UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7354
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMAR SERON RANDALL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00174-MOC-1; 3:13-cv-00154-MOC)
Submitted: January 21, 2014 Decided: April 2, 2014
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Vacated in part and remanded by unpublished per curiam opinion.
Jamar Seron Randall, Appellant Pro Se. William A. Brafford,
Jennifer Lynn Dillon, Melissa Louise Rikard, Jenny Grus Sugar,
Assistant United States Attorneys, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamar Seron Randall filed a 28 U.S.C. § 2255 (2012)
motion, contending, inter alia, that his counsel was ineffective
in advising him with regard to two plea offers and that, based
on that faulty advice, he rejected the first plea offer and
accepted the second one. * Randall seeks to appeal the district
court’s order denying § 2255 relief. For the reasons that
follow, we grant a certificate of appealability, vacate in part
the district court’s order, and remand for further proceedings.
A federal grand jury charged Randall with possession
of a firearm by a convicted felon, in violation 18 U.S.C.
§ 922(g) (2012). The Government offered Randall two plea
agreements. Under the original plea deal, in addition to two
levels of reduction in offense level for acceptance of
responsibility pursuant to U.S. Sentencing Guidelines Manual
§ 3E1.1(a) (2010), the Government would have recommended that
Randall receive an additional one-level reduction under USSG
*
In his § 2255 motion, Randall also asserted he was denied
effective assistance of counsel with regard to a motion to
suppress. By failing to challenge the district court’s
rejection of this claim in his informal appellate brief, Randall
has forfeited review of this issue. See 4th Cir. R. 34(b)
(directing appealing parties to present specific arguments in an
informal brief and stating that this court’s review on appeal is
limited to the issues raised in the informal brief).
2
§ 3E1.1(b). Randall was informed that, if he did not accept the
plea deal by December 15, 2010, he would not receive the third
level of reduction. He did not accept this plea offer.
Randall accepted a second plea agreement that was
executed on January 3, 2011. That agreement expressly stated
that “[t]he parties agree that with regard to acceptance of
responsibility, a decrease of defendant’s offense level by one
additional level is not appropriate under [USSG] § 3E1.1.” The
district court subsequently sentenced Randall to ninety-two
months’ imprisonment, the bottom of the Guidelines range.
Randall appealed, challenging, among other issues, the
validity of his guilty plea and the district court’s denial of
his motion to withdraw his guilty plea. This Court affirmed the
district court on these issues and dismissed the remainder of
Randall’s appeal as barred by the waiver-of-appellate rights
provision in the plea agreement. See United States v. Randall,
478 F. App’x 5 (4th Cir. 2012) (No. 11-5160).
In his § 2255 motion, as relevant to this appeal,
Randall claimed that he was denied effective assistance of
counsel in connection with the two plea offers. Regarding the
first plea deal, Randall claimed that counsel told him he would
receive a thirty-six-month sentence if he accepted that offer
but then advised him to reject it because counsel could
successfully move to suppress the firearm. He also said his
3
attorney advised him to reject the Government’s plea offer
because he had a viable double jeopardy claim. Without
counsel’s faulty advise, Randall asserted, he would have
accepted the first plea offer and would have received the
additional one-level reduction for acceptance of responsibility.
Turning to his ineffective assistance claim concerning
the second plea offer, Randall said that his attorney conducted
the same Guidelines calculations as he had with the first offer,
but advised that the Guidelines range under the new offer would
now be forty-one to fifty-one months because Randall lost the
additional one-level reduction for acceptance of responsibility.
He claimed that counsel assured him he would still proceed with
the motion to suppress and the double jeopardy challenge, but
advised him to accept the plea to “lock the [G]overnment in” to
a particular sentence in the event that those challenges were
unsuccessful. Randall stated that, but for counsel’s faulty
advice and misrepresentations, he would have rejected the plea
offer and proceeded to trial.
The district court denied relief. Citing United
States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005) (absent
compelling evidence to the contrary, “truth of sworn statements
made during a Rule 11 colloquy is conclusively established”),
the district court held that Randall’s claims were belied by his
sworn testimony at his Rule 11 hearing. The court rejected
4
Randall’s reliance on two recent Supreme Court cases addressing
ineffective assistance of counsel during the plea bargaining
process, Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri
v. Frye, 132 S. Ct. 1399 (2012), concluding that the Supreme
Court had not held that these cases established a new right that
was retroactively applicable to cases on collateral review.
Furthermore, the district court held that the Fourth Circuit had
already rejected Randall’s ineffective assistance claims on
direct appeal.
We conclude that the district court applied the wrong
standard in denying Randall’s claims. In Lafler, the Court held
that the Sixth Amendment right to counsel applies to the plea
bargaining process and that prejudice occurs when, absent
deficient advice, the defendant would have accepted a plea deal
that would have been approved by the court, and that “the
conviction or sentence, or both, under the offer’s terms would
have been less severe than under the judgment and sentence that
in fact were imposed.” 132 S. Ct. at 1385. Because Lafler was
the law in effect at the time Randall’s conviction became final,
the district court was bound to apply it in reviewing Randall’s
ineffective-assistance claim.
Moreover, the district court erred in its alternative
holding that the issues raised in Randall’s § 2255 motion were
in fact litigated on direct review. Randall’s claim on direct
5
review involved only whether his guilty plea was knowing and
voluntary -- not whether his lawyer provided ineffective
assistance. Indeed, we declined on direct appeal to consider
any evidence of Randall’s counsel’s ineffectiveness not in the
record, and invited Randall to file a § 2255 motion if he wished
to make out an ineffective assistance claim. Randall, 478 F.
App’x at 5 n.*.
Accordingly, we grant a certificate of appealability,
vacate the portion of the district court’s order denying relief
on Randall’s claims of ineffective assistance during the plea
bargaining process, and remand for further proceedings
consistent with this opinion. We express no view as to the
merits of Randall’s claims. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
VACATED IN PART AND REMANDED
6