UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-30295
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID HAMPTON, also known as Eastwood,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
September 20, 1996
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
BACKGROUND
Following a guilty plea, David Hampton was convicted of
conspiracy to possess with intent to distribute crack cocaine and
of being a felon in possession of a firearm. A presentence report
(PSR) was prepared which calculated Hampton’s criminal history
level and relevant sentencing range based on several previous
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
convictions, including a juvenile adjudication. Hampton objected
to the PSR’s calculations. The district court overruled Hampton’s
objections before adopting the PSR’s factual findings. Hampton did
not file a direct appeal.
Instead, Hampton filed a 28 U.S.C. § 2255 motion alleging (1)
that unconstitutional disparity exists between his sentence for an
offense involving crack cocaine and sentences for offenses
involving powder cocaine, (2) that he was denied effective
assistance of counsel because his trial counsel failed to research
his criminal history and failed to object to the inclusion of
Hampton’s juvenile offense in the calculation of his sentencing
range, and (3) that the sentencing guidelines were improperly
applied to include his prior juvenile adjudication in his criminal-
history-category calculation. The district court denied the
motion, concluding that Hampton “failed to raise these claims on
direct appeal” and “failed to meet the heavy burden placed on
habeas petitioners to show cause and prejudice for issues not
raised on direct appeal.” Hampton timely appealed.
OPINION
On appeal, Hampton reiterates the same substantive arguments
supporting his underlying motion and submits the same brief without
citing any specific alleged error committed by the district court
in denying his motion. This Court applies two principles in trying
to make sense of an inarticulate pro se brief. First, the brief
must be liberally construed. The court holds the pro se litigant
to a lower standard of argument than that to which attorneys are
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held. Haines v. Kerner, 404 U.S. 519, 520 (1972). Second, the pro
se appellant must actually argue something that is susceptible to
liberal construction. Grant v. Cuellar, 59 F.3d 523, 524-25 (5th
Cir. 1995); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);
Fed. R. App. P. 28(a).
Grant and Yohey provide guidance on how to apply Haines.
Taken together, these three cases mean that, when a pro se
appellant tries inartfully to identify a legal error, this Court
analyzes the purported error with the same consideration due a
competently briefed argument made by an attorney. The pro se
appellant, however, must provide some semblance of an argument for
the court to consider. See Grant, 59 F.3d at 524. Accordingly, we
address the assertions in Hampton’s brief that can fairly be said
to be attempts at explaining that the district court erred in
handling the case. Given liberal construction, Hampton argues that
the district court erred in denying his § 2255 motion based on its
conclusion that he failed to show cause and prejudice for his
failure to raise on direct appeal his claims of unconstitutional
sentencing disparity, ineffective assistance of counsel, and
improper application of the sentencing guidelines.
In reviewing the denial of a § 2255 motion, this Court reviews
the district court’s findings of fact for clear error. Questions
of law are reviewed de novo. United States v. Gipson, 985 F.2d
212, 214 (5th Cir. 1993).
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Sentence Disparity
Generally, a movant cannot raise a constitutional or
jurisdictional issue for the first time in a § 2255 motion unless
he shows cause for his failure to raise it on direct appeal and
prejudice resulting from the asserted error, or that a miscarriage
of justice will occur if it is not considered. United States v.
Segler, 37 F.3d 1131, 1134 (5th Cir. 1994); United States v. Shaid,
937 F.2d 228, 232 (5th Cir. 1991) (en banc), cert. denied, 502 U.S.
1076 (1992). Constitutionally ineffective assistance of counsel,
in the form of failure to raise issues on appeal, can operate as
cause for procedural default. Murray v. Carrier, 477 U.S. 478,
488-92 (1986). A petitioner who fails to show cause and prejudice
may pursue his claims in a § 2255 motion if he can show that he was
actually innocent of the offense of conviction. Shaid, 937 F.2d at
232 n.7.
Hampton does not allege cause and prejudice for his failure to
raise the powder cocaine/crack disparity issue in a direct appeal.
Hampton does not allege that his counsel was ineffective for
failing to raise the disparity issue on direct appeal, nor does
Hampton allege that he was actually innocent of the crime of
conviction; therefore, these issues do not serve as basis for
“cause” for his failure to raise the disparity issue on direct
appeal.
Although Hampton asserted a violation of his right to due
process caused by the sentencing disparity, the district court
incorrectly viewed Hampton’s argument as only asserting non-
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constitutional application of the sentencing guidelines as to this
issue. However, the district court correctly assessed that Hampton
failed to show cause or prejudice for his failure to raise the
issue on direct appeal. We affirm the district court’s denial of
the § 2255 motion as it relates to the claim of unconstitutional
sentencing.
Ineffective Assistance of Counsel
The district court denied relief on the ineffective assistance
of counsel issue, concluding that Hampton failed to raise the issue
on direct appeal and failed to meet the burden of showing cause and
prejudice for his failure to raise the issue on direct appeal.
This conclusion is in error.
“[A] claim of ineffective assistance of counsel cannot be
resolved on direct appeal when the claim has not been raised before
the district court since no opportunity existed to develop the
record on the merits of the allegations.” United States v. Higdon,
832 F.2d 312, 313-14 (5th Cir. 1987), cert. denied, 484 U.S. 1075
(1988). Therefore, Hampton should be allowed to raise the
ineffective assistance of counsel issue in his § 2255 motion
without showing cause and prejudice for his failure to raise it on
direct appeal. See United States v. Smith, 844 F.2d 203, 206 (5th
Cir. 1988); United States v. Pierce, 959 F.2d 1297, 1301 (5th
Cir.), cert. denied, 506 U.S. 1007 (1992).
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The district court’s order of dismissal insofar as this
ineffective assistance of counsel claim is involved is vacated and
we remand that claim for further consideration.
Application of Sentencing Guidelines
In his § 2255 motion, Hampton also argued that his juvenile
conviction should not have been included in the calculation of his
criminal history category. The district court either failed to
address this argument or it consolidated this argument with
Hampton’s assertion of constitutional disparity, evidenced by its
conclusion that “[t]he petitioner alleges that his constitutional
rights protected under the 8th and 14th amendments were violated by
the application of the Sentencing Guidelines and the Presentence
Investigation Report....” The district court then denied relief
based on Hampton’s failure to raise the issue on direct appeal and
his failure to show cause and prejudice.
The district court’s disposition of this issue is without
error because Hampton’s challenge to the district court’s
application of the Guidelines is not cognizable in a § 2255 motion.
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). A
district court’s technical application of the Guidelines does not
give rise to a constitutional issue. Id. This non-constitutional
issue could have been raised on direct appeal, but was not, thus
precluding our consideration of the issue under § 2255. United
States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).
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The district court’s disposition of this sentencing guidelines
issue is affirmed.
AFFIRMED in part and VACATED and REMANDED in part.
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