United States v. Mayhew

• Decision Date: 19 April 2021
• Docket Number: No. 19-6560,19-6560
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. David Christopher MAYHEW, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

995 F.3d 171

UNITED STATES of America, Plaintiff – Appellee,

v.David Christopher MAYHEW, Defendant – Appellant.

No. 19-6560

United States Court of Appeals, Fourth Circuit.

Argued: January 29, 2021

Decided: April 19, 2021

ARGUED: Caitlin Augerson, Katharine Batchelor, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. David A. Bragdon, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: John J. Korzen, Director, Ryan C. Dibilio, Third-Year Law Student, Timothy Misner, Third-Year Law Student, Appellate Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Evan M. Rikhye, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before DIAZ, FLOYD, and HARRIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Diaz and Judge Floyd joined.

PAMELA HARRIS, Circuit Judge:

A jury convicted David Christopher Mayhew of fraud charges stemming from an investment scam, and Mayhew was sentenced to over 26 years’ imprisonment. He filed a § 2255 petition seeking to vacate his conviction and sentence, asserting that his Sixth Amendment rights were violated when his trial counsel provided ineffective assistance. The district court dismissed the petition without a hearing, and Mayhew appealed.

We granted a certificate of appealability on two of Mayhew's claims. In the first, Mayhew alleged that his lawyer guaranteed him – incorrectly, as it turned out – that he would be sentenced only to two to five years’ imprisonment if he were convicted at trial, and that he relied on that guarantee when he rejected a plea offer from the government. The district court dismissed this claim, concluding that any prejudice caused by counsel's error necessarily would have been cured when the court at Mayhew's arraignment advised him of his actual sentencing exposure. We disagree: Because the court's corrective came after Mayhew already had rejected the plea offer, we cannot assume without more that it cured the prejudice Mayhew alleges. We therefore conclude that Mayhew is entitled to an evidentiary hearing on this claim.

Mayhew's second claim alleged that his counsel performed deficiently in connection with the amount of restitution he owed, failing to object to the inclusion of losses that stemmed from conduct for which he had not been convicted. The district court dismissed that claim on the ground that challenges to restitution orders may not be raised by way of § 2255. We agree with that holding. But Mayhew was not challenging only his restitution order; he also alleged that the same erroneous calculation affected his Guidelines sentencing range and hence his term of imprisonment. That claim is cognizable under § 2255, and we remand so that the district court may address it in the first instance.

I.

A.

In July of 2013, David Christopher Mayhew was charged with committing wire and mail fraud in violation of 18 U.S.C. §§ 1343 and 1341 ; engaging in unlawful monetary transactions in violation of 18 U.S.C. § 1957 ; and conspiring to commit these offenses in violation of 18 U.S.C. § 371. The charges stemmed from a fraudulent investment scheme that Mayhew allegedly operated with another individual. In July of 2014, a superseding indictment added several additional wire-fraud charges related to Mayhew's conduct both before and after his initial indictment.

Mayhew was not arraigned on this superseding indictment for nearly a year – in part, it appears, as a result of Mayhew's request for new counsel, which was granted by the district court. In the intervening period, the court dismissed the new wire-fraud charges from the superseding indictment on the government's motion. Finally, in June of 2015, Mayhew was arraigned on the superseding indictment, and pleaded not guilty.

Mayhew's jury trial began the next day. At the close of the government's case, Mayhew moved for acquittal on all counts. The court granted the motion in part, dismissing five wire-fraud counts. The jury then returned a guilty verdict on all remaining counts.

Mayhew was sentenced in January of 2016. At his sentencing hearing, the district court concluded, consistent with the probation officer's presentence report ("PSR"), that the total loss amount attributable to Mayhew was $2,026,000. This triggered a 16-level increase in Mayhew's total offense level, see U.S.S.G. § 2B1.1(b)(1)(I), and led to a Guidelines sentencing range of 108 to 135 months’ imprisonment. The district court then made upward adjustments to Mayhew's criminal history category and total offense level, to better reflect the seriousness of Mayhew's past criminal activity and offense conduct, resulting in a final Guidelines range of 262 to 327 months’ imprisonment.

The district court sentenced Mayhew to a total term of 320 months: 60 months on the conspiracy count; 240 months on the wire and mail fraud counts, to run concurrently with the conspiracy sentence; and 80 months on the unlawful monetary transaction counts, to run consecutively to the other sentences. The district court also sentenced Mayhew to three years of supervised release. Finally, the district court ordered Mayhew to pay $2,025,300 in restitution to multiple victims of the investment scam. According to Mayhew's PSR, this number was slightly lower than the $2,026,000 loss amount because one of Mayhew's victims had received $700 from the bank account of another victim.

This court affirmed Mayhew's convictions and sentence on appeal, see United States v. Mayhew , 715 F. App'x 232, 233 (4th Cir. 2017) (per curiam), and the Supreme Court denied certiorari, see Mayhew v. United States , ––– U.S. ––––, 138 S. Ct. 1314, 200 L.Ed.2d 493 (2018) (Mem.).

B.

In 2018, proceeding pro se – that is, without the assistance of counsel – Mayhew filed the 28 U.S.C. § 2255 petition that is the subject of this appeal. Mayhew's petition raised over a dozen claims, but only two are relevant here. First, Mayhew alleged that he was denied the effective assistance of counsel in violation of the Sixth Amendment when his counsel misadvised him about his sentencing exposure during the plea-bargaining process, causing him to turn down a favorable plea offer from the government. Second, Mayhew alleged that his counsel again performed ineffectively when he failed to object to the inclusion, in the loss-amount calculation underlying his restitution order, of amounts payable to three parties: United Global Investments, Inc., Frank McGrath, and James Perry Fergus. According to Mayhew, those amounts were tied to wire-fraud charges that were dismissed – on either the government's pre-trial motion or his own motion for acquittal – and thus not derived from conduct for which he was convicted.

The district court dismissed these two claims without an evidentiary hearing, along with the entirety of Mayhew's petition. See Mayhew v. United States , No. 5:13-cr-00199-BO-2, 2019 U.S. Dist. LEXIS 60509, at *5–6, *9, *11–12 (E.D.N.C. Apr. 3, 2019). It also denied a certificate of appealability as to all of Mayhew's claims. Id. at *11–12. When Mayhew timely appealed, our court granted a certificate of appealability on three questions arising out of the two claims noted above:

Whether defense counsel rendered ineffective assistance in advising Mayhew that, if he went to trial and was convicted, he would receive a sentence of between two and five years in prison;

Whether Mayhew's claim that defense counsel rendered ineffective assistance in failing to object to restitution sums to be paid to United Global Investments, Inc., Frank McGrath, and James Perry Fergus is cognizable under § 2255 ; and

If this claim is cognizable under § 2255, whether defense counsel rendered ineffective assistance in failing to object to restitution sums to be paid to United Global Investments, Inc., Frank McGrath, and James Perry Fergus.

United States v. Mayhew , No. 19-6560 (4th Cir. Jan. 23, 2020).

II.

We begin by setting out the legal framework that governs our review, and then turn to the two claims of ineffective assistance of counsel on which we granted a certificate of appealability.

On an appeal from the denial of a § 2255 petition, we review the district court's legal conclusions de novo. See United States v. Carthorne , 878 F.3d 458, 464 (4th Cir. 2017). When, as in this case, "the district court denies § 2255 relief without an evidentiary hearing, the nature of the court's ruling is akin to a ruling on a motion for summary judgment," and the facts must be viewed "in the light most favorable to the § 2255 movant." United States v. Poindexter , 492 F.3d 263, 267 (4th Cir. 2007).

Mayhew's Sixth Amendment ineffective assistance of counsel claims are governed by the well-established framework set out in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland , Mayhew must show first that counsel's performance was constitutionally deficient, id. at 687, 104 S.Ct. 2052, overcoming the "strong presumption that counsel's representation was within the wide range of reasonable professional assistance," Harrington v. Richter , 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (internal quotation marks omitted). And under Strickland ’s second prong, Mayhew must establish prejudice, in the form of a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

A district court must hold an evidentiary hearing on a petitioner's Strickland claim "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b) ; see United States v. Thomas , 627 F.3d 534, 539 (4th Cir....