Howard v. U.S.

Citation374 F.3d 1068
Decision Date25 June 2004
Docket NumberNo. 03-11919.,03-11919.
PartiesRonnie Maurice HOWARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Appeal from the United States District Court for the Southern District of Alabama.

Before CARNES and WILSON, Circuit Judges, and HANCOCK*, District Judge.

CARNES, Circuit Judge:

Ronnie Maurice Howard appeals from the denial of his 28 U.S.C. § 2255 motion as time-barred. The district court concluded that the Supreme Court's ruling in Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), did not recognize a "new" right and therefore did not restart the running of the one-year period of limitation under § 2255 ¶ 6(3). The district court's conclusion is not an unreasonable one, but we are obligated to exercise de novo review, Castro v. United States, 290 F.3d 1270, 1272 (11th Cir.2002), and doing so we reach the opposite conclusion.

We believe that Shelton did recognize a new right which is retroactively applicable on collateral review, thereby bringing his case within the rewind provision of § 2255 ¶ 6(3). As a result, Howard's motion was timely filed. We also believe that he procedurally defaulted his claim by not raising it at his sentencing proceeding where the error occurred, but the government procedurally defaulted Howard's procedural default by failing to raise this affirmative defense in the district court. The bottom line is that we will reverse and remand.


On March 25, 1997, Howard was convicted of Assault 3rd degree in the Municipal Court of Selma, Alabama. On May 6, 1997, in an unrelated proceeding, he was convicted of the unauthorized use of a motor vehicle in the state district court of Autauga County, Alabama. In neither proceeding was Howard represented by counsel. Each conviction resulted in a suspended sentence and probation.

In 1998, Howard pleaded guilty in federal court to bank robbery in violation of 18 U.S.C. § 2113(a) and (d), and to use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). At sentencing, the court calculated Howard's base offense level to be 20. The court then assessed one criminal history point for the assault conviction and one for the unauthorized use of a vehicle conviction. It added two more because Howard was on probation at the time of the bank robbery. Those four points raised Howard's criminal history category from I to III, which increased the sentencing range for his bank robbery conviction from 33-41 months to 41-51 months. U.S.S.G. Ch. 5 Pt. A (Nov.1997) (sentencing table). The court sentenced Howard to 41 months for that conviction. The four points had no effect on the sentence for his firearm conviction, which was statutorily set at 60 months. The sentences were made to run consecutively. The sentence proceeding was on May 19, 1998, and the judgment became final June 15, 1999.

On November 6, 2002, more than a year after final judgment but within a year of the Supreme Court's May 20, 2002 Shelton decision, Howard filed in the district court what he styled as a 28 U.S.C. § 2241 federal habeas petition. The district court correctly construed the petition as a motion to vacate pursuant to § 2255. See Medberry v. Crosby, 351 F.3d 1049, 1056-59 (11th Cir.2003) (explaining the relationship between § 2241 and § 2255). Relying on Shelton, Howard claimed that the sentencing court had violated his Sixth Amendment right to counsel by considering the two uncounseled state court convictions in calculating his criminal history category. Believing that Shelton did not recognize a new right, the district court denied Howard's motion as time-barred. It did grant him a certificate of appealability which, coupled with a notice of appeal, brought the case to us.


When the district court sentenced Howard for his robbery and firearm convictions Howard failed to object to the court's counting his uncounseled state court convictions as part of his criminal history. He acknowledges that but says it should not matter because the issue is one that cannot be procedurally defaulted. The use of an uncounseled conviction is, Howard contends, a jurisdictional defect.

We have noted that a jurisdictional defect cannot be waived or procedurally defaulted and that a defendant need not show cause and prejudice to justify his failure to raise one. McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir.2001). Relying on language from Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and its progeny, Howard contends that, in the words of the Supreme Court, the " `failure to appoint counsel for an indigent [is] a unique constitutional defect ... ris[ing] to the level of a jurisdictional defect.'" Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 404, 121 S.Ct. 1567, 1574, 149 L.Ed.2d 608 (2001) (quoting Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732, 1738, 128 L.Ed.2d 517 (1994)). He maintains that because his sentencing was tainted by a defect that rose to the level of a jurisdictional defect, he can bring up that defect for the first time in this collateral proceeding. The legal premise for Howard's position is based upon language wrenched from its context in the Lackawanna and Custis opinions.

Lackawanna held that because of its special status a Gideon-type defect in a prior conviction may be raised collaterally in a sentence proceeding where that prior conviction is offered as a basis for enhancement. 532 U.S. at 404-05, 121 S.Ct. at 1574. But the Supreme Court did not decide in Lackawanna or any other case that procedural defenses do not apply to claims of Gideon-type errors. Just the opposite. The Court said in Lackawanna that: "As with any § 2254 petition, the petitioner must satisfy the procedural prerequisites for relief including ... exhaustion of remedies." Id. at 404, 121 S.Ct. at 1574.

Compliance with contemporaneous objection rules is a procedural prerequisite for relief on Gideon-related grounds in a § 2255 proceeding, just as it is in a § 2254 proceeding. That much is clear from the Supreme Court's opinion in Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001). There the Court said:

A defendant may challenge a prior conviction as the product of a Gideon violation in a § 2255 motion, but generally only if he raised that claim at his federal sentencing proceeding. See United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (holding that procedural default rules developed in the habeas corpus context apply in § 2255 cases); see also Reed v. Farley, 512 U.S. 339, 354-55, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994).

Id. at 382-83, 121 S.Ct. at 1583-84. The use of the qualifier "generally" in the quoted passage recognizes the possibility of an exception where "a habeas petition directed at the enhanced sentence may effectively be the first and only forum available for review of the prior conviction." Lackawanna, 532 U.S. at 406, 121 S.Ct. at 1575. That is not the situation in the vast majority of cases, like this one, where the defendant could have raised the claim about the prior conviction in the sentencing proceeding in which that conviction was used against him.

It is true that Supreme Court decisions from the time of Gideon to the present day have reflected "a theme that failure to appoint counsel for an indigent defendant was a unique constitutional defect." Custis, 511 U.S. at 496, 114 S.Ct. at 1738. That theme has been manifested in a willingness to allow the defect to be raised collaterally in a sentence proceeding in which the conviction in question is being offered for use. It has not, however, been manifested in a willingness to disregard applicable procedural defenses, one of which arises from the failure to raise the claim in the sentence proceeding.

It is true that the language of jurisdiction was used in some early opinions to describe this type of error and claim. See id. (citing Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024-25, 82 L.Ed. 1461 (1938)). But the Supreme Court dealt with and minimized the significance of that language in Custis. There the Court explained that at the time that jurisdiction language was first used, "the underlying habeas statute was construed to allow collateral attacks on final judgments of conviction only where the rendering court lacked `jurisdiction' — albeit a somewhat expansive notion of `jurisdiction.'" Id. at 494, 114 S.Ct. at 1737 (citing Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923)). Saying that a Gideon error was "jurisdictional" meant no more than that habeas relief could be granted based upon it. See id.

As the construction of the habeas statute changed, the need to phrase entitlement to relief in terms of jurisdiction ended. A modern day petitioner cannot rely on outdated language about Gideon errors rising to the level of jurisdictional defects in order to get past procedural defenses, because the Supreme Court has stated in two modern decisions — Daniels and Lackawanna, both decided in 2001 — that procedural defenses do apply to Gideon-based claims.

This does not mean that there are no exceptions to procedural bar defenses. There are. "A habeas petitioner can escape the procedural default doctrine either through showing cause for the default and prejudice, or establishing a fundamental miscarriage of justice." Bailey v. Nagle, 172 F.3d 1299, 1306 (11th Cir.1999) (internal quotation marks and citations omitted). In order to show the type of "miscarriage of justice" that will excuse a procedural bar, a petitioner must make "a colorable showing of actual innocence." Id. Howard has not attempted to do that. We don't need to address prejudice,...

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