Martin v. U.S.

• Decision Date: 04 December 1996
• Docket Number: No. 95-2033,95-2033
• Citation: 109 F.3d 1177
• Parties: Humberto MARTIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1177

109 F.3d 1177

Humberto MARTIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 95-2033.

United States Court of Appeals Seventh Circuit.

Argued Nov. 14, 1996.

Decided Dec. 4, 1996. ^*

Petition for Rehearing and

Rehearing En Banc March 19, 1997.

Edward X. Clinton, Jr. (argued), Katten, Muchin & Zavis, Chicago, IL, for Petitioner-Appellant.

Barry Rand Elden, Chief of Appeals, Haywood E. McDuffie (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Respondent-Appellee.

Before COFFEY, EASTERBROOK, and MANION, Circuit Judges.

PER CURIAM.

This is Humberto Martin's third visit to this court. Four years ago, we affirmed his conviction for cocaine offenses. 964 F.2d 714 (7th Cir.1992). Two years ago, Martin filed in the district court a document that he styled a request for production of documents under the Jencks Act, 18 U.S.C. § 3500. The district court denied this and we affirmed in an unpublished order, remarking that the disposition of this irregular request was without prejudice to whatever relief might be available under 28 U.S.C. § 2255. Taking the hint, Martin filed such a petition, which the district court denied on the ground that the contentions have been forfeited by their omission from the direct appeal, are not cognizable under § 2255, or both.

With the aid of appointed counsel, Martin now presents three principal arguments (more properly, groups of arguments, but we needn't try to distinguish more finely). His double jeopardy argument has been authoritatively resolved against him. United States v. Ursery, --- U.S. ----, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). His argument under the Jencks Act is not properly presented. Both Martin and his appointed lawyer appear to believe that the Jencks Act is based on the Constitution, but it is not. United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); Jones v. DeRobertis, 766 F.2d 270 (7th Cir.1985). Martin also invokes Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), but this record does not offer any reason to believe that the interview notes in question contain exculpatory evidence. Current counsel's critique of the way trial counsel phrased his requests for evidence is unavailing; it is not possible to show ineffective assistance without prejudice, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the lack of any support for the underlying claim makes that showing impossible.

What remain are a variety of objections to the calculation of the sentence. We held in Scott v. United States, 997 F.2d 340 (7th Cir.1993), that arguments based on the Sentencing Guidelines must be raised on direct appeal or not at all. (The exception for a fundamental miscarriage of justice is not activated by this case.) Martin tries to avoid Scott by arguing that his lawyer's failure to pursue sentencing issues on appeal was ineffective assistance of counsel. Yet in Durrive v. United States, 4 F.3d 548 (7th Cir.1993), we held that, to satisfy the "prejudice" component of Strickland, a person who complains about his sentence must demonstrate that counsel's deficient performance led to a "significant" increase in the sentence.

Although we recognized in Durrive that any extra time in prison is significant from the defendant's perspective, we adopted a rule of proportionality: the sort of increase produced by a few levels' difference in sentencing calculations cannot be raised indirectly on collateral attack by complaining about counsel's work. A few levels is exactly what Martin wants us to examine. Actually, his complaint is about a single criminal-history level (equivalent to two offense levels). Such an argument is barred by Scott when presented directly, and by Durrive when presented as an attack on counsel's performance. Martin asks us to disregard Durrive because the prosecutor did not cite it, but a court is not restricted to the cases the parties discuss. Elder v. Holloway, 510 U.S. 510, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994).

AFFIRMED.

ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC

March 19, 1997.

Humberto Martin filed a petition for rehearing and suggestion of rehearing en banc on December 18, 1996. All members of the panel voted to deny the petition for rehearing. A judge in active service called for a vote on the suggestion of rehearing en banc, but a majority of the active judges voted to reject the suggestion. The petition for rehearing is denied, and the suggestion of rehearing en banc is rejected.

ILANA DIAMOND ROVNER, Circuit Judge, with whom RIPPLE and DIANE P. WOOD, Circuit Judges, join, dissenting from the denial of rehearing en banc.

Humberto Martin alleges that his appellate counsel was ineffective in failing to challenge a sentencing error that resulted in a sixteen-month increase in his sentence. In its opinion, the panel declined to consider whether error indeed did occur in application of the Sentencing Guidelines, as Martin argues. It found instead that Durrive v. United States, 4 F.3d 548 (7th Cir.1993), foreclosed collateral review of this claim, because the increase in Martin's sentence was not "significant" enough to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Today the full court regrettably declines to reexamine the holding in Durrive. I joined the opinion in Durrive, but upon reflection I have come to believe that we were mistaken in concluding that an increase in a prison term resulting from an unchallenged sentencing error does not constitute "prejudice" for purposes of the Strickland analysis unless the increase strikes us as "significant." Although Durrive's holding purports to follow from the Supreme Court's decision in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), and the Fifth Circuit's opinion in Spriggs v. Collins, 993 F.2d 85 (5th Cir.1993) (per curiam), the court in fact has both misconstrued Lockhart and failed to recognize the express limitations that the Fifth Circuit placed on the "significance" test we borrowed from Spriggs. The rule we adopted in Durrive is thus one wholly of our own making, and I do not believe it can withstand close scrutiny. When it is clear that an error has been made in applying the Sentencing Guidelines, and when it is clear that the error would have been corrected on direct review had the petitioner enjoyed effective advocacy, we are bound to recognize a violation of the defendant's Sixth Amendment right to counsel, notwithstanding our own view as to the "significance" of the additional prison time occasioned by the error. I do not see, in any event, how we can distinguish in any meaningful way increases in prison terms that are "significant" from those that are not. I must therefore dissent from the decision not to rehear this case en banc.

1.

In 1990, Martin was convicted of conspiring to distribute cocaine, and his term of imprisonment was determined using the Sentencing Guidelines. In the presentence report, the probation officer concluded that Martin should be assigned a criminal history category of III, and the parties lodged no objection to that recommendation. Had the court employed that criminal history category, the resulting guidelines sentencing range would have been 97 to 121 months. At sentencing, however, the district court sua sponte assigned Martin a criminal history category of IV, which boosted the sentencing range to 121 to 137 months. The district court ordered Martin to serve the maximum sentence within that range (137 months), a term sixteen months longer than the high end of the range that a criminal history category of III would have produced.

Martin appealed directly to this court and we affirmed his conviction. United States v. Martin, 964 F.2d 714 (7th Cir.1992). As our opinion in that appeal reflects, no contention of error was raised as to the propriety of his sentence. And because our opinion in Scott v. United States, 997 F.2d 340 (7th Cir.1993), holds that a sentence resulting from an erroneous application of the Sentencing Guidelines is not a sentence "imposed in violation of the ... laws of the United States" (28 U.S.C. § 2255), collateral review of the error (if error there was) is foreclosed.

Having lost the sole opportunity to present his claim of sentencing error, Martin filed a section 2255 petition asserting that his appellate attorney was constitutionally ineffective for failing to raise the error on direct review. Any reasonable attorney would have argued this point on appeal, Martin posited, and the omission resulted in obvious and concrete prejudice: a sentence sixteen months longer than it would have been had the Sentencing Guidelines been applied correctly. Unfortunately for Martin, however, that claim ran headlong into our opinion in Durrive.

We held in Durrive that even when it is clear that an attorney's unreasonable mistake or omission has resulted in an erroneous sentence, the difference in outcome is insufficient to establish prejudice under the Strickland analysis; only if it is likely that the defendant's sentence would have been " 'significantly less harsh' " can there be a viable claim of ineffectiveness. 4 F.3d at 550 (quoting Spriggs v. Collins, 993 F.2d at 88) (emphasis in Spriggs). The springboard for that conclusion was Lockhart v. Fretwell, in which the Supreme Court observed:

[A]n analysis focussing 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.

506 U.S. at 369-70, 113 S.Ct. at 842-43 (footnote omitted) (quoted in Durrive, 4 F.3d at 551). We construed Lockhart to mean that an...