U.S. v. Day

Decision Date13 July 1992
Docket NumberNo. 91-1938,91-1938
Citation969 F.2d 39
PartiesUNITED STATES of America v. William DAY, a/k/a William McNeil, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Cheryl J. Sturm (argued), West Chester, Pa., for appellant.

Michael M. Baylson, U.S. Atty., Joel M. Friedman, Asst. U.S. Atty., Chief, Organized Crime Strike Force, Ronald G. Cole (argued), Asst. U.S. Atty., Organized Crime Strike Force, Philadelphia, Pa., for appellee.

Before: BECKER, NYGAARD, and ROTH, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

William Day appeals from the dismissal of his pro se petition brought under 28 U.S.C. § 2255 (1988), in which he seeks to have his conviction and sentence set aside. Day's primary claim is that his trial counsel afforded him ineffective assistance of counsel regarding a plea offer by giving him substandard advice about his sentence exposure under the Sentencing Guidelines. More specifically, Day alleges that his counsel failed to explain his possible career offender status and told him that the maximum prison sentence that he could receive if he stood trial was eleven years, when in fact he is serving nearly twenty-two years and could have received a far greater sentence. Day contends that this deficient advice led him to decline a plea offer that would have resulted in a five-year sentence. He now seeks to plead guilty pursuant to the alleged plea bargain and to have that five-year sentence imposed instead of his current sentence.

The district court for the Eastern District of Pennsylvania denied Day's petition without holding a hearing or directing a response from the government. The court held that no prejudice can inure from a not-guilty plea, and that even if prejudice could result, there is no reliable way to reconstruct what would have happened had Day been properly counseled. The court also implied that Day's proposed remedy of specific performance would be inappropriate because the government has lost whatever benefit it would have gained from any plea bargain. Finally, the district court rejected Day's additional claims that (1) when sentencing him, the court failed to recognize its authority to depart from the Guideline range, and (2) under 21 U.S.C. § 851 (1988) the government was required to, but did not, provide him with advance notice that it would seek to enhance his sentence under the career offender provisions. Day's appeal from the district court's order dismissing his petition presents all these issues.

We hold that Day's petition raises a facially valid claim of ineffective assistance of counsel during plea bargaining. We have previously held that constitutionally significant prejudice can inhere from ineffective assistance at that stage, and Day's petition alleges both clearly deficient performance by counsel and sufficient prejudice. The district court therefore erred in not conducting a hearing on that claim, unless it can conclude on remand that there is no "reasonable probability" that it would have approved the alleged plea agreement. We also hold that the district court properly dismissed Day's other two claims without a hearing. The district court's order will therefore be affirmed in part and vacated in part, and the case remanded for further proceedings.

I. PROCEDURAL HISTORY

A jury convicted Day along with five codefendants of possession with intent to distribute and conspiracy to distribute a large quantity of cocaine, in violation of 21 U.S.C.A. §§ 841 and 846 (West, 1981 & 1992 Supp.). Day's Presentence Investigation Report calculated his offense level as 28 (a base level of 26, plus 2 because a handgun was present) and his criminal history category as IV (he had 8 points). Those scores would have created a sentence range of 110 to 137 months (9 years, 2 months to 11 years, 5 months). 1 Because Day had two previous convictions for violent felonies, however, the probation officer noted that Day might be considered a career offender under U.S.S.G. § 4B1.1, under which his offense level would be elevated to 34 (the statutory maximum for the offense was more than 25 years) and his criminal history category to VI. The district court concluded that Day was a career offender and sentenced him to 262 months (21 years, 10 months) in prison, at the bottom of the applicable range of 262 to 327 months. On direct appeal, we summarily affirmed. United States v. Day, 902 F.2d 1562 (3d Cir.1990).

Day, acting pro se, then filed a petition under 28 U.S.C. § 2255 to set aside his conviction and sentence. Day's petition raised two grounds for relief. First, he alleged that his trial counsel's failure to advise him of the impact of his prior convictions on his potential sentence deprived him of effective assistance of counsel when deciding whether to accept a plea offer. 2 Day also attacked his sentence on the ground that the district court mistakenly believed it lacked the authority to depart below the Guideline range, even though, in Day's view, his criminal history score grossly overrepresented the seriousness of his criminal history. Day later amended his petition to allege a third ground: that the government failed to notify him, as he argues is required by 21 U.S.C. § 851 (1988), that his sentence might be enhanced because he was a career offender.

Day subsequently retained counsel, who filed an entry of appearance and a motion for leave to amend the petition. Although the district court had taken no action and the government had not responded to Day's petition, the district court did not grant Day's motion for leave to amend. Instead, in a written opinion, the district court denied Day's petition outright without holding an evidentiary hearing. Day filed a timely appeal, over which we have jurisdiction under 28 U.S.C. §§ 2253 and 2255 (1988).

II. DISCUSSION
A. The District Court's Duty and Our Standard of Review

Section 2255 itself limits the discretion of a district court to summarily dismiss a petition brought under that section:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

28 U.S.C. § 2255 (emphasis added).

We have described the district court's duty, and our standard of review, as follows:

When a motion is made under 28 U.S.C. § 2255 the question of whether to order a hearing is committed to the sound discretion of the district court. In exercising that discretion the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.... Accordingly we review this matter to determine if the trial court abused its discretion in not ordering a hearing.

Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989) (citation omitted). See also Rule 4(b) of the Rules Governing Section 2255 Proceedings.

B. Ineffective Assistance of Counsel Regarding Sentence Exposure and Plea Bargaining

The principles governing ineffective assistance of counsel claims are familiar, and we need not belabor them here. A defendant has a Sixth Amendment right not just to counsel, but to "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To gain relief for a violation of this right, a defendant must show both unprofessional conduct and, in most cases, prejudice as a result. More precisely, the claimant must show that (1) his or her attorney's performance was, under all the circumstances, unreasonable under prevailing professional norms, see id. at 687-91, 104 S.Ct. at 2064-66, and, unless prejudice is presumed, that (2) there is a "reasonable probability that, but for counsel's unprofessional errors, the result would have been different," id. at 694, 104 S.Ct. at 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

1. Day's Allegations

Day's petition alleges that his trial counsel failed to explain that Day might be classified as a career offender and be subject to enhanced penalties under the Sentencing Guidelines. Day claims that had he been told of his true sentence exposure, he would have accepted the government's plea bargain offer and received a five-year sentence instead of the approximately twenty-two-year sentence that he now faces. We must construe the allegations in Day's pro se petition liberally, and we may not subject his petition to the standards that we would apply to pleadings drafted by lawyers. See, for example, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam). Moreover, at this stage of the proceedings, we must accept the factual allegations in Day's petition as true. Forte, 865 F.2d at 62.

Day was represented through trial and sentence, although not on appeal, by Nino Tinari. At critical times, Tinari's son Eugene Tinari also represented Day. According to Day's petition, several weeks before trial, Nino Tinari affirmatively misrepresented that Day faced a maximum sentence of eleven years in prison. On the day that his trial was to begin, Day alleges, Eugene Tinari informed him that the government had offered a five-year sentence as part of a plea bargain. Eugene Tinari, however, allegedly did not explain or discuss the merits of the offer, as opposed to standing trial. According to Day, Eugene Tinari did not discuss the (overwhelming) strength of the government's case, nor did Eugene Tinari mention sentence exposure, even after Day indicated that he was inclined to stand trial because Nino Tinari had stated that...

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