Case Information
*1 Before: MOORE, SUTTON, and STRANCH, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Darron Deon Howard (“Howard”) appeals from the denial of his motion to vacate his sentence under 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel. Howard claims that his counsel’s performance was deficient because counsel failed to argue either at sentencing or on direct appeal that certain criminal history points did not apply. For the following reasons, we REVERSE the district court’s judgment and REMAND for an evidentiary hearing as discussed herein.
I. BACKGROUND
In February 2006, the Grand Rapids Police Department was responding to a report of an altercation when they approached Howard, who was in the area. Howard fled, discarding a handgun underneath a parked vehicle in the process. The police subdued and detained Howard and recovered the handgun. Howard admitted possessing the gun, which he claimed to have taken from someone else at the scene to diffuse the altercation. Howard was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court accepted a plea of guilty on May 22, 2007, and sentenced Howard to 120 months of imprisonment, the statutory maximum. [1]
The PSR calculated Howard’s total offense level as 28 and his criminal history as category VI. His criminal history score was thirteen points, which included six points relating to five juvenile offenses starting when Howard was eleven years old. At sentencing, Howard’s counsel objected to the inclusion of three of the prior juvenile offenses for (1) malicious destruction of a building (PSR ¶ 39), (2) possession of marijuana and giving false information to a police officer (PSR ¶ 41), and (3) unlawful driving away of an automobile (PSR ¶ 42). The district court agreed that the first two of these offenses should be excluded because Howard was sentenced more than five years before the instant offense. The district court denied the objection as it related to the offense in paragraph 42. After removing the two excluded offenses, Howard had eleven criminal history points, which placed him in Category V. His sentencing guidelines range was therefore 130 to 162 months of imprisonment, and the district court sentenced Howard to the statutory maximum for the offense of 120 months of imprisonment. Howard’s counsel filed a direct appeal raising only certain objections to the calculation of Howard’s offense level. We affirmed. United States v. Howard , 301 F. App’x [2]
446 (6th Cir. 2008) (unpublished opinion).
On February 16, 2010, Howard filed pro se a timely motion under 28 U.S.C. § 2255 arguing that his criminal history category was erroneously high due to the wrongful inclusion of the offenses in paragraphs 38, 42, and 43 of the PSR, and that his counsel’s performance was deficient for not presenting this issue. Howard claims that before sentencing, he wrote to his counsel asking him to object to the addition of two criminal history points for the offense in paragraph 38 of the PSR, for retail fraud, curfew violation, and unarmed robbery committed when Howard was only 11. His counsel failed to raise any argument before the district court with respect to that offense. Before his direct appeal was filed, Howard claims that he again reached out to counsel about including objections to his criminal history points. Howard’s counsel did not respond, and no challenges were made on direct appeal to the inclusion of any criminal history points, including the challenge to paragraph 42 previously rejected by the district court. The district court denied Howard’s § 2255 motion, without a hearing, on the grounds that Howard’s claims were procedurally defaulted and that Howard had failed to show cause and prejudice to overcome the default. R. 72 (D. Ct. Op. & Order at 5, 15). The district court also denied a certificate of appealability (“COA”). Id. ; see also R. 76 (D. Ct. Op. & Order at 10-11). Howard filed a pro se motion for a COA before this court, which we granted.
II. JURISDICTION
We have jurisdiction to review any final order denying relief under 28 U.S.C. § 2255, but
only if a COA has been granted. 28 U.S.C. § 2253(c)(1)(B). Here, a COA was issued, but it does
not identify the issues for which appeal is authorized as required by § 2253(c)(3). However, the
Supreme Court has recently clarified that the specificity requirement in § 2253(c)(3) is mandatory,
but not jurisdictional.
Gonzalez v. Thaler
,
The next question that we must resolve is what issues were covered by the general COA. The
parties do not argue, and we do not ourselves hold, that our review is limited to the issues identified
in Howard’s request for a COA. Howard’s pro se request for a COA sought review only of the
district court’s discussion of his prior offenses in paragraphs 42 and 43 of the PSR, but made no
mention of reviewing the district court’s decision with respect to paragraph 38, which is the primary
offense argued on appeal. R. 74 (Request for COA). Howard’s brief on appeal filed by appointed
counsel addresses paragraphs 38 and 42, both of which were addressed by the district court, and the
government has responded fully to these claims. We have previously recognized our inherent
authority to expand sua sponte the scope of the COA to encompass additional issues briefed and
addressed on the merits before the district court, and we exercise that authority now to expand the
scope of Howard’s COA to encompass the issues briefed on appeal.
See Meadows v. Doom
, 450 F.
App’x 518, 519 n.1 (6th Cir. 2011) (unpublished opinion);
Humphreys v. United States
, 238 F.
App’x 134, 138-39 (6th Cir. 2007) (unpublished opinion);
Mack v. Holt
,
III. CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL Howard argues that his counsel was ineffective for failing to object to the inclusion of two of his juvenile convictions in his criminal history calculation. He argues that counsel’s performance was prejudicially deficient for not objecting to paragraph 38 because the relevant offense did not include a “sentence to confinement” under U.S. Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 4A1.2(d)(2)(A) and therefore should have been only one point rather than two, or may have been a “diversionary disposition” under U.S.S.G. § 4A1.2(f) and should have been zero points. He argues that counsel’s performance was also prejudicially deficient for not objecting to paragraph 43 because the particular offense was an uncounted misdemeanor under U.S.S.G. § 4A1.2(c)(1). We decline to resolve these issues, however, because we agree with Howard that the district court erred in not conducting an evidentiary hearing in this case.
We review for abuse of discretion the district court’s decision not to hold an evidentiary
hearing on a motion for relief under 28 U.S.C. § 2255.
Valentine v. United States
,
The district court did not discuss the standard for granting an evidentiary hearing. Although
it deemed Howard’s claims meritless, the district court did not determine that the existing record
conclusively showed
that Howard’s ineffective-assistance claims lacked merit. Instead, the district
court determined that Howard’s failure to raise his ineffective-assistance claim on direct appeal
constituted waiver and applied the standard that a defendant must meet to overcome a procedural
default. The district court determined that Howard’s claims failed because Howard did not “present
affirmative evidence and argument as to the precise cause and the precise prejudice produced”
necessary “[t]o overcome [the] strong presumption against using collateral review to raise” these
supposedly defaulted claims. R. 72 (D. Ct. Order at 6, 8). The Supreme Court, however, has made
clear that claims of ineffective assistance of trial counsel may be raised for the first time on collateral
review under § 2255.
Massaro v. United States
,
Howard’s first two arguments require an evidentiary hearing because the record is deficient
regarding the nature of his juvenile sentences that ultimately required his attendance at the Glen
Mills program in Pennsylvania. Under U.S.S.G. § 4A1.2(d)(2)(A), a defendant should receive two
criminal history points for any “juvenile sentence to confinement of at least sixty days if the
defendant was released from such confinement within five years of his commencement of the instant
offense.” U.S.S.G. § 4A1.2(d)(2)(A). The Guidelines do not further define the meaning of
“confinement,” but we have previously held that a defendant’s “commitment to a juvenile facility
constitutes” confinement within the meaning of the enhancement.
United States v. Hanley
, 906 F.2d
1116, 1120 (6th Cir.) (citing
United States v. Kirby
,
Here, the record contains a dearth of information regarding the nature of Howard’s stay at
Glen Mills and whether his time there was the result of an adjudication of guilt for any specific
offense and not simply a result of his being a ward of the state. The PSR refers to it as a
“commitment,” but we have trouble reading this language as conclusively showing that Howard’s
claim lacks merit when his very claim is that counsel was ineffective for failing to object to the
PSR’s categorization of this offense. Nor does the PSR contain additional factual recitations about
Howard’s stay at Glen Mills or the juvenile proceedings that led up to his stay there from which we
could conclude that the record conclusively shows that his stay constituted a juvenile commitment
under
Hanley
. Indeed, counsel at sentencing referred to it as a “wonderful school,” R. 55 (Sent. Hr’g
Tr. at 9), and the PSR also suggests that Howard was easily able to leave to visit his family. Suffice
it to say, the record does not conclusively show that Howard was “commit[ted] to a juvenile facility”
following an adjudication of guilt by the Michigan juvenile court. Howard has made more than just
bare assertions of a fact dispute on this issue; he therefore should have received an evidentiary
hearing.
Valentine
,
For the same reasons, Howard’s claim regarding a potential diversionary disposition must also be remanded. Section 4A1.2(f) provides:
Diversion from the judicial process without a finding of guilt (e.g., deferred prosecution) is not counted. A diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere, in a judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction is not formally entered, except that diversion from juvenile court is not counted.
The commentary explains that adult diversionary sentences resulting in a determination of guilt are counted because “defendants who receive the benefit of a rehabilitative sentence and continue to commit crimes should not be treated with further leniency.” U.S.S.G. § 4A1.2 cmt. n.9. For both adults and juveniles, therefore, diversions without a finding of guilt are not counted at all. Diversions that include an admission of guilt are counted for adults, but not juveniles. There is no further guidance on the meaning of “diversion.”
We adopt the well-reasoned approach of the First Circuit in
United States v. DiPina
, 178 F.3d
68 (1st Cir. 1999). Where we simply lack the juvenile records from which to conclude whether the
defendant received a diversionary disposition, the proper course is to remand for resolution of the
fact question in the first instance.
Id.
at 77;
see also United States v. Martinez-Martinez
, 41 F. App’x
96, 99 (9th Cir. 2002) (unpublished opinion) (remanding for determination of whether disposition
to “juv. facility” was diversionary). Although classifying a sentence as diversionary under the
Guidelines is a question of federal law,
Williams
,
The district court considered the merits of this argument only as a stand-alone claim and concluded that Howard “has not carried [his] burden” under AEDPA “by presenting or pointing to any hard evidence proving that these convictions were in fact diversionary.” R. 72 (D. Ct. Op. & Order at 13). This was not the correct standard for reviewing a new claim of ineffective assistance of counsel under § 2255; instead, the district court must first determine if the record “conclusively show[s]” that Howard’s claim has no merit. 28 U.S.C. § 2255(b). Because this record does not conclusively show that Howard’s counsel was not deficient for failing to argue that Howard’s sentence was diversionary, the district court erred in not holding an evidentiary hearing to resolve this claim. We must therefore remand for an evidentiary hearing on whether counsel could have reasonably concluded that Howard’s sentence for this offense was not diversionary.
Finally, we do not agree with the government that Howard waived his argument with respect
to the inclusion of paragraph 43 for giving false information to a police officer. Howard’s initial pro
se § 2255 motion clearly argued that counsel was ineffective for not objecting to the inclusion of this
specific offense. Howard admittedly did not cite U.S.S.G. § 4A1.2(c)(1) until appeal, but he relied
in part on
United States v. Hall
,
The PSR, however, makes it unclear whether Howard’s sentence for this offense involved a stay at Glen Mills. Paragraph 43 of the PSR states that Howard provided the Grand Rapids Police Department a false name and date of birth on November 3, 2001. PSR ¶ 43. Under “Disposition,” the PSR states, “04-18-02/Continued temporary ward of the court, probation; 10-17-02/Discharged from probation.” Id. Howard was on probation at the time for his previous offenses, and the PSR further notes that “Mr. Howard’s previous non-compliance with his probation term has been detailed above in paragraph 3[8].” Id. Nothing in paragraph 43 suggests that placement at Glen Mills was part of his sentence for the offense of giving false information. Paragraph 38, however, states that after his arrest for giving a false name, he “was ordered to complete the Glen Mills Program.” PSR ¶ 38.
The record does not conclusively show that an objectively reasonable counsel would have ignored this objection. U.S.S.G. § 4A1.2(c) explicitly excludes the misdemeanor offense of giving false information absent certain sentences for the conduct. The PSR gives inconsistent accounts of his state sentence (if any), making it impossible to tell whether the guidelines calculation was correct. On remand, Howard may also introduce state-court records to show that his false- information charge should have been disregarded.
IV. CONCLUSION
For the aforementioned reasons, we REVERSE the district court’s judgment and REMAND for further proceedings consistent with this opinion.
Notes
[1] Howard initially signed a written plea agreement in November 2006, which he was permitted to withdraw by the district court at his original sentencing hearing. On April 30, 2007, the first day of trial, Howard again pleaded guilty, but without a written agreement.
[2] Howard did not raise any objections to the calculation of his total offense level on collateral review and does not raise those issues on this appeal. Appellant Br. at 7 n.3.