FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 6, 2012
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
No. 12-3006
v. (D.C. No. 2:11-CV-02477-CM and
2:09-CR-20143-CM-2)
PAUL G. RAYFORD, (D. Kansas)
Defendant–Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
On May 18, 2012, Defendant received a certificate of appealability to appeal the
district court’s denial of his § 2255 habeas petition. As explained in the order granting
COA, Defendant’s § 2255 habeas claim was based on the apparent miscalculation of the
applicable sentencing guidelines range in his underlying criminal case. Specifically, the
sentencing court counted two prior drug trafficking convictions separately under U.S.S.G.
§ 4A1.2(a)(2) because the PSR indicated his sentencing for these convictions occurred on
two separate dates—“10/10/2000” and “10/12/2000.” However, Defendant submitted
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
with his § 2255 habeas petition a state court transcript that, if authentic, clearly shows he
was sentenced for both of these convictions on October 12, 2000. Defendant was granted
a certificate of appealability to challenge the district court’s conclusion that this error did
not entitle him to habeas relief.
In 2010, Defendant pled guilty to one count of attempted bank robbery, one count
of carrying and using a firearm during and in relation to the attempted bank robbery, and
one count of being a felon in possession of a firearm. He was sentenced to a total of 144
months’ imprisonment—concurrent bottom-of-the-guidelines sentences of 84 months for
the first and third counts, followed by a consecutive 60-month sentence on the second
count. On appeal, Defendant’s appointed counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating there were no non-frivolous issues for Defendant
to raise on appeal. Defendant filed a pro se response in which he argued, inter alia, that
his sentences for these state court convictions should have been counted as a single
sentence under U.S.S.G. § 4A1.2(a)(2) because the sentences were imposed on the same
day. If these sentences had been counted together, Defendant’s criminal history category
would have been set at IV rather than V, resulting in an advisory range of 70–87 months
instead of the calculated range of 84–105 months.
Defendant’s claim of sentencing error was rejected on direct appeal based on the
PSR’s listing of two different dates. When Defendant then filed the instant § 2255
petition, the district court denied habeas relief on the grounds that this argument had
already been disposed of on direct appeal. However, a judge of this court granted a
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certificate of appealability, concluding that reasonable jurists could debate whether the
circumstances of the case warranted an exception to the general rule against revisiting
issues decided on direct appeal.
In its response brief, the government first argues that Defendant may not relitigate
the U.S.S.G. § 4A1.2(a)(2) sentencing calculation issue because it was decided on direct
appeal. “Absent an intervening change in the law of a circuit, issues disposed of on direct
appeal generally will not be considered on a collateral attack by a motion pursuant to §
2255.” United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (emphasis added).
We conclude that the unusual circumstances of this case warrant an exception to the
general rule. Because defense counsel filed an Anders brief that did not mention the
U.S.S.G. § 4A1.2(a)(2) sentencing issue, Defendant did not have the assistance of counsel
in raising this claim or obtaining access to the information needed to challenge this
particular aspect of his sentencing.1 This claim was therefore rejected on direct appeal
because the evidence refuting the PSR’s erroneous information was not brought to the
attention of the panel. However, Defendant has now obtained and presented evidence
that, assuming authenticity, shows he was indeed sentenced on the same date for both of
his prior drug trafficking convictions. Based on this new evidence, and in light of defense
1
As the Supreme Court stated in a somewhat different context, “The facts of this
case emphasize a different, albeit related, aspect of counsel’s role, that of expert
professional whose assistance is necessary in a legal system governed by complex rules
and procedures for the defendant to obtain a decision at all—much less a favorable
decision—on the merits of the case.” Evitts v. Lucey, 469 U.S. 387, 394 n.6 (1985).
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counsel’s failure to assist Defendant in litigating this issue on direct appeal, we will
depart from our general rule against considering on habeas an issue that was disposed of
on direct appeal. Cf. United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998)
(noting that we will depart from the law-of-the-case doctrine “when the evidence in a
subsequent trial is substantially different” or “when the decision was clearly erroneous
and would work a manifest injustice”); Johnson v. Champion, 288 F.3d 1215, 1226 (10th
Cir. 2002) (holding it would be manifestly unjust to adhere to a clearly erroneous finding
that imposed an unnecessary procedural hurdle on a state habeas petitioner).
The government further argues Defendant’s claim of sentencing error does not rise
to the level of “a miscarriage of justice” and thus is not cognizable under § 2255. See
United States v. Talk, 158 F.3d 1064, 1070 (10th Cir. 1998) (“[N]umerous cases have
held that sentencing errors typically do not give rise to a miscarriage of justice sufficient
to excuse procedural default.”); cf. Narvaez v. United States, 674 F.3d 621, 627 (7th Cir.
2011) (holding that error in classifying defendant as a violent offender caused a
miscarriage of justice); Talk, 158 F.3d at 1070 (assuming without deciding that an “error
that results in a significantly miscalculated sentence”—in that case, a nine-level error that
increased the term of imprisonment from less than 52 months to 108 months—might be
cognizable under § 2255). We agree that, under the circumstances of this case, the
sentencing error here did not give rise to a miscarriage of justice.
However, this conclusion does not end our inquiry. While Defendant may not be
able to obtain habeas relief via a direct challenge to the sentencing error, he argues he
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should still be able to proceed under a claim of ineffective assistance of counsel. Under
this theory, Defendant does not need to prove the sentencing error caused a significant
increase in his calculated sentencing range. Rather, when defense counsel provides
ineffective assistance by failing to raise a sentencing error during the sentencing
proceeding and on appeal, a defendant is prejudiced if “there is an increase in the actual
amount of jail time that may be served using the improperly-applied guideline range,”
even if that increase is minimal. United States v. Horey, 333 F.3d 1185, 1188 (10th Cir.
2003). Indeed, we found prejudice in Horey even though the 360-month sentence the
district court imposed was within the correctly calculated sentencing guidelines range of
292–365 months. We noted that the district court chose a bottom-of-the-guidelines
sentence under the improperly applied guidelines range, and we reasoned the court might
choose a bottom-of-the-guidelines sentence under the correct range as well. Id. The
same reasoning applies to Defendant’s bottom-of-the-guidelines sentence in the instant
case. Defendant has presented at least a facially plausible claim of ineffective assistance
of counsel.
True, Defendant did not frame his claim in terms of ineffective assistance below,
and we generally will not consider issues raised for the first time on appeal. See United
States v. Mora, 293 F.3d 1213, 1218 (10th Cir. 2002). However, “[t]he matter of what
questions may be taken up and resolved for the first time on appeal is one left primarily to
the discretion of the courts of appeals, to be exercised on the facts of individual cases.”
Singleton v. Wulff, 428 U.S. 106, 121 (1976). In Mora, we exercised our discretion to
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consider an argument raised for the first time on appeal based on several circumstances,
including the petitioner’s pro se status, the fact that his incarceration limited his ability to
examine recent Supreme Court precedents, and the fact that “refusal to consider [his]
appeal now would effectively bar him from ever raising [this] claim.” Mora, 293 F.3d at
1218.
We likewise exercise our discretion to consider the belatedly raised issue of
ineffective assistance here. Defendant is a pro se litigant who has been attempting since
at least his direct appeal to draw attention to what is alleged to be an obvious sentencing
error,2 while his attorney ignored the issue and told the court Defendant had no non-
frivolous grounds to raise on appeal. Under 28 U.S.C. § 2244, Defendant will never be
able to raise his non-frivolous claim of ineffective assistance of counsel if we prevent him
from doing so now. In light of all of the circumstances of this case—what appears to be a
typographical error in the PSR that led to an increase in Defendant’s criminal history
category and guidelines range; appellate counsel’s failure to raise this or any other issue
on appeal, even after Defendant attempted to call attention to the problem through his pro
2
The government argues the court’s sentencing calculation may not have been
incorrect. Even if a defendant is sentenced for two prior offenses on the same date, the
sentences are counted separately under U.S.S.G. § 4A1.2(a)(2) if the offenses were
separated by an intervening arrest. However, as the government concedes, the record
does not indicate whether there was an intervening arrest. Further factual development
may demonstrate that the sentencing calculation could have been sustained on this
alternate basis; however, as the record currently stands, the state sentencing transcript
(assuming authenticity) refutes the basis on which the sentences were counted separately
by the district court.
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se brief; and the fact that this is effectively Defendant’s last opportunity to have the
alleged obvious error in his sentencing addressed—we exercise our discretion to consider
this issue even though Defendant did not earlier frame his claim in precisely the terms we
usually require.
As previously stated, we conclude that Defendant has raised at least a facially
plausible claim of ineffective assistance of counsel. The record includes evidence that, if
authentic, refutes the factual basis on which the sentencing court counted Defendant’s
prior offenses separately for criminal history purposes. Defendant asserts that he asked
defense counsel to raise this issue before sentencing, and the record reflects that defense
counsel did not raise this issue on direct appeal even after Defendant filed a pro se brief
asserting he was sentenced for the two prior offenses on the same date. Unless the
sentencing calculation could have been supported on the alternate basis of an intervening
arrest, the alleged sentencing error increased the advisory sentencing guidelines range and
thus resulted in prejudice under Horey. Of course, factual development may be required
to determine, inter alia, the authenticity of Defendant’s evidence, the extent to which
defense counsel knew or should have known of the alleged error, and the possibility that
the guidelines calculation would have been sustained on an alternate basis if defense
counsel had raised an objection to the PSR below. The district court is in the best
position to make any such factual determinations, and we remand for the district court to
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decide Defendant’s claim of ineffective assistance of counsel in the first instance.
REVERSED and REMANDED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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