U.S. v. Day, 00-56525.

• Decision Date: 10 April 2002
• Docket Number: No. 00-56525.,00-56525.
• Citation: 285 F.3d 1167
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wayne Alfred DAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1167

285 F.3d 1167

UNITED STATES of America, Plaintiff-Appellee, v. Wayne Alfred DAY, Defendant-Appellant.

No. 00-56525.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2001.

Filed April 10, 2002.

William S. Pitman, Beverly Hills, CA, for the defendant-appellant.

Michael Terrell, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; George H. King, District Judge, Presiding. D.C. Nos. CV 99-10779-GHK, CR 96-460-GHK.

Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.

GOODWIN, Circuit Judge.

Wayne Day appeals the judgment denying his motion to vacate, set aside or correct sentence, filed pursuant to 28 U.S.C. § 2255. He contends that he was denied effective assistance of counsel. We have jurisdiction under 28 U.S.C. § 2253 and we reverse and remand for re-sentencing.

FACTUAL AND PROCEDURAL BACKGROUND

The charges against Day arose from two drug sales that he and his co-defendant made to a confidential informant. In the first transaction, Day sold powder cocaine and, in the second transaction, Day sold cocaine base ("crack" cocaine).

Day was indicted on three counts: (1) conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1); (2) distribution of a mixture containing approximately 238.3 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1); and (3) distribution of a mixture containing approximately 250.8 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1).

Prior to trial, the government made a plea offer to Day. In exchange for Day's guilty plea, the government offered to recommend to the court that Day's base offense level be 34 and that he receive a three-point reduction for acceptance of responsibility. This recommendation would have put Day at level 31, with a sentencing range of 108 to 135 months because his criminal history category was I. Under the proposed plea agreement, both sides reserved the right to seek additional guideline adjustments. Day's counsel at the time, Kirt J. Hopson, advised Day about aspects of the plea agreement and the likely consequences of accepting the agreement as compared to going to trial. Hopson told Day that his best chance of getting a reduced sentence was by establishing that the government had engaged in sentencing entrapment. Hopson mistakenly told Day that he would be allowed to make this argument only if Day went to trial, whereas our cases hold that Day also could have made this argument after a guilty plea. See, e.g. United States v. Naranjo, 52 F.3d 245, 249-50 (9th Cir. 1995).

Day testified at his trial. He asserted that the confidential informant had tried to convince Day to sell crack cocaine to the informant on numerous occasions, but that Day had repeatedly told him that he did not sell crack cocaine.

Despite the informant's testimony to the contrary, and despite Day's voice recorded by a hidden tape recorder and his photograph, which had been taken by surveillance cameras during the crack cocaine sale, Day denied any involvement in the sale of crack cocaine to the informant. He denied that his voice had been recorded on the audiotape and said that he could not tell whether he was the person in the photographs.

A jury convicted Day of all counts. Throughout trial, Day had been represented by the counsel who had told him he had to stand trial to claim sentencing entrapment. Prior to sentencing, Day substituted in new counsel. At sentencing, the court began computing Day's base offense level at 34. The court added a two-level increase for a leadership role and, based solely on Day's trial testimony, which the court found to be perjured, a two-level increase for obstruction of justice. The court did not grant Day any reduction for acceptance of responsibility. Day's sentence was therefore based on a total offense level of 38. Day's criminal history category was I, which provides for a sentencing range of 235 to 293 months. The court sentenced Day to 235 months in prison and five years of supervised release. Day's conviction and sentence were affirmed on appeal.

DISCUSSION

We review de novo the denial of a federal prisoner's 28 U.S.C. § 2255 motion. United States v. Chacon-Palomares, 208 F.3d 1157, 1158 (9th Cir.2000). Whether a defendant's ineffective assistance of counsel claim has merit is determined by the teaching of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A convicted defendant seeking to overturn his conviction or sentence on the basis that he was denied effective assistance of counsel must establish (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. See id. at 687, 104 S.Ct. 2052.

The district court, in denying Day's motion, stated that it did not need to reach the first prong of the Strickland test because Day could not show prejudice. This appeal challenges that reasoning. Prejudice "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. More specifically, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. The Strickland Court was careful to state that it was not announcing a mechanical rule, and that "the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696, 104 S.Ct. 2052.

In Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), the Court elaborated on the fundamental fairness concern that it had expressed in Strickland. In Lockhart, the defendant's attorney failed to make an objection under then-existing Eighth Circuit precedent at defendant's capital sentencing hearing. The defendant was sentenced to death, and then filed a habeas petition in which he claimed ineffective assistance of counsel. By the time the defendant filed his habeas petition, however, the Eighth Circuit had overturned the case on which the objection would have relied. The Supreme Court held that the defendant could not show that he was prejudiced by his counsel's failure to object, because the precedent was no longer good law, and his counsel's error did not deprive the defendant of a right to which he was entitled. Lockhart, 506 U.S. at 369-71, 113 S.Ct. 838.

The Lockhart Court reasoned that "an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him." Lockhart, 506 U.S. at 369-70, 113 S.Ct. 838 (footnote omitted). The Lockhart Court opined that the Strickland prejudice test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id. at 372, 113 S.Ct. 838 (citations omitted). In her concurring opinion, Justice O'Connor pointed out that:

today's decision will, in the vast majority of cases, have no effect on the prejudice inquiry under Strickland v. Washington. The determinative question — whether there is `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different' — remains unchanged. This case, however, concerns the unusual circumstance where the defendant attempts to demonstrate prejudice based on considerations that, as a matter of law, ought not inform the inquiry.

Id. at 373, 113 S.Ct. 838 (O'Connor, J., concurring) (citations omitted).

The Supreme Court recently clarified the relationship between Strickland and Lockhart. In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Court held that the principles and rules announced in Strickland apply to those cases in which "the ineffectiveness of counsel does deprive the defendant of a substantive or procedural right to which the law entitles him." Williams, 529 U.S. at 393, 120 S.Ct. 1495. But, the Court acknowledged, there are certain cases in which the ineffectiveness of counsel does not deprive the defendant of a right to which the law entitles him, and in these cases, the prejudice component of Strickland is not satisfied. The prejudice component of the Strickland test, the Williams Court explained, is based on the concern that ineffective counsel may render the outcome of a judicial proceeding unreliable or unfair. "[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding .... In every case the court should be concerned with whether ... the result of the particular proceeding is unreliable." Strickland, 466 U.S. at 696, 104 S.Ct. 2052. Rather than modifying or supplanting the rule of Strickland, cases such as Lockhart have simply clarified that Strickland's concern about reliability and fairness is not raised when the defendant was not deprived of a right to which the law entitled him. See Williams, 529 U.S. at 391-93, 120 S.Ct. 1495.

I. The two-point enhancement for obstruction of justice

Day claims he was prejudiced because, after trial, the judge increased Day's offense level by two points for obstruction of justice under U.S.S.G. § 3C1.1, on the basis of the judge's belief that Day committed perjury when he testified that he was not involved in the crack cocaine sale....