United States Court of Appeals
Fifth Circuit
F I L E D
REVISED June 8, 2004
May 21, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
__________________________
No. 03-50310
__________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GUS PETER GRAMMAS,
Defendant - Appellant.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
___________________________________________________
Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Gus Peter Grammas (“Grammas”) appeals the district court’s denial of his 28 U.S.C. § 2255
motion, arguing that his counsel’s performance regarding whether to stand trial or plead guilty was
constitutionally deficient. Because Grammas was provided ineffective assistance of counsel, we
reverse his conviction and remand for further proceedings.
I. FACTS AND PROCEEDINGS
On March 16, 2001, Grammas was convicted of: (1) knowingly altering a Vehicle
Identification Number, in violation of 18 U.S.C. § 511(a)(1); and (2) possession of a firearm by a
previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Grammas’s trial counsel, Buck
Harris (“Harris”), failed to realize (and consequently failed to notify Grammas) that his prior
convictions were crimes of violence. The Government’s indictment states that one of Grammas’s
prior offenses was for burglary of a building. Previously, Grammas had been convicted of burglary
of a habitation—a crime of violence—which raised his base offense level. Harris failed to confirm
that the prior conviction related to a burglary of a building, and admitted post-conviction that “the
defense did rely on that original contention that this was a burglary of a building.” The indictment
also alleges a prior felony conviction for escape.
Harris argued to the district court his mistaken belief that the firearms offense should carry
a base offense level of 8, not 20. The relevant section of the Sentencing Guidelines (§ 2K2.1) does
not even contain a base offense level of 8. See U.S. SENTENCING GUIDELINES MANUAL § 2K2.1
(2001). Harris admitted to having used the wrong section of the Guidelines, and Harris
(mis)informed Grammas that he faced only 6 to 12 months if convicted. Grammas was sentenced
using a base offense level of 21 (20 from Guidelines § 2K2.1, plus 1 from a prior conviction involving
aiding illegal aliens), resulting in a Guidelines range of 70 to 87 months, and a sentence of 70 months
in prison.
After exhausting his direct appeals,1 Grammas filed this § 2255 motion alleging ineffective
1
This Court reversed the district court’s restitution order, but otherwise affirmed its
holdings. United States v. Grammas, No. 01-50730, 37 Fed. Appx. 88, 2002 WL 971617, at *1
(5th Cir. May 2, 2002).
2
assistance of counsel. See 28 U.S.C. § 2255.2 The district court denied t he § 2255 motion; this
Court granted a certificate of appealability “on the issue whether [Grammas] received the effective
assistance of counsel relative to his decision to stand trial rather than plead guilt y.” This appeal
follows.
II. STANDARD OF REVIEW
This Court “review[s] a district court’s conclusions with regard to a petitioner’s § 2255 claim
of ineffective assistance of counsel de novo.” United States v. Conley, 349 F.3d 837, 839 (5th Cir.
2003) (citing United States v. Bass, 310 F.3d 321, 325 (5th Cir.2002); United States v. Faubion, 19
F.3d 226, 228 (5th Cir.1994)).
III. DISCUSSION
A. Section 2255 relief from federal custody
Section 2255 “provides the federal prisoner with a post-conviction remedy to test the legality
of his detention by filing a motion to vacate judgment and sentence in his trial court.” Kuhn v. United
States, 432 F.2d 82, 83 (5th Cir. 1970). The statute establishes that a prisoner in custody under a
sentence of a court established by Congress “may move the court which imposed the sentence to
vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. Where there has been a “denial or
infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to
collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner
or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id.
2
This Court generally declines to review ineffective assistance of counsel claims on direct
appeal. United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Ineffective assistance of
counsel claims are more appropriately brought in a 28 U.S.C. § 2255 motion. United States v.
Gordon, 346 F.3d 135, 136 (5th Cir. 2003).
3
(emphases added).
B. Ineffective assistance of counsel under Strickland
To prevail on an ineffective assistance of counsel claim, Grammas must satisfy the two-part
test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, Grammas must
demonstrate that counsel’s performance fell below an objective standard of reasonableness. Id. “We
have described that standard as requiring that counsel ‘research relevant facts and law, or make an
informed decision that certain avenues will not be fruitful.’” Conley, 349 F.3d at 841 (citations
omitted). Second, Grammas must pro ve that he was prejudiced by counsel’s substandard
performance. “[T]o prove prejudice, the defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 841-42. “And, of course, ‘any amount of actual jail time has Sixth Amendment significance,’
which constitutes prejudice for purposes of the Strickland test.” Conley, 349 F.3d at 842 (citing and
quoting Glover v. United States, 531 U.S. 198, 203 (2001), and United States v. Franks, 230 F.3d
811, 815 (5th Cir. 2000) (finding prejudice where defendant was sentenced under Guidelines range
of 70 to 87 months instead of the proper 57 to 71 months range)). Additionally, “[o]ne of the most
precious applications of the Sixth Amendment may well be in affording counsel to advise a defendant
concerning whether he should enter a plea of guilty.” Reed v. United States, 354 F.2d 227, 229 (5th
Cir. 1965).
(1) Harris’s performance fell below an objective level of reasonableness.
“Failing to properly advise the defendant of the maximum sentence that he could receive falls
below the objective standard required by Strickland. When the defendant lacks a full understanding
of the risks of going to trial, he is unable to make an intelligent choice of whether to accept a plea or
4
take his chances in court.” Teague v. Scott, 60 F.3d 1167, 1171 (5th Cir. 1995). “‘By grossly
underestimating [the defendant’s] sentencing exposure . . . , [counsel] breache[s] his duty as a defense
lawyer in a criminal case to advise his client fully on whether a particular plea to a charge appears
desirable.’” United States v. Ridgeway, 321 F.3d 512, 514 (5th Cir. 2003) (alterations in original)
(citing and quoting United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998)). Grammas contends
that he was denied his constitutional right to effective counsel relative to his decision to stand trial
rather than plead guilty. He argues that Harris’s performance was deficient because, among other
things, Harris was unfamiliar with the Sentencing Guidelines and substantially misstated Grammas’s
exposure if he were to be found guilty at trial.
Harris conceded these mistakes. Regarding the prior convictions, the Government’s
indictment states that one of Grammas’s prior offenses was for burglary of a building. In reality,
Grammas had been previously convicted of burglary of a habitation—a crime of violence—which
raised his base offense level. Harris failed to confirm that the prior conviction related to a burglary
of a building, admitting that “the defense did rely on that original contention that this was a burglary
of a building.” Even the most basic research on Grammas’s background would have revealed that
the prior burglary was a burglary of a habitation. The indictment also alleges a prior felony
conviction for escape. This Court decided nearly two years before Grammas’s trial that an escape
constitutes a crime of violence. United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir. 1999). Had
Harris realized that either one of Grammas’s prior convictions was a crime of violence, Harris would
have known that the base offense level would be significantly higher. Harris’s mistaken belief that
Grammas’s prior convictions were not crimes of violence, Harris conceded, “may even have gone to
affect whether or not we negotiated any type of plea agreement or settlement agreement considering
5
the greater exposure.”3
Harris further demonstrated a complete lack of familiarity with the Guidelines. He admits that
he used the incorrect section of the Guidelines, and his argument for a base offense level of 8
illustrates this lack of understanding. Sentencing Guidelines § 2K2.1—the section under which
Grammas was sentenced—does not even contain a base offense level of 8. See U.S. SENTENCING
GUIDELINES MANUAL § 2K2.1 (2001). Harris, based on his misunderstanding of the Guidelines,
advised Grammas that he would, at most, be imprisoned for 6 to 12 months if he were to be
convicted.4 Harris’s assistance fell well below the objective standard of reasonableness required by
Strickland.
(2) Grammas was prejudiced by Harris’s deficient performance.
The only remaining issue is whether Grammas was prejudiced by Harris’s deficient
performance. Grammas’s conviction occurred after a unanimous Supreme Court in Glover rejected
3
Despite this statement by Grammas’s trial counsel, the dissent asserts that Grammas
“would have likely gone to trial even if his attorney had correctly advised him as to the applicable
sentence range.” Simply because Grammas’s decision to go to trial was “influenced” by factors
“other than the applicable sentence range,” does not, as the dissent maintains, lead to the
conclusion that ignorance as to the true sentencing range was immaterial. Grammas and his
counsel both argue that had Grammas’s exposure been accurately assessed, he likely would have
pleaded guilty, and the Government does not contest this argument.
Furthermore, the dissent’s repeated attempts to refute Grammas’s petition for relief based
on “implicit[ ] conce[essions]” made therein, see, e.g., __ F.3d at __ (dissent at 2), are
inappropriate given that Grammas is pro se. Perez v. United States, 312 F.3d 191, 194-95 & n.13
(5th Cir. 2002) (“[C]ourts have adopted the rule that a pro se plaintiff’s pleadings are liberally
construed.”) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that allegations in a pro
se complaint are to be held “to less stringent standards than formal pleadings drafted by lawyers”),
and SEC v. AMX, Int’l, Inc., 7 F.3d 71, 75 (5th Cir. 1993) (recognizing the established rule that
this Court “must construe [a pro se party’s] allegations and briefs more permissively”)).
4
The Government’s non-responsive and off-topic brief does not contest Grammas’s claim
that Harris told him his exposure would be 6 to 12 months. Arguments not made in the briefs are
waived. See, e.g., Hobbs v. Hawkins, 968 F.2d 471, 474 n.2 (5th Cir. 1992).
6
the Seventh Circuit’s rule that “a minimal amount of additional time in prison cannot constitute
prejudice.” Glover, 531 U.S. at 203. The Supreme Court noted that, “[q]uite to the contrary, our
jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance.” Id.
(emphasis added). In a recent case this Court analyzed the prejudice prong by considering whether
the petitioner could “demonstrate a reasonable probability that, but for his counsel’s actions, he would
have received a ‘significantly less harsh’ sentence.” Ridgeway, 321 F.3d at 515 (quoting Daniel v.
Cockrell, 283 F.3d 697, 706 (5th Cir. 2002)). However, we noted in Ridgeway that Glover “arguably
casts doubt on the ‘significantly less harsh test,’” Ridgeway, 321 F.3d at 515 n.2 (quotations and
citations omitted), and implied that the “significantly less harsh test” only applied in Ridgeway
because Glover does not apply retroactively. Ridgeway, 321 F.3d at 515 n.2. We hold that Glover
abrogates the significantly less harsh test, and that any additional time in prison has constitutional
significance. Accord Conley, 349 F.3d at 842 (noting that “of course, ‘any amount of actual jail time
has Sixth Amendment significance,’ which constitutes prejudice for purposes of the Strickland test”)
(citing and quoting Glover, 531 U.S. at 203, and Franks, 230 F.3d at 815 (finding prejudice where,
as here, defendant was sentenced under Guidelines range of 70 to 87 months instead of the proper
range of 57 to 71 months)).
Grammas argues that he suffered prejudice because Harris’s assessment that Grammas only
would face 6 to 12 months imprisonment grossly underestimated Grammas’s 70-month sentence.
Had he known about his greater sentencing exposure, Grammas maintains, he would have been far
more likely to plead guilty (and thereby avail himself of the Guidelines § 3E1.1 reduction for
acceptance of responsibility) rather than to proceed to trial. See U.S. SENTENCING GUIDELINES
MANUAL § 3E1.1 (2001). Had Grammas decided to plead guilty he likely would have received a 2-
7
to 3-point reduction in base offense level for acceptance of responsibility. See U.S. SENTENCING
GUIDELINES MANUAL § 3E1.1 (2001); United States v. Baker, 78 Fed. Appx. 318, 321 (5th Cir.
2003) (unpublished opinion) (“Section 3E1.1 applies ‘[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense.’”).
Grammas’s decision not to plead guilty likely led to a longer term of imprisonment. Grammas
faced no statutory minimum term of imprisonment for the two counts of his conviction. See 18
U.S.C. §§ 511(a)(1), 922(g)(1), 924(a)(2). Grammas’s base offense level, given the gun conviction
and prior convictions for crimes of violence, was 21; he had a criminal history category of 5; and he
was subject to a sentencing range of 70 to 87 months. See U.S. SENTENCING GUIDELINES MANUAL
Ch. 5 Pt. A (2001). The district court imposed the minimum, 70-month sentence. Had Grammas
received the 2-point deduction for acceptance of responsibility in Guidelines § 3E1.1(a), the
Guidelines range would have been 57 to 71 months. Id.; U.S. SENTENCING GUIDELINES MANUAL
§ 3E1.1(a). Had Grammas pleaded before the Government allocated resources to preparing for trial
and received the additional 1-point deduction in Sentencing Guidelines § 3E1.1(b), the Guidelines
range would have been 51 to 63 months. Id.
Because Grammas was convicted after Glover was decided, Glover applies to Grammas’s
case. Grammas was sentenced to at least 7 and up to 19 months more time than he would have
received had he pleaded guilty and qualified for a three point reduction under Guidelines § 3E1.1(b).
Had Grammas only received a 2-point reduction under Guidelines § 3E1.1.(a), he still would have
been eligible for a 13-month shorter sentence (the court sentenced Grammas at the absolute bottom
of the Guidelines range). Grammas’s sentence would not have decreased only if he received the 2-
point reduction and were then sentenced to the maximum sentence in that range (i.e., 71-months).
8
While it is impossible to know whether Grammas would have received either a 2- or 3-point
reduction, and where within the range he would have been sentenced, Grammas has demonstrated
a “reasonable probability” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different” because he would have received a lesser sentence. Conley, 349 F.3d at
841-42 (citations and quotations omitted). Consequently, Grammas has demonstrated that he was
prejudiced by Harris’s deficient performance, satisfying Strickland’s second prong.
The dissent maintains that Grammas was not prejudiced because he was not “misled by trial
counsel concerning his eligibility for a 2-point reduction under § 3E1.1(a).” However, the dissent
ignores Grammas’s argument that the deficient performance of his counsel led to a longer sentence,
regardless of whether that sentence was within the statutory limits. Grammas maintains—and the
Government does not contest—that had he known of his true sentencing exposure, he would have
sought out a plea bargain or would have pleaded guilty to avail himself of the acceptance of
responsibility decrease in sentencing. See U.S.S.G. § 3E1.1.
We find a reaso nable probability that, had constitutionally sufficient counsel informed
Grammas of his true exposure, Grammas would have pleaded guilty and thereby would have been
sentenced to less time in prison.5 This Court has long recognized that to show prejudice, a defendant
“must demonstrate a reasonable probability that, but for his counsel’s actions, he would have received
a ‘significantly less harsh’ sentence.” United States v. Ridgeway, 321 F.3d 512, 515 (5th Cir. 2003)
(E. M. Garza, J.) (discussing potential prejudice resulting from counsel’s alleged failure to inform the
defendant of his sentencing exposure if he proceeded to trial instead of pleading guilty, but finding
5
The dissent’s focus on the unavailability of a plea bargain is misplaced. Our holding rests
on the reasonable probability of a lesser sentence had Grammas pleaded guilty, see U.S.S.G. §
3E1.1, regardless of whether the Government offered a plea bargain.
9
no prejudice because the 120-month sentence the defendant might have received had he pleaded
guilty was not “significantly less harsh” than the 121-month sentence he received after being found
guilty at trial). Our holding today recognizes that the Supreme Court’s decision in Glover v. United
States, 531 U.S. 198, 203 (2001) (noting that “any amount of jail time has Sixth Amendment
significance”), abrogates our “significantly less harsh” test and replaces it with the “any amount of
jail time” test. See supra. The dissent does not challenge our reading of Glover, and aside from the
change in law mandated by Glover, this opinion faithfully follows the dictates of this Court as
explained in Ridgeway.
Tellingly, even after admitting that Grammas’s counsel’s performance was deficient, and
assuming that Grammas was prejudiced by that deficient performance, the dissent contends that this
opinion “improperly vacates [Grammas’s] convictions.” The dissent takes the curious position that
a defendant whose counsel is deficient in a way that is prejudicial to the defendant—thereby satisfying
both prongs of Strickland’s constitutionally ineffective counsel test—can nonetheless be “rightly
convicted pursuant to a constitutionally valid trial . . . .” That, to us, seems a “bizarre result” indeed.
Perhaps this is another method of arguing that Grammas was not prejudiced by counsel’s
performance. See supra. However, it seems highly incongruous to assume arguendo that counsel
was constitutionally defective and yet still conclude, as the dissent does, that “there was no error in
adjudication of . . . guilt or in the rendering of judgment . . . .” Because a defendant cannot be
convicted absent the effective assistance of counsel (or a voluntary, knowing and intelligent waiver
of such counsel), see U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 687 (1984),
we think it inappropriate to describe a defendant convicted without the effective assistance of counsel
(or without a valid waiver) as “rightly convicted.”
10
IV. CONCLUSION
Grammas demonstrates that Harris provided ineffective assistance of counsel in violation of
the Sixth Amendment. Because Harris’s deficient performance infected Grammas’s decision whether
to plead guilty, Grammas’s conviction itself must be reversed so that Grammas has the opportunity
to decide how to plead without the taint of ineffective assistance of counsel. Therefore, the district
court’s denial of Grammas’s § 2255 motion is REVERSED, Grammas’s conviction is VACATED,
and this case is REMANDED for a new trial or other disposition not inconsistent with this opinion.
11
EMILIO M. GARZA, Circuit Judge, dissenting.
The majority opinion fails to address Grammas’s ineffective assistance of counsel claim at the
level of specificity required to address the issues presented in this appeal. Because of this generalized
approach, the majority opinion incorrectly concludes that Grammas was prejudiced by his trial
counsel’s deficient performance. Grammas fails to establish a causal connection between his
attorney’s conduct and the alleged prejudice))the opportunity of a 2 or 3-point reduction to his
offense level for admission of guilt. Further, the majority opinion improperly vacates Grammas’s
convictions without establishing either a deficiency in the judgment or the process by which the
judgment was imposed. Accordingly, I respectfully dissent.
I agree with the majority opinion that Harris, Grammas’s trial counsel, provided deficient
advice by failing to ascertain that two of Grammas’s prior crimes were “crimes of violence” under
§ 2K2.1, and by consequently not informing Grammas of the proper sentencing range for the crimes
for which he was charged. This Grammas contends, and the majority opinion concludes, induced
him to go to trial rather than to plead guilty. At first blush, and at this level of generality, Grammas’s
contention might appear to be beyond reproach. However, Grammas’s own words should cause the
majority to question its conclusion. At his sentencing hearing, Grammas explained that “I was never
offered a plea bargain or a [§ 5K1] departure. I had no alternative but to take it to trial and prove
my innocence.” See Petitioner’s Brief, p. 22 (quoting R-6, Sentencing Hearing Transcript, p. 324)
(emphasis added). This statement to the sentencing court directly contradicts Grammas’s contention
to this Court that his decision to go to trial was driven by what was then his understanding of the
potential length of his sentence. Further, Grammas admits in his brief that his decision to go to trial
was directly influenced by his attorney’s advice “not to worry because the government could not get
12
a conviction because Mr. Grammas was not in ‘actual possession’ of the said firearm.” Petitioner’s
Brief, p. 2, 17 (emphasis added). Grammas has thus twice conceded that factors other than his
attorney’s advice concerning his sentencing range drove him to decide to go to trial rather than to
plead guilty.6
More importantly, as a matter of law, Grammas was not prejudiced: Harris’s failure to
determine, and inform Grammas, that his prior crimes of violence would increase his sentencing range
did not prejudice Grammas because his sentencing range under § 2K2.1 was not affected by his
decision to go to trial. The applicable sentencing range would have been the same whether Grammas
had pled guilty or had his guilt determined by trial. Thus Harris’s failure to ascertain and properly
advise Grammas as to the effect of his previous crimes of violence on his potential sentence made him
no worse off as to his sentencing range than he would have been had his attorney provided him with
accurate information.
The majority opinion must use a separate basis for establishing prejudice. It finds that
Grammas was prejudiced because he was denied the opportunity to receive a reduction in his offense
level for acceptance of responsibility, see U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 (2001),
6
The majority claims that acknowledging these concessions is “inappropriate” because
they were included in Grammas’s pro se pleadings. See F.3d at n.3. (majority opinion at 6
n.3) (citing Perez v. United States, 312 F.3d 191, 194-95 & n.13 (5th Cir. 2002)). The majority’s
concern regarding pro se pleadings does not apply to Grammas’s first statement because
Grammas made that statement at his sentencing hearing, when he was represented by counsel.
Consideration of the second statement is also appropriate because it was one of the factual
allegations underlying Grammas’s claim for habeas relief and not a legal argument. We liberally
construed the pro se pleadings in Perez to avoid “punishing [the pro se plaintiff] for lacking the
linguistic and analytical skills of a trained lawyer” because courts adopted the rule requiring liberal
construction of pro se pleadings precisely to prevent such a result. Perez, 312 F.3d at 195. The
liberal construction of pro se pleadings does not preclude reliance upon the factual statements
contained within those pleadings and on which Grammas himself relies in order to establish his
habeas claim.
13
or, in the alternative, that he would have sought a plea bargain. Assuming the opportunity for
reduction in a petitioner’s offense level can constitute prejudice,7 Grammas does not allege, or argue,
that he was misled by his trial counsel concerning his eligibility under § 3E1.1 for a reduction to his
offense level. Grammas implicitly concedes that he knew that he would have been eligible for a
reduction to his offense level had he pled guilty and that by making the decision to go to trial rather
than plead guilty he was most likely forfeiting that opportunity in exchange for the possibility of an
acquittal.8
The district court found that there is no evidence suggesting that the Government would have
accepted a plea bargain offer from Grammas, or that it would have offered one of its own. This
conclusion is not clearly erroneous. See Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994) (“We
review the district court’s findings of fact for clear error.”). Grammas admitted at his sentencing
hearing that the Government had not offered him a plea bargain, see R-6, Sentencing Hearing
Transcript, p. 324, and there is no evidence suggesting that the Government would have offered him
one had he asked. Additionally, Grammas has never suggested that he had anything to offer the
Government in exchange for a plea bargain. The majority opinion, however, simply surmises that the
Government would have offered him one despite the district court’s conclusion otherwise.
7
The majority opinion properly admits that the sentencing court may not have granted
Grammas this reduction even if he had pleaded guilty. Of course, Grammas may still not receive
this reduction to his offense level even if he now decides to plead guilty to these charges.
8
Grammas was not foreclosed from receiving a reduction to his offense level simply
because he decided to go to trial rather than plead guilty. See U.S. SENTENCING GUIDELINES
MANUAL § 3E1.1, cmt. n.2 (“Conviction by trial, however, does not automatically preclude a
defendant from consideration for such a reduction. In rare situations a defendant may clearly
demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his
constitutional right to trial.”).
14
To establish Strickland prejudice a petitioner must not only prove that he was prejudiced in
the proceedings, he must also prove that his counsel’s errors caused that prejudice. See Strickland
v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052 (1984) (“The defendant must show that . . . but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”)
(emphasis added); Buxton v. Lynaugh, 879 F.2d 140, 147 (5th Cir. 1989) (The petitioner must show
that “the failure of his counsel caused [him] to suffer prejudice.”) (emphasis added). Grammas is
unable to establish a causal connection between his trial counsel’s deficient conduct under § 2K2.1
and the prejudice he alleges he suffered under § 3E1.1.
The majority opinion concludes that Grammas was generally prejudiced because the effect of
his decision not to plead guilty was the lengthening of his actual sentence if not his sentencing range.
However, the majority opinion is unable to cite a single case where we have found Strickland
prejudice when there was no direct casual relationship between the attorney’s deficient conduct under
§ 2K2.1 and the specific prejudice alleged by the petitioner under § 3E1.1. This highlights the
unprecedented nature of its conclusion.
Grammas knew that if he went to trial he would most likely be giving up the opportunity to
receive a reduction to his offense level for acceptance of responsibility. He cannot now come before
this Court and claim that he was prejudiced by his informed decision to give up that opportunity. Had
Grammas established that had he pleaded guilty his sentencing range would have been less than it was
after he went to trial then he would have established prejudice sufficient to sustain this Strickland
claim. However, he has not, and cannot, meet this burden as his sentencing range was not affected
by that decision.
Even assuming Grammas was able to establish Strickland prejudice the majority opinion
15
improperly vacates his convictions. Grammas has not established any deficiency in the adjudication
of his guilt or in the calculation of his sentence. See 28 U.S.C. § 2255. Grammas is thus properly
in federal custody and is not entitled to habeas corpus relief.
After a fair and constitutionally sound trial, Grammas was found guilty of knowingly altering
a Vehicle Identification Number and being a felon in possession of a firearm. In his habeas petition,
Grammas does not challenge his convictions. In fact, Grammas seeks only the opportunity to plead
guilty to the charges. There is little doubt as to Grammas’s guilt and there is no doubt as to the
validity of the judgment rendered against him.
Grammas also does not challenge the legal validity of the sentence imposed against him. He
does not argue that his sentence is in excess of the maximum authorized by law, nor does he claim
that the sentencing court misapplied the Sentencing Guidelines or in some other way erred in
calculating or imposing his sentence. Grammas seeks relief not authorized by § 2255.
The federal habeas statute provides for habeas relief if either the petitioner’s judgment or
sentence is in some way unlawful. See 28 U.S.C. § 2255 (providing that a petitioner’s conviction
should be set aside if “the judgment was rendered without jurisdiction, or that the sentence imposed
was not authorized by law or otherwise open to collateral attack, or that there has been such a denial
or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to
collateral attack”); Thomas v. United States, 368 F.2d 941, 944 (5th Cir. 1966) (“Where the sentence
is within the limit set by the statute, we are barred, except in the most exceptional circumstances,
from any inquiry we might be otherwise inclined to take.”). Consistent with this principle we
generally grant habeas relief when there has been some error in either the judgment or the process of
determining the judgment, see e.g. United States v. Guerra, 94 F.3d 989 (5th Cir. 1996) (overturning
16
conviction because plea was made involuntarily), or, the sentence or the process of i mposing the
sentence, see e.g. United States v. Conley, 349 F.3d 837 (5th Cir. 2003) (vacating sentence because
trial counsel failed to object to imposition of improper sentence).
There are no such errors in this case. There was no error in the adjudication of Grammas’s
guilt or in the rendering of judgment against him, nor was there any error in the imposition or
calculation of his sentence. Consequently, granting habeas relief in this case involves freeing from
custody an individual who was rightly convicted pursuant to a constitutionally valid trial where the
sentence imposed is consistent with the requirements of the law. The habeas statute does not provide
for this bizarre result, notwithstanding the majority opinion’s claims otherwise.
Further, the majority opinion vacates Grammas’s judgment presumably so that he can now
plead guilty to these charges and receive a reduction in his sentence. The reasoning behind this result,
at minimum, presumes that to the extent that Harris provided ineffective assistance of counsel, that
ineffective assistance did not prejudice Grammas in regards to the judgment rendered against him.
This absence of prejudice regarding Grammas’s judgment explains why the majority now expects him
to plead guilty and voluntarily re-institute the convictions it now vacates. However, despite
Grammas’s contention that he would have, and will now, plead guilty to these charges the majority
opinion’s approach to this case does not guarantee that result. Grammas may yet again decide to not
plead guilty and take his chances with a second trial. At best, this means that Grammas will be
furnished with another opportunity to contest his guilt despite having already been found guilty by
the one constitutionally sound trial he is guaranteed under the law. At worst, it means that Grammas
may go free despite having already been properly adjudicated guilty and having all but confessed to
his crimes in his petition to this Court.
17
Lastly, to the extent that the facts before us are conflicted we have a duty to remand to the
district court for findings of fact. See Shinall v. Breazeale, 404 F.2d 785, 787 (5th Cir. 1968)
(finding that case should be remanded to district court because findings of fact necessary to grant
habeas relief were not made by district court); Miranda v. Bennett, 322 F.3d 171, 175 (2d Cir. 2003)
(citing cases).
Accordingly, I respectfully dissent.
18