United States v. Michael Scripps, 961 F.3d 626

Michael Scripps was convicted of seven counts of wire fraud for diverting family funds into his account.
At sentencing the judge addressed counsel repeatedly but never personally addressed Scripps; counsel conferred with Scripps on the record and stated Scripps declined to speak.
The district court imposed 108 months’ imprisonment (top of the Guidelines) and three years’ supervised release.
On collateral review (§ 2255) Scripps alleged ineffective assistance of appellate counsel for failing to raise that the judge did not personally address him in violation of Fed. R. Crim. P. 32(i)(4)(A)(ii).
The district court denied relief without an evidentiary hearing, concluding no Rule 32 error because Scripps had opportunities to speak through counsel; the Third Circuit granted a COA on whether an evidentiary hearing was required.
The Third Circuit held the judge’s failure to personally address Scripps violated Rule 32, prejudice was shown under Adams/Mannino standards, and remanded for an evidentiary hearing to determine appellate counsel’s reasons/strategy.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel was ineffective for not raising that the sentencing judge failed to personally address the defendant (Rule 32)	Scripps: judge never personally invited him to allocute; appellate counsel should have raised plain Rule 32 violation on direct appeal	Government/District Ct: record shows multiple on-the-record invitations via counsel and counsel conferred with Scripps, so no Rule 32 error; raising it would have been meritless	Third Circuit: judge committed Rule 32 error per Green/Adams; prejudice likely under Adams/Mannino; because counsel’s reasons for omission are unknown, district court abused discretion by denying §2255 without evidentiary hearing — remand for hearing

Green v. United States, 365 U.S. 301 (1961) (requires personal invitation to defendant to speak prior to sentencing)
United States v. Adams, 252 F.3d 276 (3d Cir. 2001) (addressing counsel is not a substitute for personally addressing defendant under Rule 32)
Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel: performance and prejudice)
Evitts v. Lucey, 469 U.S. 387 (1985) (right to effective appellate counsel on first appeal as of right)
United States v. Mannino, 212 F.3d 835 (3d Cir. 2000) (prejudice inquiry for sentencing claims on collateral review)
United States v. McCoy, 410 F.3d 124 (3d Cir. 2005) (§ 2255 evidentiary hearing standard)
United States v. Lilly, 536 F.3d 190 (3d Cir. 2008) (abuse-of-discretion review of district court’s denial of evidentiary hearing)
Hill v. United States, 368 U.S. 424 (1962) (allocution alone typically not cognizable on collateral attack)