UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 97-20638
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN DAVID BOYD,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-88-CR-14-3)
_________________________________________________________________
July 21, 1998
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Appellant Boyd was sentenced to 240 months imprisonment
for counts of conspiring to manufacture and manufacturing
methamphetamine, to be followed by an additional five years for
carrying a firearm during and in relation to a narcotics
trafficking offense. In this § 2255 motion, he challenges the
constitutional effectiveness of his counsel, who made a sentencing
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
error. The district court found no basis for relief, and neither
do we.
This court granted Boyd a COA to brief the issue whether
his counsel was ineffective because he failed to note that one of
the convictions underlying Boyd’s criminal history score had
occurred while he was a minor and therefore was to be excluded
pursuant to USSG § 4A1.2. The district court found, and the
government concedes, that this error was made, and that if it had
not occurred, Boyd would have been entitled to nine rather than ten
criminal history points. Based on the lower criminal history
score, his guideline range would have been 210-262 months, rather
than the 235-293 month range utilized by the district court.
The rub for Boyd is that the 240-month sentence actually
assessed is well within both guidelines. To establish
constitutionally ineffective counsel on sentencing, however, a
petitioner must show “a reasonable probability that but for trial
counsel’s errors his non-capital sentence would have been
significantly less harsh.” United States v. Segleer, 37 F.3d 1131,
1136 (5th Cir. 1994) (citing Spriggs v. Collins, 993 F.2d 85, 88
(5th Cir. 1993)). The district court concluded that Boyd had not
met the burden of this test, and we agree. Boyd has submitted
excerpts from the transcript of his sentencing that, at best,
indicate some ambivalence on the judge’s part toward the 240-month
sentence. Those excerpts can also fairly be read, however, to be
a means of inquiring of defense counsel whether any error had been
made of the calculations, rather than regret that those
2
calculations led to an unduly high sentence. Boyd has not met his
burden of proof, and the sentence he received is not significantly
more harsh than the alternative under the other guidelines range.
For these reasons, the judgment of the district court is
AFFIRMED.1
1
We do not consider the other issue raised by Boyd, as this
court’s COA did not permit him to proceed on it.
3
POLITZ, Chief Judge, dissenting:
Persuaded that Willie Russell invoked his right to appointed
counsel under 21 U.S.C. § 848(q)(4)(B), I must respectfully
dissent.
I cannot agree with the majority’s assessment that counsel
artfully crafted their language so as to avoid actually requesting
the appointment of counsel for Russell. The pleadings do not
reveal any such manipulation but, rather, demonstrate that Russell
was requesting the appointment of counsel under section 848. The
motion filed in the district court was entitled “Motion for Stay
of Execution,” but counsel stated that they were transmitting
Russell’s state court pleadings, and they did so. In those
pleadings, Russell unequivocally requests the appointment of
counsel through his handwritten, pro se correspondence and
accompanying motion for appointment of counsel. Russell’s intent
to secure section 848 counsel is further demonstrated by his reply,
entitled “Reply in Support of Motion for Stay of Execution and
Appointment of Counsel,” wherein he notes that nineteen exhausted
challenges are available for federal review and, thus, appointment
of counsel is permissible under section 848(q).
The district court, when denying a stay of execution,
considered the appointment of counsel under section 848, but found
that Russell was represented by direct appeal counsel and the two
additional attorneys who filed the motion for stay. Accordingly,
the court deemed McFarland v. Scott2 inapplicable, and found that
2
512 U.S. 849 (1994).
the lack of a habeas corpus petition deprived it of jurisdiction to
issue a stay. I view these findings as error.
Under 28 U.S.C. § 2251, a “judge of the Unites States before
whom a habeas corpus proceeding is pending, may, before final
judgment or after final judgment of discharge, or pending appeal,
stay any proceeding against the person detained in any State court
or by or under the authority of any State for any matter involved
in the habeas corpus proceeding.” In McFarland v. Scott the
Supreme Court held that once a capital defendant invokes his right
to appointed counsel under 21 U.S.C. § 848(q)(4)(B), a federal
court has jurisdiction under section 2251 to enter a stay of
execution. Contrary to the district court’s finding, the lack of
a federal habeas petition is inconsequential because the request
for appointment of counsel constitutes a “habeas corpus proceeding”
for purposes of section 2251.3 This view is totally consistent
with the purpose of section 848 in providing defendants under a
death sentence with a variety of expert and investigative services
and counsel for the preparation of a federal habeas petition.4
Although McFarland involved a pro se petitioner, the holding
thereof is not restricted to those instances because a petitioner
may be unrepresented for purposes of section 848(q), and for
pursuing habeas relief, even though counsel may have made
appearances on the petitioner’s behalf. As the Court so cogently
noted in McFarland, “requiring an indigent capital petitioner to
3
Id.
4
Id.
5
proceed without counsel in order to obtain counsel thus would
expose him to the substantial risk that his habeas claims never
would be heard on the merits.”5 Unlike other states, Mississippi
does not provide publicly financed counsel for post-conviction
collateral attacks and, therefore, there is no assurance that a
petitioner will be represented by qualified counsel.6 Section
848(q) on the other hand, requires counsel appointed to represent
capital defendants in post-conviction proceedings to meet stringent
experience criteria.7 Accordingly, even if Russell’s counsel on
direct appeal and the two attorneys who sought a stay of execution
on his behalf were deemed to be currently representing Russell, a
proposition I do not accept,8 a stay for the determination that
Russell receives the section 848 qualified counsel to which he is
entitled would be warranted.
In light of the foregoing, I would reverse and remand for
further proceedings.
5
Id. at 856.
6
See Miss. Code § 99-39-23, § 99-15-15; Harris v. State, 704
So.2d 1286, 1292 (Miss. 1997).
7
21 U.S.C. § 848(q)(5)-(9).
8
Finding that Russell’s direct appeal counsel continues to
represent him extends the state appointment to post-conviction
proceedings in contravention with Mississippi’s post-conviction
scheme, and is contrary to counsels’ intent as demonstrated by
their lack of further involvement with the case. Further, by
bootstrapping the two additional attorneys who filed the motion for
stay into habeas representation on the eve of execution, despite
their express declarations and requests against such, is grossly
inequitable and, unfortunately, is likely to discourage such
admirable efforts to obtain counsel for death row inmates.
6