Cofske v. U.S.

• Decision Date: 13 May 2002
• Docket Number: No. 00-2479.,00-2479.
• Citation: 290 F.3d 437
• Parties: Randall J. COFSKE, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 437

290 F.3d 437

Randall J. COFSKE, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 00-2479.

United States Court of Appeals, First Circuit.

Heard April 2, 2002.

Decided May 13, 2002.

Robert J. Bray for petitioner.

Randall J. Cofske on Motion for Emergency Hearing pro se.

Donald L. Cabell, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for respondent.

Before BOUDIN, Chief Judge, BOWNES, Senior Circuit Judge, and LIPEZ, Circuit Judge.

BOUDIN, Chief Judge.

Randall Cofske appeals from the district court's denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. In substance, Cofske claims that his trial counsel and appellate counsel were ineffective in failing to object to the calculation of his sentence under the Sentencing Guidelines. Specifically, he argues that when he committed the federal offense for which he was being sentenced — possession of stolen firearms in violation of 18 U.S.C. § 922(j) (1994) — he did not have the "prior conviction" that was used to increase his base offense level ("BOL") under U.S.S.G. § 2K2.1 (a)(4) (1995).

Cofske committed the federal offense in 1992, but we start with the earlier state offense that lies at the heart of his present appeal. On October 20, 1989, Cofske was charged in the Ware District Court in Massachusetts with breaking and entering in the daytime with the intent to commit a felony. Under the two-tier trial system then used by Massachusetts, Cofske waived his right to a jury trial and instead elected a bench trial in the Ware District Court (the first tier).¹ On August 17, 1990, the judge found Cofske guilty of the charge and sentenced him to 60 days in prison. Cofske then appealed, seeking a trial de novo (the second tier) before a jury of six; under Massachusetts law this appeal vacated the initial conviction. Wilson v. Honeywell, Inc., 409 Mass. 803, 569 N.E.2d 1011, 1015 (1991). He was convicted again by a jury in the Northampton District Court on January 23, 1993.

After Cofske's conviction and appeal in Ware, but before his conviction in Northampton, Cofske committed the federal firearms offense. On or about October 27, 1992, Cofske and two other men broke into a Salem, Virginia, residence and stole about ten handguns. Using Cofske's car, they then transported the guns to Massachusetts where they were later sold. The grand jury indicted Cofske on July 17, 1996, for possession of stolen firearms in violation of 18 U.S.C. § 922(j) and for transportation of stolen firearms in violation of 18 U.S.C. § 922(i).

On March 3, 1997, pursuant to a written plea agreement, Cofske pleaded guilty to the charge of possession of stolen firearms. As part of that agreement the prosecution dismissed the transportation-of-stolen-weapons charge and agreed to recommend a single three-level specific offense adjustment (based on the number of firearms involved) offset by a three-level reduction for acceptance of responsibility; Cofske in turn agreed (among other things) to take the position at sentencing that his base offense level should be set at 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(a), which mandated a BOL of 20 for firearms possession if "the defendant had one prior felony conviction of either a crime of violence or a controlled substance offense."²

The original presentence report ("PSR") listed Cofske's BOL as 12, concluding that he had no such prior conviction. After the government objected, the probation officer amended the PSR to include the Massachusetts breaking and entering conviction already described and increased his BOL to 20. Cofske's attorney urged in turn that the breaking and entering charge did not become a conviction until January 23, 1993 (at the second tier), which was after the federal offense, and therefore could not be counted as a prior conviction under U.S.S.G. § 2K2.1. The probation officer responded that the 1990 first tier conviction was the relevant prior conviction, and the PSR left the BOL at 20.

Cofske was sentenced on July 15, 1997. At sentencing, Cofske's attorney abandoned the argument that Cofske did not have a prior conviction and stated that the revised PSR "took up acknowledgment of the government's objection which was quite correct and part of my error at the time. It starts out with a base level of 20 pursuant to 2K2.1(a)(4)." The district court then adopted the calculations of the revised PSR, which included the breaking and entering conviction in both Cofske's criminal history category ("CHC") calculation under section 4A1.1, and his BOL under section 2K2.1.

The court determined that Cofske's BOL was 20, his adjusted offense level was 24,³ and his CHC was V; the applicable guideline sentence range was 92 to 115 months. After denying Cofske's motion for a downward departure, the district court sentenced Cofske to 92 months in prison. Cofske appealed — not raising the issue he raises here — and this court affirmed both his conviction and sentence. United States v. Cofske, 157 F.3d 1 (1st Cir.1998), cert. denied, 526 U.S. 1059, 119 S.Ct. 1374, 143 L.Ed.2d 533 (1999).

Cofske then filed a motion under 28 U.S.C. § 2255 asserting that, at the time of his federal firearms offense, he had not been convicted of the breaking and entering offense because his 1990 first-tier conviction in the Ware District Court had been nullified by his appeal seeking a second-tier de novo jury trial. He further argued that this conviction was impermissibly used to enhance his BOL and CHC, and that his trial counsel and appellate counsel were ineffective for failing to object to its inclusion in his sentence computation.

On May 18, 2000, the district court denied Cofske's motion. The court found that the 1990 first-tier conviction was the relevant conviction for purposes of section 2K2.1(a)(4)(A) and that there was no error in the calculation of Cofske's sentence; it determined that Cofske was therefore not prejudiced by his counsel's actions, as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and found it unnecessary to evaluate the reasonableness of Cofske's attorney's decision not to object to the BOL calculation. The district court later denied Cofske's requests for reconsideration of the decision.

On February 8, 2001, Cofske applied for a certificate of appealability, 28 U.S.C. § 2253(c)(1), solely to urge that his trial and appellate counsel were ineffective in allowing his first-tier conviction to increase his BOL. On April 20, 2001, the district court denied his application, reaffirming its May 18, 2000, finding and also holding (in the alternative) that the breaking and entering conviction counted as a "prior conviction" even if the correct date of conviction were deemed January 1993. Cofske v. United States, 143 F.Supp.2d 85 (D.Mass. 2001).

On November 26, 2001, this court granted Cofske's certificate of appealability and directed the parties to address the following two questions:

1. Under the Massachusetts two-tier trial court system in effect at the time of Cofske's conviction, what is the force and effect of a district court conviction once the defendant has appealed to a trial de novo?

2. Does the reference to a "prior felony conviction" in section 2K2.1(a)(4)(A) include post-offense convictions?

We also granted Cofske's request for expedited briefing, because on his calculation, his proper sentence had already expired.

Although the language of 28 U.S.C. § 2255 is quite general, the Supreme Court has restricted collateral attack for claims that do not allege constitutional or jurisdictional errors; such claims are said to be cognizable only where the alleged error presents "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Thus, a guideline violation alone is not automatically a basis for relief under 28 U.S.C. § 2255. Knight v. United States, 37 F.3d 769, 772-73 (1st Cir.1994).

However, if the claim is repackaged as one of ineffective assistance of counsel, as Cofske's is here, it becomes a constitutional claim. Not every error amounts to ineffectiveness. See Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993). An ineffective assistance of counsel claim will succeed only if the defendant — who bears the burden on both points, Scarpa v. DuBois, 38 F.3d 1, 8-9 (1st Cir.1994) — shows (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for the error or errors, the outcome would likely have been different, Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Since the absence of any error in sentencing would eliminate any prejudice, and therefore Cofske's ineffectiveness claim, it is useful to begin by considering the correctness of the BOL calculation. At the time of Cofske's sentencing in July 1997, U.S.S.G. § 2K2.1(a)(4)(A) stated that a defendant's BOL for the firearms conviction should be set at 20 if the defendant "had one prior felony conviction of either a crime of violence or a controlled substance offense[.]" However, neither the guideline language nor the commentary answered the question, "prior to what?"

Certainly the guideline would be satisfied if the "prior conviction" occurred before the federal crime itself was committed. But on this reading, we would have to count the Ware District Court conviction as a prior conviction, even though it had been vacated as a result of Cofske's filing an appeal for a second tier trial, months before Cofske committed the federal offense.

Whether such a vacated conviction still "counts" for guideline purposes is a matter of federal rather than state law. See United States v. Mateo, 271 F.3d 11, 15 (1st Cir.2001). Looking only at guideline language, one could argue the matter both...