U.S. v. Cox

Decision Date03 May 1996
Docket NumberNo. 95-1108,95-1108
Citation83 F.3d 336
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard Bruce COX, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the District of Colorado; Zita L. Weinshienk, Judge (D.C. Nos. 94-Z-2765 and 88-CR-270).

Henry L. Solano, United States Attorney, John M. Hutchins, Assistant United States Attorney, Mountain States Drug Task Force, Denver, Colorado, for Plaintiff-Appellee.

Richard Bruce Cox, pro se.

Before BRORBY and BARRETT, Circuit Judges, and BRIMMER, * District Judge.

BRORBY, Circuit Judge.

Defendant appeals from the district court's denial of his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. In denying relief, the district court determined that all issues either were raised and ruled on at trial or on direct appeal or that defendant failed to demonstrate cause for failing to raise the issues at trial or on direct appeal. On appeal, defendant argues that the district court erred in denying § 2255 relief because (1) his sentence was invalid since prior convictions used to enhance his sentence were subsequently vacated, set aside, expunged, or dismissed; (2) his trial counsel was ineffective for failing to investigate, interview and call witnesses and present a defense of duress and coercion; (3) he presented a valid double jeopardy claim; (4) counsel's cumulative errors denied him the right to a fair and impartial trial in violation of his due process rights; and (5) his sentence was improperly enhanced under U.S.S.G. § 3B1.1(a). Also, defendant argues, based on recent Supreme Court authority, Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), that his firearm conviction pursuant to 18 U.S.C. § 924(c)(1) was improper because he did not actively use firearms. Reviewing the district court's legal rulings de novo and its findings of fact under a clearly erroneous standard, United States v. Kissick, 69 F.3d 1048, 1051(10th Cir.1995), we remand to the district court to reopen defendant's sentence for further proceedings and affirm in all other respects. 1

First, defendant argues that since his direct criminal appeal, United States v. Cox, 934 F.2d 1114 (10th Cir.1991), he has successfully attacked several prior convictions used to calculate his criminal history category and therefore the district court should have granted § 2255 relief and resentenced him without using these prior convictions. Defendant provides evidence that (1) a Douglas County, Colorado conviction for attempting to possess cocaine, increasing his criminal history score by three points, was dismissed with prejudice; (2) a Boulder County, Colorado misdemeanor menacing conviction, increasing his criminal history score by one point, was expunged; (3) an Eagle County, Colorado deferred judgment for unlawful use of a controlled substance, increasing his criminal history score by one point, was dismissed, sealed and expunged; and (4) a Santa Cruz County, California conviction for transporting and selling controlled substances, increasing his criminal history score by two points, was expunged. Defendant maintains that resentencing without the prior convictions would result in a lower criminal history category than the one under which he was sentenced. 2

We conclude the district court should have reopened defendant's sentence. If a defendant successfully attacks state sentences, he may then apply for reopening of any federal sentence enhanced by the state sentences. Custis v. United States, --- U.S. ----, ----, 114 S.Ct. 1732, 1739, 128 L.Ed.2d 517 (1994)(enhancement under 18 U.S.C. § 924(e); dicta); see also United States v. Nichols, 30 F.3d 35, 36 (5th Cir.1994)(government conceded in light of Custis that defendant was entitled to bring § 2255 action attacking enhanced federal sentence after having state conviction invalidated and should get benefit of subsequent overturning of previous state conviction); United States v. Payne, 894 F.Supp. 534, 539-40 (D.Mass.1995). This court has recognized the availability of sentence review upon the invalidation of a predicate offense. See United States v. Garcia, 42 F.3d 573, 581-82 (10th Cir.1994); United States v. Allen, 24 F.3d 1180, 1187 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 493, 130 L.Ed.2d 404 (1994).

Although defendant's sentence was correct at the time of sentencing, subsequent events suggest that a different sentence now may be appropriate. Because there may be a change in defendant's criminal history category after his sentencing and direct appeal, the district court should have reopened defendant's sentence.

In reopening defendant's sentence, the district court must determine the basis for the expungement or dismissal of the prior offenses and whether they may be included in calculating defendant's criminal history score. 3 Under the Guidelines, an expunged conviction may not be included in a defendant's criminal history calculation. U.S.S.G. § 4A1.2(j). Convictions reversed or vacated for reasons related to constitutional invalidity, innocence, or errors of law are expunged for purposes of the Guidelines and therefore cannot be included in criminal history calculations. U.S.S.G. § 4A1.2(j), Commentary, Application note 6; see United States v. Ashburn 0 F.3d 1336, 1343 (5th Cir.), reinstated in relevant part on reh'g en banc, 38 F.3d 803 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1969, 131 L.Ed.2d 858 (1995). When convictions are set aside for reasons other than innocence or errors of law, such as to restore civil rights or remove the stigma of a criminal conviction, those convictions are counted for criminal history purposes. U.S.S.G. § 4A1.2, Commentary, Application note 10. Since expunged convictions are not counted in calculating criminal history, the district court must determine whether defendant's state convictions were expunged or treated as expunged under state law. See United States v. Johnson, 941 F.2d 1102, 1111 (10th Cir.1991); see also United States v. Wacker, 72 F.3d 1453, 1479 (10th Cir.1995)(noting distinction under Guidelines for convictions that are set aside and those that are expunged).

Just as the Supreme Court expressed "no opinion on the appropriate disposition of ... an application" to reopen, Custis, --- U.S. at ----, 114 S.Ct. at 1739, we also express no opinion on an appropriate sentence after reopening. After giving proper credit for any expunged convictions, it is still within the discretion of the district court to impose a sentence reflecting the seriousness of defendant's past criminal conduct. See U.S.S.G. § 4A1.3 (permitting upward departure when criminal history "does not adequately reflect the seriousness of [ ] past criminal conduct"); Garcia, 42 F.3d at 578; see also United States v. Jackson, 921 F.2d 985, 991 (10th Cir.1990)("A district court has considerable discretion in appraising a defendant's criminal history."); U.S.S.G. § 4A1.2(j) (although sentences for expunged convictions are not counted when calculating criminal history, they may be considered under § 4A1.3); U.S.S.G. § 4A1.2, Commentary, Application note 6 (criminal conduct not counted in criminal history score may be considered pursuant to § 4A1.3).

We reject plaintiff's argument that this court's affirmance of defendant's criminal history category on direct appeal precludes the use of § 2255 to correct defendant's sentence. With the exception of the California conviction, defendant alleged on direct appeal that the offenses should not be counted for reasons other than expungement. See Cox, 934 F.2d at 1123-25. This court's affirmance of the sentence on direct appeal does not preclude later use of § 2255 to reopen and correct a sentence based in part upon invalid state convictions. Custis does not foreclose reopening a sentence that has been affirmed on direct criminal appeal. See also Nichols v. United States, --- U.S. ----, ----, 114 S.Ct. 1921, 1937, 128 L.Ed.2d 745 (1994)(Ginsberg, J., dissenting) (Custis presented forum question of where, not whether, defendant could attack prior conviction for constitutional infirmity). Likewise, this court's ruling on direct appeal that because defendant's evidence indicated the California conviction was not expunged until after sentencing it was a prior conviction, Cox, 934 F.2d at 1124, is not inconsistent with Custis ' indication that a defendant may later move to reopen his sentence.

Defendant further argues that his attorney was ineffective for failing to investigate the validity of his prior convictions at the time of sentencing. Although defendant raised an ineffective assistance of counsel claim on direct appeal, he is not barred from asserting ineffective assistance based on a different ground in a first § 2255 petition. 4 See United States v. Galloway, 56 F.3d 1239, 1242-43 (10th Cir.1995). We review claims of ineffective assistance of counsel de novo. Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 936, 133 L.Ed.2d 862 (1996). In assessing an ineffective assistance of counsel claim, we consider "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To prove this, defendant must show both that counsel's performance was deficient and that this deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. at 2064.

Defendant has failed to show that counsel's performance was deficient. At sentencing, counsel argued that any offenses that effectively had been set aside should not be used to calculate defendant's criminal history category. Even if counsel did not thoroughly investigate defendant's prior convictions, he did not render ineffective assistance because the prior convictions...

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