United States v. Michael J. Mikalajunas, United States of America v. Craig E. Largent, United States of America v. Michael J. Mikalajunas

186 F.3d 490, 1999 U.S. App. LEXIS 16795

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 21, 1999
• Docket: 98-4002, 98-4003 and 98-4031
• Status: Published

Opinions

Reversed by published opinion. Judge WILKINS wrote the majority opinion, in which Judge NIEMEYER joined. Judge MURNAGHAN wrote a dissenting opinion.

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 28 U.S.C.A. § 2255 (West Supp.1999) in the form of reductions in their sentences for second-degree murder, see 18 U.S.C.A. § 1111(a) (West Supp.1999). Mikalajunas cross appeals, arguing that the district court erred in failing to find that he was deprived of the effective assistance of counsel due to counsel’s failure to object at sentencing to the enhancement of his offense level for physical restraint of the victim. See U.S. Sentencing Guidelines Manual § 3A1.3 (1989). We hold that the district court correctly determined that Mikalajunas’ counsel was not constitutionally ineffective, but that the district court incorrectly granted § 2255 relief. Accordingly, we reverse.

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. Lar-gent’s plea agreement also stipulated that an enhancement for physical restraint of the victim was appropriate under U.S.S.G. § 3A1.3. At sentencing, the district court enhanced Appellees’ offense levels by two levels for restraint of the victim in addition to making other adjustments. The court sentenced Mikalajunas and Largent, respectively, to 262 and 180 months imprisonment. Neither Mikalajunas nor Lar-gent pursued an appeal.¹

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 § 3A1.3. This court agreed that the enhancement was improperly applied, reasoning that “[a]n upward adjustment for restraint is to be made in the context of an act which adds to the basic crime” and that because “[ejvery murder involves the ultimate restraint,” the restraint of Weathers did not add anything to his murder. See United States v. Mikalajunas, 936 F.2d 153, 156 (4th Cir.1991).

In April 1997, Mikalajunas and Largent filed motions pursuant to 28 U.S.C.A. § 2255, claiming that they had been deprived of their Sixth Amendment right to the effective assistance of counsel because, inter alia, counsel had failed to preserve an allegation of error with respect to, and to appeal, the application of the § 3A1.3 enhancement. The district court concluded that counsel were not ineffective for failing to appeal the issue but reduced Appellees’ sentences, ruling that failure to correct the erroneous application of the restraint of victim enhancement would constitute a miscarriage of justice. Accordingly, the district court reduced Mikalaju-nas’ sentence to 210 months imprisonment and Largent’s sentence to 168 months imprisonment.

II.

The Government maintains that because Appellees did not appeal the enhancement of their offense levels under § 3A1.3, they have procedurally defaulted their claim and relief on that basis is inappropriate. In order to collaterally attack a conviction or sentence based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir.1994). The existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). And, in order to demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, a movant must show actual innocence by clear and convincing evidence. See id. at 496, 106 S.Ct. 2639.

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, 106 S.Ct. 2639; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Here, counsel’s decision not to challenge Appellees’ § 3A1.3 enhancements for restraint of the victim—a decision made prior to our decision in Mikala-junas holding such an enhancement to be improper—at worst amounted to a miscalculation of the likelihood of success of such a challenge. Prior to Mikalajunas there was no controlling authority dictating a conclusion that an enhancement for restraint of the victim was appropriate only when the restraint “adds to the basic crime” and that because “murder involves the ultimate restraint,” no restraint of victim enhancement is appropriate for murder. Mikalajunas, 936 F.2d at 156. Indeed, neither the plain language of the guideline provision at issue nor decisional law suggested that such an argument had any chance of proving meritorious. See Smith, 477 U.S. at 535, 106 S.Ct. 2661 (recognizing “that ‘the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default’ ” (quoting Murray, 477 U.S. at 486-87, 106 S.Ct. 2639)). Therefore, Appellees have failed to demonstrate ineffective assistance of counsel as cause for their procedural default.²

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 (4thCir.1995). There is no ground for an argument that the question decided in Mi-kalajunas (whether the enhancement for restraint of victim applies when the underlying offense of conviction is murder) could not have been raised at sentencing or on direct appeal. In fact, this is exactly what another member of Appellees’ criminal undertaking did.

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, 112 S.Ct. 2514, 120 L.Ed.2d 269 (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, ie., 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, 112 S.Ct. 2514. 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, 112 S.Ct. 2514. 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 non-capital sentencing proceedings and that Maybeck was actually innocent of being a career offender, see U.S.S.G. § 4B1.1, because one of the predicate offenses necessary to qualify him for career offender status actually was not a crime of violence. See Maybeck, 23 F.3d at 892-93. Appel-lees argue that Maybeck stands for the proposition that the actual innocence exception applies to excuse a procedural default whenever a movant is “innocent” of any sentencing adjustment alleged to be error. And, because the § 3A1.3 enhancement for restraint of victim was erroneously applied to them, they conclude that they are “actually innocent” of that adjustment.

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 correct the error during a § 2255 proceeding, entirely eliminating the cause portion of the cause and prejudice requirement. We decline to give Maybeek such an absurdly broad reading. Rather, we conclude that under the reasoning of Maybeek actual innocence applies in non-capital sentencing only in the context of eligibility for application of a career offender or other habitual offender guideline provision. The error at issue in Maybeek involved the application of the career offender provision. And, in reaching its holding, the panel in Maybeek relied on decisions that had extended the actual innocence exception to noncapital sentencing in the context of habitual offender provisions and that stressed the necessity of defining the actual innocence exception narrowly in the context of noncapital sentencing. See id. at 893(citing Waring v. Delo, 7 F.3d 753, 757 (8th Cir.1993), warning “that the actual innocence exception in a noncapital sentencing case must be defined by a narrow, objective standard”; Mills, 979 F.2d at 1279, holding “that the actual innocence exception applies to habitual offender proceedings ... whether or not they involve the possibility of capital punishment”; and Jones v. Arkansas, 929 F.2d 375, 381 & n. 16 (8th Cir.1991), ruling that a defendant was actually innocent of a habitual offender provision that did not apply to him). Most importantly, a broader reading of Maybeek would conflict squarely with Supreme Court authority indicating that generally more than prejudice must exist to excuse a procedural default.⁴ Accordingly, we reject Appellees’ contention that they have demonstrated actual innocence to excuse their failure to raise on direct appeal a challenge to the application of the § 3A1.3 enhancement.⁵

III.

The Government also asserts that even if Appellees had not procedurally defaulted their claim that the § 3A1.3 enhancement did not apply to them, they would not be entitled to relief because misapplication of the sentencing guidelines does not amount to a miscarriage of justice. Section 2255 provides a means for one convicted of a federal offense to collaterally attack a conviction or sentence that, inter alia, “was imposed in violation of the Constitution or laws of the United States,” and thus § 2255 relief is not limited to constitutional error in a conviction or sentence. 28 U.S.C.A. § 2255; see Davis v. United States, 417 U.S. 333, 345-46, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). But, the scope of review of non-constitutional error is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves “a fundamental defect which inherently results in a complete miscarriage of justice,” United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (internal quotation marks omitted), or is “inconsistent with the rudimentary demands of fair procedure,” United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (internal quotation marks omitted). Compare Addonizio, 442 U.S. at 184-90, 99 S.Ct. 2235 (concluding that change in United States Parole Commission’s parole policies did not effect a miscarriage of justice), Timmreck, 441 U.S. at 783-85, 99 S.Ct. 2085 (ruling that a technical violation of Federal Rule of Criminal Procedure 11 did not result in miscarriage of justice), and Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (holding that denial of allocution at sentencing in violation of Federal Rule of Criminal Procedure 32(a) was not miscarriage of justice), with Davis, 417 U.S. at 346-47, 94 S.Ct. 2298 (determining that subsequent change in substantive law making defendant’s past conduct lawful is a sufficient basis for collateral attack).

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 proeedurally defaulted their claim that the district court improperly applied the § 3A1.3 adjustment for restraint of victim to enhance their offense levels. Furthermore, the mere misinterpretation or application of a guideline provision generally does not amount to a miscarriage of justice that warrants relief under § 2255. Accordingly, we reverse.

REVERSED.

1 . Although Mikalajunas noted an appeal, he voluntarily dismissed it.

2 . Likewise, we reject Mikalajunas' claim on cross appeal that the district court erred in concluding that he was not deprived of the effective assistance of counsel by counsel’s failure to raise on direct appeal an allegation that § 3A1.3 should not have been applied to enhance his offense level.

3 . The Fifth Circuit has ruled that, assuming without deciding that the actual innocence exception is available in a noncapital sentencing context, a showing of actual innocence would require a demonstration that but for alleged error the defendant "would not have been legally eligible for the sentence he received.” Smith v. Collins, 977 F.2d 951, 959 (5th Cir.1992).

4 . The Government also contends that the actual innocence exception cannot be applied here because it applies only when the defendant is asserting a constitutional violation. In support of its claim, the Government contends that the Supreme Court has recognized the availability of the actual innocence exception only in cases in which an alleged constitutional violation was at issue. The Court, however, has not refused to apply the actual innocence exception in a nonconstitutional context; that issue simply has never been before the Court. And, the Government’s argument cannot be squared with Maybeek, in which this court excused a procedural default based upon the actual innocence exception involving the misapplication of the career offender provision, not a constitutional error. Consequently, Maybeek forecloses the Government’s argument on this score.

5 . Mikalajunas also asserts that at resentenc-ing the district court should have applied the guideline manual in effect at the time and awarded him a three-level reduction for acceptance of responsibility, rather than the two-level reduction available at the time of his original sentencing. Compare U.S.S.G. § 3E1.1 (1989) with U.S.S.G. § 3E1.1 (1995). Because there was no basis for a grant of relief under § 2255, and accordingly no cause for resentencing, we need not address this argument.