IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-30180 Summary Calendar _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
v.
PHILLIP CARMOUCHE,
Defendant-Appellant Cross-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Eastern District of Louisiana (94 CA 2972) _________________________________________________________________ (October 20, 1995) Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Phillip Carmouche pled guilty to a one-count indictment
charging him with possession of cocaine with the intent to
distribute. The district court ultimately sentenced Carmouche to
a 174-month term of incarceration. Carmouche sought collateral
review of his sentence by filing a § 2255 motion, alleging
numerous grounds for relief. The district court granted
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. Carmouche's motion on the ground that he was improperly sentenced
as a career offender and reduced his sentence accordingly, but
denied relief on all other grounds. Carmouche then filed what
was in substance a Rule 59(e) motion to amend or alter the
judgment, requesting reconsideration of some of the other grounds
of relief asserted in his § 2255 motion and a further reduction
of his sentence. The district court denied the Rule 59(e) motion
and Carmouche appeals the denial of that motion. Also, the
United States cross-appeals the district court's order granting
Carmouche § 2255 relief. We affirm in part and vacate in part
the district court's order denying Carmouche's Rule 59(e) motion
and remand for further findings; we reverse the district court's
order granting Carmouche § 2255 relief.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 24, 1992, Phillip Carmouche ("Carmouche") was
charged in a one-count indictment with possession of cocaine with
the intent to distribute in violation of 21 U.S.C. § 841(a)(1).
Carmouche pled guilty and the district court accepted this plea.
The court initially sentenced Carmouche to a 210-month term of
incarceration, a five-year term of supervised release, and a $50
special assessment. The guideline range for this sentence was
based on a total offense level of 30 and a criminal history
category of VI. From this range, the court selected the
particular sentence imposed because it found that Carmouche was a
career offender, pursuant to USSG § 4B1.1. The court
2 subsequently reduced Carmouche's sentence to a 174-month term of
incarceration because it had granted the Government's motion for
a reduction of sentence under Rule 35(b) of the Federal Rules of
Criminal Procedure.
Carmouche did not file a notice of appeal from this
sentence; however, proceeding pro se and in forma pauperis, he
did file a motion to vacate his sentence pursuant to 28 U.S.C. §
2255. Specifically, Carmouche alleged that: 1) he was
improperly sentenced as a career offender in light of new case
law; 2) the district court violated Rule 32(c)(3)(D) of the
Federal Rules of Civil Procedure because it did not submit
written findings of fact regarding sentencing; 3) he could not
have conspired with Government informants; 4) the amount of drugs
used for sentencing purposes was inappropriate because he did not
intend to purchase that amount, he was not capable of purchasing
that amount, and he could not have reasonably foreseen the amount
of drugs involved in the transaction; and 5) he should have
received a three-level reduction to his base offense level for
acceptance of responsibility instead of the two-level reduction
he actually received. Carmouche also alleged that, because of
ineffective assistance of counsel, he should not be procedurally
barred from bringing these claims in a § 2255 motion; however,
Carmouche did not set forth specific allegations of
ineffectiveness.
Pursuant to a court order, the Government filed an answer to
Carmouche's § 2255 motion on October 14, 1994. In its answer,
3 the Government asserted that Carmouche's substantive claims were
procedurally barred. The Government also contended that the
court should not consider Carmouche's ineffective assistance of
counsel claim because he had not alleged specific deficiencies in
his counsel's performance. Apparently as an alternative argument
on this issue, the Government also pointed out that the failure
of Carmouche's counsel to anticipate the change in the law on the
career offender issue could not support an ineffective assistance
claim, although Carmouche had not made this specific argument in
his motion.
Carmouche filed a response to the Government's answer on
October 31, 1994. The record does not indicate whether the
district court had ordered or made allowance for such a response,
but the clerk recorded the filing on the docket and included the
response in the record on appeal. In this response, Carmouche
recast the substantive arguments he had made in his original §
2255 motion as facts in support of an ineffective assistance of
counsel claim; specifically, Carmouche alleged that his counsel
was ineffective for not making these substantive arguments to the
court at his sentencing. Carmouche further argued, for the first
time, that his guilty plea was invalid based on counsel's
ineffectiveness in providing him with erroneous information
regarding the probable length of the sentence that he would
receive. Finally, Carmouche argued that counsel was ineffective
for failing to file a notice of appeal or otherwise pursue a
direct appeal.
4 The district court held that Carmouche was improperly
categorized as a career offender pursuant to § 4B1.1 and granted
his § 2255 motion in that regard. The court also stated in a
footnote that, because "the change in the law [regarding the
application of the career offender provisions of the sentencing
guidelines was] so novel as to constitute cause for failure to
raise on direct appeal, the court also finds that it does not
constitute grounds for ineffective assistance of counsel." The
court further held that Carmouche's substantive arguments
regarding Rule 32, the quantity of drugs used for sentencing
purposes, his alleged inability to conspire with Government
informants, and acceptance of responsibility were "either
frivolous or should have been raised on direct appeal, and that
no cause exist[ed] to allow a collateral attack" regarding those
issues. The court did not address these other substantive claims
as facts in support of an ineffective assistance of counsel
claim, as Carmouche had alleged in his response. On January 18,
1995, the court entered judgment, reducing Carmouche's term of
imprisonment to 114 months, but leaving his sentence intact in
all other respects.
Seven days after the entry of judgment, Carmouche filed a
pleading styled "Motion for Defendant Misunderstanding and
Claerification [sic] also. 28 U.S.C. 2255 Rule 8(b)(3)
Reconsideration." The crux of this motion was to point out to
the court that Carmouche had also asserted the substantive issues
raised in his initial § 2255 motion as facts in support of an
5 ineffective assistance of counsel claim. Apparently, Carmouche
was alluding to his response to the Government's answer and the
fact that the court had not addressed any of these substantive
issues in an ineffective assistance context except for its
statement that the change in law on the career offender issue
could not support an ineffective assistance claim. Carmouche
also argued that the previous reduction of his initial sentence
pursuant to the Government's Rule 35(b) motion should have been
reapplied to reduce the 114-month term of incarceration.
The district court denied the motion, finding that a 114-
month term of incarceration was proper and that Carmouche was not
entitled to any further relief. Carmouche appeals the denial of
this motion. The Government cross-appeals the court's order
reducing Carmouche's sentence. We address separately each of
these appeals.
II. DISCUSSION
A. The Government's Appeal
The United States cross-appeals the district court's order
reducing Carmouche's term of incarceration to 114 months. In
§ 2255 proceedings, we review findings of fact under the clearly
erroneous standard and conclusions of law de novo. United States
v. Woods, 870 F.2d 285, 287 (5th Cir. 1989).
The district court granted Carmouche's § 2255 motion in this
regard because it found that Carmouche had been improperly
sentenced as a career offender pursuant to USSG § 4B1.1 in light
6 of our subsequent decision in United States v. Bellazerius, 24
F.3d 698 (5th Cir.), cert. denied, 115 S. Ct. 375 (1994). In
Bellazerius, we held that the Sentencing Commission had exceeded
its authority by including conspiracy offenses within the ambit
of § 4B1.1, and consequently, that section did not allow career
offender enhancements for defendants convicted only of conspiracy
offenses. Id. at 702. Applying this holding to Carmouche, the
district court concluded that he should not have been categorized
as a career offender for sentencing purposes and reduced his term
of incarceration to 114 months.
Since the district court's judgment, however, we have held
that individuals sentenced for conspiracy convictions before
Bellazerius was decided may not later use this holding to vacate
their sentences in a § 2255 motion. United States v. Bogdon, No.
95-50073, slip op. at 3-4 (5th Cir. July 31, 1995) (unpublished);
United States v. Hixon, No. 95-50003, slip op. at 2-3 (5th Cir.
June 29, 1995) (unpublished); United States v. Williams, No. 94-
50329, slip op. at 9-10 (5th Cir. March 27, 1995) (unpublished).
The rationale of these holdings is that misapplications of the
Sentencing Guidelines are not cognizable in § 2255 motions.
United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994);
United States v. Faubion, 19 F.3d 226, 233 (5th Cir. 1994);
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
Accordingly, we hold that Carmouche is not entitled to § 2255
relief based on our holding in Bellazerius. Unless the district
court grants further relief pursuant to Part II.B of this
7 opinion, Carmouche's original sentence, including his 174-month
term of incarceration, should be reinstated.
B. Carmouche's Appeal
Carmouche appeals the district court's denial of his "Motion
for Defendant Misunderstanding and Claerification [sic] also. 28
U.S.C. 2255 Rule 8(b)(3) Reconsideration." In order to determine
the standard under which we review this denial, we must first
decide how to characterize the motion. Although styled a motion
made pursuant to Rule 8(b)(3) of the Rules Governing Section 2255
Proceedings, this designation is incorrect. Rule 8(b)(3)
provides that, when a magistrate judge assists the district court
in disposing of a § 2255 motion by making proposed findings and
recommendations, the § 2255 movant may file written objections to
such findings and recommendations. Sec. 2255 R. 8(b)(3). In
Carmouche's case, the district court did not enlist the
assistance of a magistrate judge in disposing of the motion, and
furthermore, Carmouche is contesting a final order of the
district court. Therefore, we must characterize the motion as
being made under another procedural rule.
We have held that "[a] motion for reconsideration filed
within ten days of judgment is treated as a motion to alter or
amend under Rule 59(e)" of the Federal Rules of Civil Procedure.
Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir.
1993). The court entered judgment on Carmouche's § 2255 motion
on January 18, 1995. Carmouche filed his motion for
8 reconsideration on January 25, 1995. Accordingly, we will treat
Carmouche's motion as a Rule 59(e) motion.
We review the denial of a Rule 59(e) motion under an abuse
of discretion standard. Id. While recognizing that the district
court's discretion in this regard is "considerable," we have held
that the court must nevertheless "strike the proper balance
between two competing imperatives: (1) finality, and (2) the need
to render just decisions on the basis of all the facts." Id. at
355.
First, we consider the events which gave rise to Carmouche's
Rule 59(e) motion. In his original § 2255 motion, Carmouche had
alleged ineffective assistance of counsel in very general terms,
and then only as an excuse for procedural default rather than as
a separate constitutional claim. Perhaps prompted by the
Government's answer, which noted that Carmouche had not supported
his ineffective assistance argument with allegations of specific
deficiencies in performance, Carmouche filed a response in which
he alleged that he also had a Sixth Amendment claim because his
counsel was ineffective for failing to offer at sentencing the
same substantive arguments he had made in his original § 2255
motion.
Of the issues presented in Carmouche's response, the only
one explicitly addressed in the court's order on the § 2255
motion was whether the change in the law regarding career
offender status supported an ineffective assistance of counsel
claim; however, the government had also addressed this issue in
9 its answer, and therefore the issue was before the court
independent of Carmouche's response. The court apparently did
not address any other argument that Carmouche had made in his
response, including his other substantive arguments in the
ineffective assistance context, the validity of his guilty plea,
and his ineffective assistance argument based on his counsel's
failure to file a direct appeal. In contrast, the court
addressed every argument that Carmouche had properly presented in
his original § 2255 motion.
The apparent purpose of the first part of Carmouche's Rule
59(e) motion was to point out that, although the district court
had addressed his substantive arguments regarding Rule 32, the
quantity of drugs used for sentencing purposes, his alleged
inability to conspire with Government informants, and acceptance
of responsibility, the court had not considered Carmouche's
position that each of these substantive arguments also supported
a Sixth Amendment ineffective assistance of counsel claim because
his counsel had failed to make these same substantive arguments
at his sentencing. It is unclear from the district court's Order
and Reasons denying Carmouche's motion whether the court simply
declined to address the merits of Carmouche's ineffective
assistance claim as set forth in his response to the Government's
answer, or addressed the merits and summarily refused relief.
For instance, the district court may have declined to
address the issues raised in Carmouche's response because it did
not consider the response as properly before it. The advisory
10 committee note to Rule 5 of the Rules Governing Section 2255
Proceedings states:
There is nothing in § 2255 which corresponds to the § 2248 requirement of a traverse to the answer. . . . As under Rule 5 of the § 2254 rules, there is no intention here that such a traverse be required, except under special circumstances.
Sec. 2255 R. 5 advisory committee's note. This note also cross
references the advisory committee note to rule 5 of the analogous
§ 2254 rules governing habeas corpus proceedings. This note also
states that the rules do not provide for a traverse to the answer
and adds:
In the interests of a more streamlined and manageable habeas corpus procedure, [a traverse] is not required except in those instances where it will serve a truly useful purpose. Also, under rule 11 [of the § 2254 rules] the court is given the discretion to incorporate Federal Rules of Civil Procedure when appropriate, so civil rule 15(a) may be used to allow the petitioner to amend his petition when the court feels this is called for by the contents of the answer.
Sec. 2254 R. 5 advisory committee's note. The principles
enunciated in this note apply with as much force to the § 2255
rules, which also contain a provision for the discretionary
incorporation of the Federal Rules of Civil Procedure. See Sec.
2255 R. 12. In this regard, Rule 15(a) of the Federal Rules of
Civil Procedure allows a party to amend his initial pleading
after an answer only with the permission of the court or his
adversary. Fed. R. Civ. P. 15(a). Finally, a local rule of the
Eastern District of Louisiana states that motions shall be
accompanied by memoranda, but that "[m]emoranda may not be
11 supplemented except with leave of court first obtained." ULLR
2.05.
The cumulative import of these rules and notes is that a
§ 2255 movant does not ordinarily have the opportunity to
supplement his original motion with an amendment or a response to
the Government's answer, and even then, the movant may do so only
with leave of court. Therefore, it is possible that the district
court declined to address the merits of the issues raised in
Carmouche's response because the response was not properly before
the court as a traverse or an amendment of his original motion.
On the other hand, it is equally possible that the district
court did consider the response as properly before it and, in
ruling on Carmouche's Rule 59(e) motion, summarily refused relief
on the claims presented therein. In this regard, we note that a
§ 2255 movant proceeding pro se is not an ordinary litigant. It
is a well-established rule that the briefs and papers of pro se
litigants are to be construed more permissively than those filed
by counsel. Securities and Exch. Comm'n v. AMX, Int'l, Inc., 7
F.3d 71, 75 (5th Cir. 1993); Wiggins v. Procunier, 753 F.2d 1318,
1320 (5th Cir. 1985). This rule takes on added significance in
the context of a § 2255 motion, in which the doctrine that
successive motions are disfavored "make[s] it especially
important that the first petition adequately set forth all of a .
. . prisoner's colorable grounds for relief." McFarland v.
Scott, 114 S. Ct. 2568, 2574 (1994) (O'Connor, J., concurring in
the judgment in part) (discussing the need for a comprehensive
12 initial petition in the analogous habeas corpus context).
Finally, the response was filed over two months before the court
ruled on the original motion, giving the court sufficient time to
consider the issues raised in that document. Therefore, upon
reconsideration of its original order, the district court may
have liberally construed Carmouche's response as an amendment of
his original § 2255 motion and concluded that he was not entitled
to relief on the merits of those additional claims.
Because it is unclear from the district court's Order and
Reasons denying the Rule 59(e) motion which course of action the
court pursued, we do not feel that review of the court's order in
this regard is appropriate, even under the narrow abuse of
discretion standard. Rather, we believe that our task would be
better served by vacating that part of the district court's order
denying relief on the issues raised in Carmouche's response and
remanding so that the court can make specific findings of fact
and conclusions of law with respect to whether those issues were
properly before the court and, if so, whether they had merit.
The second part of Carmouche's Rule 59(e) motion alleged
that the district court should have reapplied the previous
reduction of his initial sentence pursuant to the Government's
Rule 35(b) motion to reduce his 114-month term of incarceration.1
1 In his brief, Carmouche also contends that a failure to reapply the previous Rule 35(b) reduction violates the Double Jeopardy Clause of the Fifth Amendment. Because Carmouche did not raise this argument in the district court, he has not preserved it for appeal. Quenzer v. United States (In re Quenzer), 19 F.3d 163, 165 (5th Cir. 1993).
13 In fact, the court stated in a footnote in its order that it did
consider the previous reduction when rendering Carmouche's
sentence and that it credited the facts set forth in the Rule
35(b) motion in arriving at the 114-month term. Therefore, we
hold that the district court did not abuse its discretion in
denying Carmouche's Rule 59(e) motion for a further reduction of
his sentence.
III. CONCLUSION
For the foregoing reasons, we AFFIRM in part and VACATE in
part the district court's order denying Carmouche's "Motion for
Defendant Misunderstanding and Claerification also 28 U.S.C. 2255
Rule 8(b)(3) Reconsideration" and REMAND for further findings
with respect to the issues raised in Carmouche's response; we
also REVERSE the district court's order granting Carmouche's
motion to vacate his sentence.