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3d 815
Michael S. Johnson appeals from the judgment of the United States District
Court of the Western District of New York (John T. Elfvin, Senior Judge),
denying his motion pursuant to 28 U.S.C. 2255. For the reasons stated below,
we reverse in part and remand to the district court for re-sentencing.
In May 2000, Johnson, acting pro se, filed a motion pursuant to Section 2255
contending, inter alia, that his trial counsel's failure to object to the calculation
of his base offense level according to the amount he allegedly agreed to sell and
not the amount actually sold, constituted ineffective assistance of counsel. The
district court denied his Section 2255 motion in its entirety. With respect to the
claim that he received ineffective assistance of counsel at sentencing, the
district court concluded that (1) the claim was procedurally barred and (2)
petitioner was not prejudiced by the error in the calculation of his offense level
at 32 rather than 30 because petitioner's period of incarceration was permissible
under both levels.
Petitioner filed a pro se appeal, and this court appointed counsel and issued a
certificate of appealability ("COA") to consider the limited question of whether
trial counsel was ineffective for failing to argue that petitioner should have
been sentenced according to a base offense level of 30 instead of 32. We now
reverse in part and remand to the district court for re-sentencing.
claim, to be, at best, "debatable," we hereby amend the COA to encompass the
district court's procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120
S.Ct. 1595, 146 L.Ed.2d 542 (2000) ("[A] COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling.").
6
Turning to the merits of the district court's holding that petitioner's ineffective
assistance of counsel claim is procedurally barred, we find that the district
court misapplied our precedent in Graziano v. United States. See 83 F.3d 587
(2d Cir.1996). In Graziano, we held that Section 2255 claims not raised on
direct review are procedurally barred unless they raise constitutional or
jurisdictional claims, or result in "a complete miscarriage of justice." See id. at
590. Because petitioner's challenge to the calculation of his base offense level
takes the form of a Sixth Amendment ineffective assistance of counsel claim,
the district court erred by holding that Graziano barred his claim. We also note
that the district court's application of Graziano to petitioner's claim is
particularly inappropriate because claims of ineffective assistance of counsel
generally are not procedurally barred. See Billy-Eko v. United States, 8 F.3d
111, 114 (2d Cir.1993) (procedural bar doctrine does not generally apply to
claims for ineffective assistance of counsel) (superceded by statute on other
grounds as noted in Triestman v. United States, 124 F.3d 361, 369 n. 8 (2d
Cir.1997)).
"scale of the offense," counsel plainly should have objected that defendant's
offense level was squarely covered by Application Note 12 and was properly
calculated at 30, which corresponds to offenses involving less than 50 grams of
crack. In the words of Judge Easterbrook, an objection on this ground was close
to "a deadbang winner." Page v. United States, 884 F.2d 300, 301 (7th
Cir.1989). The failure to object to the calculation error was a clear lapse in
representation. See United States v. Day, 969 F.2d 39, 43 (3d Cir.1992)
("Because the Sentencing Guidelines have become a critical ... facet of federal
criminal proceedings ... [f]amiliarity with the structure and basic content of the
Guidelines... has become a necessity for counsel who seek to give effective
representation."); see also Jackson v. Leonardo, 162 F.3d 81, 86 (2d Cir.1998)
(where there is no plausible explanation for counsel's error, no hearing is
required to determine that counsel's representation was deficient).
9
10
For the reasons stated above, we hold that defense counsel's failure to object to
a sentencing calculation error that likely resulted in an increase in defendant's
period of incarceration constituted ineffective assistance of counsel.
Accordingly, we reverse the district court's denial of petitioner's Section 2255
motion with respect to the single claim of ineffective assistance of counsel
discussed herein. We vacate defendant's sentence and remand to the district
court for re-sentencing.
11
We have reviewed the parties' other arguments raised on appeal and find them
to be without merit.