In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐3889
ISRAEL C. RAMIREZ,
Petitioner‐Appellant,
v.
UNITED STATES OF AMERICA,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 11‐cv‐719‐JPG — J. Phil Gilbert, Judge.
____________________
ARGUED AUGUST 5, 2015 — DECIDED AUGUST 25, 2015
____________________
Before WOOD, Chief Judge, and BAUER and MANION, Circuit
Judges.
WOOD, Chief Judge. In 2008 Israel Ramirez pleaded guilty
to possessing marijuana with intent to distribute. His presen‐
tence investigation report classified him as a career offender
based on two earlier state convictions for assault. Despite the
fact that his convictions were for “intentional, knowing, or
reckless” assault, counsel did not object to the PSR’s charac‐
2 No. 13‐3889
terization, and the district court sentenced Ramirez as a ca‐
reer offender. In so doing, the court treated the Texas convic‐
tions as crimes of violence under U.S.S.G. § 4B1.2(a)(2)’s re‐
sidual clause, which defines as a “crime of violence” for
purposes of career‐offender status at sentencing any federal
or state offense punishable by imprisonment of more than
one year “that otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
Ramirez retained new counsel and moved to vacate his
sentence under 28 U.S.C. § 2255, arguing that sentencing
counsel was ineffective for failing to object to the career‐
offender designation. The district judge denied the motion
and, because postconviction counsel failed to keep Ramirez
informed about the postconviction proceedings, Ramirez did
not submit a timely request for a certificate of appealability.
He tried filing a late request, but when it was dismissed for
lack of jurisdiction, he moved under Federal Rule of Civil
Procedure 60(b)(6) for relief from the judgment. He argued
that postconviction counsel was ineffective for causing him
to miss the appeal deadline (among other reasons). The dis‐
trict judge denied the motion, on the belief that there is a rig‐
id rule under which there is no right to counsel on collateral
review. See Coleman v. Thompson, 501 U.S. 722, 752 (1991).
This would have been correct before the Supreme Court’s
decisions in Trevino v. Thaler, 133 S. Ct. 1911 (2013), and Mar‐
tinez v. Ryan, 132 S. Ct. 1309 (2012). In those two decisions,
however, the Court significantly changed its approach to
claims of ineffective assistance of counsel at initial‐review
collateral proceedings. We conclude that the argument
Ramirez raises is cognizable under Rule 60(b), see Gonzalez v.
Crosby, 545 U.S. 524 (2005), and thus that a remand is re‐
No. 13‐3889 3
quired so that the district court may consider the merits of
his contentions.
I
This appeal arises out of a series of events that began
with Ramirez’s two convictions in Texas. According to an
offense report tendered by the prosecution at Ramirez’s first
Texas plea hearing, Ramirez had run in front of his wife’s
moving car, opened the passenger door, and gotten into the
car. When his wife stopped to wave down a police officer, he
grabbed her by her hair and punched her in the mouth. Ac‐
cording to the offense report prepared for the second Texas
prosecution, Ramirez went to his wife’s house and banged
on her door. When she refused to let him in, he broke the
house windows and her car windshield, and then kicked in
the front door, pulled her hair, and knocked her to the floor.
He grabbed her arm and started to drag her away. These in‐
cidents led to two separate indictments for “intentionally,
knowingly, or recklessly” causing “bodily injury” to his wife
by “striking her with his hand”; Ramirez pleaded guilty in
both cases. See TEX. PENAL CODE § 22.01(a)(1) (1999).
In 2008 Ramirez pleaded guilty to the conviction that
gives rise to this proceeding—possessing marijuana with in‐
tent to distribute. See 21 U.S.C. § 841(a)(1). Ramirez’s presen‐
tence investigation report listed, among other convictions,
the two incidents in which he had assaulted his wife; it spec‐
ified that he had been charged with assault to a family
member for striking his wife with his hand. The probation
officer concluded that these two “crimes of violence” ren‐
dered Ramirez a career offender. See U.S.S.G. §§ 4B1.1(a);
4B1.2(a). Ramirez’s lawyer did not contest the probation of‐
ficer’s conclusion.
4 No. 13‐3889
In the course of determining Ramirez’s advisory sentenc‐
ing range, the district court agreed with that assessment. The
career‐offender designation resulted in a guidelines impris‐
onment range of 262 to 327 months. (Without career‐
offender status, the range would have been 151 to 188
months. See U.S.S.G. SENT. TABLE (2008).) The court sen‐
tenced Ramirez to a within‐guidelines term of 300 months’
imprisonment.
On appeal, Ramirez’s trial counsel moved to withdraw
under Anders v. California, 386 U.S. 738, 744 (1967). We reject‐
ed that motion on the ground that a colorable challenge to
Ramirez’s career‐offender classification existed. United States
v. Ramirez, No. 09‐1815 (7th Cir. Nov. 4, 2009). The govern‐
ment conceded error, admitting that the documents before
the district court did not establish that Ramirez had been
convicted of crimes of violence. Brief for Appellee at 12,
United States v. Ramirez, 606 F.3d 396 (7th Cir. 2010) (No. 09‐
1815). Rejecting that concession, we affirmed the conviction.
We first held that the Texas assault statute was divisible
(meaning that there were three ways in which it might be
violated—through intentional, knowing, or reckless behav‐
ior). On appeal, however, the plain‐error standard applied.
That left Ramirez with the burden of showing that he had
been convicted under the “reckless” branch of the statute.
He failed to do so for lack of evidence, and so his sentence
for the drug offense stood. United States v. Ramirez, 606 F.3d
396, 398 (7th Cir. 2010).
At that point, Ramirez obtained new counsel, who filed a
motion under 28 U.S.C. § 2255 asserting, as relevant here,
that trial counsel was ineffective at sentencing for failing to
object to Ramirez’s classification as a career offender. The
No. 13‐3889 5
district judge denied the motion and declined to issue a cer‐
tificate of appealability because, he wrote, Ramirez (still) had
not produced any documents to show that he had been con‐
victed of reckless assault and thus had not shown that he was
prejudiced by counsel’s omission. The proceeding went
awry, however, when postconviction counsel let Ramirez
down in three ways: he did not inform Ramirez of the
court’s decision; he failed to file any postjudgment motions;
and he failed to file a notice of appeal.
Once he learned that counsel had deserted him, Ramirez
filed an untimely pro se notice of appeal from the sec‐
tion 2255 motion denial; we dismissed for lack of appellate
jurisdiction. Ramirez v. United States, No. 13‐3511 (7th Cir.
Jan. 21, 2014); see 28 U.S.C. § 2107(a); Bowles v. Russell, 551
U.S. 205, 210–11 (2007). Ramirez then moved to vacate the
district court’s judgment under Federal Rule of Civil Proce‐
dure 60(b)(6), arguing that the ineffectiveness of his post‐
conviction counsel—who had failed to request any of the
Texas‐court documents and worse, had deserted him—
constituted an extraordinary circumstance warranting the
reopening of the judgment. The district judge denied the
Rule 60(b)(6) motion because, he wrote, the right to counsel
does not extend to proceedings under section 2255, and be‐
cause Ramirez still had not shown that he was prejudiced by
any of trial counsel’s omissions because he never produced
any documents showing he had been convicted of nonvio‐
lent assault. Ramirez appealed the denial of his Rule 60(b)(6)
motion, and this court certified for appeal the question
whether trial counsel was ineffective at sentencing. We also
instructed the parties to address whether the district court
abused its discretion in denying Ramirez’s Rule 60(b)(6) mo‐
tion in light of Trevino and Martinez.
6 No. 13‐3889
II
Ramirez argues that the district court did commit an
abuse of discretion when it denied his Rule 60(b)(6) motion.
One way in which a court may take a decision that lies out‐
side the boundaries of its discretion is by basing that deci‐
sion on a material error of law. Ramirez asserts that the dis‐
trict court incorrectly relied on Coleman’s absolute rule that
counsel’s performance on a postconviction motion can never
justify relief from a judgment, rather than on Trevino and
Martinez. Relying on such cases as Nash v. Hepp, 740 F.3d
1075 (7th Cir. 2014), the government replies that these new
cases at most amount to a mundane change in the law that
does not amount to an extraordinary circumstance for pur‐
poses of Rule 60(b)(6). It also argues that Trevino, Martinez,
and Maples v. Thomas, 132 S. Ct. 912 (2012) (a third case in the
new line), apply only to petitions for relief filed by state
prisoners under 28 U.S.C. § 2254, not to motions filed by
federal prisoners under 28 U.S.C. § 2255.
A
The first question we must address is whether Ramirez
was entitled to use a Rule 60(b) motion, or if he has in reality
filed an unauthorized second or successive petition without
the necessary permission of this court. See 28 U.S.C. §§ 2244,
2255(h). If this was a proper use of Rule 60(b), the next ques‐
tion is whether Ramirez has shown enough to earn a consid‐
eration of his arguments on the merits.
We are satisfied that Ramirez’s motion was not a dis‐
guised second or successive motion under section 2255, and
thus may be evaluated on its own merit. Ramirez is not try‐
ing to present a new reason why he should be relieved of ei‐
No. 13‐3889 7
ther his conviction or his sentence, as provided in 28 U.S.C.
§ 2255(a). He is instead trying to reopen his existing section
2255 proceeding and overcome a procedural barrier to its
adjudication. Recall that on direct appeal this court found
enough merit in Ramirez’s claims that we rejected counsel’s
Anders submission and required the case to go forward. Ap‐
pellate counsel never obtained the relevant records from the
Texas courts, however, and so the appeal failed for lack of
proof. When Ramirez sought to remedy these failures in a
motion under section 2255, postconviction counsel failed to
remedy that critical omission, despite the central role that it
had played in our disposition of the direct appeal. We do not
know if that omission was intentional or not, although if the
records had been unfavorable to Ramirez, it is hard to see
why the prosecutor did not obtain them. Most importantly,
postconviction counsel abandoned Ramirez on appeal, thus
depriving him of the opportunity to pursue his Sixth
Amendment claims.
Gonzalez held that in rare circumstances, a motion under
Rule 60(b) may be used by a prisoner. There the Court con‐
firmed that “Rule 60(b) has an unquestionably valid role to
play in habeas cases.” 545 U.S. at 534. But that role is re‐
stricted. The “movant seeking relief under Rule 60(b)(6)
[must] show extraordinary circumstances justifying the re‐
opening of a final judgment.” Id. at 535 (internal quotation
marks omitted). A change in law alone will not suffice for
this purpose. Id. at 536 (change in Supreme Court’s interpre‐
tation of the AEDPA statute of limitations did not qualify);
Nash, 740 F.3d at 1078; Hill v. Rios, 722 F.3d 937, 938 (7th Cir.
2013); see also Cox v. Horn, 757 F.3d 113, 115 (3d Cir. 2014)
(“for relief to be granted under Rule 60(b)(6), ‘more’ than the
concededly important change of law wrought by Martinez is
8 No. 13‐3889
required—indeed, much ‘more’ is required”); but see Adams
v. Thaler, 679 F.3d 312 (5th Cir. 2012) (stating that change in
decisional law effected by Martinez did not justify use of
Rule 60(b); not discussing any other equitable considera‐
tions).
We agree with the Third Circuit’s approach in Cox, in
which it rejected the absolute position that the Fifth Circuit’s
Adams decision may have reflected, to the effect that inter‐
vening changes in the law never can support relief under
Rule 60(b)(6). The Third Circuit held instead that “interven‐
ing changes in the law rarely justify relief from final judg‐
ments under 60(b)(6).” 757 F.3d at 121. It explained that it
had “long employed a flexible, multifactor approach to Rule
60(b)(6) motions, including those built upon a postjudgment
change in the law, that takes into account all the particulars
of a movant’s case.” Id. at 122. In fact, it pointed out, this po‐
sition may not be inconsistent with that of the Fifth Circuit,
which reviewed other equitable factors in a later case similar
to Adams before rejecting the petitioner’s claim. See Diaz v.
Stephens, 731 F.3d 370 (5th Cir. 2013).
Rule 60(b)(6) is fundamentally equitable in nature.
See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,
863–64 (1988); Di Vito v. Fidelity & Deposit Co. of Md., 361 F.2d
936, 939 (7th Cir. 1966); see also 11 CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE
AND PROCEDURE § 2857 at 321 (3d ed. 2012). It thus requires
the court to examine all of the circumstances, bearing in
mind the need for the party invoking the rule to demonstrate
why extraordinary circumstances justify relief. Pertinent
considerations include, though are not limited to, a change
in the Supreme Court’s approach to the fundamental rules
No. 13‐3889 9
for deciding habeas corpus cases; the diligence of the peti‐
tioner; whether alternative remedies were available but by‐
passed; and whether the underlying claim is one on which
relief could be granted.
In Nash, for example, we noted a number of factors that
showed collectively that extraordinary circumstances for
purposes of Rule 60(b)(6) did not exist, despite the change in
law brought about by Martinez, Maples, and Trevino. Nash
could have appealed notwithstanding the actions of his
counsel, because the court itself instructed him about the
proper measures to take. (Wisconsin law treats postconvic‐
tion relief in an unusual way, insofar as it allows defendants
to raise a claim of ineffectiveness of counsel simultaneously
with a direct appeal.) Where Nash “easily could have reme‐
died counsel’s omission and started the plenary postconvic‐
tion process anew,” 740 F.3d at 1079, there was no abuse of
discretion in denying Nash’s motion under Rule 60(b)(6).
Similarly, in Hill the petitioner chose not to file a petition for
rehearing with this court or a petition for certiorari with the
Supreme Court, after he failed to persuade a panel that his
remedy under section 2255 was inadequate. As we put it
there, “[a] litigant who bypasses arguments on appeal can‐
not depict his own omission as an ‘extraordinary’ event that
justifies post‐judgment relief.” 722 F.3d at 938‒39. Further‐
more, Hill had never alerted this court during his earlier ap‐
peal that he had filed an earlier motion under section 2255
and that was why he was seeking to take advantage of the
safety‐valve clause of section 2255(e). See generally Webster
v. Daniels, 784 F.3d 1123, 1135–39 (7th Cir. 2015) (en banc). It
ill behooved him to seek a new opportunity to raise points
that he could have advanced earlier. We thus found no
10 No. 13‐3889
abuse of discretion in denying Hill’s motion under Rule
60(b)(6).
Nash and Hill follow Gonzalez’s admonition that extraor‐
dinary circumstances will exist only rarely. At the same
time, however, as the Third Circuit said in Cox, “rarely” does
not mean “never.” Like the petitioner in Nash, Ramirez
points to his abandonment by counsel as the extraordinary
circumstance that justifies re‐opening his section 2255 pro‐
ceeding. Unlike Nash, however, the remainder of the equi‐
ties in Ramirez’s case do not undermine his application for
relief. No one—not a court, not his lawyer—informed him
about an alternative path to relief after his postconviction
lawyer abandoned him and left him with only a jurisdiction‐
ally‐out‐of‐time appeal. Ramirez did not conceal pertinent
information from the court. The district court’s decision on
his Rule 60(b)(6) motion, dated November 19, 2013, was
based on a clear error of law: the court dismissed his effort to
raise a claim about the assistance of postconviction counsel
with these words:
Next, Ramirez argues he is entitled to relief because
his habeas counsel was ineffective. The right to effec‐
tive assistance of counsel, however, does not extend
to § 2255 proceedings. Cannon v. United States, 326 F.
App’x 393, 395 (7th Cir. 2009) (citing 28 U.S.C. §
2254(i)).1 As such, Ramirez is not entitled to relief
based on his counsel’s performance.
1We note that section 2255 does not include any counterpart to 28
U.S.C. § 2254(i), which provides that “[t]he ineffectiveness or incompe‐
tence of counsel during Federal or State collateral post‐conviction pro‐
ceedings shall not be a ground for relief in a proceeding arising under
section 2254.” Thus, if anything, the right that Ramirez is trying to assert
No. 13‐3889 11
At the time the court wrote those words, all three of the Su‐
preme Court decisions on which Ramirez relies were on the
books: Maples was handed down on January 18, 2012; Mar‐
tinez on March 20, 2012; and Trevino on May 28, 2013. The
court’s error of law was therefore plain.
B
The change in law between Coleman, on the one hand,
and Martinez, Maples, and Trevino on the other, plays only a
part in our evaluation of Ramirez’s Rule 60(b)(6) motion. The
ineffectiveness of his postconviction attorney is the other
critical point. Martinez held that the procedural default that
occurred when Martinez’s postconviction counsel did not
raise a claim of ineffective assistance of counsel in his state
collateral proceeding would not bar his petition under 28
U.S.C. § 2254, where “the state collateral proceeding was the
first place to challenge his conviction on grounds of ineffec‐
tive assistance.” 132 S. Ct. at 1313. The Court explained that
“if, in the [State’s] initial‐review collateral proceeding, there
was no counsel or counsel in that proceeding was ineffective,”
procedural default would not “bar a federal habeas court
from hearing a substantial claim of ineffective assistance at
trial.” Id. at 1320 (emphasis added). In Martinez, state law re‐
quired the petitioner to wait until the initial‐review collateral
proceeding before raising such a claim. A year later, in Tre‐
vino, the Court extended Martinez’s holding to cases in
which the state did not require defendants to wait until the
postconviction stage, but “[t]he structure and design of the
should be easier to maintain under section 2255. It is also notable that
Maples, Martinez, and Trevino were all decided under section 2254, not‐
withstanding the language of subpart (i).
12 No. 13‐3889
[state] system in actual operation … [made] it virtually im‐
possible for an ineffective assistance claim to be presented
on direct review.” 133 S. Ct. at 1915. The question is whether
these holdings apply to some or all federal prisoners who
bring motions for postconviction relief under section 2255.
We already have answered this in the affirmative, in Choice
Hotels Intern., Inc. v. Grover, 792 F.3d 753 (7th Cir. 2015),
where we wrote that “[a]lthough Maples and Holland [v. Flor‐
ida, 560 U.S. 631 (2010)] were capital cases, we do not doubt
that their holdings apply to all collateral litigation under 28
U.S.C. § 2254 or § 2255.” Id. at 755. A closer look at the issue
convinces us that this position was correct.
In Massaro v. United States, 538 U.S. 500 (2003), the Su‐
preme Court considered the case of a man who did not raise
any claim relating to ineffectiveness of trial counsel on his
direct appeal, and so was trying to raise such an argument in
a motion under section 2255. The United States argued that
the ineffectiveness claim was procedurally defaulted, be‐
cause Massaro could have raised it on direct appeal. The Su‐
preme Court rejected that position and held instead that
there is no procedural default for failure to raise an ineffec‐
tive‐assistance claim on direct appeal, even if new counsel
handles the direct appeal and even if the basis for the claim
is apparent from the trial record. Id. at 503–04. Indeed, the
Court criticized the practice of bringing these claims on di‐
rect appeal, because “the issue would be raised for the first
time in a forum not best suited to assess those facts.” Id. at
504. This court has been equally if not more critical of the
practice of trying to raise ineffective assistance claims on di‐
rect appeal:
No. 13‐3889 13
Raising ineffective assistance on direct appeal is im‐
prudent because defendant paints himself into a cor‐
ner. We’ve explained why the contention is doomed
unless the contention is made first in the district court
and a full record is developed—which happens occa‐
sionally but did not happen here. Yet although the
argument has trifling prospect of success, the defense
has much to lose. … [W]hen an ineffective‐assistance
claim is rejected on direct appeal, it cannot be raised
again on collateral review. …
Ever since Massaro the judges of this court have regu‐
larly asked counsel at oral argument whether the de‐
fendant is personally aware of the risks of presenting
an ineffective‐assistance argument on direct appeal
and, if so, whether defendant really wants to take that
risk. We encourage counsel to discuss that subject
with the defendant after argument and to consider
withdrawing the contention. We asked that question
at oral argument of this appeal, and counsel assured
us that Flores is aware of the risks and wants the con‐
tention resolved now. That is his prerogative, foolish
though the choice seems to the judiciary.
United States v. Flores, 739 F.3d 337, 341–42 (7th Cir. 2014).
See also, e.g., United States v. Moody, 770 F.3d 577, 582 (7th
Cir. 2014) (ineffective assistance claim “should be pursued in
a collateral proceeding under 28 U.S.C. § 2255”); United
States v. Bryant, 754 F.3d 443, 444 (7th Cir. 2014) (“[a] claim of
ineffective assistance need not, and usually as a matter of
prudence should not, be raised in a direct appeal, where ev‐
idence bearing on the claim cannot be presented and the
claim is therefore likely to fail even if meritorious”); United
14 No. 13‐3889
States v. Harris, 394 F.3d 543, 558 (7th Cir. 2005) (“only the
rarest and most patently egregious of ineffective assistance
claims are appropriately brought on direct appeal”); United
States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995) (“we have
often cautioned that a defendant who presents an ineffective
assistance claim for the first time on direct appeal has little to
gain and everything to lose”).
Because the federal courts have no established procedure
(such as the one Wisconsin uses, for instance) to develop in‐
effective assistance claims for direct appeal, the situation of a
federal petitioner is the same as the one the Court described
in Trevino: as a practical matter, the first opportunity to pre‐
sent a claim of ineffective assistance of trial or direct appel‐
late counsel is almost always on collateral review, in a mo‐
tion under section 2255. There may be rare exceptions, as
Massaro acknowledged, for a case in which trial counsel’s
ineffectiveness “is so apparent from the record” that it can
be raised on direct appeal or even noticed by the appellate
court on its own. 538 U.S. at 508–09. But Ramirez’s is not one
of them.
Even if this is so, the government argues, we should not
apply the principles set forth in Martinez and Trevino because
they involved petitions brought under 28 U.S.C. § 2254, not
motions under section 2255. The government’s position finds
some support in dicta from United States v. Lee, 792 F.3d 1021
(8th Cir. 2015). But Lee turned on an antecedent problem: the
petitioner’s motion under Rule 60(b) there was properly de‐
nied because it required precertification under section
2244(b)(3) and the court of appeals refused to take that step.
The court also noted that Lee had not been diligent: instead
of presenting his supporting evidence in his motion under
No. 13‐3889 15
section 2255, he just included a footnote saying that such ev‐
idence could be provided later. 792 F.3d at *4. The court also
indicated that Martinez and Trevino might be limited to sec‐
tion 2254 cases, but that comment was not necessary to the
result.
Neither Martinez nor Trevino suggested that, for these
purposes, the difference between sections 2254 and 2255 was
material. What does matter is the way in which ineffective
assistance of counsel claims must be presented in the partic‐
ular procedural system. This varies among the states, and
between the states and the federal system, but we already
have explained why in the great majority of federal cases,
ineffectiveness claims must await the first round of collateral
review. Moreover, if review were to be more restricted on
either the state or the federal side, federalism concerns sug‐
gest that it would be the state side. Most of the rules that
govern petitions under section 2254 are mirrored in section
2255, including importantly the procedure for handling sec‐
ond or successive petitions. We can think of no reason why
Martinez and Trevino should be read in the way the govern‐
ment advocates.
The same principles apply in both the section 2254 and
the section 2255 contexts, as this case illustrates. Ramirez
was effectively unable to raise his ineffective assistance
claim until collateral review because he was in the typical
situation of needing to develop the record more fully before
he could proceed.
As we already have noted, postconviction counsel failed
to notify Ramirez that the district court had denied his sec‐
tion 2255 motion, and this omission allowed the deadline for
filing a notice of appeal to lapse. See Ramirez v. United States,
16 No. 13‐3889
No. 13‐3511 (7th Cir. Jan. 21, 2014). Counsel’s abandonment
deprived Ramirez of the ability to press his ineffective‐
assistance argument on appeal. See Maples, 132 S. Ct. at 923–
24 (holding that attorney abandonment is extraordinary cir‐
cumstance allowing federal court to disregard state proce‐
dural bar to hearing habeas petition); Holland, 560 U.S. at
652–53. We see no reason to distinguish between actions at
the state level that result in procedural default and the con‐
sequent loss of a chance for federal review, and actions at the
federal level that similarly lead to a procedural default that
forfeits appellate review. See Washington v. Ryan, 789 F.3d
1041, 1047–48 (9th Cir. 2015) (explaining that counsel’s
abandonment can be extraordinary circumstance when
abandonment resulted in lost ability to appeal); Mackey v.
Hoffman, 682 F.3d 1247, 1253 (9th Cir. 2012) (relief available
under Rule 60(b)(6) when federal habeas corpus petitioner
has been grossly neglected by counsel “in a manner amount‐
ing to attorney abandonment”).
C
All that remains is to determine whether the argument
left hanging after counsel abandoned Ramirez has “some
merit.” Martinez, 132 S. Ct. at 1318. We think it does. Ramirez
argues that trial counsel performed deficiently at sentencing
by failing to object to his classification as a career offender,
and that this prejudiced him because, based on the record in
the district court, the underlying convictions were not, cate‐
gorically, crimes of violence. See Begay v. United States, 553
U.S. 137 (2008).
We agree with Ramirez that trial counsel’s performance
was deficient. An attorney’s failure to object to an error in
the court’s guidelines calculation that results in a longer sen‐
No. 13‐3889 17
tence for the defendant can demonstrate constitutionally in‐
effective performance. See United States v. Jones, 635 F.3d 909,
916 (7th Cir. 2011). Ramirez points out that sentencing coun‐
sel believed at the time that Ramirez had the requisite con‐
victions to make him a career offender. But by that time, Be‐
gay had been decided and counsel should have known that
the two Texas convictions were suspect. See Begay, 553 U.S.
at 141. Counsel also said that he unsuccessfully had tried to
get the Texas records. He complained that he would have
had to subpoena them from the Texas county in which
Ramirez was convicted, and that this “would have been ex‐
tremely difficult to do and time consuming.” This lack of de‐
sire to uncover the truth was deficient. See Strickland v.
Washington, 466 U.S. 668, 690 (1984); Wilson v. Mazzuca, 570
F.3d 490, 502 (2d Cir. 2009) (deficient performance includes
errors arising from “oversight, carelessness, ineptitude, or
laziness”). (Ramirez’s new counsel obtained the records with
little difficulty, and they are now available to this court.)
The next question is whether counsel’s deficiency preju‐
diced Ramirez. See Strickland, 466 U.S. at 688–94; Pidgeon v.
Smith, 785 F.3d 1165, 1171 (7th Cir. 2015). The Texas statute
under which Ramirez was twice convicted criminalizes “in‐
tentional, knowing, or reckless” assault. The district court
concluded that counsel’s performance did not prejudice
Ramirez because Ramirez never met his burden to show that
he was convicted of nonviolent assault. The parties also de‐
bate whether Ramirez could make that showing now. But at
the time of sentencing, it was the government’s burden, not
Ramirez’s, to show (using acceptable materials) that
Ramirez’s earlier convictions were for knowing or intention‐
al conduct, not reckless actions. See Johnson v. United States,
559 U.S. 133, 137 (2010) (without evidence to suggest other‐
18 No. 13‐3889
wise, sentencing judge must presume conviction rested on
the least serious act in divisible statute). In his ineffective as‐
sistance claim, Ramirez needed to show only that his sen‐
tence would have been different had counsel objected to his
characterization as a career offender. See Jones, 635 F.3d at
916. As the government conceded on direct appeal, it could
not meet its burden: neither the charging papers nor the plea
colloquy shed any light on which version of assault was the
basis for Ramirez’s two Texas convictions. Brief for Appellee
at 12, United States v. Ramirez, 606 F.3d 396 (7th Cir. 2010)
(No. 09‐1815); see Descamps v. United States, 133 S. Ct. 2276,
2281–82 (2013); Shepard v. United States, 544 U.S. 13, 24–25
(2005). Any objection by counsel would have been sustained.
Resisting this conclusion, the government directs us to
two statements made by Ramirez’s ex‐wife in which she de‐
scribes how he attacked her. Because these statements, to
which Ramirez stipulated at the plea hearing, depict a vio‐
lent crime, the government asserts that he was not preju‐
diced by counsel’s failure to object to the PSR. See Shepard,
544 U.S. at 24–25; Taylor v. United States, 495 U.S. 575, 599–
600 (1990); United States v. Woods, 576 F.3d 400, 405 (7th Cir.
2009). But those statements shed light only on “what the de‐
fendant did,” not “what crime the conviction represents.”
Ramirez, 606 F.3d at 398. They do not clarify whether
Ramirez was charged with and convicted of intentional,
knowing, or reckless assault. Just because he might have
been convicted of the more serious conduct does not mean
necessarily that he was; it is commonplace for defendants to
be convicted on a lesser offense than the facts would have
supported. We are left with a record in which none of the
permissible documents reveals which of the three possible
states of mind was used for Ramirez’s convictions.
No. 13‐3889 19
See Shepard, 544 U.S. at 24–25; Taylor, 495 U.S. at 599–600;
Woods, 576 F.3d at 405.
We note in closing that Ramirez was classified as a career
offender under § 4B1.2(a)(2)’s residual clause. See Ramirez,
606 F.3d at 398 (writing that Texas’s assault offense “does
not have, as an element, the use or threatened use of physi‐
cal force, and it is not specifically enumerated in the Guide‐
line, so it can be a crime of violence only under the residual
clause of § 4B1.2(a)(2)”). In Johnson v. United States, 135 S. Ct.
2551 (2015), the Supreme Court held that the identically
worded residual clause of the Armed Career Criminal Act is
unconstitutionally vague. Compare U.S.S.G. § 4B1.2(a)(2)
with 18 U.S.C. § 924(e)(2)(B)(ii). We have interpreted both
residual clauses identically, see United States v. Billups, 536
F.3d 574, 579 n.1 (7th Cir. 2008); United States v. Upton, 512
F.3d 394, 404 (7th Cir. 2008) (abrogated on other grounds by
United States v. Miller, 721 F.3d 435, 443 (7th Cir. 2013); Unit‐
ed States v. Rosas, 410 F.3d 332, 335–36 (7th Cir. 2005), and so
we proceed on the assumption that the Supreme Court’s rea‐
soning applies to section 4B1.2 as well. This is a point, how‐
ever, that neither side has briefed, and it may warrant atten‐
tion on remand. We note that the U.S. Sentencing Commis‐
sion is now seeking comments on a proposal to change the
guideline language to make it conform to Johnson. See U.S.
Sentencing Commission News Release, “U.S. Sentencing
Commission Seeks Comment on Revisions to Definition of
Crime of Violence,” http://www.ussc.gov/sites/default/
files/pdf/news/press‐releases‐and‐news‐advisories/press‐
releases/20150807_Press_Release.pdf. We leave any issue
about the effect of Johnson on the Guidelines for another day.
20 No. 13‐3889
III
We conclude that Ramirez’s situation fits the framework
articulated in Maples, Trevino and Martinez. The district court
was apparently unaware of those decisions and thus cate‐
gorically denied Ramirez’s motion under Rule 60(b)(6) with‐
out discussing how postconviction counsel’s performance
affected the integrity of the proceedings. We agree with
Ramirez that this amounted to an abuse of discretion. We
therefore VACATE the denial of the Rule 60(b) motion and
REMAND with instructions to grant the Rule 60(b) motion
and reopen the proceedings under section 2255. The record
is insufficient to determine if Ramirez has other qualifying
convictions that might support affirmance of the sentence on
other grounds. That and other pertinent issues may be raised
on remand.