Opinion
4:98-CR-3033
November 15, 2000
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
This case comes before me on the defendant's Motion to Vacate[,] Set Aside[,] or Correct Sentence Pursuant to 28 U.S.C. § 2255, filing 54. In his motion, the defendant alleges the following four grounds for relief: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) he was denied effective assistance of counsel at the pleading stage of his case; (3) his sentence is "otherwise subject to collateral review" based on newly discovered facts not available at sentencing; and (4) he was denied effective assistance of counsel at the sentencing stage of his case. In response, the government contends that the defendant's motion is without merit and should be summarily denied. After examining the record, I find that the defendant's first ground for relief warrants further review. The defendant's remaining grounds for relief will be dismissed.
I. Background
The defendant was arrested on March 20, 1998, in a friend's car outside a Grand Island, Nebraska, motel, shortly after his friend delivered a large quantity of methamphetamine to undercover officers in one of the motel rooms. While investigating the defendant, the police learned that he had been deported on February 28, 1995, and had not obtained permission to reenter the United States. On April 24, 1998, a two-count sealed indictment was filed in the United States District Court for the District of Nebraska, charging the defendant with (1) possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841 (a)(1); and (2) reentering the United States as a deported alien without first obtaining consent of the United States Attorney General to reapply for admission, in violation of 8 U.S.C. § 1326.
The defendant initially pleaded not guilty to both counts of the indictment but subsequently entered into a plea agreement with the government. Pursuant to this written agreement, the defendant pleaded guilty to the illegal reentry count. After conducting a Rule 11 colloquy with the defendant during a July 22, 1998, plea hearing, I accepted his guilty plea and ordered a presentence investigation report.
The presentence investigation report was submitted to the parties on September 9, 1998, and the defendant objected to several paragraphs within the report on the grounds that such paragraphs overstated his criminal history. See filing 24. The defendant also moved for a downward departure "from both the statute and the sentencing guidelines" on the same grounds. See filing 26. During an October 30, 1998, sentencing hearing, I overruled the defendant's objections, denied his motion for a downward departure, and sentenced him to seventy-seven months imprisonment and three years of supervised release on the illegal reentry count. See filing 31. A $100 special assessment was also imposed, and count one of the indictment was dismissed. Id.
The defendant then appealed his conviction and sentence, raising two issues. See United States v. Martinez-Cruz, 186 F.3d 1102 (8th Cir. 1999). First, he challenged the validity of his guilty plea, and second, he alleged that his trial counsel failed to provide effective assistance. Id. at 1104. With respect to his first claim, the defendant, relying primarily on his inability to speak English, argued that I improperly accepted his guilty plea because it was not knowingly and voluntarily made. Id. In rejecting this claim, the Eighth Circuit Court of Appeals concluded that "[n]othing in the record supports Martinez-Cruz's contention that his plea was constitutionally infirm." Id. The court then declined to address the merits of the defendant's ineffective-assistance- of-counsel claim, citing the general rule that "ineffective assistance claims are best presented in a motion for post-conviction relief under 28 U.S.C. § 2255." Id. at 1105.
II. Standard of Review
Section 2255 of Title 28 of the United States Code provides individuals in federal custody with a means to collaterally attack a sentence imposed after a conviction. A collateral challenge cannot, however, "do service for an appeal," and Congress has narrowly limited the grounds for post-conviction attacks. See United States v. Frady, 456 U.S. 152, 165 (1982) (citations omitted); 28 U.S.C. § 2255. Section 2255 specifically sets forth the following grounds for relief: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255 ¶ 1.
A petitioner must be afforded an evidentiary hearing on his § 2255 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Id. ¶ 2. Accordingly, a petitioner's § 2255 claims can be summarily dismissed without a hearing if (1) the petitioner's allegations, even if true, would not entitle the petitioner to relief, or (2) the petitioner's allegations cannot be accepted as true because they are contradicted by the record, are inherently incredible, or are conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995) (citations omitted); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) ("[A] claim may be dismissed without an evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." (citations omitted)). An evidentiary hearing, however, is required "`when the facts alleged, if true, would entitle [the petitioner] to relief.'" Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996).
III. Discussion
The defendant filed the present motion pursuant to § 2255 on August 15, 2000, alleging the following four grounds for relief: (1) his sentence was imposed in violation of the Constitution or laws of the United States in that I failed to comply with Federal Rule of Criminal Procedure 11 (hereinafter Rule 11) when accepting his guilty plea; (2) he was denied effective assistance of counsel in that his trial counsel failed to advise him adequately as to the nature of the charges against him and the ramifications of his plea; (3) his sentence is "otherwise subject to collateral review" in that newly discovered evidence reveals inaccurate calculations in the defendant's presentence investigation report with respect to his criminal history; and (4) he was denied effective assistance of counsel at the sentencing stage of his case in that his trial counsel failed to obtain his criminal records to dispute calculations contained in the defendant's presentence investigation report. In support of his claims, the defendant attached to his motion a declaration with several exhibits. The government filed its response to the defendant's motion on August 25, 2000, arguing that the defendant's motion should be summarily denied. I agree with the government as to the defendant's second, third, and fourth grounds for relief. The defendant's first claim, however, warrants further review.
A. Ground One: Sentence Was Imposed in Violation of the Constitution or Laws of the United States
In his first claim for relief, the defendant argues that his sentence was imposed in violation of the Constitution or laws of the United States. According to the defendant, I failed to inform him of the minimum and maximum penalties for the offense to which he was pleading guilty, as required by Rule 11, before accepting his plea at the July 22, 1998, plea hearing. The defendant is also apparently arguing that he is entitled to relief because I failed to advise him that I was required to follow the sentencing guidelines, including any enhancement provisions, in calculating his sentence. See Declaration of Gustavo-Cruz In Support Of Motion to Vacate Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 at ¶ 6, United States v. Martinez-Cruz, No. 4:98cr03033 (D.Neb.), filing 54 [hereinafter Declaration] (alleging that during the plea hearing, "I [the defendant] was never advised that I would be subject to an enhancement penalty"); see also Frey v. Schuetzle, 78 F.3d 359, 361 (8th Cir. 1996) (noting that as a general rule, "a pro se habeas petition must be given a liberal construction . . ." (citation omitted)). Thus, based on the alleged Rule 11 violations, the defendant is apparently arguing that his guilty plea was constitutionally infirm because it was not made knowingly, voluntarily, and intelligently. See Martinez-Cruz, 186 F.3d at 1104 ("To be constitutionally valid, a guilty plea must be knowing, voluntary, and intelligent." (citations omitted)).
In response, the government contends that at his initial appearance and arraignment on April 27 and April 30, 1998, the defendant was advised of the possible penalties that could be imposed upon his conviction. In addition, the government directs my attention to the defendant's Petition to Enter a Plea of Guilty (hereinafter Petition) and the defendant's plea agreement with the government, both of which the defendant signed on July 22, 2000, the day of his plea hearing. See Petition to Enter a Plea of Guilty, United States v. Martinez-Cruz, No. 4:98cr03033 (D.Neb.), filing 18 [hereinafter Petition]; Plea Agreement, United States v. Martinez-Cruz, No. 4:98cr03033 (D.Neb.), filing 18 [hereinafter Plea Agreement]. Paragraph fourteen of the Petition and paragraph one of the plea agreement both set forth the minimum and maximum penalties for the illegal reentry charge. Petition ¶ 14; Plea Agreement ¶ 1. Thus, the government argues that because the defendant was specifically advised as to the possible penalties to which he was subject upon conviction, his first ground for relief should be summarily dismissed.
The defendant is correct in asserting that I failed to comply with Rule 11 when accepting his guilty plea. A review of the plea hearing transcript reveals that I questioned the defendant generally regarding his plea agreement with the government and the answers he provided in his Petition. See Transcript of Proceedings at 2-4, 9-10, United States v. Martinez-Cruz, No. 4:98cr03033 (D.Neb.) (plea hearing of July 22, 1998), filing 22 [hereinafter Transcript]. Following my colloquy with the defendant, I also made several findings, including the following: (1) that the defendant understood the maximum possible penalty, including imprisonment, and (2) that the defendant understood my obligation to consider any applicable sentencing guidelines. Id. at 12-13. Nevertheless, despite these findings, at no point in the hearing did I specifically "inform the defendant of . . . the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including . . . the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances . . ." as required by Rule 11. Fed.R.Crim.P. 11(c)(1). Thus, the record supports the defendant's allegations regarding my failure to comply with the requirements of Rule 11 in accepting his guilty plea.
A violation of Rule 11 does not, however, automatically entitle the defendant to relief pursuant to § 2255. It is well settled that "[a] motion under § 2255 is not a substitute for a direct appeal." Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citations omitted); see also United States v. Ward, 55 F.3d 412, 413 (8th Cir. 1995) ("Collateral proceedings under 28 U.S.C. § 2255 cannot be made to do service for an appeal." (citation omitted)). Thus, "[t]o the fullest extent possible, all arguments, even constitutional or jurisdictional ones . . . should be made at trial and on direct appeal." Ward, 55 F.3d at 413 (citations omitted). Claims that have not been properly raised and preserved at trial or on direct appeal are procedurally defaulted and "cannot be reached in a § 2255 proceeding unless the petitioner can show both cause for the [claim's] not having been previously raised and prejudice from the claimed legal error." Id. (citation omitted).
In this case, the defendant apparently did not argue on direct appeal that I failed to inform him of (1) the minimum and maximum sentences for the illegal reentry charge and (2) my obligation to consider the guidelines in calculating his sentence. According to the Eighth Circuit opinion, the defendant relied primarily on his inability to speak English in alleging that his guilty plea was not "knowingly and voluntarily made." Martinez-Cruz, 186 F.3d at 1104. This opinion does not, however, mention either of the allegations now raised by the defendant in his first ground for collateral relief. Thus, it appears to me that the defendant has procedurally defaulted his first claim by failing to raise his arguments on direct appeal.
Nevertheless, I will not dismiss the defendant's first claim at this time. As noted above, a defendant can excuse his procedural default by showing cause and prejudice. Ward, 55 F.3d at 413; Anderson, 25 F.3d at 706. The government did not raise the procedural default defense in its response, and I therefore believe it is appropriate to give the defendant, who is proceeding pro se, an opportunity to address whether his procedural default should be excused. See, e.g., United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (concluding that while the district court properly raised the procedural default defense sua sponte, it erred in failing to afford the defendant an opportunity to demonstrate cause and prejudice for the default). Thus, the defendant will be granted leave to amend his motion for relief in order to demonstrate cause and prejudice for his apparent procedural default. If the defendant chooses to amend his motion, I will then re-examine his first ground for relief to determine if an evidentiary hearing is warranted.
The Rules Governing § 2255 Proceedings for the United States District Courts require the government, in its answer, to state (1) "whether the movant has used any other available federal remedies," such as direct appeals and prior collateral challenges, and (2) "whether an evidentiary hearing was accorded the movant in a federal court." Rules Governing § 2255 Proceedings for the United States District Courts, Rule 5, 28 U.S.C.A. foll. § 2255; see 28 Moore's Federal Practice § 672.03[4] (Matthew Bender 3d ed.). The government's response does not fulfill this requirement, as it does not mention the defendant's direct appeal and fails to address whether the defendant was afforded a hearing on this appeal.
B. Ground Three: Sentence is Otherwise Subject to Collateral Review
In his third claim for relief, the defendant argues that his sentence is otherwise subject to collateral review based on newly discovered evidence unavailable at sentencing. According to the defendant, this "newly discovered evidence," which consists of court files pertaining to his previous convictions in Pennsylvania, reveals that I may have sentenced the defendant outside of the applicable sentencing guidelines based on his criminal history. More specifically, the defendant objects to calculations contained in paragraphs 37, 40, 41, 42, 43, and 44 of the Revised Presentence Investigation Report (hereinafter PSI Report). In response, the government contends that the defendant, before he was sentenced, objected to the calculations contained in paragraphs 37, 40, and 44 of the PSI Report. The government notes that I specifically overruled these objections and sentenced the defendant within the sentencing range identified in the PSI Report. Furthermore, the government also argues that the defendant cannot now raise objections to the calculations contained within paragraphs 41, 42, and 43, because the defendant never challenged such calculations at or before his sentencing. I agree with the government.
As noted above, "[c]ollateral proceedings under 28 U.S.C. § 2255 cannot be made to do service for an appeal." Ward, 55 F.3d at 413 (citation omitted). Thus, to prevent a procedural default, "all arguments . . . should be made at trial and on direct appeal." Id. (citations omitted). Generally, however, § 2255 relief "is available to correct errors that could have been raised at trial or on direct appeal if the petitioner shows cause for the default and resulting prejudice." Anderson, 25 F.3d at 706 (citation omitted). Nevertheless, this "cause and prejudice" exception to the procedural default bar "does not apply to nonconstitutional or nonjurisdictional claims that could have been but were not raised on direct appeal." Id. (citations omitted) In short, "[a] petitioner simply cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255 motion if the issue could have been raised on direct appeal but was not." Id. (citations omitted).
In this case, the defendant, relying on "newly discovered evidence," contends that his criminal history was overstated in paragraphs 37, 40, 41, 42, 43, and 44 of the PSI Report. See Declaration ¶¶ 15-20. Before he was sentenced, the defendant objected to paragraphs 27, 37, 39, 40, 44, 48, 49 and 50 of the PSI Report in that such paragraphs "overstate[d] the Defendant's, [sic] criminal conduct, and criminal history category under the instant offense." Defendant's Position and Objections as to Presentence Investigation Report at ¶ 2 , United States v. Martinez-Cruz, No. 4:98cr03033 (D.Neb.), filing 24. The defendant also moved for a downward departure on essentially the same grounds. Motion for Downward Departure, United States v. Martinez-Cruz, No. 4:98cr03033 (D.Neb.), filing 26. I overruled the defendant's objections, denied his motion for a downward departure, and sentenced him within the range calculated in the PSI Report. See Judgment in a Criminal Case, United States v. Martinez-Cruz, No. 4:98cr03033 (D.Neb. Oct. 30, 1998), filing 31; Court Minutes Sentence, United States v. Martinez-Cruz, No. 4:98cr03033 (D Neb.), filing 28.
At no time during the sentencing phase of the proceedings, or on direct appeal, did the defendant object to the calculations contained within paragraphs 41, 42, or 43. Nor did the defendant preserve his objections to paragraphs 37, 40, and 44 by raising them on direct appeal. See Martinez-Cruz, 186 F.3d at 1104 (stating that the defendant raised two issues: first, he challenged the validity of his guilty plea, and second, he alleged ineffective assistance of counsel). Thus, it appears to me that the defendant has procedurally defaulted his third ground for relief. Furthermore, it also appears to me that the allegations included in the defendant's third ground for relief do not create constitutional or jurisdictional issues. See Ward, 55 F.3d at 413-14 (recognizing that the defendant's claim, which was based on the application of the sentencing guidelines, could not be characterized as either constitutional or jurisdictional). Thus, the defendant cannot excuse this procedural default by showing cause and prejudice. See Anderson, 25 F.3d at 706. Accordingly, the defendant's third ground for relief will be dismissed.
C. Grounds Two and Four: Ineffective Assistance of Counsel
In counts two and four, the defendant alleges that his trial counsel was ineffective at both the pleading and sentencing stages of his case. According to the defendant, his trial counsel failed to advise him adequately of the nature and ramifications of his plea and failed to investigate diligently his criminal history in order to dispute the PSI Report. In response, the government denies the above allegations and contends that the defendant was "fully aware at the time of his initial appearance and arraignment, at the time of his guilty plea and at the time of sentencing of the maximum sentence which could be imposed." Plaintiff's Response to Defendant's Motion Under 28 U.S.C. § 2255 at ¶ 2, United States v. Martinez-Cruz, No. 4:98cr03033 (D.Neb.), filing 57.
In order to obtain relief under the Sixth Amendment for ineffective assistance of counsel, movants must satisfy a two-prong test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To satisfy this test, the movant must show that (1) counsel's representation was deficient in that it "fell below an objective standard of reasonableness," and (2) counsel's deficient performance prejudiced him in that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 687, 688, 694. A court need not address both components of the Strickland inquiry if the movant makes an insufficient showing as to one of the prongs. Englen, 68 F.3d at 241 (citing Strickland, 466 U.S. at 697).
1. Ground Two: Counsel Failed to Adequately Advise Defendant of the Nature of the Charge and the Ramifications of his Plea
According to the defendant, his trial counsel's conduct was deficient in several respects. In his second ground for relief, the defendant specifically alleges the following: (1) counsel advised him that, if he pleaded guilty to the illegal reentry charge, his sentence would not exceed thirty-six months; (2) counsel failed to investigate whether his sentence would be subject to enhancement based on his criminal history; and (3) counsel failed to advise him that his sentence would be subject to enhanced penalties based on his criminal history. With respect to the prejudice prong of the Strickland analysis, the defendant appears to contend that he would not have pleaded guilty and would have insisted on going to trial had he known that his sentence would be enhanced, and therefore exceed thirty-six months, based on his criminal history. See Declaration ¶ 12 (alleging that "[h]ad I [the defendant] known of the consequences of the plea agreement in that I would be sentence [sic] to 77 months, I would not have signed the plea agreement"); Frey, 78 F.3d at 361 (noting that as a general rule, "a pro se habeas petition must be given a liberal construction . . ." (citation omitted)). After reviewing the record before me, I find that the defendant has failed to make a sufficient showing of prejudice necessary to grant relief.
The Supreme Court has determined that Strickland's two-prong test applies to ineffective-assistance-of-counsel claims arising out of the plea process, and that a defendant, in order to satisfy the prejudice prong in such cases, must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Elaborating on the "prejudice" inquiry, the Court stated the following:
In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of the trial. . . . As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the "idiosyncrasies of the particular decisionmaker."Id. at 59-60 (citations omitted). The Nebraska District Court has further elaborated on the "prejudice" inquiry, setting forth the following guidelines:
[T]his [prejudice] prong is not based solely or even primarily upon the subjective views of the defendant about whether he would have gone to trial. Rather, in analyzing the situation objectively, a court must ask: (1) would a reasonable person have gone to trial knowing the true state of affairs; (2) is it conceivable that the defendant would have been acquitted had a trial been sought; and (3) even if not acquitted, is it conceivable that the defendant would have been given a shorter sentence than he actually received.Lyman v. Hopkins, 875 F. Supp. 631, 642 (D.Neb. 1995) (citing Hill, 474 U.S. at 59).
In applying the above standards to the facts of the present case, it appears to me that the defendant simply cannot make a sufficient showing of prejudice. The defendant was deported on February 28, 1995. He was subsequently arrested in the State of Nebraska on March 20, 1998, after returning to the United States without first obtaining the consent of the United States Attorney General to reapply for admission, in violation of 8 U.S.C. § 1326. Had the defendant pleaded not guilty and insisted on proceeding to trial, it appears to me that the evidence against him on the illegal reentry count was overwhelming. An acquittal on this count was highly unlikely. Furthermore, the defendant's sentence of seventy-seven months was at the bottom of the Guideline range of seventy-seven to ninety-six months. Had the defendant insisted on going to trial, he would have likely received a higher sentence, particularly since he would not have received a downward adjustment for acceptance of responsibility. In light of the overwhelming evidence on the illegal re-entry count, combined with the substantial likelihood of a higher sentence upon conviction, it appears to me that a reasonable person, "knowing the true state of affairs" would have pleaded guilty and avoided trial. See Lyman, 875 F. Supp. at 642; Hill, 474 U.S. at 59-60. Thus, despite the defendant's claim that he would not have pleaded guilty had his trial counsel properly advised him as to the nature of the charges against him and the consequences of his plea, I find that his allegations are insufficient to satisfy Strickland's objective requirement of "prejudice." Accordingly, the defendant's second ground for relief will be dismissed.
Had the defendant insisted on going to trial, the government may have also prosecuted him on the drug charge, as alleged in count one of the indictment. Because there is no evidence before me as to the sufficiency of the evidence against the defendant on this charge, there is no basis to discuss how this charge impacts the "prejudice" inquiry.
In his fourth ground for relief, the defendant alleges that his trial counsel was deficient in (1) failing to investigate the possibility of a sentence enhancement based on the defendant's criminal history, and (2) failing to investigate the defendant's criminal history in order to dispute the criminal history calculations in the PSI Report. The defendant also raised this first allegation in the context of his second ground for relief, and there is no need to address this allegation again. See supra Part III.C.1. Thus, the discussion below will focus on the defendant's claim that his trial counsel failed to investigate his criminal history in order to dispute the calculations contained in the PSI Report.
In support of his claim, the defendant attached several exhibits to his motion for relief. These exhibits consist of partial court files from his previous convictions in Pennsylvania. According to the defendant, these records reveal that his criminal history was overstated in the PSI Report. Thus, the defendant contends that his trial counsel was deficient in failing to obtain these records before his sentencing in order to dispute the calculations. After reviewing these records and the applicable sentencing guidelines, I find that the defendant's fourth claim for relief must fail.
In his declaration, the defendant first challenges paragraph thirty-seven of the PSI Report. Declaration ¶ 15. This paragraph assessed three criminal history points against the defendant, based on his sentence of forty-three days to twenty-three months imprisonment, pursuant to § 4A1.1(a) of the sentencing guidelines, which adds three points for each prior sentence of imprisonment exceeding one year and one month. See U.S. Sentencing Guidelines Manual § 4A1.1(a) (1997) [hereinafter Guidelines]. According to the defendant, the court file reveals that he was "resentence[d] to 12 months parole" in this case and that his "prior sentence of imprisonment" therefore did not exceed one year and one month as found in the PSI Report. Declaration ¶ 15. I disagree.
According to the guidelines, "[t]he term `sentence of imprisonment' means a sentence of incarceration and refers to the maximum sentence imposed." Guidelines § 4A1.2(b)(1). The notes explain that "[t]o qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence." Guidelines § 4A1.2, commentary at 2. Furthermore, "criminal history points are based on the sentence pronounced, not the length of time actually served." Id. Thus, provided the defendant has actually served a portion of the sentence imposed, "the length of a sentence of imprisonment is the stated maximum." Id.
A review of the defendant's attachments reveals that he was "granted" supervised parole on the day he was sentenced. See Defendant's Ex. B:3. Prior to his sentencing, he apparently served thirty-two days in prison, which was credited as time served on his sentence of forty-three days to twenty-three months. See Declaration ¶ 15. The defendant subsequently violated his parole and served at least thirty additional days before he was re-paroled "for the balance of his maximum sentence." See Defendant's Exs. B:4, B:5. Thus, it appears to me that the sentence of forty-three days to twenty-three months, imposed on August 15, 1989, qualifies as a "sentence of imprisonment" as defined above, in that the defendant "actually served a period of time of imprisonment on such sentence." See Guidelines § 4A1.2, commentary at 2. The length of this sentence of imprisonment, as explained above, is the stated maximum of twenty-three months. See id. Paragraph thirty-seven of the PSI Report is therefore correct in assessing three criminal history points based on § 4A1.1(a). Accordingly, the defendant's allegations relating to paragraph thirty-seven of the PSI Report do not support his ineffective-assistance-of-counsel claim.
The defendant next challenges paragraph forty of the PSI Report. Declaration ¶ 16. Paragraph forty assessed three criminal history points against the defendant pursuant to § 4A1.1(a), based on his sentence of one month to twenty-three months imprisonment. The records supplied by the defendant reveal that on the day he was sentenced, he was granted parole, effective immediately. See Defendant's Ex. C-1. Thus, the defendant contends, his "prior sentence of imprisonment" did not exceed one year and one month as found in the PSI Report. I disagree.
According to Exhibit C-2 attached to the defendant's motion for relief, the defendant, prior to his sentencing, served approximately twenty days in jail, which was credited to his sentence. See Defendant's Ex. C-2. It therefore appears to me that the defendant did, indeed, "actually serve a period of imprisonment" on his sentence of one month to twenty-three months. See Guidelines § 4A1.2, commentary at 2. Since the length of this sentence of imprisonment is deemed to be twenty-three months, the stated maximum, the PSI Report correctly assessed three criminal history points against the defendant pursuant to § 4A1.1(a). Thus, the defendant's allegations relating to paragraph forty of the PSI Report do not support his ineffective-assistance-of-counsel claim.
defendant then challenges paragraph forty-one of the PSI Report. Declaration ¶ 17. This paragraph assessed three criminal history points against the defendant, pursuant to § 4A1.1(a), based on the defendant's prior sentence of eight to twenty-three months imprisonment. The defendant was sentenced on March 4, 1991, and was "admitted to parole for the balance of his maximum sentence" on April 10, 1991. See Defendant's Exs. D-2, E. He was also credited for time served from July 31, 1990, to March 4, 1991. See Defendant's Ex. D-2. According to the defendant's own calculations, he served 216 days of his sentence. See Declaration ¶ 17. It therefore appears to me that the defendant "actually served a period of imprisonment" on his sentence of eight to twenty-three months. See Guidelines § 4A1.2, commentary at 2. Because the length of this sentence is deemed to be twenty-three months, the stated maximum, the PSI Report correctly assessed three criminal history points against him pursuant to § 4A1.1(a). Thus, the defendant's allegations related to paragraph forty-one of the PSI Report do not support his ineffective-assistance-of-counsel claim.
Finally, the defendant challenges paragraphs forty-two, forty-three, and forty-four of the PSI Report. Declaration ¶¶ 18-20. Paragraphs forty-two and forty-three assessed one criminal history point each against the defendant, pursuant to § 4A1.1(c), based on the defendant's prior sentences of ten years probation. Paragraph forty-four assessed three criminal history points against the defendant, pursuant to § 4A1.1(a), based on the defendant's prior sentence of eleven and one-half to twenty-three months imprisonment.
Section 4A1.1(c) adds one point for each prior sentence not counted in (a) or (b), up to a total of four points. Section 4A1.1(a), as noted above, adds three points for each prior sentence of imprisonment exceeding one year and one month, and § 4A1.1(b) adds two points for each prior sentence of imprisonment of at least sixty days not counted in (a). Guidelines § 4A1.1.
It is difficult to discern the defendant's arguments as to these three paragraphs. According to the defendant, he was tried in a single trial for the offenses charged in case numbers 1058-93, 1059-93, 1060-93, 1061-93, 1062-93, 1063-93, 1064-93, and 1065-93. Declaration ¶ 18. He admits that on September 22, 1994, he was sentenced "to no less than 11 1/2 months to no more than 23 months on case # 1060-93 and sentence[d] to 10 years probation on each of case nos. 1061-93, 1062-93, 1063-93, 1064-93, and 1065-93 and order [sic] to be served consecutive to each other." Id. I therefore do not see the basis for his challenge to paragraphs forty-two and forty-three. With respect to paragraph forty-four, however, the defendant's records appear to be incomplete. After reviewing these records, I was unable to determine conclusively whether the defendant served any of the eleven and one-half to twenty-three months sentence imposed in case number 1060-93, the basis for paragraph forty-four. Nevertheless, even if the paragraph forty-four improperly assessed three points and the defendant's trial counsel was deficient in failing to investigate the defendant's criminal history to detect this error, the defendant has suffered no prejudice, as required by the second prong of the Strickland analysis outlined above. After subtracting three points from the defendant's criminal history computation, the defendant would have a total of fifteen criminal history points. According to the Sentencing Table found at Part A of Chapter 5, thirteen or more criminal history points results in a criminal history category of VI, the category in which the defendant was ultimately sentenced. Thus, even if paragraph forty-four was improperly calculated, this error does not support his ineffective-assistance-of- counsel claim.
Even if paragraphs forty-two and forty-three improperly assessed a total of two points pursuant to § 4A1.1(c) and the defendant's trial counsel was deficient in failing to investigate the defendant's criminal history, the defendant has suffered no prejudice. See Strickland, 466 U.S. at 687 (requiring the defendant alleging ineffective assistance of counsel to show both deficient performance and prejudice). Section 4A1.1(c) adds one point for each prior sentence not counted in (a) or (b), up to a total of four points. According to the PSI Report, the defendant's prior convictions resulted in six points pursuant to § 4A1.1(c), but only four of these points were counted in accordance with the restriction referred to above. Thus, if the two points assessed in paragraphs forty-two and forty-three were excluded from the calculation of the defendant's criminal history, his total points for § 4A1.1(c) would remain at four.
After reviewing the substantive law underlying the defendant's ineffective-assistance-of-counsel claim based on his trial counsel's failure to investigate his criminal history, I find that the defendant's evidence does not support his allegations. Accordingly, for the reasons outlined above, the defendant's fourth ground for relief will be summarily dismissed.
IT IS ORDERED that with respect to the defendant's Motion to Vacate[,] Set Aside[,] or Correct Sentence Pursuant to 28 U.S.C. § 2255, filing 54:
1. the defendant is granted leave to amend his first ground for relief in order to demonstrate cause and prejudice for his apparent procedural default; the defendant's amended motion must be filed by December 4, 2000;
2. the defendant's second ground for relief is dismissed;
3. the defendant's third ground for relief is dismissed; and
4. the defendant's fourth ground for relief is dismissed.