UNITED STATES of America, Plaintiff-Appellant, v. Michael J. MIKALAJUNAS, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Craig E. Largent, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Michael J. Mikalajunas, Defendant-Appellant.
Nos. 98-4002, 98-4003 and 98-4031
United States Court of Appeals, Fourth Circuit
Decided: July 21, 1999
Argued: April 9, 1999.
186 F.3d 490
Before MURNAGHAN, WILKINS, and NIEMEYER, Circuit Judges.
OPINION
WILKINS, Circuit Judge:
The United States appeals a decision of the district court granting relief to Michael J. Mikalajunas and Craig E. Largent (collectively, “Appellees“) pursuant to
I.
Appellees pled guilty to the second-degree murder of Christopher Weathers pursuant to plea agreements that stipulated to a base offense level of 33 for each. Largent‘s plea agreement also stipulated that an enhancement for physical restraint of the victim was appropriate under
Mikalajunas’ brother, who is not a party to this appeal, pled guilty to being an accessory after the fact to the second-degree murder of Weathers. At sentencing, he challenged the applicability of a proposed upward adjustment to his offense level for restraint of the victim and later appealed the decision of the district court to enhance his offense level pursuant to
In April 1997, Mikalajunas and Largent filed motions pursuant to
II.
The Government maintains that because Appellees did not appeal the enhancement of their offense levels under
Acknowledging their failure to appeal the enhancement of their offense levels for restraint of the victim, Appellees contend that they can establish cause to excuse their procedural default based on either ineffective assistance of counsel or a change in the law. Alternatively, they contend that they are actually innocent of the enhancement. We disagree with all of these assertions.
To establish cause for their default based upon ineffective assistance of counsel, Appellees must show that their attorneys’ performance fell below an objective standard of reasonableness and that they suffered prejudice as a result. See Murray, 477 U.S. at 488; Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel‘s failure to pursue a basis for appeal by reason of a mere miscalculation of the likelihood of success does not constitute constitutionally ineffective representation. See Smith v. Murray, 477 U.S. 527, 534-35 (1986). Here, counsel‘s decision not to challenge Appellees’
Further, Appellees cannot demonstrate cause based on an argument that a change in the law—the intervening decision of this court in Mikalajunas—excuses their default. In order to justify the failure to raise an issue during trial and direct appeal based on a subsequent change in the law, the state of the law must have been such that the legal basis for the claim was not reasonably available when the matter should have been raised. See Turner v. Jabe, 58 F.3d 924, 927-28 (4th Cir.1995). There is no ground for an argument that the question decided in Mikalajunas (whether the enhancement for restraint of victim applies when the under
With Appellees having failed to demonstrate cause and prejudice to excuse their failure to appeal the applicability of the restraint of victim enhancement, the question remains whether they can show actual innocence to excuse their procedural default. See Sawyer v. Whitley, 505 U.S. 333, 339 (1992) (explaining that even when habeas petitioner cannot excuse procedural default by demonstrating cause and prejudice, court may review merits of claim if petitioner can show actual innocence). Typically, to establish actual innocence a petitioner must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent. See id. at 339-41. Although recognizing that the concept of actual innocence does not lend itself easily to sentencing determinations, the Supreme Court has held that a petitioner may establish actual innocence in the capital sentencing context by demonstrating by clear and convincing evidence that but for an alleged error committed during his sentencing “no reasonable juror would have found him eligible for the death penalty under” applicable law. Id. at 350. The Court has not addressed whether the actual innocence exception can be applied to sentencing outside the capital context, and this question has divided the courts of appeals. Compare Embrey v. Hershberger, 131 F.3d 739, 740-41 (8th Cir.1997) (en banc) (holding that actual innocence exception “applies only to the sentencing phase of death cases“), cert. denied, ___ U.S. ___, 119 S.Ct. 78, 142 L.Ed.2d 61 (1998), and United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993) (ruling that “[a] person cannot be actually innocent of a noncapital sentence“), with Mills v. Jordan, 979 F.2d 1273, 1278-79 (7th Cir.1992) (holding that a showing of actual innocence of a predicate offense that is necessary for habitual offender sentencing enhancement may excuse procedural default).3
In United States v. Maybeck, 23 F.3d 888, 892-94 (4th Cir.1994), a panel of this court ruled that the actual innocence exception may be applied in § 2255 to noncapital sentencing proceedings and that Maybeck was actually innocent of being a career offender, see
Appellees’ reading of Maybeck cannot be correct. If the actual innocence exception is available anytime a guideline is misapplied (such that the defendant is “actually innocent” of the application of the guideline), the actual innocence exception would swallow the rule that issues not raised on appeal cannot be considered in a § 2255 motion absent a showing of cause and prejudice to excuse the default. Such a reading of Maybeck would mean that whenever a movant is prejudiced by the misapplication of a sentencing guideline and does not raise the error on direct appeal, a federal court may nevertheless
III.
The Government also asserts that even if Appellees had not procedurally defaulted their claim that the
The circuit courts of appeals have reserved judgment on whether a misapplication of the sentencing guidelines could ever support § 2255 relief but have held that errors of guideline interpretation or application ordinarily fall short of a miscarriage of justice. See Burke v. United States, 152 F.3d 1329, 1331-32 (11th Cir.1998) (holding that sentence imposed contrary to subsequent clarifying amendment to guideline was not a miscarriage of justice), cert. denied, ___ U.S. ___, 119 S.Ct. 2019, 143 L.Ed.2d 1031 (1999); United States v. Payne, 99 F.3d 1273, 1281-82 (5th Cir.1996) (concluding that an improper application of the guidelines by the district court is a non-constitutional issue that could have been raised on direct appeal and is not cognizable on collateral review); Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir.1996) (per curiam) (ruling that claim that fine imposed exceeded maximum allowable under guidelines would not be considered on collateral review when the defendant failed to raise it on direct appeal and there was no miscarriage of justice); Auman v. United States, 67 F.3d 157, 161 (8th Cir.1995) (determining that ordinary questions of guideline interpretation that fall short of being miscarriages of justice are not cognizable under § 2255 and reserving the question of whether guideline error ever could be a miscarriage of justice); Knight v. United States, 37 F.3d 769, 772-74 (1st Cir.1994) (ruling that ordinary misapplication of sentencing guidelines was not a proper claim under § 2255); United States v. Segler, 37 F.3d 1131, 1134 (5th Cir.1994) (holding that “[a] district court‘s technical application of the Guidelines” is not “cognizable under § 2255“); Scott v. United States, 997 F.2d 340, 342-43 (7th Cir.1993)(stating that petitioner could not raise, by means of § 2255, an allegation that the district court misapplied the sentencing guidelines when the sentence had become final, petitioner had not appealed, and the petitioner failed to demonstrate any extraordinary circumstances warranting collateral attack on his sentence); see also United States v. Schlesinger, 49 F.3d 483, 485-86 (9th Cir.1994) (concluding “that nonconstitutional sentencing errors that have not been raised on direct appeal ... generally may not be reviewed” under § 2255). We join our sister circuits in holding that a misapplication of the guidelines typically does not constitute a miscarriage of justice. And, we conclude that Appellees’ claim that the district court erred in enhancing their offense levels for restraint of the victim is merely an allegation of an ordinary misapplication of the guidelines that does not amount to a miscarriage of justice.
IV.
In sum, we hold that by failing to raise the issue on direct appeal, Mikalajunas and Largent procedurally defaulted their claim that the district court improperly applied the
REVERSED.
MURNAGHAN, Circuit Judge, dissenting:
I want to make clear what results from the majority opinion. The Appellees, the government, the lower court, and the majority all agree that because of a misapplication of the sentencing guidelines, one of the Appellees will be in jail for one year longer than the sentence provided by law, the other Appellee will be in jail for over four years longer than the sentence provided by law. This was not a procedural error such that it might turn out at resentencing that Appellees would be subject to the same sentencing enhancement, in any event. All agree that, without a doubt, Appellees do not qualify for the sentencing enhancement which they received. Citing the “ordinary” nature of the error at issue, see ante at 496, the majority finds itself powerless to prevent the Appellees from serving over five years of admittedly erroneous jail time. Because I do not believe that the state‘s interest in finality outweighs even one year of a man‘s life, and because I believe that Supreme Court and Circuit precedent dictate a contrary result, I respectfully dissent.
I.
The defendants were rightfully convicted for second-degree murder. However, their sentences included additions of 52 months in one and 12 months in the other for physical restraint of the victim. That was not interpreted to be improper under the sentencing guidelines at the time of sentencing. However, it was later determined to be so since “every murder involves the ultimate restraint.” Hence the victim‘s restraint did not add anything to his murder. United States v. Mikalajunas, 936 F.2d 153, 156 (4th Cir.1991). The district judge, under
II.
I agree with the majority‘s discussion of the cause and prejudice standard. I note, however, that, given the majority‘s holding in section III, it is irrelevant that the Appellees in this case procedurally defaulted. Under the majority opinion, even if the Appellees had challenged the Application of
I have trouble reconciling the majority‘s approach with the plain language of § 2255, which is, after all, phrased in terms of challenges to sentences. See
As the majority acknowledges, the fact that Appellees procedurally defaulted their claim is not the end of the analysis. The Supreme Court has established an exception to the procedural default rule to avoid fundamental miscarriages of justice, when a defendant can meet a certain standard of “actual innocence.” See, e.g., Schlup v. Delo, 513 U.S. 298, 322-323 (1995); Sawyer, 505 U.S. at 339; Carrier, 477 U.S. at 496. While the “actual innocence” exception was initially formulated in the context of a petitioner who claimed actual innocence of the crime of conviction, the Supreme Court has applied that exception also to capital sentencing determinations. See, e.g., Sawyer, 505 U.S. at 339; Dugger v. Adams, 489 U.S. 401, 410-12 n. 6 (1989); Smith v. Murray, 477 U.S. 527, 537 (1986).
The Supreme Court has noted that the actual innocence exception is reserved for cases of “actual as compared to legal innocence.” Sawyer, 505 U.S. at 339. The Sawyer Court, however, made clear that “actual” innocence did not mean innocence of the charged crime. In that case, the Court applied the actual innocence exception although the petitioner was concededly guilty of the underlying crime. Sawyer explained that actual innocence in the sentencing context focuses on the elements that render a defendant eligible for the particular penalty. Id. at 347.
Following Sawyer‘s logic, in United States v. Maybeck, 23 F.3d 888 (4th Cir.1994), we applied the actual innocence exception to a collateral challenge to a non-capital sentence:
Except for the obvious difference in the severity of sentences, we see little difference between holding that a defendant can be innocent of the acts required to enhance a sentence in a death case and applying a parallel rationale in non-capital cases. *** Hence, a defendant in either a capital or non-capital case would, unless excepted from the cause and prejudice requirement, suffer the same general consequence (an enhanced sentence) from being held responsible for an act of which he or she is actually innocent.
Maybeck, 23 F.3d at 893 (emphasis added).2 Appellees’ situation falls squarely into the logic of this passage.
Although Maybeck contains no language limiting its holding to erroneous career offender enhancements, the majority balks at applying Maybeck here. The majority says that it must limit Maybeck because to do otherwise would effectively ignore the cause prong of the cause-and-prejudice standard. See ante at 494. I do not share the majority‘s concerns. The Supreme Court has established that when the prejudice is so severe as to be fundamentally unjust—i.e., the defendant is convicted, see Carrier, 477 U.S. at 496, or sentenced, see Sawyer, 505 U.S. at 336, when he is actually not guilty of that conviction or sentence—a prisoner need not show cause. That is why the Supreme Court created the actual
The issue, then, is not whether the actual innocence exception swallows the cause and prejudice rule, since they are entirely separate; rather the issue is whether one believes that it is fundamentally unjust to keep a prisoner in jail for one year or four years longer than the correct sentence dictated by the Sentencing Guidelines. When the issue is properly framed, it becomes clear that the majority has no logical or conceptual basis to limit Maybeck. The Maybeck panel held that it was a fundamental miscarriage of justice to require a defendant to serve time under sentencing provisions of which he was actually innocent. I agree with that holding. The best that the typical habeas petitioner can claim is that in the absence of the error, a different result was likely. Appellees, like the petitioner in Maybeck, can claim a much more serious prejudice because of the error each Appellee will with a certainty be serving a long period of time in jail
It is true that the trend in Supreme Court habeas cases has been to emphasize finality over the correction of errors. See, e.g., Sawyer, 505 U.S. at 338; McCleskey v. Zant, 499 U.S. 467, 490-91 (1991); Teague v. Lane, 489 U.S. 288, 316 (1989);5 Wainwright v. Sykes, 433 U.S. 72, 87 (1977). However, at the same time the Court has been narrowing the availability of the writ, it has been expanding the fundamental miscarriage of justice standard. This doctrine was first held to be applicable to procedurally defaulted claims in Carrier, 477 U.S. at 496. It was extended to cover sentencing error in Sawyer, 505 U.S. at 340-41. Most recently the burden of proof was relaxed for certain cases in Schlup, 513 U.S. at 323-24.6 So, once again, the focus of the inquiry is not on policy-based finality issues; the inquiry is whether a fundamental miscarriage of justice is afoot. In a different context, we have stated:
[S]entencing a defendant at the wrong guideline range seriously affects the fairness, integrity, and public reputation of the judicial proceedings. If we do not correct this error, Reid will serve a term of imprisonment three years longer than required by the sentencing guidelines. We cannot casually ignore this fact because of an overly-strict adherence to technical requirements. Three years of a man‘s life is not a trifling thing. No court of justice would require a man to serve three undeserved years in prison when it knows that the sentence is improper.
United States v. Ford, 88 F.3d 1350, 1356 (4th Cir.1996). In my view, there is no doubt that Appellees have shown a fundamental miscarriage of justice.
Having concluded that the actual innocence exception should apply to Appellees, it is clear that they have made the required showing. The Supreme Court recently clarified that there are three different standards of review under the actual innocence “gateway.” See Schlup, 513 U.S. at 313-17, 321-29. Since Appellees have alleged error at their sentencing, i.e., that their “sentence[s][are] too severe,” the appropriate standard of review is that articulated in Sawyer, 505 U.S. at 336: Appellees must show by clear and convincing evidence that but for the error, petitioners would have been ineligible for the penalty which they received.7 See Schlup, 513 U.S. at 325-26 & 326 n. 44. Here, but for the erroneous application of the § 3A1.3 enhancement, Appellees would have been ineligible for the sentences which they received.
IV.
In my view, once a defendant satisfies the actual innocence standard, he has also cleared the “complete miscarriage of justice” hurdle which governs § 2255 relief for non-constitutional, non-jurisdictional claims, see United States v. Addonizio, 442 U.S. 178, 185 (1979). As the majority opinion shows, see ante at 493, and Supreme Court opinions confirm, the actual innocence doctrine is based on a “fundamental miscarriage of justice” standard. See, e.g., Schlup, 513 U.S. at 320-21; Herrera v. Collins, 506 U.S. 390, 404 (1993); Sawyer, 505 U.S. at 339; Carrier, 477 U.S. at 496.
Further, because Appellees suffer from an error in applying the substantive law of punishment, rather than mere procedural error, Supreme Court precedent indicates that the complete miscarriage of justice standard is fulfilled. There have been five cases dealing with non-constitutional, non-jurisdictional errors. All four of the cases in which the Supreme Court rejected habeas relief involved errors of a procedural nature. See Reed v. Farley, 512 U.S. 339, 349-50 (1994) (failure to comply with statutory 120 day limit to commence trial); Addonizio, 442 U.S. at 184-90 (subsequent change in U.S. Parole Commission‘s policies); United States v. Timmreck, 441 U.S. 780, 784-85 (1979) (error under
Error in applying the Sentencing Guidelines is more like the substantive error at issue in Davis than it is like the procedural error in the other non-constitutional error cases. Much of the Supreme Court‘s jurisprudence limiting the availability of the Great Writ was crafted in an era before the Sentencing Guidelines. The Supreme Court has not yet considered the nature of Sentencing Guidelines error in the context of habeas relief. In my view, the Sentencing Guidelines effectively serve as substantive laws of punishment. The Sentencing Guidelines have replaced the traditional discretion of district courts with formulaic precision, allowing deviations in only limited situations. Because of the very narrow role left to district judges, it is effectively as if there had been two crimes here—one establishing the crime of second degree murder with a penalty range of 168-210 (135-168) months, the other establishing the crime of second degree murder aggravated by restraint of the victim with a penalty range of 210-262 (168-210) months. If, in such a case, the defendants were convicted of the more serious offense, and a subsequent decision clarified that their acts did not amount to that crime, then the case would be controlled by Davis. The situations are distinguishable—the Sentencing Guidelines define sentences, not the elements of crimes. Nevertheless, the injustice is the same—an enhanced sentence “from being held responsible for an act of which he or she is actually innocent,” Maybeck, 23 F.3d at 893. And it is just this type of injustice for which the Supreme Court granted relief in Davis and for which we granted relief in Maybeck.
The cases cited by the majority holding to the contrary simply have framed the question incorrectly. In their view, the question is whether an “ordinary” error in
V.
The crimes were not ones recommending lenience in sentencing. Nor, however, are the additions of 52 months and 12 months provided for. We frequently reject erroneous attempts to secure improper sentencing reductions. But here the question is just the opposite one. It involved a justifiable and correct attempt to secure reduction of the improper lesser portions of the sentencing imposed, recognized to be so by the district judge.
The government seeks just sentences not improper ones. It successfully insists on remand for increases of sentence when to do so would lead to the correct and proper result. The country works well when correction is required to insure the proper result, whether correction would lead to lessening or increasing the sentence imposed. That would insure equal treatment, i.e., justice applicable to all subject to criminal punishment.
Accordingly, I respectfully dissent and regret the result reached by my colleagues which I do not believe is required or in the fairest interests of the country.