defendant within that range. Defense counsel never moved to withdraw from the plea agreement. Defendant filed a motion under 28 U.S.C. § 2255, and the Ninth Circuit held that counsel’s failure to advise defendant of the effect of the guidelines’ grouping rules constituted constitutionally defective performance and remanded to the district court for a determination of prejudice. U.S. v. Manzo, 675 F.3d 1204 (9th Cir. 2012).
9th Circuit finds habeas petition challenging sentence calculation moot after prisoner’s release. (880) Under 18 U.S.C. § 3621(e)(2)(B), the Bureau of Prisons has authority to grant a reduction of one year in the sentence of a defendant convicted of a nonviolent felony who successfully completes a residential drug abuse treatment program. Defendant filed a habeas petition challenging the BOP’s decision that possession of a firearm by a convicted felon was a violent offense. In an unrelated case, the Ninth Circuit rejected the BOP’s rule, finding that possession of a firearm was not a violent felony. When the Ninth Circuit issued its opinion, defendant had seven months remaining on his sentence, and the BOP released him from incarceration. The district court then dismissed his habeas petition as moot. The Ninth Circuit agreed that the case was moot, finding that defendant’s desire for a ruling on the legality of his incarceration for the five months before the Ninth Circuit found the BOP rule invalid was insufficient to avoid mootness. Kittel v. Thomas, 620 F.3d 949 (9th Cir. 2010).
9th Circuit says audita querela may not be used to raise sentencing claim cognizable under § 2255. (880) Defendant, a federal prisoner, unsuccessfully challenged his conviction and sentence in a direct appeal, a motion under 18 U.S.C. § 3582(c)(2), three untimely petitions under 28 U.S.C. § 2255, a petition for a writ of mandamus, a motion under Federal Rule of Civil Procedure 60(b), and a motion to recall the mandate in his direct appeal. After these petitions were denied, defendant filed a petition for a writ of audita querela challenging his 1993 sentence on the ground that it was imposed in violation of Booker. The Ninth Circuit held that a federal prisoner may not challenge a sentence pursuant to a petition for a writ of audita querela if the requested relief could be obtained under § 2255. U.S. v. Gamboa, 608 F.3d 492 (9th Cir. 2010).
9th Circuit declines to overturn state interpretation of Apprendi’s prior conviction exception. (880) Under Apprendi v. New Jersey, 530 U.S. 466 1252000), “any fact (other than the fact of a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” At defendant’s sentencing in California state court, the trial court found that defendant committed his offenses while on probation for another offense. Based on that finding, the court increased the maximum penalty for defendant’s offense. The California courts held that defendant’s sentence had not been imposed in violation of Apprendi because defendant’s probationary status fell within the “prior conviction” exception to Apprendi. In federal habeas proceedings, the Ninth Circuit noted that the California court’s interpretation of the “prior conviction” exception was not consistent with its prior cases holding that a defendant’s probationary status did not fall within the “prior conviction” exception, but held that the California courts’ conclusion was not unreasonable and therefore could not be overturned in a habeas proceeding. Kessee v. Mendoza-Powers, 574 F.3d 675 (9th Cir. 2009).
9th Circuit says case invalidating California’s determinate sentencing law is retroactive. (880) California’s determinate sentencing law created three sentencing ranges for each offense. Under the law, a court was to impose a sentence in the middle range unless it found mitigating or aggravating facts that justified a sentence in the lower or upper range. In Cunningham v. California, 549 U.S. 270 (2007), the Supreme Court held that California’s sentencing scheme violated Apprendi to the extent that it allowed judges to impose a sentence in the higher range based on facts that were not found by the jury. At defendant’s sentencing, the trial court imposed an upper-tier sentence because defendant was on probation at the time the offense was committed. Defendant’s conviction became final before the Court decided Cunningham. The Ninth Circuit held that Cunningham did not establish a “new rule” and therefore that the rule it announced applied to cases both on direct and collateral review. Accordingly, the court held, defendant was entitled to the benefit of Cunningham. Butler v. Curry, 528 F.3d 624 (9th Cir. 2008).
9th Circuit says that even if defendant could collaterally attack his restitution order, there was no injustice. (880) The Ninth Circuit noted that even though the defendant had not asserted any authority under which he might bring a collateral attack on his restitution order, in the somewhat analogous context of federal habeas relief under 28 U.S.C. §2255, “an error of law [or facts] does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.” The defendant could not make that showing here because the parties stipulated that if the district court found that the restitution order was not time-barred, the funds that the government had already seized would be applied and fully satisfy defendant’s restitution debt. Because the Ninth Circuit held that the judgment was not time-barred, the court found that it would not be a “complete miscarriage of justice” if the defendant were precluded from collaterally attacking the amount of his restitution obligation. U.S. v. Gianelli, 543 F.3d 1178 (9th Cir. 2008).
9th Circuit, in superseding opinion, holds that audita querela may not be used to raise Booker challenge. (880) In 2005, a defendant sentenced in 1990 filed a petition for a writ of audita querela arguing that his sentence was unconstitutional under U.S. v. Booker, 543 U.S. 220 (2005). In a superseding opinion, the Ninth Circuit held that the writ of audita querela is available only to fill “gaps” in the relief available through a habeas petition and that the limits on second or successive habeas petitions do not create a “gap” in habeas relief. On that basis, the court held that a writ of audita querela may not be used to raise a Booker claim that cannot be raised in a habeas petition. Carrington v. U.S., 503 F.3d 888 (9th Cir. 2007), amended, 530 F.3d 1183 (9th Cir. 2008).
9th Circuit says that district court’s frustration with guidelines sentence justifies post-Booker withdrawal of mandate. (880) When defendant Carrington was sentenced in 1990 to 324 months for drug-trafficking offenses, the district court described the Sentencing Guidelines as “bad law,” and expressed frustration with the limitations on the court’s discretion imposed by the guidelines. When defendant Tillitz was sentenced in 1998 to 360 months for drug-trafficking crimes, the same district court judge noted that he had ruled the guidelines unconstitutional when they were first promulgated but that the Supreme Court had overturned that ruling. Both sentences were upheld on appeal. In 2005, after the decision in U.S. v. Booker, 543 U.S. 220 (2005), Tillitz filed a petition for a writ of audita querela seeking relief from his sentence, and Carrington moved for modification of his sentence. The sentencing district court judge denied both motions, but asked the court of appeals to recall its mandate so that the court could resentence the defendants. The Ninth Circuit held that the two cases presented “extraordinary circumstances” that justified recall of the court’s mandate from the defendants’ earlier appeals so that the district court could resentence the defendants. Carrington v. U.S., 470 F.3d 920 (9th Cir. 2006), superseded, Carrington v. U.S., 503 F.3d 888 (9th Cir. 2007).
9th Circuit holds that audita querela may not be used to raise Booker challenge. (880) In 2005, a defendant sentenced in 1990 filed a petition for a writ of audita querela arguing that his sentence was unconstitutional under U.S. v. Booker, 543 U.S. 220 (2005). The Ninth Circuit held that the writ of audita querela is available only to fill “gaps” in the relief available through a habeas petition and that the limits on second or successive habeas petitions do not create a “gap” in habeas relief. On that basis, the court held that a writ of audita querela may not be used to raise a Booker claim that cannot be raised in a habeas petition. Carrington v. U.S., 470 F.3d 920 (9th Cir. 2006), superseded, Carrington v. U.S., 503 F.3d 888 (9th Cir. 2007).
9th Circuit holds that Booker does not apply retroactively to final decisions. (880) The Ninth Circuit held that the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005), which found that the mandatory sentences required by the federal Sentencing Guidelines violated the Sixth Amendment, did not apply retroactively to convictions that had become final before the date that Booker was decided. U.S. v. Cruz, 423 F.3d 1119 (9th Cir. 2005).
9th Circuit holds that Blakely does not apply retroactively to final Washington sentences. (880) Defendant was convicted in Washington state court of rape of a child, and he was sentenced pursuant to the Washington state Sentencing Guidelines. His conviction became final before the Supreme Court held in Blakely v. Washington, 124 S.Ct. 2531 (2004), that sentences imposed under those guidelines violate the Sixth Amendment because they rest on facts not found by the jury. The Ninth Circuit held that Blakely does not apply retroactively to Washington state sentences that were final before it was decided. Schardt v. Payne, 414 F.3d 1025 (9th Cir. 2005).
9th Circuit says claim that counsel was ineffective in advising defendant on sentence cannot be raised on direct appeal. (880) Prior to sentencing, defendant moved to withdraw his guilty plea on the ground that his attorney had told him that he would receive a lower sentence than the sentence recommended by the presentence report. At a hearing at which defendant appeared with new counsel, defendant testified concerning the advice that he received from his attorney, but the attorney did not testify. The district court denied the motion because defendant did not produce any evidence from the attorney. The Ninth Circuit declined to consider defendant’s ineffective-assistance-of-counsel claim for the first time on direct appeal because the record did not contain any evidence from the attorney. Judge Berzon dissented. U.S. v. Jeronimo, 398 F.3d 1149 (9th Cir. 2005), overruling on other grounds recognized by U.S. v. Rojas-Vivar, 424 Fed.Appx. 665 (9th Cir. 2011) (unpublished) No. 09-10439.
9th Circuit says Blakely is not retroactive and may not be raised in second or successive petition. (880) Defendant sought to file a second or successive petition under 28 U.S.C. § 2255 to raise his claim that his sentence was unconstitutional under Blakely v. Washington, 124 S.Ct. 2531 (2004). The Ninth Circuit summarily denied defendant’s application because the Supreme Court has not held that Blakely applies retroactively to cases on collateral review. Cook v. U.S., 386 F.3d 949 (9th Cir. 2004).
9th Circuit finds habeas petition challenging parole date was moot after parole rescinded, but could be amended. (880) In 1986, a state parole board found defendant eligible for parole in 2000. In 1997, defendant filed a federal habeas petition challenging that parole date on the ground that the parole board violated the Ex Post Facto Clause. In 1999, the parole board held that the prior board had erred in granting defendant parole and rescinded defendant’s parole. The Ninth Circuit held that defendant’s challenge to the 1986 parole determination was moot because that determination had been rescinded and thus could not be the subject of relief granted by the court. The court held, however, that defendant should have been granted leave to amend his petition to raise challenges to the rescission decision that he had exhausted in state court. Caswell v. Calderon, 363 F.3d 832 (9th Cir. 2004).
9th Circuit en banc holds that former Rule 35 and audita querela did not authorize resentencing. (880) Defendant was sentenced in 1982 under the now-repealed Federal Youth Corrections Act (FYCA). The FYCA required the court to determine whether defendant, who was then 24 years old, would benefit from being sentenced as a juvenile. The court found that he would not benefit and sentenced him as an adult. At the same time, the district court issued a Judicial Recommendation Against Deportation (JRAD) under repealed 8 U.S.C. § 1251(b), an order that could bar the deportation of some convicted defendants. Subsequently, Congress added additional grounds for deportation that were not covered by the JRAD and required defendant’s deportation. The district court granted defendant’s motion under former Federal Rule of Criminal Procedure 35, which allowed the correction of an illegal sentence “at any time,” and resentenced defendant under the FYCA. The court also granted the same relief in a writ of audita querela. The en banc Ninth Circuit held that the district court’s mistake of fact that the JRAD would forever bar defendant’s deportation did not render his sentence illegal under Rule 35 or provide a basis for a writ of audita querela. U.S. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004).
9th Circuit says ineffective assistance in timing of plea and in pre-sentencing cooperation violates Sixth Amendment. (880) Defendant alleged that counsel delayed his guilty plea in a manner that decreased his ability to cooperate with the authorities. Defendant eventually pleaded guilty pursuant to an agreement that required his cooperation with the government in order to obtain a motion for a downward departure under the Sentencing Guidelines. He alleged that when difficulties arose in providing cooperation, his counsel failed to stay in contact or help resolve the problems and that he was therefore unable to provide substantial assistance. When defendant was sentenced, the government did not make a motion for a substantial assistance downward departure. The Ninth Circuit held that an attorney’s delaying of a guilty plea to the defendant’s prejudice could state an ineffective assistance of counsel claim, but that defendant’s allegations failed to show prejudice. The court also found that ineffective assistance of counsel during the defendant’s period of cooperation, if established, would violate the Sixth Amendment. U.S. v. Leonti, 326 F.3d 1111 (9th Cir. 2003).
9th Circuit bars restitution claim on habeas even if posed as ineffective assistance or joined with claims seeking release. (880) In U.S. v. Kramer, 195 F.3d 1129 (9th Cir. 1999), the court held that a federal prisoner could not bring a motion under 28 U.S.C. § 2255 to challenge a restitution order because § 2255 was limited to claims in which the defendant seeks relief from custody. The Ninth Circuit held that Kramer bars consideration of a restitution claim in a § 2255 proceeding even if defendant raises other claims that seek his release from custody. Likewise, the court held, a defendant cannot challenge a restitution order by claiming that his counsel was ineffective in not challenging the original imposition of the order. U.S. v. Thiele, 314 F.3d 399 (9th Cir. 2002).
9th Circuit holds that neither former Rule 35 or audita querela authorized resentencing. (880) Defendant was sentenced in 1982 under the now-repealed Federal Youth Corrections Act (FYCA). That Act required the court to determine whether defendant, who was then 24 years old, would benefit from being sentenced as a juvenile. The court did not make that finding and sentenced defendant as an adult. At the same time, the court issued a Judicial Recommendation Against Deportation (under repealed 8 U.S.C. § 1251(b) (2), which barred defendant’s deportation. Subsequently, Congress added additional grounds for deportation that were not covered by the JRAD and that required defendant’s deportation. Defendant filed a motion under former Federal Rule of Criminal Procedure 35(a), which allowed the correction of an illegal sentence “at any time.” He argued that the district court could resentence him as a juvenile under the FYCA because when the court had sentenced him as an adult, it had believed that its JRAD would bar his deportation. Defendant sought the same relief in a motion for a writ of audita querela. The district court granted relief under both Rule 35(a) and as a writ of audita querela, but the Ninth Circuit reversed. It held that defendant’s sentence was not “illegal” within the meaning of Rule 35 simply because the district court had made a “mistake of fact” concerning the effect of its JRAD. Likewise, the court held that defendant was not entitled to a writ of audita querela. U.S. v. Hovsepian, 307 F.3d 922 (9th Cir. 2002), rehearing en banc granted by U.S. v. Hovsepian, 326 F.3d 1041 (9th Cir. 2003).
9th Circuit says departure request based on prior court’s lack of jurisdiction was a prohibited collateral attack. (880) Defendant argued that the district court erred in concluding it had no discretion to depart downward based on defendant’s claim that he was a minor at the time of the prior offense underlying his conviction for illegal re-entry after deportation. He acknowledged that collateral attacks at sentencing on prior state court convictions are prohibited by Custis v. U.S., 511 U.S. 485, 490-97 (1994) and U.S. v. Gutierrez-Cervantez, 132 F.3d 460, 462 (9th Cir. 1997). However, he argued that under Koon, the district court could not categorically exclude departures based on a prior court’s lack of jurisdiction. The Ninth Circuit rejected the argument, ruling that defendant’s request for a downward departure was based on the “legitimacy,” not the “nature” of the prior conviction and that a motion for a downward departure on such grounds “constitutes a collateral attack prohibited by Custis.” U.S. v. Martinez-Martinez, 295 F.3d 1041 (9th Cir. 2002).
9th Circuit holds that Apprendi claim cannot be raised in second or successive habeas petition. (880) In U.S. v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002), the court held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), did not apply retroactively to convictions that had become final on the date Apprendi was decided. Thus, a federal habeas petitioner could not obtain relief based on Apprendi. Here, the Ninth Circuit held that Sanchez-Cervantes required the conclusion that a federal habeas petitioner could not obtain relief based on Apprendi in a second or successive petition. Rees v. Hill, 286 F.3d 1103 (9th Cir. 2002).
9th Circuit rules mistaken advice to go to trial did not prejudice defendant by allowing him to commit perjury and receive obstruction increase. (880) In discussing the government’s plea offer, defense counsel inaccurately told defendant that he could raise his claim of sentencing entrapment only if he went to trial. Defendant went to trial and testified that he had been entrapped into selling cocaine. The jury rejected this contention and convicted defendant of drug offenses. At sentencing, the district court found that defendant’s testimony was perjurious and enhanced his offense level for obstruction of justice. The Ninth Circuit rejected defendant’s claim that he would not have had the opportunity to testify falsely if counsel had not mistakenly told him that he had to go to trial to preserve his sentencing entrapment claim. The court found that defendant was not forced to commit perjury because his counsel mistakenly advised him to go to trial and thus that he could not establish that he had been prejudiced by counsel’s inaccurate advice. U.S. v. Day, 285 F.3d 1167 (9th Cir. 2002).
9th Circuit says advice that guilty plea would foreclose reduction for sentencing entrapment was ineffective assistance. (880) The government’s plea offer included an agreement to a three-level reduction in defendant’s offense level. Defense counsel mistakenly told defendant that if he accepted the offer, he would not be able to argue for a reduction in his sentence based on sentencing entrapment. Defendant rejected the plea offer, went to trial, and was convicted. At sentencing, the district court declined to give defendant an offense level reduction for acceptance of responsibility. The Ninth Circuit held that counsel’s mistaken advice constituted ineffective assistance because it prevented defendant from intelligently considering the government’s plea offer and resulted in his going to trial and being deprived of an acceptance-of-responsibility reduction. U.S. v. Day, 285 F.3d 1167 (9th Cir. 2002).
9th Circuit holds Apprendi is not retroactive to final convictions. (880) Under Teague v. Lane, 489 U.S. 288 (1989), new rules of constitutional law do not apply retroactively in collateral attacks on final convictions unless they fall within two narrow exceptions. The Ninth Circuit held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires proof beyond a reasonable doubt to a jury of facts (other than the fact of a prior conviction) that increase a defendant’s maximum sentence, does not fall within either of the two exceptions to the Teague rule and thus does not apply retroactively in collateral attacks on already final convictions. Judge Hug filed a concurring opinion. U.S. v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002).
9th Circuit says 2255 certificate of appealability cannot be issued for statutory claims. (880) Under 28 U.S.C. § 2253(c)(2), a certificate of appealability (COA) from a § 2255 order may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” In the present case, defendant only challenged his restitution order, arguing that the bank had relinquished its right to restitution in a civil settlement. Because this did not allege the violation of a constitutional right, the Ninth Circuit held that no COA could properly be issued, and therefore it lacked jurisdiction over defendant’s appeal. Although the Ninth Circuit’s rules require the district court to rule on the COA in the first instance, the rules do not “deny the circuit court jurisdiction to dismiss an appeal where no certificate has been issued or could be issued.” U.S. v. Mikels, 236 F.3d 550 (9th Cir., 2001).
9th Circuit holds Apprendi is not retroactive to cases that became final before June 26, 2000. (880) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (June 26, 2000), a 5-4 majority of the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the proscribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In this habeas case, the Ninth Circuit held that the nonretroactivity principle of Teague v. Lane, 489 U.S. 288 (1989), prevented the petitioner from benefiting from Apprendi’s new rule on collateral review. Under Teague, “a case announces a new rule when it breaks new ground or imposes a new obligation on the states or the federal government [or] if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” The Ninth Circuit held that “Apprendi certainly established a new rule.” None of the exceptions to Teague applied here, because the variance between the information and the jury instructions over the word “premeditation” did not make the trial fundamentally unfair. Therefore, it was unnecessary to decide whether Apprendi made “premeditation” an element of the attempted murder offense, rather than a mere sentencing factor. Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000).
9th Circuit treats notice of appeal from § 2255 motion as request for certificate of appealability. (880) Relying on Slack v. McDaniel, 120 S.Ct. 1595 (2000), the Ninth Circuit noted that no matter when a defendant’s original 28 U.S.C. § 2255 motion is filed, an appeal brought after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 requires a Certificate of Appealability (COA). Nevertheless, Slack held that the Court of Appeals may treat an appellant’s notice of appeal as an application for a COA. Moreover, although Ninth Circuit Rule 22-1(a) provides that the request for a COA must be submitted to the district court in the first instance, that requirement was overridden by Slack in the interest of substantial justice. For the same reason the Ninth Circuit itself granted a certificate of appealability in the present case. U.S. v. Martin, 226 F.3d 1042 (9th Cir. 2000).
9th Circuit says 2255 order granting resentencing is not final until resentencing occurs. (880) Defendant filed a 28 U.S.C. § 2255 motion, arguing that his firearms conviction under § 924(c) was invalid because the government did not prove he had “used” the firearm within the meaning of Bailey v. U.S., 516 U.S. 137 (1995). On April 7, 1998, the district court granted the motion, vacated the § 924(c) conviction, and scheduled a resentencing hearing for July. Eighty-three days later, on June 29, 1998, the government moved to reconsider the order, arguing that the intervening decision in Muscarello v. U.S., 524 U.S. 125 (1998), allowed defendant’s firearm conviction to be sustained on the “carry” prong of § 924(c). Defendant argued that the reconsideration motion was untimely, but the district court granted it and reversed its decision granting § 2255 relief. On appeal, the Ninth Circuit held that the government’s reconsideration motion was timely because the district court’s order granting relief was not a final appealable order because the resentencing had not occurred. Reconsideration was authorized by U.S. v. Dieter, 429 U.S. 6, 8 n.3 (1976) and by a local rule permitting a such reconsideration based on a change in the law. U.S. v. Martin, 226 F.3d 1042 (9th Cir. 2000).
9th Circuit says Supreme Court has not made Apprendi retroactive to habeas cases. (880) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), the Supreme Court held that, except for prior convictions, any fact that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. The Ninth Circuit assumed that Apprendi establishes a new rule of constitutional law but noted that the Supreme Court did not say that the rule was retroactive to habeas cases under Teague v. Lane, 489 U.S. 288 (1989). See 28 U.S.C. § 2241(b)(2)(A). In any event, the state prisoner could not succeed on any Apprendi claim because he had not exhausted his state remedies on this issue. Under 28 U.S.C. § 2254(b)(1)(A), a state prisoner’s habeas petition “shall not be granted unless it appears the applicant has exhausted the remedies available in the courts of the State.” Scott v. Baldwin, 225 F.3d 1020 (9th Cir. 2000).
9th Circuit holds waiver of appeal waives right to argue ineffective assistance. (880) Agreeing with the Seventh Circuit’s opinion in U.S. v. Joiner, 183 F.3d 635, 544-45 (7th Cir. 1999), the Ninth Circuit held that “one waives the right to argue ineffective assistance of counsel at sentencing on direct appeal when one waives the right to appeal the sentence.” This is because “an appeal that includes an ineffective assistance of counsel at sentencing argument is still an appeal from one’s sentence.” Cf. U.S. v. Pruitt, 32 F.3d 431, 432-33 (9th Cir. 1994). However, defendant did not waive his right to file a 28 U.S.C. § 2255 motion, so the panel said he could pursue that remedy, noting that ordinarily a claim of ineffective assistance of counsel requires the development of facts outside the original record and is therefore inappropriate for direct appeal. U.S. v. Nunez, 223 F.3d 956 (9th Cir. 2000).
9th Circuit holds failure to persuade defendant to take plea offer was not ineffective assistance. (880) Defendant was arrested on Aug. 1, 1998 and charged by complaint with re-entering the United States after deportation, in violation of 8 U.S.C. § 1326(a). On August 17, 1998, the government sent a letter to defense counsel offering a four-level departure if defendant pled guilty by August 20, 1998. Defense counsel spoke with defendant on several occasions about the plea offer and urged him to accept it. Counsel advised him that he would face more severe punishment if he did not accept the agreement. Nevertheless, defendant declined the offer. Later, after new counsel was appointed, defendant pled guilty without the departure, and the district court found that the first attorney did not render ineffective assistance. On appeal, the Ninth Circuit agreed, rejecting defendant’s argument that the first attorney should have withdrawn before the plea offer expired so that defendant could obtain a “second opinion as to the advisability of accepting the plea agreement.” The Ninth Circuit noted that the district court had informed the defendant that the sentence recommended in the plea agreement was the standard offer from the government in this type of case. There was no ineffective assistance. U.S. v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000).
9th Circuit says refusal to depart for ineffective counsel was discretionary and unreviewable. (880) The Ninth Circuit found that “[a]lthough the district court did not specifically address its authority to depart downward on the basis of ineffective assistance of counsel, it is clear from the record that his refusal to depart downward was not based on a belief that it lacked the authority to depart downward for that reason, but rather, was an exercise of its discretion.” The district court considered the arguments and found that defendant himself was responsible for his higher sentence by failing to accept the plea agreement. Moreover, the government never argued that the court lacked authority to depart on the basis of ineffective assistance of counsel. Finally, the fact that the district court cited Koon v. U.S., 518 U.S. 81 (1996) demonstrated that the court was aware that it had authority to depart. Accordingly, the Ninth Circuit held that it lacked jurisdiction to review the district court’s failure to depart down based on ineffective assistance of counsel. U.S. v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000).
9th Circuit upholds waiver of appeal despite inconsistent language in plea agreement. (850) The written plea agreement contained a lengthy waiver of appeal. However, the last paragraph of the waiver said the “defendant also retains the right to appeal under § 3742 the court’s determination.” The Ninth Circuit acknowledged that the government “ordinarily must bear responsibility for any lack of clarity” in a plea agreement. See U.S. v. Baker, 25 F.3d 1452, 1458 (9th Cir. 1994). However, the court found that the government in this case simply failed to follow its usual practice and delete the boilerplate contents of the last sentence. The presence of that sentence in the agreement was “clearly a mistake.” Moreover, during the Rule 11 plea colloquy, the government carefully summarized the waiver of appeal, but omitted the contradictory language. The district court asked defendant if she understood that she would be waiving any right to appeal if her sentence was within the agreement and she replied, “yes.” The Ninth Circuit held “without reservation” that defendant acted knowingly and voluntarily in waiving her right to appeal. U.S. v. Anglin, 215 F.3d 1064 (9th Cir. 2000).
9th Circuit says restitution cannot be challenged on habeas because it does not affect custody. (880) The Ninth Circuit held that a defendant seeking relief under 28 U.S.C. § 2255 must not only be in custody, he must also claim the right to be released from custody. In this case, defendant’s motion sought only to vacate the restitution order. Accordingly, the district court ruled that § 2255 relief was not available to him. On appeal, the Ninth Circuit affirmed, ruling that by its clear terms, 28 U.S.C. § 2255 is applicable only to prisoners in custody claiming the right to be released. The court thus agreed with decisions in the First, Fifth, Sixth, Seventh and Eleventh Circuits. U.S. v. Kramer, 195 F.3d 1129 (9th Cir. 1999).
9th Circuit says collateral attacks on state convictions cannot be brought under § 2255. (880) In Custis v. U.S., 511 U.S. 485 (1994), the Supreme Court held that a defendant could not collaterally attack prior state convictions in federal sentencing proceedings, unless he had been denied the right to counsel in the state proceeding. In Clawson v. U.S., 52 F.3d 806 (9th Cir. 1995), the Ninth Circuit held that Custis applies equally to 28 U.S.C. § 2255 motions in which defendant claims his federal sentence was improperly enhanced through the use of a state conviction. Here, the panel reaffirmed the holding in Clawson. In a footnote, however, the panel acknowledged that under Brock v. Weston, 31 F.3d 887, 889-91 (9th Cir. 1994), a petition under 28 U.S.C. § 2254 can be a vehicle for challenging state convictions in proper circumstances. U.S. v. Daniels, 195 F.3d 501 (9th Cir. 1999).
9th Circuit holds waiver of appeal does not waive collateral attack unless it does so expressly. (880) Relying on U.S. v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994), the Ninth Circuit held that “even where a plea agreement specifies that no appeal will be taken, it does not waive the right to bring a § 2255 motion unless it does so expressly.” In the present case, the defendant did not expressly waive his right to file for collateral relief. U.S. v. Benboe, 157 F3d. 1181 (9th Cir. 1998).
9th Circuit says Custis may limit challenge to prior state conviction in attack on federal sentence. (880) In U.S. v. Custis, 511 U.S. 485, 493-97 (1994) the Supreme Court held that a defendant has no constitutional right to collaterally attack the validity of a prior conviction used to enhance a federal sentence, except where the prior conviction was obtained in violation of the right to counsel. After Custis, Ninth Circuit cases have been split as to the continued validity of Feldman v. Perrill, 902 F.2d 1445 (9th Cir. 1990), which permitted a collateral attack on a prior state conviction used to “enhance” a federal sentence being challenged in a habeas corpus proceeding. In the present case, the Ninth Circuit found it unnecessary to resolve the question because its reliance on Feldman was limited to its holding that courts should construe pro se habeas petitions where the prisoner is no longer in state custody as challenges to the petitioner’s current federal sentence, “as enhanced by the allegedly invalid prior conviction.” The court expressed no opinion as to whether Custis limits a petitioner’s ability to challenge his prior state convictions in an attack on his current federal sentence as “enhanced.” Allen v. State of Oregon, 153 F.3d 1046 (9th Cir. 1998).
9th Circuit treats issues briefed outside Certificate of Appealability as request for COA. (880) Both district judges and circuit judges have authority to issue a Certificate of Appealability under 28 U.S.C. § 2253 after denial of a motion to vacate under 28 U.S.C. § 2255. U.S. v. Asrar, 116 F.3d 1268-1270 (9th Cir. 1997). In this case, the district court issued a Certificate of Appealability, but certified only some of the issues. In his brief, petitioner raised additional issues that were outside of the Certificate of Appealability. “[I]n the interest of efficiency,” the Ninth Circuit held that “where a district judge has issued a COA on some but not all of the issues, we will treat the briefing of an uncertified issue as a request for a COA and first decide whether one should issue.” See Williams v. Parke, 133 F.3d 971, 975 (7th Cir. 1998) (issues briefed but not certified will be construed as an implicit request for a COA on such issues); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997) (administrative order) (where only some issues certified by district court, notice of appeal “constitutes a request to have all the issues raised . . . reviewed by . . . the court of appeals”). The “merits panel is in a better position than a motions panel to determine without undue delay whether the appellant has made a ‘substantial showing of the denial of a constitutional right’ on a briefed but uncertified issue.” Thus it “better serves judicial efficiency and economy for the merits panel to decide the COA issue, rather than stay the appeal on the certified issues while the COA issue is remanded to a motions panel.” U.S. v. Cruz-Mendoza, 147 F.3d 1069 (9th Cir. 1998), amended, 163 F.3d 1149 (9th Cir. 1998).
9th Circuit, en banc, to decide if dismissed counts can be reinstated in granting 2255 Bailey motion. (880) In U.S. v. Barron, 127 F.3d 890 (9th Cir. Oct. 22, 1997) the Ninth Circuit held that when a defendant succeeds in having firearms counts vacated in light of Bailey v. U.S., 116 S.Ct. 501 (1995), the district court has jurisdiction under 28 U.S.C. § 2255 to rescind the entire plea agreement and allow the defendant to be prosecuted on previously dismissed counts. The court reasoned that “[b]ecause the district court cannot possibly know what convictions or sentences [defendant] would have received had he not pleaded guilty to the § 924(c) count, or had the district court refused to accept his defective plea, an appropriate remedy is to put [defendant] in the position he was in before he entered into the plea agreement.” Judge Noonan originally concurred, but later filed a dissenting opinion on March 6, 1998, arguing that because the defendant had not breached the plea agreement, the government could not repudiate it and the district court was not free to set it aside, even though the § 924(c) conviction had been vacated. On April 7, 1998, the full court granted rehearing en banc and withdrew the panel opinion pending decision by the en banc court. U.S. v. Barron, 138 F.3d 809 (9th Cir. 1998) (granting rehearing en banc in U.S. v. Barron, 127 F.3d 890 (9th Cir. 1997), amended to add dissenting opinion, 136 F.3d 675 (9th Cir. 1998).
9th Circuit, on rehearing, says court can resentence after vacating gun count under Bailey. (880) Following the decision in Bailey v. U.S., 116 S.Ct. 501 (1995), the district court granted defendant’s 18 U.S.C. § 2255 motion and vacated his conviction for using a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). However, the district court held it had no power to resentence defendant so as to enhance the sentence on the remaining drug count for possession of the gun under guideline § 2D1.1. On appeal, the Ninth Circuit reversed holding that in granting a motion under 28 U.S.C. § 2255, the district court has the power to resentence or correct the sentence as may be appropriate. In reaching this result, the Ninth Circuit agreed with seven other circuits. In particular, the court agreed with the Seventh Circuit’s reasoning in U.S. v. Binford, 108 F.3d 723, 728 that the sentence on a multiple count indictment should be viewed as a “package.” When part of the sentence is set aside as illegal, the package is “unbundled,” and the district court is free to put together a new sentencing package for the crimes of which he is still convicted. This does not violate double jeopardy. U.S. v. Handa, 122 F.3d 690 (9th Cir. 1997).
9th Circuit says granting 2255 motion did not require court to reconsider entire sentence. (880) The district court granted defendant’s § 2255 motion but concluded that “the only issue to be decided at the resentencing hearing is the propriety of the $1,000 fine.” Before resentencing, the guidelines were amended to add the “safety valve” in § 5C1.2, and defendant argued that the district court was required to resentence de novo because his initial sentence was procedurally improper. The Ninth Circuit rejected the argument, noting that 28 U.S.C. § 2255 expressly provides that a court may “resentence him or grant a new trial or correct a sentence as may appear appropriate.” While the district court was permitted to consider all aspects of the sentence it was not required to do so. Judge Boochever dissented, arguing that the trial court misunderstood that it had discretion to resentence defendant in accordance with the then-current guideline. U.S. v. Jones, 114 F.3d 896 (9th Cir. 1997).
9th Circuit says court may consider post-sentencing information in resentencing. (880) After sentencing, defendant filed a motion under 28 U.S.C. § 2255 claiming he had not been given enough time to read the presentence report before sentencing, and therefore had not been able to present accurate financial information. The district court granted his petition but ordered that “the only issue to be decided at the resentencing hearing is the propriety of the $1,000 fine.” At resentencing, the judge re-imposed the $1,000 fine after noting that defendant had improved his financial situation, post-sentencing, by paying down a mortgage. On appeal, defendant argued that under U.S. v. Klump, 57 F.3d 801, 803 (9th Cir.), cert. denied, 116 S.Ct. 675 (1995), and U.S. v. Caterino, 29 F.3d 1390 (9th Cir. 1994), courts are precluded from considering post-sentencing conduct at resentencing. The Ninth Circuit expressed doubt about this supposed “rule,” but noted that in any event Klump and Caterino involved resentencing after remand from the Court of Appeals, whereas this case involved resentencing without an intervening remand. The district court properly considered the “best available information” in re-setting defendant’s fine. U.S. v. Jones, 114 F.3d 896 (9th Cir. 1997).
9th Circuit says Custis does not bar federal habeas review of state prior convictions. (880) In Custis v. U.S., 511 U.S. 485 (1994), the Supreme Court held that a defendant in a federal sentencing proceeding may not collaterally attack the validity of previous state convictions used to enhance his federal sentence, unless he was not represented by counsel in the prior proceeding. However, Custis made it clear that the underlying state sentences remain subject to attack in state court “or through federal habeas review.” Id. at 497. Thus, in the present capital habeas case, the Ninth Circuit allowed the petitioner to challenge the validity of prior convictions that were considered in imposing the death penalty. Gretzler v. Stewart, 112 F.3d 992 (9th Cir. 1997).
9th Circuit holds bureau of Prisons must treat felon firearm possession as a nonviolent offense. (880) The Violent Crime Control and Law Enforcement Act of 1994, amended 18 U.S.C. § 3621(e)(2)(B), to provide that the Bureau of Prisons may grant as much as one year in sentence reduction to prisoners “convicted of a nonviolent offense” who successfully complete drug and alcohol treatment programs. In this case, the Bureau refused to grant petitioner a sentence reduction, because he had been convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and Bureau of Prisons regulations interpreted this crime as a “crime of violence.” On appeal, the Ninth Circuit relied on the decision in Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996), to hold that the Bureau of Prisons could not reasonably interpret “crime of violence” in a way that conflicted with the well-established definition of this term in the Ninth Circuit. “In sum, the [Bureau of Prisons] may not interpret the term ‘nonviolent offense’ to exclude the offense of felon in possession of a firearm.” Davis v. Crabtree, 109 F.3d 566 (9th Cir. 1997).
9th Circuit holds that under AEDPA, district courts can issue certificates of appealability. (880) Section 102 of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) requires that “a circuit justice or judge” issue a certificate of appealability before an appeal may be taken from the final order in a 28 U.S.C. § 2254 or 2255 proceeding. Agreeing with three other circuits, the Ninth Circuit held that under this provision district courts possess the authority to issue certificates of appealability in § 2255 as well and § 2254 proceedings. See also Hunter v. U.S., 101 F.3d 1565 (11th Cir. 1996) (en banc); Else v. Johnon, 104 F.3d 82 (5th Cir. 1997); and Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063 (6th Cir. 1997). Accordingly, the Ninth Circuit instructed that upon the filing of a notice of appeal, the district court should indicate which specific issue or issues satisfy the standard for issuing a certificate or state its reasons why a certificate should not be permitted. If the district court declines to issue a certificate, the clerk of the district court should forward the case file along with the order denying the certificate to the court of appeals to allow it to determine whether to issue a certificate of appealability. U.S. v. Asrar, 108 F.3d 217 (9th Cir. 1997).
9th Circuit reiterates that AEDPA certificate of appealability applies only to cases filed after April 24, 1996. (880) The petitioner in this case filed his 28 U.S.C. § 2255 motion in the district court on June 20, 1996. Therefore, he was required to obtain a certificate of appealability because the Anti-terrorism and Effective Death Penalty Act of 1996 applied to his case. Under Jeffries v. Wood, 103 F.3d 827 (9th Cir. 1996) (en banc) the amendments in Title 1 of the AEDPA apply only to cases filed in the federal courts on or after April 24, 1996, the effective date of the AEDPA. U.S. v. Asrar, 108 F.3d 217 (9th Cir. 1997).
9th Circuit bars “successive” 2255 motion challenging “use” of gun under Bailey. (880) Under the Anti-Terrorism and Effective Death Penalty Act of 1996, a successive 2255 motion cannot be considered unless it is certified by a three-judge panel of the court of appeals to contain either newly discovered evidence of innocence or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” In this successive § 2255 motion, petitioner argued that his conviction for using or carrying a firearm in violation of 18 U.S.C. § 924(c)(1) was invalid under Bailey v. U.S., 116 S.Ct. 501 (1995). The Ninth Circuit pointed out, however, that “Bailey announced only a new statutory interpretation, not a new rule of constitutional law.” Although some courts have made Bailey retroactive to cases on collateral review, see, e.g. U.S. v. Barnhardt, 93 F.3d 706, 708-09 (10th Cir. 1996), “that decision has not yet been made by the Supreme Court, as required by the amended § 2255.” The panel expressed “no opinion” as to whether petitioner may obtain relief by way of habeas corpus, 28 U.S.C. § 2241, or the All Writs Act, 28 U.S.C. § 1651. “[T]hose remedies, if they are available, must be sought first in the district court.” U.S. v. Lorentsen, 106 F.3d 278 (9th Cir. 1997).
9th Circuit bars collateral attack on D-L-meth sentence where issue was not raised earlier. (880) Four years after his conviction, defendant filed a 28 U.S.C. § 2255 motion claiming that the sentencing court erred failing to require the government to prove that he possessed D- rather than L-methamphetamine. The district court denied that motion and on appeal, the Ninth Circuit affirmed. The court agreed with the Fifth Circuit’s opinion in U.S. v. Seyfert, 67 F.3d 544 (5th Cir. 1995), that because the defendant failed to raise any objection to the type of methamphetamine either at sentencing or at direct appeal, he was barred from raising the issue in a § 2255 motion. The court also rejected defendant’s ineffective assistance of counsel claim, finding that counsel’s failure to raise this issue did not fall below prevailing professional standards. Nor did the district court err in refusing to grant an evidentiary hearing on the ineffective assistance claim. U.S. v. McMullen, 98 F.3d 1155 (9th Cir. 1996).
9th Circuit holds waiver of appeal does not include claims of ineffective assistance. (880) Under U.S. v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994), a waiver of appeal does not include claims of ineffective assistance of counsel brought under 28 U.S.C. § 2255. Moreover, a waiver of the right to appeal may be subject to certain exceptions such as claims involving a breach of the plea agreement, racial disparity in sentencing among co-defendants or an illegal sentence imposed in excess of the maximum statutory penalty. Nevertheless, the Ninth Circuit agreed with U.S. v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992), that appeal waivers serve an important function by preserving the “finality of judgments and sentences imposed pursuant to valid plea agreements.” U.S. v. Baramdyka, 95 F.3d 840 (9th Cir. 1996).
9th Circuit treats pro se habeas petition as a request for resentencing under 18 U.S.C. § 3582. (880) Title 18 U.S.C. § 3582(c)(2) permits courts to modify sentences on motion of a defendant who “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” In this case, the Sentencing Commission lowered the defendant’s sentence by retroactively stating that the crime of being a felon in possession of a firearm is not a crime of violence. This amendment was added to the list of retroactive amendments in guideline § 1B1.10. Apparently unaware of 18 U.S.C. § 3582, the defendant filed a petition for a writ of habeas corpus under 28 U.S.C. § 2255, seeking resentencing. The Ninth Circuit treated defendant’s pro se 2255 motion as a request for resentencing under 18 U.S.C. § 3582. “To do so is consistent with the duty of federal courts to construe pro se pleadings liberally.” Hamilton v. U.S., 67 F.3d 761 (9th Cir. 1995).
9th Circuit says presentence interview is not a critical stage of the proceedings so counsel was not ineffective. (880) Defendant argued that his lawyer’s failure to schedule a presentence interview constituted a denial of counsel at a critical stage of the adversary proceedings. Counsel apparently told his client not to talk to the probation officer without counsel being present, and then went on vacation while the presentence report was being written. Defendant refused to be questioned by the probation officer in the absence of counsel so the report was written without an interview with defendant. The Ninth Circuit held that a presentence interview is not a critical stage of the proceedings and therefore “there can be no constitutional violation, no matter how deficient counsel’s performance.” The court noted that every other circuit agrees with the Ninth Circuit that the presentence interview is not a critical stage of the adversary proceedings even though the sentencing guidelines have made the presentence report more important. U.S. v. Benlian, 63 F.3d 824 (9th Cir. 1995).
9th Circuit says nonconstitutional violation of Rule 32 may not be raised for first time on habeas. (880) Defendant did not appeal his sentence, but several years later he filed a petition under 28 U.S.C. § 2255 claiming that the district court failed to resolve factual disputes at sentencing as required by Fed. R. Crim. P. 32(C)(3)(D). The 9th Circuit agreed with the government that allegations of such sentencing errors, when not directly appealed, are not generally reviewable by means of a § 2255 petition. The court did not rule out the possibility that certain errors might be remediable by way of a § 2255 petition because they were not discoverable in time for direct appeal. But in this case there was no reason why petitioner should not have known of, and been able to appeal, the alleged “errors” immediately. U.S. v. Schlesinger, 49 F.3d 483 (9th Cir. 1994).
9th Circuit finds no prejudice in counsel’s alleged gross error in calculating guidelines range. (880) The district court informed defendant of the maximum possible sentences and fines for the offenses to which he pleaded guilty. He responded affirmatively when asked if he was satisfied with his attorney’s representation of him. As a result, the 9th Circuit ruled that defendant “cannot claim he was prejudiced by [counsel’s] alleged gross error in calculating the sentencing guidelines range and likely sentence.” Gonzalez v. U.S., 33 F.3d 1047 (9th Cir. 1994).
9th Circuit says waiver of appeal did not waive habeas challenge to competency of counsel. (880) Petitioner waived appeal as part of a plea bargain. He then filed a habeas petition arguing that his attorney was ineffective because he forgot to write a mitigating letter to the sentencing judge. Although questioning whether effective assistance can ever be waived, the 9th Circuit found it unnecessary to reach this question since the plea agreement here only expressly waived the right to appeal, not the right to file a habeas petition. U.S. v. Pruitt, 32 F.3d 431 (9th Cir. 1994).
9th Circuit denies claim that counsel mishandled sentencing where no prejudice shown. (880) Circuit Judges Noonan and Reinhardt and District Judge Tanner affirmed the summary denial of a habeas corpus petition because petitioner failed to show prejudice. Although his trial counsel forgot to write a letter on his behalf to the sentencing judge, there was no reasonable probability the sentence would have been different. Counsel brought everything that could have been brought to the sentencing court’s attention without the letter. U.S. v. Pruitt, 32 F.3d 431 (9th Cir. 1994).
9th Circuit says court can correct illegal sentences only within time for notice of appeal. (880) Before the guidelines, a district court was empowered to correct an illegal sentence at any time under Fed. R. Crim. P. 35. For offenses committed after the effective date of the guidelines, district courts only have authority to correct illegal sentences until the expiration of the time for appeal. In this case, because the time for appeal had expired, the district court could not have modified the guideline sentences, but it could have modified the preguidelines sentences. Moreover, in a footnote, the court noted that district courts also have habeas authority to correct illegal sentences under 28 U.S.C. 2255. U.S. v. Caterino, 29 F.3d 1390 (9th Cir. 1994), overruled on other grounds by Witte v. U.S., 515 U.S. 389 (1995).
9th Circuit says pleas to prior convictions were not constitutionally invalid. (880) In reviewing the validity of state court pleas, the federal court inquires only if the plea colloquy satisfies constitutional requirements. That is, the defendant must voluntarily waive the right to a jury trial, the right to confront one’s accusers, and the privilege against self incrimination. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Here, the record showed that defendant waived all three of these rights. There is no Constitutional requirement for the record of a plea in state court to contain a factual basis for the plea. Nor must the court give specific advice about the right against self-incrimination, as long as the defendant is aware of the right. Since defendant did not show a Constitutional violation, the district court correctly relied on his prior convictions in calculating his criminal history score. U.S. v. Ullyses-Salazar, 28 F.3d 932 (9th Cir. 1994), overruled on other grounds by U.S. v. Gomez-Rodriguez, 96 F.3d 1262 (9th Cir. 1996).
9th Circuit says attorney’s incorrect prediction does not justify withdrawing plea. (880) Defendant complained that he should have been allowed to withdraw his guilty plea because his sentence was far tougher than he expected. The 9th Circuit rejected the argument, stating that “even if [defendant’s] attorney and the parties didn’t realize the guidelines allowed a life sentence, an attorney’s incorrect prediction does not, in and of itself, justify withdrawing a plea.” Moreover, the defendant acknowledged the possibility of a life sentence during the district court’s comprehensive plea hearing. U.S. v. Thornton, 23 F.3d 1532 (9th Cir. 1994).
9th Circuit says failure to complain about breach of plea bargain below may preclude relief on direct appeal. (880) In U.S. v. Flores-Payon, 942 F.2d 556 (9th Cir. 1991), the court applied the “general rule against review on appeal of issues not raised below,” and held that a claim that the government breached the plea agreement was waived by failure to object at sentencing. In the present case, the court noted in footnote 6 that defense counsel’s failure to raise the breach of the plea agreement issue at sentencing “would likely have precluded relief on direct appeal.” However, in footnote 4, the court noted that Flores-Payon did not address the appropriateness of collateral review, in which the district court, “the traditional locus for resolution of factual disputes,” has the first opportunity to pass on the claim. U.S. v. De la Fuente, 8 F.3d 1333 (9th Cir. 1993).
9th Circuit holds defense counsel’s failure to complain of breach of plea bargain was ineffective assistance. (880) The 9th Circuit had no difficulty in concluding that counsel’s failure to bring the plea-breach claim to the district court’s attention at sentencing constituted ineffective assistance of counsel. There was no dispute as to what counsel did at sentencing, and no conceivable tactical or strategic reason for his failure to raise the plea-breach issue. U.S. v. De la Fuente, 8 F.3d 1333 (9th Cir. 1993).
9th Circuit says failure to warn of possible career offender sentence was ineffective assistance. (880) The 9th Circuit held that counsel’s failure to warn defendant, before he entered his guilty plea, of the risk he might be sentenced as a career offender, fell below the level of professional competence required by the Sixth Amendment. The case was remanded to the district court to permit the defendant to show “that there is a reasonable probability, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” The court said this was a “highly fact specific question, best considered in the first instance by the district court.” Risher v. U.S., 992 F.2d 982 (9th Cir. 1993).
9th Circuit finds waiver of appeal precluded challenge based on newly discovered evidence. (880) As part of a plea agreement, defendant waived the right to appeal any pre-trial or sentencing issues. On direct appeal and under 28 U.S.C. section 2255, defendant argued that he should be resentenced because newly discovered exculpatory evidence undermined the factual basis of the original sentencing decision. The 9th Circuit rejected these challenges, finding defendant relinquished his right to seek relief, direct or collateral, from his sentence. The waiver precluded defendant from raising the sentencing issue on direct appeal. While defendant could challenge the effectiveness of counsel’s assistance or the voluntariness of the waiver under section 2255, the question of the degree of his culpability was an issue covered by the waiver. U.S. v. Abarca, 985 F.2d 1012 (9th Cir. 1993).
9th Circuit remands to determine whether collateral challenge was waived. (880) Four years after receiving a 12-year federal sentence for bank robbery, petitioner filed a motion under 28 U.S.C. section 2255 seeking to vacate his sentence on the ground that the district court had considered a prior state conviction that was tainted by ineffective counsel. The 9th Circuit determined that the procedures developed for challenging uncounseled priors should apply equally to priors challenged on ineffective assistance grounds. Waiver principles also apply. If the district court determines that the federal sentence was not affected by the challenged prior, it may dismiss the petition. If the sentence would be more lenient without the challenged prior, the court must determine whether petitioner has shown “cause and prejudice.” If so, the district court must resentence without the prior conviction or determine that it did not result from ineffective assistance. Evenstad v. U.S., 978 F.2d 1154 (9th Cir. 1992).
9th Circuit holds waiver of appeal inapplicable where defendant claims sentence violated plea agreement. (880) As part of his plea agreement, defendant signed a written waiver of the right to appeal his sentence. Nevertheless, the 9th circuit refused to dismiss his appeal “because a wavier does not apply when a party contends .ÿ.ÿ. that a sentence was not in accordance with the plea agreement.” U.S. v. Serrano, 938 F.2d 1058 (9th Cir. 1991).
9th Circuit notes that new version of Rule 35 does not permit correction of illegal sentences. (880) Although Rule 35(a) Fed. R. Crim. P. formerly allowed the court to correct an illegal sentence, “that version of Rule 35(a) is not applicable to individuals sentenced under the Sentence Reform Act of 1984.” Nevertheless, the same relief is available in a petition under 28 U.S.C. § 2255. Since petitioner was in propria persona, the 9th Circuit construed his motion as a petition under 28 U.S.C. § 2255. U.S. v. Young, 936 F.2d 1050 (9th Cir. 1991).
9th Circuit denies jurisdiction over appeal of sentence exceeding government recommendation but within proper guideline range. (880) The applicable guideline range for defendants’ crimes were 21 to 27 months’ imprisonment. Pursuant to a plea agreement, the government recommended that defendants be sentenced to 21 months, but the sentencing court imposed 24-month sentences. The 9th Circuit held that the court lacked jurisdiction over defendants’ appeal. Although 18 U.S.C. § 3742(a) does not specifically state that it is the exclusive source of jurisdiction over a defendant’s sentence appeal, the court concluded that Congress intended the statute to be exclusive. The court rejected the argument that 18 U.S.C. § 3742(c), by expressly precluding defendant’s ability to appeal in some cases, implied that § 3742(a) was not intended to be an exclusive list of the situations in which a defendant may appeal. The district judge’s rejection of the government’s recommendation was permitted by law and therefore the sentence could not be appealed, even though defendants alleged that they had not been informed that the judge could reject the recommendation and that they had been told they would be permitted to appeal their sentences. U.S. v. Pelayo-Bautista, 907 F.2d 99 (9th Cir. 1990).
9th Circuit holds that nonguideline sentence imposed before Mistretta may be collaterally attacked. (880) After the 9th Circuit held the guidelines unconstitutional, the defendant was sentenced to five years in custody. If the guidelines had been applied his maximum sentence would have been 21 months. After the Supreme Court upheld the guidelines in Mistretta v. U.S., 109 S.Ct. 647 (1989), the defendant moved for reconsideration of his sentence under Fed. R. Crim. P. 35(b). The 9th Circuit agreed with the district court that the current version of Rule 35(b) did not permit reexamination of the defendant’s sentence. Nevertheless, the court held that the defendant could have petitioned the court to correct the sentence under 28 U.S.C. § 2255. The case was remanded to enable the district court to evaluate the motion as a petition under 28 U.S.C. § 2255. U.S. v. Eatinger, 902 F.2d 1383 (9th Cir. 1990).
9th Circuit holds that rule 35 motion challenging jurisdiction was properly treated as a motion under 28 U.S.C. § 2255. (880) The purpose of a motion under Fed.R.Crim.P. 35 is to challenge the sentence imposed, not to review errors that occurred before sentencing. Where a defendant seeks to attack the basis for his conviction, the district court may properly construe the defendant’s Rule 35 motion as a motion under 28 U.S.C. § 2255. Where, as here, the defendant alleges that the court lacked jurisdiction to impose the sentence, the court properly treated the motion as one under 28 U.S.C. § 2255. U.S. v. Mathews, 833 F.2d 161 (9th Cir. 1987).
9th Circuit holds that rule 35 motion challenging jurisdiction was properly treated as a motion under 28 U.S.C. § 2255. (880) The purpose of a motion under Fed.R.Crim.P. 35 is to challenge the sentence imposed, not to review errors that occurred before sentencing. Where a defendant seeks to attack the basis for his conviction, the district court may properly construe the defendant’s Rule 35 motion as a motion under 28 U.S.C. § 2255. Where, as here, the defendant alleges that the court lacked jurisdiction to impose the sentence, the court properly treated the motion as one under 28 U.S.C. § 2255. U.S. v. Mathews, 833 F.2d 161 (9th Cir. 1987).
10th Circuit includes revocation sentence in criminal history. (880) Defendant pled guilty to being a felon in possession of a firearm. The district court included in his criminal history the period of incarceration imposed by a state court upon revocation of a suspended sentence when the revocation resulted from the same conduct that was the basis of the instant offense. The Tenth Circuit affirmed, finding the revocation sentence was properly treated as a prior sentence and not part of the instant offense. Section 4A1.2(k)(1) specifically addresses the calculation of criminal history points for a sentence arising from a revocation of probation. The guideline instructs the sentencing court to “add the original term of imprisonment to any term of imprisonment imposed upon revocation.” That is exactly what the district court did, resulting in the addition of three criminal history points under § 4A1.1(a). Where probation is revoked based on the same conduct forming the basis of a federal offense, the imposition of the original sentence is attributable to the original act of conviction, not the act underlying the revocation. The sentence imposed on defendant following the revocation of his probation was not part of the “instant offense.” U.S. v. Dozier, 555 F.3d 1136 (10th Cir. 2009).
10th Circuit holds that Booker rule does not apply retroactively. (880) Defendant sought a certificate of appealability allowing him to appeal the district court’s order denying relief under 28 U.S.C. § 2255. He also filed supplemental authority seeking relief under U.S. v. Booker, 543 U.S. 220 (2005). The Tenth Circuit held that Booker does not apply retroactively to criminal cases that became final before its effective date of January 12, 2005. A new rule of criminal procedure will not be applicable to those case which have become final before the new rules are announced. Teague v. Lane, 489 U.S. 288 (1989). There are exceptions to the Teague rule for (1) new rules prohibiting punishment for a class of defendants because of their status, and (2) new rules that present “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” The first exception was inapplicable. As to the second exception, the Supreme Court has already held that a change in the law requiring that juries, rather than judges, make the factual findings on which a capital sentence is based did not announce a watershed rule of criminal procedure. Schiro v. Summerlin, 124 S.Ct. 2519 (2004). U.S. v. Bellamy, 411 F.3d 1182 (10th Cir. 2005).
10th Circuit says Blakely is new rule of criminal procedure not subject to retroactive application on collateral review. (880) In defendant’s prior § 2255 petition, the Tenth Circuit denied defendant a certificate of appealability because the Supreme Court had not extended Blakely v. Washington, 124 S.Ct. 2531 (2004) to the federal Sentencing Guidelines, and even if it had, Blakely would not apply retroactively. The Supreme Court then did extend Blakely to the federal Sentencing Guidelines, U.S. v. Booker, 543 U.S. 220 (2005), and defendant asked the court to reconsider its prior holding. The Tenth Circuit reaffirmed that Blakely did not apply retroactively to defendant’s initial § 2255 motion. Under Teague v. Lane, 489 U.S. 288 (1989), a new procedural rule will apply retroactively only if it falls into one of two narrow exceptions. The only possible applicable exception applies to “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Blakely was not such a rule. Blakely did not affect the determination of a defendant’s guilt or innocence. Moreover, under Schiro v. Summerlin, 542 U.S. 348 (2004), a change in the law requiring that juries, rather than judges, make the factual findings on which a sentence is based does not announce a watershed rule of criminal procedure. U.S. v. Price, 400 F.3d 844 (10th Cir. 2005).
10th Circuit rejects petition for permission to file second or successive § 2255 petition under Booker. (880) Defendant sought authorization to file a second or successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. He contended that his sentence entered pursuant to the then-mandatory Sentencing Guidelines was unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (2005). Defendant could not raise this claim in a second or successive § 2255 motion unless he could show his claim was based on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Because the Supreme Court has not made Booker retroactive to cases on collateral review, the Tenth Circuit denied defendant’s petition. Bey v. U.S., 399 F.3d 1266 (10th Cir. 2005).
10th Circuit says Blakely did not provide grounds for second § 2255 motion. (880) Relying on Blakely v. Washington, 124 S.Ct. 2531 (2004), defendant sought authorization under the Antiterrorism and Effective Death Penalty Act to file a second or successive motion under 28 U.S.C. § 2255, claiming that Blakely sets forth a new rule of constitutional law made retroactive to cases on collateral review. The Tenth Circuit held that defendant did not make a sufficient showing that satisfied the requirements of § 2252(2). The Supreme Court did not, in Blakely, invalidate the federal Sentencing Guidelines or hold that Blakely applies to the federal guidelines. It also has not held that the rule is retroactive to cases on collateral review for purposes of granting a second or successive § 2255 motion. Leonard v. U.S., 383 F.3d 1146 (10th Cir. 2004).
10th Circuit holds increase in actual jail time constituted prejudice. (880) Defendant’s counsel failed to object to defendant’s classification as a career offender, even though his prior conviction should not have triggered career offender enhancement. The enhancement increased defendant’s minimum sentence from 292 to 360 months. In defendant’s § 2255 motion, the district court rejected defendant’s ineffective assistance of counsel claim because defendant failed to show that his attorney’s deficient performance resulted in a “significantly greater sentence” than would have been the case absent the error. See U.S. v. Kissick, 69 F.3d 1056 (10th Cir. 1995). However, Kissick and its requirement of a “significantly greater sentence” were abrogated in Glover v. U.S., 531 U.S. 198 (2001), which concluded that “the amount by which a defendant’s sentence is increased by [counsel’s] particular decision … cannot serve as a bar to a showing of prejudice.” Because there was an increase in the actual amount of jail that could be served using the improperly applied guideline range, the Tenth Circuit found that defendant established prejudice from his counsel’s error. U.S. v. Horey, 333 F.3d 1185 (10th Cir. 2003).
10th Circuit upholds application of AEDPA’s standard to deny § 2255 Apprendi petition. (880) Under the AEDPA, the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), is not applicable to second or successive habeas motions unless and until it has been “made applicable to cases on collateral review by the Supreme Court,” as required by 28 U.S.C. § 2255. The Tenth Circuit has held that applications to file second or successive habeas petitions based on Apprendi will be dismissed until the Supreme Court chooses specifically to declare the new rule applicable to cases on collateral review. See Browning v. U.S., 241 F.3d 1262 (10th Cir. 2001). Defendant argued that because this was his first § 2255 petition after AEDPA’s enactment, applying AEDPA’s standard to deny his application would render the standard impermissibly retroactive. The Tenth Circuit first held that AEDPA’s purely procedural “gate keeping” requirements are applicable to all petitioners seeking to file post-AEDPA’s second or successive habeas applications, regardless of when their initial habeas petitions were filed. The court also concluded that there was no retroactive effect in applying post-AEDPA substantive standards to defendant – the result was the same under either standard. The court analyzed the difference between the pre-AEDPA standard for applying the new rule retroactively under Teague v. Lane, 489 U.S. 288 (1989) and the post-AEDPA standard. Although the AEDPA did not adopt the Teague doctrine wholesale, they have similar elements of “antiretroactivity.” Daniels v. U.S., 254 F.3d 1180 (10th Cir. 2001).
10th Circuit says waiver of § 2255 rights are valid subject to same exceptions as waiver of right to appeal. (880) As part of his plea agreement, defendant waived his right to appeal the sentence and waived “any appeal rights conferred by 18 USC § 3742, any post-conviction proceedings, and any habeas corpus proceedings.” Defendant filed a § 2255 motion, claiming ineffective assistance of counsel. The Tenth Circuit held that a waiver of the right to bring a collateral attack under § 2255 is generally enforceable where the waiver is expressly stated in the plea agreement and where both the plea and the waiver were knowingly and voluntarily made. The same exceptions to the waiver of the right to appeal, if they arise, would be available to the waiver of the right to bring a collateral attack. Thus, a claim of ineffective assistance survives the waiver if the claim challenges the validity of the plea or waiver. However, subject to the same exceptions that apply to the waiver of the right to direct appeal, a plea agreement’s waiver of § 2255 rights is enforceable when the collateral attack does not challenge counsel’s representation in negotiating or entering the plea or the waiver. Defendant’s claim that counsel was ineffective in failing to require the government to present proof as to the type of methamphetamine did not relate to the validity of the waiver or plea, and thus was waived. However, defendant’s claim concerning his § 924(c) conviction could reasonably be construed as an attack on the validity of the plea agreement, and thus was not waived. U.S. v. Cockerham, 237 F.3d 1179 (10th Cir. 2001).
10th Circuit holds that guilty plea was not involuntary due to ineffective assistance. (880) Defendant argued that her plea was not voluntary because counsel falsely advised her that a plea would result in sentence of as little as 70-87 months, while trial would result in a sentence of 188-235 months. However, in her petition to enter a guilty plea, defendant stated that she realized that the court could impose the same punishment as if she had chosen to go to trial, and described the 10-year mandatory minimum she faced. The court reminded her of these facts at sentencing. The Tenth Circuit ruled that defendant entered her guilty plea voluntarily. The petition to enter the plea accurately described the statutory minimum penalty and warned defendant that she could receive the same sentence after a guilty plea that she would have received after trial. At the plea hearing, defendant agreed that she was not coerced into pleading guilty and that she made her plea voluntarily. The record also supported the district court’s finding that defendant’s counsel was not ineffective. In her petition to enter a guilty plea, defendant told the district court that she was satisfied with her counsel’s performance. Moreover, based on the terms of the plea agreement, defense counsel accurately described the potential penalties. U.S. v. Gigley, 213 F.3d 509 (10th Cir. 2000).
10th Circuit refuses to address ineffective assistance claim on direct appeal. (880) Defendant argued that his counsel was ineffective during the course of the plea negotiations and at sentencing. The Tenth Circuit refused to address the ineffective assistance claim. Except in those rare instances where an ineffective assistance of counsel claim is fully developed in the record, such claims should be asserted in a motion under 28 U.S.C. § 2255 and not on direct appeal. In this case, the record did not fully develop defendant’s claim because it did not sufficiently describe the advice given by defendant’s counsel concerning the plea decision. A post-conviction hearing was needed to uncover this information. U.S. v. Carver, 160 F.3d 1266 (10th Cir. 1998).
10th Circuit says pre-Koon rulings in this case did not use wrong standard of review. (880) In the first appeal (Talk I), the appellate court reversed a reduction for acceptance of responsibility and ordered an increase for use of force. However, on remand, the district court departed down for (1) a single act of aberrant behavior, and (2) defendant’s strong family and community ties. The appellate court again reversed and ordered resentencing without the departures (Talk II). At his second resentencing, the court departed based on a combination of factors, including defendant’s family ties, educational accomplishments and lack of criminal history. On appeal, the appellate court again reversed, noting that the prior mandate did not permit a departure. At his third resentencing, the district court denied a departure. Defendant moved under § 2255 to vacate his sentence, arguing that Koon v. U.S., 518 U.S. 81 (1996) changed the standard of review of departures. The Tenth Circuit upheld the district court’s rejection of the § 2255 motion. The law of the case barred the court from departing for family circumstances. As for aberrant behavior, Talk II’s rejection of this departure was not based on a legal conclusion, but a factual finding that defendant’s crime was not sufficiently aberrational. Defendant could not show that Talk II relied on an inappropriate standard of review. U.S. v. Talk, 158 F.3d 1064 (10th Cir. 1998).
10th Circuit upholds jurisdiction despite erroneous certificate of appealability where government did not object. (880) Defendant filed a 28 U.S.C. § 2255 motion to vacate his sentence, arguing that Koon v. U.S., 518 U.S. 81 (1996) changed the standard of review of departures, and therefore the appellate court erred by rejecting downward departures on two occasions. The district court erroneously issued a certificate of appealability under 28 U.S.C. § 2253(c), even though he did not make a substantial showing of the denial of a constitutional right. Nonetheless, the Tenth Circuit upheld its jurisdiction to consider the appeal because the government did not object to the district court’s certification. Although the absence of a certificate precludes an appeal, an erroneously-issued certificate does not deprive the appellate court of jurisdiction to hear a certified appeal. U.S. v. Talk, 158 F.3d 1064 (10th Cir. 1998).
10th Circuit upholds resentencing even though defendant had served one component of sentence. (880) Defendant was originally convicted of drug and firearms charges. In 1997, upon his habeas petition, the district court vacated his § 924(c)(1) firearms conviction, and resentenced him on the 21 U.S.C. § 846 count, adding two levels under guideline § 2D1.1(b)(1) for possessing a firearm during a drug trafficking crime. The Tenth Circuit rejected defendant’s argument that the court lacked jurisdiction to resentence him because he had already finished serving his § 846 sentence. Four other circuits have concluded that resentencing under these circumstances is permissible. The two sentences were, in essence, “one unified term of imprisonment.” Defendant could not have any legitimate expectation of finality in either sentence until he had fully discharged both. On resentencing, a district court is entitled to revisit a petitioner’s entire sentence, not just the challenged portion of that sentence. U.S. v. Easterling, 157 F.3d 1220 (10th Cir. 1998).
10th Circuit does not require resentencing on drug count when gun count is vacated. (880) Defendant was originally convicted of drug charges and using firearms during a drug trafficking crime. After the Supreme Court decided Bailey v. U.S., 516 U.S. 137 (1995), defendant moved under § 2255 to vacate his § 924(c) convictions. The district court vacated the § 924(c) convictions but refused to resentence defendant on the underlying drug count. On appeal, the Tenth Circuit affirmed. Under U.S. v. Mendoza, 118 F.3d 707 (10th Cir. 1997), a district court has authority to resentence a defendant after vacating a § 924(c) conviction. The district court did not misunderstand that discretion. The court, adopting the magistrate judge’s recommendations, found that resentencing was neither “required nor appropriate.” This language indicated the court simply declined to exercise its discretionary authority to resentence. U.S. v. Pearce, 146 F.3d 771 (10th Cir. 1998).
10th Circuit holds second § 2255 motion did not meet AEDPA’s gate keeping requirements. (880) Defendant originally pled guilty to drug charges. In May 1996, he filed his first 28 U.S.C. § 2255 motion challenging the drug quantity calculation. This motion was denied. In February 1997, he filed a second § 2255 motion claiming his plea was involuntary due to ineffective assistance. This motion was also denied, and defendant appealed. Because the motion was filed after the April 24, 1996 effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), defendant was required obtain permission from the appellate court before filing. Because he failed to so, the district court had no jurisdiction to consider the § 2255 motion, and its order denying it was vacated. Treating the appeal as an implied application for leave to file a second § 2255 motion, the appellate court then found that defendant failed to make a prima facie showing required by AEDPA. He did not rely on newly discovered evidence and did not rely on a new rule of constitutional law made retroactive to cases on collateral review. Moreover, defendant could have raised his claim in his first § 2255 motion. U.S. v. Avila-Avila, 132 F.3d 1347 (10th Cir. 1997).
10th Circuit holds that disparity in sentences did not warrant § 2255 relief. (880) Defendant pled guilty in Wyoming district court to drug conspiracy charges and received a 15-month sentence. He later sought resentencing because his supplier and co-conspirator had pled guilty in a Utah district court to the same charges and received only a term of probation. The Wyoming district court, relying on both its “inherent jurisdiction” and Rule 35, vacated defendant’s original sentence and resentenced him to three years probation. This was reversed in U.S. v. Blackwell, 81 F.3d 945 (10th Cir. 1996) on the ground that the district court lacked jurisdiction to resentence defendant. Defendant then filed this § 2255 motion. The district court granted him relief because (1) the disparity between defendant’s and his supplier’s sentence justified relief, (2) the district court was misinformed at defendant’s original sentence as to the status of the supplier’s case, and (3) defendant did not receive effective assistance of counsel based on his counsel’s failure to learn of the supplier plea and probation. The Tenth Circuit again reversed, holding that the disparity between defendant’s and his supplier’s sentence was not a basis for relief. Every circuit has held that disparity between sentences of co-conspirators is not a proper basis for sentence reduction. The other two bases relied on the court were, at heart, based on disparity between the two sentences. U.S. v. Blackwell, 127 F.3d 947 (10th Cir. 1997).
10th Circuit rules that after vacating gun count, court can resentence on drug counts. (880) Defendant was originally convicted of drug and firearms counts. He successfully petitioned under § 2255 to vacate the § 924(c) firearm conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). The Tenth Circuit, joining seven other circuits, held that a district court has authority in such a situation to resentence a defendant on the unchallenged but related convictions. Once the court determined that defendant was entitled to § 2255 relief from his § 924(c) conviction, the court was obligated to set aside the judgment, which encompassed both convictions and sentences. Resentencing did not upset a legitimate expectation of finality. Because he challenged one of several interdependent sentences in his § 2255 motion, defendant did not have a legitimate expectation of finality in the related, but unchallenged sentence. U.S. v. Mendoza, 118 F.3d 707 (10th Cir. 1997).
10th Circuit finds counsel’s failure to object to D‑meth was ineffective assistance. (880) Both defendants were sentenced as if they were trafficking in D‑methamphetamine, without any proof or findings regarding the nature of the methamphetamine involved. In a § 2255 motion, defendants claimed their counsel was ineffective for not objecting to the government’s failure to prove the type of methamphetamine. The Tenth Circuit agreed that defense counsel’s failure to object was ineffective assistance. The argument was clearly meritorious, and counsel’s failure to raise it fell outside the range of reasonable professional competence. The court directed that on remand, the district court should determine the type of methamphetamine involved. U.S. v. Glover, 97 F.3d 1345 (10th Cir. 1996).
10th Circuit includes stalks of marijuana in weight of mixture containing marijuana. (880) Defendant contended that his counsel was ineffective in stipulating to the total weight of the marijuana seized from him. He claimed that the actual weight of the marijuana, less stalks and moisture, was less than the stipulated weight. The Tenth Circuit found that this argument failed as a matter of law since he could not show prejudice. The weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. The stalks of the marijuana plant, although excluded from the guideline definition of marijuana, can still constitute part of a mixture or substance containing a detectable amount of marijuana for the calculation of weight of the controlled substance seized. U.S. v. Moreno, 94 F.3d 1453 (10th Cir. 1996).
10th Circuit permits sentence to be reopened after successful attacks on prior convictions. (880) Defendant moved to correct his sentence under 28 U.S.C. § 2255 after he successfully attacked several prior convictions used to calculate his criminal history category. The Tenth Circuit held that the district court should have reopened defendant’s sentence after defendant showed he had successfully attacked several prior state convictions. Although defendant’s sentence was correct at the time of sentencing, subsequent events suggested that a different sentence might now be appropriate. In reopening defendant’s sentence, the district court must determine the basis for the expungement or dismissal of the prior offenses and whether they may be included in calculating defendant’s criminal history score. An expunged conviction may not be included, but the district court may still impose a sentence reflecting the seriousness of defendant’s past. The appellate court’s affirmance of defendant’s criminal history category on direct appeal did not preclude the use of § 2255 to correct the sentence. Defense counsel was not ineffective for failing to investigate the validity of his prior convictions at the time of sentencing. Prior convictions are presumed valid. U.S. v. Cox, 83 F.3d 336 (10th Cir. 1996).
10th Circuit permits full resentencing on remand because ineffective counsel failed to file appeal. (880) Defendant filed a motion under 28 U.S.C. § 2255 alleging ineffective assistance of counsel for failing to file an appeal from his sentence. The district court agreed that counsel was ineffective, and granted a new sentencing hearing. At resentencing, defendant’s new counsel attempted to raise new arguments based on additional evidence he claimed had come to light since the first sentencing. The district court concluded that it had no jurisdiction to consider the new evidence or expanded objections not presented at the original hearing. On appeal, the Tenth Circuit reversed, holding that the court had no obligation to conduct a de novo resentencing proceeding, but it was within its discretion to do so. Under circuit precedent, the proper remedy for a criminal defendant who has had ineffective assistance of counsel in failing to perfect an appeal is resentencing. However, nothing in these cases limits the jurisdictional power of the district court in conducting the resentencing. U.S. v. Moore, 83 F.3d 1231 (10th Cir. 1996).
10th Circuit refuses to consider double jeopardy claim not raised on direct appeal. (880) Defendant argued for the first time in a § 2255 motion that his criminal case was barred by the double jeopardy clause because many of his assets were forfeited in separate civil forfeiture proceedings. He further claimed his counsel was ineffective for failing to raise the double jeopardy claim before trial as a defense. The Tenth Circuit held that defendant failed to show cause for failing to raise this issue on direct appeal. When a defendant fails to raise an issue on direct appeal, he is barred from raising the issue in a § 2255 motion unless he establishes either cause excusing the procedural default and prejudice resulting from the error or a fundamental miscarriage of justice. Ineffective assistance may constitute cause, but defendant’s allegations of ineffective assistance were merely conclusory. Defendant did not make a colorable showing of factual innocence and therefore could not establish a fundamental miscarriage of justice. U.S. v. Cox, 83 F.3d 336 (10th Cir. 1996).
10th Circuit bars sentencing claim decided on direct appeal. (880) In a § 2255 motion, defendant challenged a § 3B1.1(a) enhancement. The Tenth Circuit held that defendant could not raise this issue in a § 2255 motion since it was decided on direct criminal appeal. U.S. v. Cox, 83 F.3d 336 (10th Cir. 1996).
10th Circuit says failure to delay sentencing until “safety valve” became law was not ineffective assistance. (880) At the time of sentencing, defendant was subject to a mandatory minimum 20-year sentence. He argued that his counsel was ineffective in not seeking a continuance until the effective date of the “safety valve,” 18 U.S.C. § 3553(f), [guideline § 5C1.2], which permits a sentence below the statutory minimum if the defendant meets certain criteria. The Tenth Circuit held that counsel’s failure to seek the continuance was not unreasonable. At the time of sentencing, it was unclear whether the “safety valve” would be enacted by Congress. Clairvoyance is not a required attribute of effective representation. Defendant’s theory would require attorneys to attempt to delay sentencing each time lawmakers debate a new statute or amendment. U.S. v. Gonzalez-Lerma, 71 F.3d 1537 (10th Cir. 1995), overruled on other grounds by U.S. v. Flowers, 464 F.3d 1127 (10th Cir. 2006).
10th Circuit finds counsel ineffective in failing to challenge possession conviction as career offender predicate. (880) In a 28 U.S.C. § 2255 motion, defendant challenged his classification as a career offender, claiming his state drug possession conviction was not a controlled substance offense. The Tenth Circuit held that an attorney’s failure to challenge the use of a facially insufficient conviction as a career offender crime constitutes deficient performance under the first prong of the Strickland test. Here, it appeared that defendant’s state conviction included none of the elements beyond simple possession of a controlled substance. The improper classification clearly resulted in prejudice under the second prong of Strickland, since it significantly increased his guideline range. However, it was unclear from the record whether defendant’s state offense was a mere possession offense. The court remanded to allow the district court to make that determination. U.S. v. Kissick, 69 F.3d 1048 (10th Cir. 1995), abrogated on other grounds by Glover v. U.S., 531 U.S. 198 (2001).
10th Circuit says counsel’s encouragement to lie at trial was not ineffective assistance since no prejudice. (880) Defendant was stopped in a car carrying marijuana and PCP. He argued that he received ineffective assistance of counsel when his attorney advised him to go to trial and falsely testify that he only went to California to obtain marijuana and did not know of the PCP’s existence until the traffic stop. The 10th Circuit found no ineffective assistance since defendant could not establish prejudice from his attorney’s advice. Defendant testified he had advised counsel of the truth before trial (i.e. that he had gone to purchase PCP). Thus, defendant acknowledged that he was guilty, and the incriminating evidence presented by the government established guilt beyond a reasonable doubt. Defendant did not cast doubt on that evidence or suggest how he might have overcome the government’s strong case against him. Counsel’s encouragement to lie, while constituting deficient performance, did not satisfy the prejudice requirement. U.S. v. Boone, 62 F.3d 323 (10th Cir. 1995).
10th Circuit remands to permit defendant to show cause and prejudice for default. (880) In a §2255 motion, defendant challenged some of the evidence used to support sentence enhancements. Defendant had not raised these issues on direct appeal. The district court, sua sponte, raised the procedural bar defense and concluded defendant did not show good cause for his failure to advance these issues on direct appeal. However, the court neglected to afford defendant an opportunity to respond to the procedural default. Therefore, the 10th Circuit remanded so that defendant could be given the opportunity to demonstrate cause and prejudice for failing to raise these claims on direct appeal. U.S. v. Warner, 23 F.3d 287 (10th Cir. 1994).
10th Circuit holds that mandatory minimum controls over guideline range. (245)(880) Defendant argued for the first time in a motion under 28 U.S.C. § 2255 that he should have been sentenced under a guideline range of 63 to 78 months, rather than the statutory minimum of 10 years. The 10th Circuit addressed the merits of the motion, since the government did not raise the issue of procedural bar. Because of the patent lack of merit in defendant’s contention, the interests of judicial efficiency and conservation of judicial resources were best served by affirming the district court’s denial of defendant’s motion on the merits. Defendant’s argument overlooked section 5G1.1(b), which provides that where a statutorily mandated minimum is less than the guideline range, the mandatory minimum shall be the guideline sentence. Moreover, statutes triumph over the guideline when the two conflict. U.S. v. Allen, 16 F.3d 377 (10th Cir. 1994).
10th Circuit refuses to consider ineffective assistance claim on direct appeal. (880) Defendant asserted he was denied effective assistance of counsel at sentencing. The 10th Circuit refused to consider the claim, holding that it must be raised by a collateral proceeding under 28 U.S.C. section 2255. U.S. v. Washington, 11 F.3d 1510 (10th Cir. 1993).
10th Circuit says motion to exclude unusable water from methamphetamine weight abused writ. (880) After defendant’s first motion under 28 U.S.C. § 2255 was denied, defendant brought a second motion claiming the court should have excluded unusable water from the weight of the methamphetamine at sentencing. The district court granted the motion, but on appeal the 10th Circuit reversed, holding that the second motion was an abuse of the writ of habeas corpus. Defendant could not show cause for the failure to raise the claim earlier. The fact that others had not raised the issue first was not sufficient cause. Failure to consider his claim would not be a fundamental miscarriage of justice, since he was not innocent. Moreover, 10th Circuit cases have consistently held that the weight of waste products from the drug manufacturing process should be included in computing a defendant’s sentence. This was not changed by the Supreme Court’s decision in Chapman v. U.S. 111 S.Ct. 1919 (1991). U.S. v. Richards, 5 F.3d 1369 (10th Cir. 1993).
10th Circuit addresses ineffective assistance of counsel claims on direct appeal. (880) Defendant argued on direct appeal that his guilty plea was unknowing due to counsel’s ineffectiveness in failing to (a) inform him that relevant conduct would be considered at sentencing, (b) inform him of his 5th Amendment right against self-incrimination during the presentence interview, and (c) obtain disclosure of defendant’s presentence report and request an evidentiary hearing. The 10th Circuit, although noting that the “preferred avenue” for bringing ineffective assistance claims was collateral review, nonetheless decided to consider these issues on direct appeal. The claims regarding counsel’s failure to inform defendant that relevant conduct would be considered was addressed because the record was sufficiently developed and the issue was raised in the district court. Because the other claims did not merit further factual inquiry, they would also be addressed on direct appeal. U.S. v. Gordon, 4 F.3d 1567 (10th Cir. 1993).
10th Circuit holds that evidence of obstruction did not violate plea agreement. (880) In a motion under 28 U.S.C. section 2255, defendant argued that the government violated the plea agreement by supporting the probation department’s recommendation for an obstruction of justice adjustment. The plea agreement provided that neither party would move for an upward or downward departure. The 10th Circuit affirmed the district court’s dismissal of the section 2255 motion. Defendant’s failure to address this issue in his direct appeal barred review unless he could show cause and resulting prejudice. To satisfy this standard, defendant must not only show that his counsel was ineffective, but that there was a reasonable probability that but for the error, he would have prevailed. Defendant could not meet that standard. The plea agreement prohibited the government from moving for an upward departure; in contrast, the evidence presented at sentencing related to an upward adjustment. There is a distinction between “departures” and “adjustments.” U.S. v. Walling, 982 F.2d 447 (10th Cir. 1992).
10th Circuit rules that ineffective assistance of counsel claim cannot be raised on direct appeal if not raised in district court. (880) Defendant claimed that if his right to challenge a firearm enhancement was not preserved for appeal because his counsel failed to object to it below, then he received ineffective assistance of counsel. The 10th Circuit held that ineffective assistance of counsel claims cannot be resolved on direct appeal when the claim has not been raised in the district court. Thus, it declined to review this issue, without prejudice to defendant’s right to raise the issue in proceedings brought under 28 U.S.C. section 2255. U.S. v. Kay, 961 F.2d 1505 (10th Cir. 1992).
11th Circuit, en banc, says misapplying career of-fen¬der guideline was not “miscarriage of justice.” (880) Defendant moved to vacate his sentence under 28 U.S.C. § 2255, arguing that an intervening decision of the Supreme Court, Begay v. U.S., 553 U.S. 137 (2008), made clear that the district court and the Eleventh Circuit erroneously classified him as a career offender based on a prior conviction for felony child abuse, which he argued was not a crime of violence. He maintained that this alleged error represented a “fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. U.S., 368 U.S. 424 (1962), that could be revisited on collateral review. The Eleventh Circuit, en banc, disagreed, and upheld the denial of defendant’s motion to vacate. Defendant could not collaterally attack his sentence based on a misapplication of the advisory guidelines. The court lacked authority to consider whether he was erroneously sentenced under the guidelines. Defendant’s sentence fell below the statutory maximum, and his prior conviction for felony child abuse had not been vacated. Defendant’s sentence was and remained lawful. Spencer v. U.S., __ F.3d __ (11th Cir. Nov. 14, 2014) No. 10-10676.
11th Circuit says court properly limited scope of resentencing hearing. (880)Defendant moved under 28 U.S.C. § 2255 to vacate his sentence, raising six claims of ineffective assistance of counsel. The district court found merit in one of these claims – that counsel should have challenged the imposition of a career offender enhancement – and ordered resentencing without that enhancement. At resentencing, defendant attempted to challenge other aspects of his sentence that he had alleged in his § 2255 motion that his counsel had handled ineffectively. The district court refused to consider these arguments. The Eleventh Circuit held that the district court did not err in limiting the scope of the resentencing hearing to solely the career offender enhancement. At the initial hearing, the district court made clear its intention only to resentence defendant absent the career offender enhancement because only that claim merited § 2255 relief. The court noted that it had rejected the remaining ineffective assistance claims and that it would adhere fully to the way the underlying drug quantity and firearm enhancement issues were determined at defendant’s initial sentencing. The court’s limitation was not improper. U.S. v. Willis, 649 F.3d 1248 (11th Cir. 2011).
11th Circuit says failure to disclose PSR ten days before sentencing was harmless error. (880) Defendant moved to vacate his sentence under 28 U.S.C. § 2255, raising six claims of ineffective assistance of counsel. The district court found merit in one of defendant’s claims, and ordered the probation office to prepare a new PSR reflecting that defendant was not a career offender. Although defendant and his attorney received the new PSR on July 7, they received the Probation Office’s responses to defendant’s objections on October 21, one day before the October 22 resentencing hearing. Defendant argued that this violated his statutory right to receive the PSR “at least ten days prior to the date set for sentencing.” 18 U.S.C. § 3552(d). The Eleventh Circuit held that violations of the ten-day period were subject to harmless error analysis, and in this case, the error was harmless. Defendant’s brief mentioned only one form of prejudice – that defendant was unable to subpoena the witnesses necessary to support his objections to the PSR. However, the district court properly limited the scope of the resentencing to the career offender enhancement. Because defendant did not object to the PSR’s analysis of his criminal history, those witnesses could only have testified to aspects of the PSR that the district court specifically barred defendant from relitigating. U.S. v. Willis, 649 F.3d 1248 (11th Cir. 2011).
11th Circuit bars habeas review of sentence below statutory maximum. (880). Defendant pled guilty to possessing cocaine base with intent to distribute. On appeal, his sentence was affirmed, and his 28 U.S.C. §2255 motion to vacate was denied. Thereafter, when the career offender guideline was amended, he filed a 28 U.S.C. § 2241 motion, claiming that the new amendment made his sentence illegal. The en banc Eleventh Circuit held that the savings clause in 28 U.S.C. § 2255(e) bars a federal prisoner from challenging his sentence in a §2241 motion when he cannot raise that challenge in a § 2255 motion because of the § 2255(h) bar against second and successive motions. A federal prisoner cannot use a habeas corpus petition to challenge his sentence, at least where the sentence does not exceed the statutory maximum. Gilbert v. U.S., 640 F.3d 1293 (11th Cir. 2011) (en banc).
11th Circuit finds defendant was innocent of being a career offender and entitled to habeas relief. (880) In 1995, based in part on a prior concealed weapon conviction, defendant was sentenced as a career offender. In 1999, he filed an unsuccessful § 2255 motion to vacate his sentence. In 2008, based on the Supreme Court’s decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the Eleventh Circuit reversed its prior holding that carrying a concealed weapon was a crime of violence. See U.S. v. Archer, 531 F.3d 1347 (11th Cir. 2008). Defendant moved to reopen his § 2255 motion, arguing that the court could treat the motion as one for relief under § 2241, pursuant to the savings clause of § 2255, under Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999) and the doctrine of “actual innocence.” The Eleventh Circuit agreed. Begay was a “circuit law busting, retroactive Supreme Court decision,” yet circuit law foreclosed a claim based upon Begay and Archer. The district court found defendant to be a career offender, but under Begay and Archer it was clear he was not now, nor ever had been, a career offender. Such a defect called into question the fundamental legality of defendant’s conviction and sentence. For federal sentencing purposes, being a career offender is essentially a separate offense, requiring proof of a separate element and additional punishment. Defendant was entitled to relief because he was actually innocent of his sentence enhancement, and his continued incarceration for the illegal enhancement was a miscarriage of justice. Gilbert v. U.S., 609 F.3d 1159 (11th Cir. 2010), on rehearing en banc, Gilbert v. U.S., 640 F.3d 1293 (11th Cir. 2011).
11th Circuit finds counsel’s failure to challenge abuse of trust increase was not deficient. (880) Defendant received an abuse of trust enhancement based on his status as a pastor. He argued that his appellate counsel’s failure to challenge an abuse of trust increase constituted ineffective assistance, noting that in U.S. v. Hall, 349 F.3d 1320 (11th Cir. 2003), the court reversed the abuse of trust increase given to one of his co-defendants who was also a pastor. Hall was the first time the circuit addressed the abuse of trust enhancement in the context of a defendant who was a pastor. The Eleventh Circuit held that defendant could not show deficient performance by his appellate counsel. Defendant’s counsel did not have the benefit of the court’s opinion in Hall at the time he prepared defendant’s appeal. It was not deficient performance for counsel to conclude defendant would likely not be successful in challenging his abuse of trust enhancement on appeal. The co-defendants raised many other issues, and the case had a lengthy record. It was a reasonable strategy for counsel to focus the court’s attention on those issues that he felt were the strongest. Payne v. U.S., 566 F.3d 1276 (11th Cir. 2009).
11th Circuit bars prisoner from using § 2255 motion to challenge restitution despite challenge to custody. (880) Defendant moved under 28 U.S.C. § 2255 to vacate his sentence. Section 2255 applies to a prisoner “under sentence of a court …claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States.” In Blaik v. U.S., 161 F.3d 1341 (11th Cir. 1998), the Eleventh Circuit held that § 2255 cannot be used by a federal prisoner who challenges only the restitution portion of his sentence, because a restitution reduction is not a release from custody. Here, defendant brought a § 2255 petition to vacate his sentence, challenging both his custody and his restitution. The Eleventh Circuit held that the district court properly refused to address defendant’s restitution challenge. The presence of a cognizable challenge to the custodial portion of defendant’s sentence did not make his challenge to the restitution portion cognizable. Mamone v. U.S., 559 F.3d 1209 (11th Cir. 2009).
11th Circuit says § 2255 proceedings were not final until court resentenced defendant. (880) In April 2005, defendant filed a § 2255 motion to vacate his conviction and sentence. On August 10, 2005, the district court ordered a new sentencing hearing and denied all other § 2255 relief. Defendant did not appeal the judgment at this time. In June 2006, the district court held a resentencing hearing, and resentenced defendant to 215 months’ imprisonment. The next day, defendant filed a notice of appeal, stating that he was appealing “the final order entered in this matter . . . and all interim orders.” At issue on appeal was whether defendant’s notice of appeal was also a timely appeal of the court’s August 10, 2005 order denying his § 2255 motion as to his conviction claims. The Eleventh Circuit held that defendant’s § 2255 proceedings were not final until the district court resentenced him in June 2006. The court’s June 2006 final judgment on resentencing had “traits” of both a criminal action and a § 2255 proceeding. When the court entered defendant’s new sentence after resentencing, it not only entered a final sentence in defendant’s criminal case, but also completed the § 2255 proceedings by providing the relief awarded in that § 2255 case. Therefore, defendant’s June 2006 notice of appeal after the resentencing – which specified that he was appealing the court’s June 26 judgment “and all interim orders” – timely appealed both his new sentence and the district court’s August 2005 order denying his § 2255 conviction claims. U.S. v. Futch, 518 F.3d 887 (11th Cir. 2008).
11th Circuit holds that Blakely is not retroactive to cases on collateral review. (880) After the district court denied defendant’s § 2255 petition based on Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court decided Blakely v. Washington, 124 S.Ct. 2531 (2004). Defendant moved for a certificate of appealability on whether Blakely is retroactive to cases on collateral review pursuant to Teague v. Lane, 489 U.S. 288 (1989). While new rules of constitutional law generally do not apply retroactively, defendant argued that the rule announced in Blakely (now Booker) should apply retroactively because it is “implicit in the concept of ordered liberty.” The Eleventh Circuit disagreed. In Schiro v. Summerlin, 542 U.S. 348 (2004), the Supreme Court concluded that the new requirement in Ring v. Arizona, 536 U.S. 584 (2002) on aggravating sentencing factors, also an application of Apprendi’s principles, does not apply retroactively to cases on collateral review. The Supreme Court’s statements in Schiro regarding the Ring rule also apply to Booker: “Rules that allocate decision making authority in this fashion are prototypical procedural rules…” A procedural decision may be applied retroactively if it establishes a rare “watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Booker’s rule was not such a rule. Varela v. U.S., 400 F.3d 864 (11th Cir. 2005).
11th Circuit holds that valid appeal waiver precluded ineffective assistance of counsel claim. (880) Defendant’s plea agreement provided that he waived the right to appeal his sentence, “directly or collaterally, on any ground ….” Nonetheless, two years after the district court accepted defendant’s guilty plea and sentenced him, defendant filed a pro se petition alleging that he received ineffective assistance of counsel at sentencing. The Eleventh Circuit held that sentence appeal waiver barred defendant from raising the effective assistance of counsel claim. Every circuit to address the issue has held that a valid sentence-appeal waiver, entered into voluntarily and knowingly, pursuant to a plea agreement, preclude the defendant from attempting to attack, in a collateral proceeding, the sentence through a claim of ineffective assistance of counsel at sentencing. Here, the court specifically questioned defendant concerning the specifics of the sentence-appeal waiver and determined that he had entered into the written plea agreement, which included the appeal waiver, knowingly and voluntarily. The plain language of the agreement informed defendant that he was waiving a collateral attack on his sentence. Williams v. U.S., 396 F.3d 1340 (11th Cir. 2005).
11th Circuit rejects second habeas claim because Supreme Court has not made Booker retroactive. (880) Defendant sought permission to file a second or successive petition under 18 U.S.C. § 2255 and § 2244(b)(3)(A) based the new rule of constitutional law established by Blakely v. Washington, 124 S.Ct. 2531 (2004) and U.S. v. Booker, 125 S.Ct. 738 (2005). However, for a new rule of constitutional law to be grounds for a successive § 2255 petition, it must have been “made retroactive to cases on collateral review by the Supreme Court.” § 2255(b). Regardless of whether Booker established “a new rule of constitutional law” within the meaning of §§ 2244(b)(2)(A) and 2255, the Supreme Court has not expressly declared Booker to be retroactive to cases on collateral review. Booker was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review. The Eleventh Circuit denied defendant’s request. In re Anderson, 396 F.3d 1336 (11th Cir. 2005).
11th Circuit says Blakely does not authorize second or successive habeas petition. (880) Defendant sought an order authorizing the district court to consider a second or successive motion to vacate or correct his sentence under 28 U.S.C. § 2255. One ground for granting such authorization is where the appellate court certifies that the second or successive motions contains a claim involving “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The Eleventh Circuit held that the Supreme Court’s decision in Blakely does not authorize a second or successive habeas petition. Regardless of whether Blakely established a “new rule of constitutional law”, the Supreme Court has not expressly declared Blakely to be retroactive to cases on collateral review. Moreover, no combination of cases necessarily dictate retroactivity of the Blakely decision. In fact the Supreme Court has strongly implied that Blakely is not to be applied retroactively. See Schiro v. Summerlin, No. 03-526 (U.S. June 24, 2004) (holding that Ring v. Arizona, which extended Apprendi to facts increasing a defendant’s sentence from life to death, is not retroactive to cases on collateral review). In re Dean, 375 F.3d 1287 (11th Cir. 2004).
11th Circuit says vacatur of prior state conviction was not a “fact” discovered by petitioner. (880) Under the Antiterrorism and Effective Death Penalty Act of 1996, a defendant has one year to file a petition under 28 U.S.C. § 2255. The one year-period runs from the latest of a number of occurrences, including “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2255 para. 6(4). Defendant brought a § 2255 petition arguing that because his prior state convictions had been vacated, his career offender sentence was improper. Defendant contended the “fact” supporting his § 2255 claim – the vacatur of his prior state convictions – could not have been discovered by him until October 24, 2000, the date on which the state court entered its order vacating the convictions. Therefore, he argued that his § 2255 petition, filed in February 2001, was within one year of this date and therefore was within the AEDPA statute of limitations. The Eleventh Circuit held that the vacatur of a prior state conviction is not a “fact” discovered by a petitioner within the meaning of § 2255. Legal propositions and results are distinguishable from the “facts” referred to in § 2255. Absent some basis for equitable tolling, he had to file his § 2255 motion within the one-year grace period following AEDPA’s enactment, or by April 23, 1997. Defendant was not entitled to such equitable tolling. He was plainly aware of whatever facts supported his collateral attack at the time his federal sentence became final in 1996. He did not commence his challenge to the state convictions until 1998, nearly two years later, and did not proffer any explanation that might show why the delay was beyond his control. The footnote in the unpublished appellate opinion affirming his sentence, suggesting that defendant file a § 2255 petition, did not suggest that defendant could take an unlimited time to commence his collateral attack. Johnson v. U.S., 340 F.3d 1219 (11th Cir. 2003).
11th Circuit applies Teague bar to Apprendi without regard to merits of underlying claim. (880) Defendant argued that his sentence should be reduced to the statutory maximum provided for the least quantity of marijuana, because the indictment under which he was convicted did not allege any larger amount, and the jury did not make a finding as to drug quantity. He contended that the Apprendi errors were jurisdictional. The Eleventh Circuit held that defendant’s position was foreclosed by its recent decision in McCoy v. U.S., 266 F.3d 1245 (11th Cir. 2001), which held that Apprendi errors are not jurisdictional. McCoy also held that under the doctrine of Teague v. Lane, 489 U.S. 288 (1989), the Apprendi decision is not retroactively applicable to cases in which the conviction became final before Apprendi was decided. Defendant’s situation was different from the one in McCoy, because the sentences imposed on defendant exceeded the maximum sentences for the crimes of conviction when only a detectable amount of the drugs is involved. However, the Teague bar applies without regard to the merits of the underlying claim, or that doctrine would have no function and meaning. Hamm v. U.S., 269 F.3d 1247 (11th Cir. 2001).
11th Circuit holds that defendant did not establish that failure to review PSR earlier caused prejudice. (880) Defense counsel never reviewed the PSR with defendant before the day of the sentencing hearing. Defendant argued that this constituted ineffective assistance of counsel, claiming that if counsel had compared the PSR to the trial transcript, he would have noticed the discrepancy between Johnson’s testimony at trial (that only one drug buy was attributable to defendant), and his statement to the probation officer (that defendant supplied both drug buys). The Eleventh Circuit rejected the claim because defendant could not demonstrate that counsel’s failure to review the PSR with him prior to sentencing prejudiced him in any way. Although defendant contended that only one drug buy totaling 22.8 grams was attributable to him, the evidence at trial attributed to him substantially more than 50 grams. An FBI agent testified that defendant admitted to him in their interview to purchasing and selling large quantities of crack and powder cocaine. Thus, defendant was not prejudiced by counsel’s failure to challenge the drug quantity attributed to him in the PSR. Hagins v. U.S., 267 F.3d 1202 (11th Cir. 2001).
11th Circuit holds that Apprendi error is not jurisdictional defect, and claim was barred by Teague. (880) Defendant argued that his claim that the indictment did not allege drug quantity, as required by Apprendi v. New Jersey, 530 U.S. 466 (2000), was jurisdictional. A jurisdictional defect is one that strips the court of its power to act and makes its judgment void. The Eleventh Circuit held that a claimed Apprendi error is not jurisdictional. If Apprendi and analogous errors were jurisdictional, an appellate court could not affirm despite the error; jurisdictional errors are not subject to plain or harmless error analysis. The panel further held that defendant’s Apprendi claim was barred by Teague v. Lane, 489 U.S. 288 (1989). The Teague doctrine bars retroactive application in a § 2255 proceeding of any new constitutional rule of criminal procedure which had not been announced at the time the movant’s conviction became final, with two narrow exceptions, neither of which were applicable. Apprendi did not decriminalize any class of conduct or prohibit a certain category of punishment for a class of defendants. Also, Apprendi was not sufficiently fundamental to constitute a “watershed” rule of criminal procedure. Moreover, defendant would be barred from challenging his sentence on Apprendi grounds because he failed to raise the argument on direct appeal. He could not establish cause and prejudice for his failure to assert the claim on direct appeal. McCoy v. U.S., 266 F.3d 1245 (11th Cir. 2001).
11th Circuit rules court lacked jurisdiction to consider § 2255 motion during pendency of direct appeal. (880) Defendant appealed the district court’s denial of her § 2255 motion and the district court’s order revoking her probation and sentencing her to 24 months’ imprisonment. In this consolidated appeal, the Eleventh Circuit concluded that the district court lacked jurisdiction to consider and rule on defendant’s § 2255 motion during the pendency of her direct appeal of her sentence. Thus, it dismissed the § 2255 motion without prejudice to defendant’s right to file a § 2255 motion after the disposition of her direct appeal. U.S. v. Dunham, 240 F.3d 1328 (11th Cir. 2001).
11th Circuit says reliance on client’s representation of his own criminal history was not deficient. (880) Rather than running a criminal records check, counsel relied on defendant’s representations, and thus failed to uncover several of defendant’s prior convictions. Defendant moved to withdraw his guilty plea, claiming his counsel was ineffective in failing to properly advise him of the severity of the sentence he faced. The Eleventh Circuit found that while the limited scope of defense counsel’s investigation was not “laudatory,” reliance on a client’s statements is not per se deficient performance. A determination of whether reliance on a client’s statement of his own criminal history constitutes deficient performance depends on the peculiar facts and circumstances of each case. Here, the district court did not err in determining that defendant did not establish ineffective assistance. U.S. v. Pease, 240 F.3d 938 (11th Cir. 2001).
11th Circuit holds that amended § 2255 motion did not relate back to date of original § 2255 motion. (880) Defendant’s original § 2255 petition raised four claims: (1) the substance involved was not “crack” because it did not contain sodium carbonate; (2) the calculated weight incorrectly included moisture; (3) the government knowingly used perjured testimony; and (4) ineffective assistance of counsel in failing to raise these claims. Defendant’s amended untimely § 2255 motion argued that counsel was ineffective for (1) allowing defendant to be sentenced for three grams that were not part of the same course of conduct as the other 49 grams of cocaine; (2) relying on a summary lab report instead of requesting the complete report; and (3) failing to advise him that a plea agreement might be possible. The Eleventh Circuit held that in order for an untimely § 2255 claim to relate back to a timely § 2255 claim, the untimely claim must have arisen from the “same set of facts” as the timely filed claim, not from separate conduct or a separate occurrence in “both time and type.” Defendant’s three new claims did not arise from the same set of facts as his original claims, and thus did not relate back to the date the original petition was filed. The original § 2255 petition dealt with the chemical makeup of the drugs, whereas the amended petition addressed the relationship between the drug transactions, the lab report, and counsel’s failure to raise those issues. Defendant’s original petition also made no mention of a possible plea agreement. Davenport v. U.S., 217 F.3d 1341 (11th Cir. 2000).
11th Circuit holds that counsel not ineffective in failing to ask for custody credit. (880) Defendant argued that counsel was ineffective in not raising a challenge to the application of § 5G1.3 at sentencing or on appeal. He claimed that a proper application of this guideline would have resulted in a credit of 18 months on his Florida sentence because he had been in custody at the time the Florida court imposed its concurrent sentence. The Eleventh Circuit found this argument had no merit, since § 5G1.3 does not authorize a district court to grant credit for time served prior to the imposition of sentence. The granting of credit for time served “is in the first instance an administrative, not a judicial, function.” A claim for credit for time served is brought under 28 U.S.C. § 2241 after the exhaustion of administrative remedies. The guideline commentary does give a district court discretion to achieve a “total” sentence by imposing combinations of concurrent and consecutive sentences. The Florida court did this by imposing a sentence and ordering that it run concurrently with the Michigan sentence. The ineffective assistance of counsel claim therefore failed because defendant did not show that his counsel’s performance was deficient or that the outcome of the proceedings would have been different but for counsel’s deficient performance. U.S. v. Nyhuis, 211 F.3d 1340 (11th Cir. 2000).
11th Circuit says court may reopen ACCA sentence after successful attack of predicate state conviction. (880) In 1995, defendant was sentenced as an armed career criminal. In 1998, after an uncontested hearing, a state court judge vacated defendant’s 1979 state manslaughter conviction, concluding that defendant had not entered a voluntary and knowing plea. Defendant then moved, under § 2255 and Fed.R.Civ.P. 60(b), for relief from his 1995 ACCA federal sentence. The Eleventh Circuit, joining the other seven circuits to decide the issue, held that a district court may reopen and reduce a federal sentence, once a federal defendant has, in state court, successfully attacked a prior state conviction previously used in enhancing the federal sentence. Dicta in Custis v. United States, 511 U.S. 485 (1994) states that if a defendant is successful in attacking a state sentence, then he may apply for reopening of any federal sentence enhanced by the state sentences. Senior Judge Hill concurred to express concern for a procedure that “removes the entire federal establishment from the fixing of federal sentences for repeat miscreants.” U.S. v. Walker, 198 F.3d 811 (11th Cir. 1999).
11th Circuit holds claim based on later clarifying amendment is not cognizable under § 2255. (880) Defendant pled guilty to armed robbery and received a § 3C1.1 obstruction enhancement for post-offense flight and giving a false name. Two years later, in 1990, the Sentencing Commission amended the commentary to state that post-offense flight and giving a false name ordinarily does not constitute obstruction of justice. The Commission classified the amendment as a clarifying amendment. Defendant brought a § 2255 motion to modify and correct his sentence. The Eleventh Circuit held that a claim based on a later clarifying amendment was not cognizable under § 2255. Such a claim is a non-constitutional issue that cannot provide a basis for collateral relief absent a complete miscarriage of justice. Defendant’s claim fell short of a complete miscarriage of justice. Because the amendment was a “clarifying” amendment, defendant had the opportunity to raise the impropriety of the obstruction of justice enhancement at his original sentencing and on direct appeal. Burke v. U.S., 152 F.3d 1329 (11th Cir. 1998).
11th Circuit holds defendant should be given one year after AEDPA to file § 2255 motion. (880) In 1988, defendant pled guilty to stealing from a bank. In April 1996, the Anti-terrorism and Effective Death Penalty Act amended 28 U.S.C. § 2255 to establish a one-year “period of limitation” which runs from the later of four specified events, one of which is the date on which the judgment of conviction becomes final. Defendant filed the current § 2255 motion 16 days after the effective date of AEDPA. The district court found that the motion was untimely under because defendant had not filed his § 2255 motion within one year of one of the four events specified. The Eleventh Circuit held that it would be unfair to apply § 2255’s one-year period of limitation to prisoners like defendant whose convictions became final before the effective date of the AEDPA. Such prisoners must be given a reasonable time after the enactment of AEDPA to file their motions, and a reasonable period is until April 23, 1997, one year from the date of enactment of the AEDPA. Goodman v. U.S., 151 F.3d 1335 (11th Cir. 1998).
11th Circuit upholds resentencing drug counts after vacating firearm conviction. (880) Defendants successfully argued in their § 2255 motion that their § 924(c) convictions were invalid. The court ordered resentencing to determine whether their remaining sentences should be enhanced under § 2D1.1(b)(1) for possession of a gun during a drug trafficking crime. The Eleventh Circuit, relying on U.S. v. Mison, 115 F.3d 900 (11th Cir. 1997), upheld the court’s authority to resentence on the drug counts after vacating the firearms conviction. The case cited by defendant was a pre-guidelines case. U.S. v. Oliver, 148 F.3d 1274 (11th Cir. 1998).
11th Circuit upholds resentencing on unchallenged convictions after vacating firearm count. (880) Defendant originally pled guilty to drug and firearms charges. Based on the government’s § 5K1.1 motion, the district court departed downward and imposed a 132-month sentence, consisting of concurrent terms of 72 months on the first two counts and a 60-month consecutive sentence on the § 924(c) gun count. Years later, the district court granted defendant’s § 2255 motion to vacate the § 924(c) conviction. The government requested resentencing on the drug counts so that it could seek a § 2D1.1(b)(1) gun enhancement. The district court agreed and resentenced defendant to 96 months on the drug counts ¾24 months more than the initial sentence on the drug counts but 36 months less than the prior aggregate sentence. The Eleventh Circuit affirmed, even though a § 2D1.1(b)(1) enhancement for possession of a firearm during a drug offense did not affect defendant’s offense level because he was a career offender. The “sentencing package” doctrine provided jurisdiction to resentence defendant regardless of the availability of the § 2D1.1(b)(1) enhancement. U.S. v. Watkins, 147 F.3d 1294 (11th Cir. 1998).
11th Circuit finds no prejudice from counsel’s failure to challenge D-meth sentence. (880) Defendant was convicted of four methamphetamine-related counts. In a § 2255 motion, defendant claimed his counsel had been ineffective for failing to challenge the court’s use of the D-methamphetamine guideline to fashion his sentence. The Eleventh Circuit rejected the claim since defendant could not show prejudice from his attorney’s performance. To show prejudice, defendant must show that he could establish that the methamphetamine he possessed and distributed was the L-type. However, based on the evidence in the case and statements from several circuit courts, the Sentencing Commission and other government agencies, there was no doubt that D-methamphetamine was involved here. L-methamphetamine is an inert form of methamphetamine with little or no physiological effects. It is rarely seen, is not made intentionally, and is utterly worthless. Defendant here distributed a form of methamphetamine that had street value. To reach a contrary conclusion would require a finding that defendant made a conscious decision to distribute a worthless substance. Reece v. U.S., 119 F.3d 1462 (11th Cir. 1997).
11th Circuit upholds resentencing on drug counts after successful § 2255 challenge to gun counts. (880) Defendants successfully challenged their firearms convictions under § 2255 on the ground that the weapons were not actively employed during the crimes. After vacating the firearms sentences, the district court sua sponte applied a § 2D1.1(b)(1) firearm enhancement to defendants’ remaining drug counts. The Eleventh Circuit, agreed with the Third, Fourth, Seventh and Ninth Circuits that the district court has authority under § 2255 to resentence on a drug count after a prisoner has successfully challenged a § 924(c) conviction. The § 924(c) conviction and the § 2D1.1(b)(1) enhancement are interdependent because they are mutually exclusive. Section 2255 grants a district court broad flexible power to recalculate a defendant’s entire sentence. Resentencing did not violate the double jeopardy clause or defeat defendants’ expectations of finality. U.S. v. Mixon, 115 F.3d 900 (11th Cir. 1997).
11th Circuit finds no prejudice from failure to raise sentencing entrapment and other claims. (880) In a 28 U.S.C. § 2255 petition, defendant argued that he was denied effective assistance of counsel on direct appeal. The district court found that although defendant’s appellate attorney rendered deficient performance, it did not prejudice defendant. On appeal, the Eleventh Circuit affirmed. The two claims that defendant argued appellate counsel should have raised were sentencing entrapment and acceptance of responsibility. There was no reasonable probability of success on appeal with either claim. The Eleventh Circuit has repeatedly rejected sentencing entrapment claims. The acceptance of responsibility determination by the district judge was entitled to great deference on appeal. A defendant who forces the government to trial is rarely entitled to an adjustment for acceptance of responsibility. Joiner v. U.S., 103 F.3d 961 (11th Cir. 1997).
11th Circuit says defendant may bring out-of-time appeal where counsel failed to appeal. (880) Defendant pled guilty to drug charges. He claimed he asked his attorney to appeal the sentence, but his attorney failed to so do. The district court denied defendant’s § 2255 motion, because under Ferguson v. U.S., 699 F.2d 1071 (11th Cir. 1983), failure to file an appeal after a guilty plea does not constitute ineffective assistance. The Eleventh Circuit held that defendant was entitled to an out-of-time appeal, even without a showing of viable grounds for an appeal. Ferguson was decided before the sentencing guidelines were implemented. Because a defendant now has the right to directly appeal a sentence under the guidelines, he cannot raise guideline issues in collateral proceedings under § 2255. Thus, under the guidelines, a defendant is prejudiced where his attorney fails to file an appeal after being requested to do so. Martin v. U.S., 81 F.3d 1083 (11th Cir. 1996).
11th Circuit says attorney’s failure to file notice of appeal entitles defendant to out-of-time appeal. (880) Defendant pled guilty to drug charges. He did not appeal his conviction or his sentence. In a 28 U.S.C. § 2255 motion, defendant alleged that he asked his attorney to file an appeal, but the attorney failed to do so. Under Circuit law, an attorney’s failure to file an appeal after the defendant requests one entitles the defendant to an out-of-time appeal, even without a showing of viable grounds for an appeal. Under Ferguson v. U.S., 699 F.2d 1071 (11th Cir. 1983), an attorney’s failure to file a direct appeal from a guilty plea does not constitute ineffective assistance since it causes no harm to the defendant. But Ferguson does not apply to a guidelines sentence. None of the guidelines sentencing issues are waived by a guilty plea, unless there is an express waiver of the right to appeal the sentence. Montemoino v. U.S., 68 F.3d 416 (11th Cir. 1995).
11th Circuit upholds consecutive sentences for bank robbery and violation of supervised release. (880) Defendant violated his term of supervised release by robbing a bank. He was first sentenced to 14 months for violating his supervised release, and was later sentenced to a 63-month consecutive term for the bank robbery. Defendant argued that a consecutive sentence violated § 5G1.3(b). The 11th Circuit rejected this argument. The purpose of § 5G1.3(b) was to credit defendants who have already served time for the same conduct. This situation was not present here. Moreover, had the district court sentenced defendant for the instant offense before addressing his supervised release violation, there would be no controversy. Section 7B1.3(f) provides that any term of imprisonment imposed after revocation of supervised release shall be served consecutively to any sentence that the defendant is serving, whether or not the current sentence results from the same conduct that caused the supervised release to be revoked. U.S. v. Flowers, 13 F.3d 395 (11th Cir. 1994).
11th Circuit holds that prisoner whose presumptive parole date has passed must still exhaust administrative remedies prior to habeas corpus action. (880) In a pre-guidelines case, petitioner brought a habeas corpus action because his presumptive parole date set by the U.S. Parole Commission had passed and he remained incarcerated. The 11th Circuit found that even though the presumptive release date had passed, petitioner was still required to exhaust his administrative remedies before seeking relief from the district court. The Bureau of Prisons has established regulations that set forth the procedures that a prisoner must follow before seeking relief from the district court. Exhaustion of administrative remedies is jurisdictional. Gonzalez v. U.S., 959 F.2d 211 (11th Cir. 1992).
11th Circuit holds that district court has jurisdiction under 28 U.S.C. § 2255 to consider a claim that a sentence is illegal. (880) Seven months after sentencing, defendant brought a pro se motion in district court under Fed. R. Crim. P. 35(a) to correct an illegal sentence. The 11th Circuit found that Rule 35(a) is not applicable to individuals sentenced under the Sentencing Reform Act of 1984. However, because the motion was brought pro se, it was proper for the district court to look beyond the motion’s label and determine whether the motion was cognizable under a different statute. In this case, the district court had jurisdiction under 28 U.S.C. § 2255 to consider defendant’s claim that his sentence was illegal. Although the Sentencing Reform Act altered the method by which a defendant could obtain review of his sentence, there was no evidence that the Sentencing Reform Act limited a defendant’s ability to obtain relief under § 2255. U.S. v. Jordan, 915 F.2d 622 (11th Cir. 1990).
D.C. Circuit rules defendant ineligible for “reverse sting” departure. (880) An undercover agent offered to sell defendant five kilos of cocaine for $100,000. Defendant was only able to come up with about $20,000, but said that he still wanted to buy three kilos. The agent agreed to sell him one kilo for $20,000 cash, and to front him the second. DEA agents arrested defendant as he left the hotel room with the two kilos. Defendant alleged that his counsel was ineffective for failing to offer expert testimony in support of his request for a “reverse sting” departure under Note 14 to § 2D1.1. The D.C. Circuit found no prejudice, since the reverse sting departure was not applicable to defendant. A reverse sting departure is proper where the government, in setting overly generous price terms, induces a defendant to purchase more drugs than he otherwise could afford and that difference affects the defendant’s sentence. Here, however, drug quantity bore no relation to the defendant’s offense level (beyond setting the floor at 500 grams). Defendant was sentenced as a career offender. Drug quantity here had no effect on defendant’s position in the career offender table. U.S. v. Goodwin, 594 F.3d 1 (D.C. Cir. 2010).
D.C. Circuit rejects ineffective assistance claim where court previously rejected similar argument. (880) Defendant argued that his attorney was ineffective for failing to seek a “lesser harms” downward departure under § 5K2.11. He claimed that counsel could have presented evidence to support his claim that he suffered from excruciating pain and sold drugs to support an addiction to heroin, which developed after he was treated extensively with opiates as a result of severe burns. The district court expressly acknowledged the possibility that defendant’s pain drove him to addiction, but nonetheless found that his long history of drug dealing outweighed that mitigating factor. Given this, the D.C. Circuit rejected the ineffective assistance claim. Defendant failed to show a reasonable probability that the district court, having rejected the predicate of his lesser harms argument, would have departed had counsel formally invoked § 5K2.11. U.S. v. Goodwin, 594 F.3d 1 (D.C. Cir. 2010).
D.C. Circuit rejects ineffective assistance claim where court previously rejected similar argument. (880) Defendant argued that his attorney was ineffective for failing to seek a “lesser harms” downward departure under § 5K2.11. He claimed that counsel could have presented evidence to support his claim that he suffered from excruciating pain and sold drugs to support an addiction to heroin, which developed after he was treated extensively with opiates as a result of severe burns. The district court expressly acknowledged the possibility that defendant’s pain drove him to addiction, but nonetheless found that his long history of drug dealing outweighed that mitigating factor. Given this, the D.C. Circuit rejected the ineffective assistance claim. Defendant failed to show a reasonable probability that the district court, having rejected the predicate of his lesser harms argument, would have departed had counsel formally invoked § 5K2.11. U.S. v. Goodwin, 594 F.3d 1 (D.C. Cir. 2010).
D.C. Circuit holds that Booker does not apply retroactively to cases on collateral review. (880) Convicted in 1994 of various drug-related offenses, defendant petitioned for leave to file a successive § 2255 petition claiming that his sentence was unconstitutional in light of Booker. He filed his first habeas petition prior to the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and claimed that his request for leave should be evaluated under the pre-AEDPA “cause and prejudice” standard. Under the AEDPA, a court may entertain a second or successful habeas petition only if it is based upon “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” The D.C. Circuit held that Booker does not apply retroactively, and therefore, defendant was not entitled to another habeas proceeding under the AEDPA. Moreover, defendant could not meet the pre-AEDPA standard of “cause and prejudice.” Because Booker is not retroactive, defendant could not show prejudice. Booker announced neither a substantive rule nor a watershed rule of procedure. In re Fashina, 486 F.3d 1300 (D.C. Cir. 2007).
D.C. Circuit rejects second § 2255 petition based on Booker. (880) Defendant applied for leave to file a second motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The D.C. Circuit refused to authorize the filing because the Supreme Court has not made Booker retroactive to cases on collateral review. A second or successive motion under § 2255 must be certified as provided in § 2244 by the court of appeals to contain: (a) newly discovered evidence; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. The Supreme Court has never expressly held Booker retroactive. In Re Zambrano, 433 F.3d 886 (D.C. Cir. 2006).
D.C. Circuit holds that defendant failed to establish prejudice from alleged Apprendi error. (880) Defendant argued in a § 2255 petition that his 1997 drug convictions and sentence were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000) because a judge rather than a jury determined the quantity of drugs involved in his crimes. Because he failed to raise this claim at trial or on direct appeal, the issue could only be raised on collateral review if defendant showed “cause and prejudice” sufficient to overcome his procedural default. The D.C. Circuit ruled that defendant failed to satisfy his burden of demonstrating that he suffered prejudice from the alleged Apprendi error, and therefore it affirmed the denial of his motion for collateral relief. The evidence of drug quantity at defendant’s trial was an undercover agent’s testimony that defendant had promised on two occasions to provide “two ounces” of crack (56.70 grams) and a government chemist’s testimony that the crack from the two transactions weighed 50.62 grams and 50.57 grams, respectively. Defense counsel did not question these quantities. In the absence of any evidence to the contrary, a jury would have had no basis for concluding that defendant distributed less than 50 grams in each of his criminal transactions. Defendant’s challenge relied on nothing more than speculation that the jury might have decided differently than the judge did. “Such naked speculation is simply insufficient to establish prejudice.” U.S. v. Pettigrew, 346 F.3d 1139 (D.C. Cir. 2003).
D.C. Circuit says defendant failed to show that but miscalculation of guideline range he would not have pleaded guilty. (880) Before sentencing, defendant moved to withdraw his plea on the ground that his counsel had miscalculated the proper sentencing range under the guidelines. The district court denied the motion, and the D.C. Circuit affirmed. Defendant failed to show that there was a reasonable probability that, but for his counsel’s error, he would not have pleaded guilty and would have instead on going to trial. First, the district court warned defendant at the plea hearing that defendant should not rely on sentencing predictions. Second, even if counsel had told defendant that the applicable range was 262-327 months if he had pled guilty, defendant would nonetheless have had reason to expect a sentence below that. Defendant anticipated providing substantial assistance to the government, which would have qualified him for a departure below both the guideline range and the statutory minimum sentence. Third, had defendant proceeded to trial and been convicted, his prior convictions would have dictated a mandatory life sentence. Finally, any competent attorney would also have advised defendant that he stood little chance of obtaining an acquittal at trial. U.S. v. Hanson, 339 F.3d 983 (D.C. Cir. 2003).
D.C. Circuit rules previously dismissed motions did not count as first § 2255 motion. (880) In May 1993 defendant filed with the district court a “Motion to Reconsider Sentence,” which argued that sentencing him as a career offender violated the 5th and 8th Amendments. The district court summarily denied the motion “without prejudice.” In December 1994, defendant filed a § 2255 motion claiming that his counsel was ineffective. The district court denied the motion, concluding that the 1994 motion was a “second or successive motion” under § 2255. The court did not specifically refer to the 1993 motion or provide any basis for its conclusion that defendant had previously filed a § 2255 motion. Defendant asked the appellate court to certify to the district court a second or successive petition under § 2255. The D.C. Circuit held that because defendant had not yet filed a first petition, he did not need such an order from the court; he could file a § 2255 petition directly with the sentencing court. When a motion is dismissed “for technical procedural reasons” and “the habeas petitioner does not receive an adjudication of his claim,” a subsequent petition is not “a second or successive motion” under the AEDPA. Here, the district court denied the 1993 Motion to Reconsider “without prejudice,” and dismissed the 1994 motion for a procedural reason. In re Moore, 196 F.3d 252 (D.C. Cir. 1999).
D.C. Circuit says failure to seek role reduction was ineffective assistance. (880) Defendant, who had no criminal history and no history of drug abuse, was asked by a drug dealer to take a package of drugs from New York to North Carolina. Having just lost her job and being depressed, she agreed. DEA agents who boarded her train in D.C. found the drugs in her suitcase. At sentencing, defense counsel failed to ask for a mitigating role reduction under § 3B1.2. Instead, he simply sought a downward departure because (1) defendant was a first time offender supporting a disabled child, (2) she played a minor role in the scheme, (3) her conduct was aberrational, (4) she showed remorse and (5) she had no history of drug abuse. On appeal, with new counsel, she argued that trial counsel was ineffective in failing to ask for a § 3B1.2 role reduction. The D.C. Circuit held that counsel’s failure constituted ineffective assistance. Counsel’s reference to § 3B1.2 in his request for a downward departure was not sufficient. The court found it hard to “imagine a defendant better suited for serious consideration under § 3B1.2 or more squarely prejudiced by counsel’s failure to raise it.” U.S. v. Soto, 132 F.3d 56 (D.C. Cir. 1997).
D.C. Circuit holds attorney’s advice of probable sentence was not ineffective assistance. (880) Defendant argued that he should have been permitted to withdraw his plea because he received ineffective assistance of counsel. He claimed his attorney did not spend enough time advising him of the consequences of pleading guilty and also incorrectly advised him that he faced 25 years in jail if convicted of all charges. The D.C. Circuit rejected this claim since defendant responded affirmatively when the district court asked him at the plea hearing whether he had adequate time and opportunity to discuss his case with his attorney. The 25-year estimate was not that far off the mark. The PSR stated that defendant’s conviction on all counts would have resulted in a sentencing range of 151-188 months. But if additional drugs that the government argued was relevant conduct were attributed to defendant, this would raised his guideline range to 235-293 months, close to what his attorney calculated. Moreover, the plea agreement gave defendant a sentence significantly lower than even the bottom of the range mentioned in the PSR. U.S. v. Holland, 117 F.3d 589 (D.C Cir. 1997).
D.C. Circuit remands where counsel incorrectly told defendant he was a career offender. (880) The government offered to let defendant plead guilty to a drug conspiracy, but he rejected the offer after defense counsel incorrectly advised him that he would qualify as a career offender with a sentencing range of 360 months to life. Under U.S. v. Price, 990 F.2d 1367 (D.C. Cir. 1993), decided a year before defendant was sentenced, a defendant convicted of conspiracy could not be sentenced as a career offender. After trial, defendant was convicted of all charges and the district court imposed a mandatory life sentence. He argued that if counsel had advised him correctly, he would have accepted the government’s offer and received a 15-20 year sentence. The D.C. Circuit remanded for an evidentiary hearing on whether defendant would have taken the government’s offer had he known his true exposure under the guidelines, and whether the government would have entertained an “unwired plea” from defendant. Defendant satisfied Strickland’s first prong because counsel’s advice under Price was plainly incorrect. However, it was unclear whether he satisfied the prejudice prong–i.e. whether there was a “reasonable probability” that he would have entered a guilty plea. Price is no longer good law because of later guideline amendments, but if defendant prevailed, he would be entitled to be sentenced under it. Sentencing him under the current law would violate the ex post facto clause. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit permits resentencing on drug counts after vacating § 924(c) conviction under § 2255. (880) In U.S. v. Rhodes, 106 F.3d 429 (D.C. Cir. 1997), the D.C. Circuit held that 28 U.S.C. § 2106 authorizes a district court to apply a § 2D1.1(b)(1) enhancement to a defendant who successfully challenges a § 924(c) conviction on direct appeal. Here, the D.C. Circuit held that the court has jurisdiction to apply the enhancement to a defendant who successfully challenges a § 924(c) conviction under 28 U.S.C. § 2255. Every circuit to consider the issue has approved application of § 2D1.1(b)(1) to a defendant who has had his conviction vacated under § 2255. The reasoning has varied, but the outcome is compelled by the complete interdependence and mutual exclusivity of the two provisions. The court also rejected defendants’ double jeopardy and substantive due process claims. U.S. v. Morris, 116 F.3d 501 (D.C. Cir. 1997).
D.C. Circuit says failure to seek departure from life sentence not ineffective assistance. (880) Defendant was convicted of a drug offenses and the district court imposed a life sentence as required by the guidelines. Defendant argued that his counsel was ineffective in failing to request a downward departure because his criminal activity was less than serious than that of his co-conspirators. The D.C. Circuit held that a co-conspirators’ similar life sentences could never justify a downward departure. Mandatory life imprisonment is the highest penalty imposed by the guidelines. Inevitably it will be imposed upon defendants whose crimes vary in seriousness. Therefore, the fact that a defendant whose crimes were more serious also received a mandatory life sentence can never justify a downward departure from a life sentence mandated by the guidelines. U.S. v. Graham, 91 F.3d 213 (D.C. Cir. 1996).
D.C. Circuit says failure to challenge criminal history was not ineffective assistance where life sentence was mandatory. (880) Defendant was convicted of a variety of drug offenses and the district court imposed a life sentence as required by the guidelines. The D.C. Circuit held that defense counsel’s failure to challenge the calculation of defendant’s criminal history was not ineffective assistance because it did not affect defendant’s sentence. An offense level of 43 requires a mandatory life sentence regardless of the defendant’s criminal history category U.S. v. Graham, 91 F.3d 213 (D.C. Cir. 1996).
D.C. Circuit says failure to advise defendant of mandatory life sentence was not ineffective assistance. (880) Defendant argued that his counsel’s failure to advise him that he faced a mandatory life sentence if convicted at trial was ineffective assistance. The D.C. Circuit rejected the claim because even if defendant had been adequately informed of his sentencing exposure, he still would have gone to trial rather than accept any plea offer the government was willing to make. Defendant rejected the government’s offer of a possible sentence reduction under Rule 35(b) in exchange for his cooperation because the government would not offer a guaranteed deal before obtaining his cooperation. This was sufficient to support the court’s ultimate conclusion that defendant would have rejected the government’s plea offer despite correct advice from counsel. Every plea offer the government made was conditioned on the sufficiency of defendant’s co-operation. U.S. v. Graham, 91 F.3d 213 (D.C. Cir. 1996).
D.C. Circuit examines remedy for failure to advise defendant he faced life sentence. (880) The district court found that defendant received ineffective assistance of counsel because he went to trial without being informed that he qualified as a career offender who could be sentenced to life imprisonment. It also found, however, that he established only limited prejudice, because the government had not offered a plea bargain. To eliminate any prejudice caused by the ineffective assistance, the district court reduced the offense level by two (to reflect the acceptance of responsibility reduction he might have earned by pleading guilty). Defendant argued that this remedy was inadequate. The D.C. Circuit remanded for further findings on whether defendant might have been able to earn a three level acceptance of responsibility reduction. The district court’s finding that defendant would have pled guilty to receive a two point reduction was in tension with its finding that he would not have pled guilty in time to qualify for the three point reduction. However, the appellate court rejected defendant’s claim that he might have been able to strike a plea bargain with the government. U.S. v. Thompson, 27 F.3d 671 (D.C. Cir. 1994).
California District Court holds that waiver of appeal also barred collateral attack. (880) Following U.S. v. Abarca, 985 F.2d 1012 (9th Cir. 1993), District Judge Rhoades held that a waiver of the right to appeal a sentence also waives the right to raise a collateral challenge under 28 U.S.C. 2255, in most circumstances. Accordingly, even though an error was committed at defendant’s sentencing hearing, petitioner’s waiver of appeal barred him from challenging his sentence in a 2255 proceeding. The court held that the plea agreement could not be reformed based on a mutual mistake, nor did petitioner have any remedy under Fed. R. Crim. P. 35(c) or 36, or 18 U.S.C. section 3582(b) or (c). Nevertheless, in a lengthy footnote, the court complained about the Guidelines, arguing that “[j]ust as painting by the numbers is not art, sentencing by the numbers is not justice.” The court lamented that “this case is paradigmatic of what the guidelines have done and are doing to the criminal justice system.” U.S. v. Kuhl, 816 F.Supp. 623 (S.D. Cal. 1993).
Article highlights risk of disparity from differences in defense counsel under the guidelines. (880) Professor Douglas Berman argues that differences in defense counsel can have a significant impact on sentencing outcomes under the guidelines. He suggests that it is difficult for defense counsel to understand the complex guideline system and fears that “the guidelines have transformed federal sentencing from a system, once rightly condemned as lawless, into a system now burdened with too much law.” He encourages the Commission to return to its “long-stalled simplification project,” and to “look for ways to further structure the discretion of actors in the guidelines system to ensure that the most critical determinates of the exercise of sentencing discretion are the pertinent features of the defendant’s case, rather than the particular efforts of the defendant’s counsel.” Douglas A. Berman, From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel under Guidelines’ Sentencing, 87 Iowa L. Rev. 435 (Jan. 2002).