U.S. v. Maybeck

• Citation: 23 F.3d 888
• Decision Date: 06 May 1994
• Docket Number: No. 92-6449,92-6449
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas John MAYBECK, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 888

23 F.3d 888

UNITED STATES of America, Plaintiff-Appellee, v. Thomas John MAYBECK, Defendant-Appellant.

No. 92-6449.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1993.

Decided May 6, 1994.

ARGUED: John Jacob Hoeffner, Supervising Atty., Appellate Litigation Clinical Program, Georgetown University Law Center, Washington, DC, for appellant. Robert James Conrad, Jr., Asst. U.S. Atty., Charlotte, NC, for appellee. ON BRIEF: Steven H. Goldblatt, Thomas D. Bunton, Student Counsel, Mark A. Racanelli, Student Counsel, Appellate Litigation Clinical Program, Georgetown University Law Center, Washington, DC, for appellant. Thomas John Maybeck, appellant pro se. Jerry W. Miller, U.S. Atty., Charlotte, NC, for appellee.

Before ERVIN, Chief Judge, MICHAEL, Circuit Judge, and SPROUSE, Senior Circuit Judge.

Reversed and remanded for resentencing by published opinion. Senior Judge SPROUSE wrote the opinion, in which Chief Judge ERVIN and Judge MICHAEL joined.

OPINION

SPROUSE, Senior Circuit Judge:

Thomas Maybeck pled guilty to two counts of bank robbery and one count of unlawful possession of a firearm in violation of federal law. After he had filed a plea agreement but before he had been sentenced, Maybeck, during a presentencing interview, mischaracterized a previous New York state burglary conviction as one involving violence. The probation officer, including that conviction as one of two predicate felonies, calculated that Maybeck was a career offender, and the district court sentenced him on that basis without objection from either Maybeck or his counsel. After sentencing, however, Maybeck filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Sec. 2255. The district court dismissed the motion, finding that Maybeck had failed to show cause for his procedural default, as required under United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982).

Maybeck appeals. He contends that the Frady rule ¹ does not apply to a collateral attack on a sentence imposed after a guilty plea. We disagree but hold that although such an appeal is governed by the Frady rule, the appeal is also subject to the "actual innocence" exception to the "cause and prejudice" requirement of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Frady. Since the record conclusively shows that Maybeck was actually innocent of one of the predicate requirements for classification as a career offender, we reverse and remand with instructions.

I

On October 3, 1989, Thomas Maybeck was charged in two separate indictments in the United States District Court for the Western District of North Carolina with several bank robbery offenses stemming from his robberies of a savings and loan in Charlotte, North Carolina, on two different occasions. In January 1990, Maybeck and the government entered into a plea agreement in which Maybeck pled guilty to two counts of bank robbery in violation of 18 U.S.C. Sec. 2113(a) and one count of unlawful possession of a firearm in violation of 18 U.S.C. Sec. 922(g), in exchange for the government's dismissal of the other counts in the indictments. The parties stipulated that under the Sentencing Guidelines, ² the combined offense level for these crimes was 30. The plea agreement also stated that Maybeck was to be sentenced as a career offender, that the applicable criminal history category was VI, and that the parties would waive the Presentence Report. Criminal history worksheets, which were attached to the plea agreement and which assumed career offender status without explanation, apparently provided the basis for the stipulation that Maybeck was a career offender.

After the plea agreement had been filed, probation officer David Waddell met with Maybeck and asked him if his record, as indicated on the pretrial services report, was complete. Maybeck said, evidently for the first time, that besides the convictions listed on the report, ³ he had also been convicted of an armed burglary in 1973. As it turned out, Maybeck's description of this 1973 crime as an armed burglary was erroneous. He was actually convicted under the laws of New York of attempted third degree burglary of a drug store. ⁴ Nevertheless, incorporating the mischaracterized 1973 armed burglary conviction into the worksheet, Waddell calculated Maybeck's criminal history category and determined that Maybeck had 10 criminal history points, which would place him in criminal history category V. Because Maybeck was designated a career offender, however, he was placed in criminal history category VI, U.S.S.G. Sec. 4B1.1, and his sentence was calculated accordingly.

At the sentencing hearing on February 1, 1990, the district court determined that Maybeck had entered his guilty plea knowingly and voluntarily and accepted the plea agreement. Based upon an offense level of 30 and a criminal history category of VI, the district court determined that the applicable Guideline range was 168-210 months and imposed a sentence of 198 months. Maybeck did not object to his sentence at the sentencing hearing or appeal his sentence. ⁵

Later, however, Maybeck filed a Sec. 2255 motion to vacate, set aside, or correct his sentence on the grounds that he had been improperly sentenced as a career offender and that he had not knowingly and voluntarily entered his guilty plea. The district court ordered a hearing and appointed counsel to represent Maybeck. After the hearing, the magistrate recommended that Maybeck's Sec. 2255 motion be granted and that his convictions, as well as the dismissals of the other charges, be vacated.

On February 24, 1992, the district court declined to accept the magistrate's recommendation and dismissed Maybeck's motion. The court found that Maybeck's failure to raise his claim that he was sentenced incorrectly as a career offender at his sentencing hearing was a procedural default, and his failure to raise the issue by direct appeal constituted a second procedural default. It ruled that he failed to show cause for these defaults under the rule of United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982). ⁶ Maybeck appeals, and we review the district court's conclusions of law de novo. United States v. Williams, 977 F.2d 866, 869 (4th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993).

II

In order to proceed on a Sec. 2255 motion "based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Frady, 456 U.S. at 167-68, 102 S.Ct. at 1594. The government contends that Maybeck has failed to show cause or prejudice for his procedural default. Maybeck, however, urges us to follow the approach of the Second Circuit in United States v. Corsentino, 685 F.2d 48, 51 (2d Cir.1982), in which the court reasoned that the circumstances surrounding unappealed guilty pleas are totally different from those presented in Frady. The Second Circuit granted the defendant's motion to have his sentence vacated following a guilty plea without imposing the Frady requirements. Although we have not previously ruled on this issue, we now hold that the Frady cause and prejudice standard applies to cases like Maybeck's: collateral challenges to unappealed guilty pleas. The Third Circuit, considering a similar case in United States v. Essig, 10 F.3d 968, 979 (3d Cir.1993), reasoned:

If defendants could routinely raise, in a Sec. 2255 collateral proceeding, errors in sentencing not raised on direct appeal which the sentencing court had not had an opportunity to correct, Congress's intent of encouraging direct appellate review of sentences under the Sentencing Guidelines would be frustrated. Moreover, the Federal Rules of Criminal Procedure now plainly set out the procedure that must be used for challenges to presentencing reports and sentencing procedures.

See also Reid v. United States, 976 F.2d 446, 447-48 (8th Cir.1992), cert. denied, --- U.S ----, 113 S.Ct. 1351, 122 L.Ed.2d 732 (1993); Bateman v. United States, 875 F.2d 1304, 1307 (7th Cir.1989); Williams v. United States, 805 F.2d 1301, 1306-07 (7th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1978, 95 L.Ed.2d 818 (1987). Agreeing that this reasoning applies to attacks on sentences following guilty pleas, we find that the Frady cause and prejudice standard applies here.

There is no question, however, that on the record we review, Maybeck is actually innocent of being a career offender as defined in Sec. 4B1.1 of the Guidelines:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

(Emphasis added). Maybeck has only one prior felony conviction that was a crime of violence, ⁷ and he has none that were controlled substance offenses. ⁸

In a different context, the United States Supreme Court has recognized that it is an unacceptable deviation from our fundamental system of justice to automatically prevent the assertion of actual innocence simply because a defendant has not observed procedural avenues available to him. In Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575-76, 71 L.Ed.2d 783 (1982), the Supreme Court said that since the concepts of cause and prejudice are not rigid, but "take their meaning from ... principles of comity and finality...., [i]n appropriate cases those principles must yield to the imperative of correcting a fundamentally unjust incarceration.... [W]e are confident that victims of a fundamental miscarriage of justice will meet the...