USA. v. Mikalajunas, 98-4002

• Decision Date: 09 April 1999
• Docket Number: CR-89-314-JFM,No. 98-4031,No. 98-4002,No. 98-4003,98-4002,98-4003,98-4031
• Citation: 186 F.3d 490
• Parties: (4th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. MICHAEL J. MIKALAJUNAS, Defendant-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CRAIG E. LARGENT, Defendant-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL J. MIKALAJUNAS, Defendant-Appellant. () Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 490

186 F.3d 490 (4th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. MICHAEL J. MIKALAJUNAS, Defendant-Appellee.

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CRAIG E. LARGENT, Defendant-Appellee.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL J. MIKALAJUNAS, Defendant-Appellant.

No. 98-4002 No. 98-4003 No. 98-4031 (CR-89-314-JFM)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: April 9, 1999

Decided: July 21, 1999

Appeals from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Chief District Judge.

COUNSEL ARGUED: Joseph Lee Evans, Assistant United States Attorney, Baltimore, Maryland, for Appellant. Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, P.A., Baltimore, Maryland, for Appellee Mikalajunas; Brian Joseph Murphy, Baltimore, Maryland, for Appellee Largent. ON BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for Appellant.

Before MURNAGHAN, WILKINS, and NIEMEYER, Circuit Judges.

Reversed by published opinion. Judge Wilkins wrote the majority opinion, in which Judge Niemeyer joined. Judge Murnaghan wrote a dissenting opinion.

OPINION

WILKINS, Circuit Judge:

The United States appeals a decision of the district court granting relief to Michael J. Mikalajunas and Craig E. Largent (collectively, "Appellees") pursuant to 28 U.S.C.A. § 2255 (West Supp. 1999) in the form of reductions in their sentences for second-degree murder, see 18 U.S.C.A. § 1111(a) (West Supp. 1999). Mikalajunas cross appeals, arguing that the district court erred in failing to find that he was deprived of the effective assistance of counsel due to counsel's failure to object at sentencing to the enhancement of his offense level for physical restraint of the victim. See U. S. Sentencing Guidelines Manual § 3A1.3 (1989). We hold that the district court correctly determined that Mikalajunas' counsel was not constitutionally ineffective, but that the district court incorrectly granted § 2255 relief. Accordingly, we reverse.

I.

Appellees pled guilty to the second-degree murder of Christopher Weathers pursuant to plea agreements that stipulated to a base offense level of 33 for each. Largent's plea agreement also stipulated that an enhancement for physical restraint of the victim was appropriate under U.S.S.G. § 3A1.3. At sentencing, the district court enhanced Appellees' offense levels by two levels for restraint of the victim in addition to making other adjustments. The court sentenced Mikalajunas and Largent, respectively, to 262 and 180 months imprisonment. Neither Mikalajunas nor Largent pursued an appeal.¹

Mikalajunas' brother, who is not a party to this appeal, pled guilty to being an accessory after the fact to the second-degree murder of Weathers. At sentencing, he challenged the applicability of a proposed upward adjustment to his offense level for restraint of the victim and later appealed the decision of the district court to enhance his offense level pursuant to § 3A1.3. This court agreed that the enhancement was improperly applied, reasoning that "[a]n upward adjustment for restraint is to be made in the context of an act which adds to the basic crime" and that because "[e]very murder involves the ultimate restraint," the restraint of Weathers did not add anything to his murder. See United States v. Mikalajunas, 936 F.2d 153, 156 (4th Cir. 1991).

In April 1997, Mikalajunas and Largent filed motions pursuant to 28 U.S.C.A. § 2255, claiming that they had been deprived of their Sixth Amendment right to the effective assistance of counsel because, inter alia, counsel had failed to preserve an allegation of error with respect to, and to appeal, the application of the§ 3A1.3 enhancement. The district court concluded that counsel were not ineffective for failing to appeal the issue but reduced Appellees' sentences, ruling that failure to correct the erroneous application of the restraint of victim enhancement would constitute a miscarriage of justice. Accordingly, the district court reduced Mikalajunas' sentence to 210 months imprisonment and Largent's sentence to 168 months imprisonment.

II.

The Government maintains that because Appellees did not appeal the enhancement of their offense levels under § 3A1.3, they have procedurally defaulted their claim and relief on that basis is inappropriate. In order to collaterally attack a conviction or sentence based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Frady, 456 U.S. 152, 16768 (1982); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994). The existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel. See Murray v. Carrier, 477 U.S. 478, 488 (1986). And, in order to demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, a movant must show actual innocence by clear and convincing evidence. See id. at 496.

Acknowledging their failure to appeal the enhancement of their offense levels for restraint of the victim, Appellees contend that they can establish cause to excuse their procedural default based on either ineffective assistance of counsel or a change in the law. Alternatively, they contend that they are actually innocent of the enhancement. We disagree with all of these assertions.

To establish cause for their default based upon ineffective assistance of counsel, Appellees must show that their attorneys' performance fell below an objective standard of reasonableness and that they suffered prejudice as a result. See Murray , 477 U.S. at 488; Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's failure to pursue a basis for appeal by reason of a mere miscalculation of the likelihood of success does not constitute constitutionally ineffective representation. See Smith v. Murray, 477 U.S. 527, 534-35 (1986). Here, counsel's decision not to challenge Appellees'§ 3A1.3 enhancements for restraint of the victim--a decision made prior to our decision in Mikalajunas holding such an enhancement to be improper--at worst amounted to a miscalculation of the likelihood of success of such a challenge. Prior to Mikalajunas there was no controlling authority dictating a conclusion that an enhancement for restraint of the victim was appropriate only when the restraint "adds to the basic crime" and that because "murder involves the ultimate restraint," no restraint of victim enhancement is appropriate for murder. Mikalajunas, 936 F.2d at 156. Indeed, neither the plain language of the guideline provision at issue nor decisional law suggested that such an argument had any chance of proving meritorious. See Smith, 477 U.S. at 535 (recognizing "that `the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default'" (quoting Murray, 477 U.S. at 486-87)). Therefore, Appellees have failed to demonstrate ineffective assistance of counsel as cause for their procedural default.²

Further, Appellees cannot demonstrate cause based on an argument that a change in the law--the intervening decision of this court in Mikalajunas--excuses their default. In order to justify the failure to raise an issue during trial and direct appeal based on a subsequent change in the law, the state of the law must have been such that the legal basis for the claim was not reasonably available when the matter should have been raised. See Turner v. Jabe, 58 F.3d 924, 927-28 (4th Cir. 1995). There is no ground for an argument that the question decided in Mikalajunas (whether the enhancement for restraint of victim applies when the underlying offense of conviction is murder) could not have been raised at sentencing or on direct appeal. In fact, this is exactly what another member of Appellees' criminal undertaking did.

With Appellees having failed to demonstrate cause and prejudice to excuse their failure to appeal the applicability of the restraint of victim enhancement, the question remains whether they can show actual innocence to excuse their procedural default. See Sawyer v. Whitley, 505 U.S. 333, 339 (1992) (explaining that even when habeas petitioner cannot excuse procedural default by demonstrating cause and prejudice, court may review merits of claim if petitioner can show actual innocence). Typically, to establish actual innocence a petitioner must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent. See id. at 339-41. Although recognizing that the concept of actual innocence does not lend itself easily to sentencing determinations, the Supreme Court has held that a petitioner may establish actual innocence in the capital sentencing context by demonstrating by clear and convincing evidence that but for an alleged error committed during his sentencing"no reasonable juror would have found him eligible for the death penalty under" applicable law. Id. at 350. The Court has not addressed whether the actual innocence exception can be applied to sentencing outside the capital context, and this question has divided the courts of appeals. Compare Embrey v. Hershberger, 131 F.3d 739, 740-41 (8th Cir. 1997) (en banc) (holding that actual innocence exception "applies only to the sentencing phase of death cases"), cert. denied, 119 S. Ct. 78 (1998), and United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) (ruling that "[a]...