United States Court of Appeals

Fifth Circuit



## FILED

May 21, 2004

Charles R. Fulbruge III

Clerk REVISED June 8, 2004

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 03-50310

__________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GUS PETER GRAMMAS,

Defendant - Appellant.

___________________________________________________

Appeal from the United States District Court

for the Western District of Texas

___________________________________________________

Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Gus Peter Grammas (“Grammas”) appeals the district court’s denial of his 28 U.S.C. § 2255

motion, arguing that his counsel’s performance regarding whether to stand trial or plead guilty was

constitutionally deficient. Because Grammas was provided ineffective assist ance of counsel, we

reverse his conviction and remand for further proceedings.

I. FACTS AND PROCEEDINGS1 This Court reversed the district court’s restitution order, but otherwise affirmed its

holdings. United States v. Grammas , No. 01-50730, 37 Fed. Appx. 88, 2002 WL 971617, at *1

(5th Cir. May 2, 2002).

2 On March 16, 2001, Grammas was co nvict ed of: (1) knowingly altering a Vehicle

Identification Number, in violation of 18 U.S.C. § 511(a)(1); and (2) possessio n o f a firearm by a

previously

co nvicted felon, in violation of 18 U.S.C. § 922(g)(1). Grammas’s trial counsel, Buck

Harris (“Harris”), failed to realize (and consequen t ly failed to notify Grammas) that his prior

convictions were crimes of violence. The Government’s indictment states that one of Grammas’s

prior offenses was for burglary of a building. Previously, Grammas had been convicted of burglary

of a habitation—a crime of violence—which raised his base offense level. Harris failed to confirm

that the prior conviction related to a burglary of a building, and admitted post-conviction that “the

defense did rely on that original contention that this was a burglary of a building.” The indictment

also alleges a prior felony conviction for escape.

Harris argued to the district court his mistaken belief that the firearms offense should carry

a base offense level of 8, not 20. The relevant section of the Sentencing Guidelines (§ 2K2.1) does

not even contain a base offense level of 8. S ee U.S. S ENTENCING G UIDELINES M ANUAL § 2K2.1

(2001) . Harris admitted to having used the wrong section of the Guidelines, and Harris

(mis)informed Grammas that he faced only 6 to 12 months if convicted. Grammas was sentenced

using a base offense level of 21 (20 from Guidelines § 2K2.1, plus 1 from a prior conviction invo lving

aiding illegal aliens), resulting in a Guidelines range of 70 to 87 months, and a sentence of 70 months

in prison.

After exhausting his direct appeals, 1 Gra mmas filed this § 2255 motion alleging ineffective2 This Court generally declines to review ineffective assistance of counsel claims on direct

appeal. United States v. Gibson , 55 F.3d 173, 179 (5th Cir. 1995). Ineffective assistance of

counsel claims are more appropriately brought in a 28 U.S.C. § 2255 motion. United States v.

Gordon , 346 F.3d 135, 136 (5th Cir. 2003).

3 assistance of counsel. S ee 28 U.S.C. § 2255. 2 The district court denied t he § 2255 motion; this

Court granted a certificate of appealability “on the issue whether [Grammas] received the effective

assistance of counsel relative to his decision to stand trial rather than p lead guilt y.” This appeal

follows.

II. STANDARD OF REVIEW

This Court “review[s] a district court’s conclusions with regard to a petitioner’s § 2255 claim

of ineffective assistance of counsel de novo.” U nited States v. Conley , 349 F.3d 837, 839 (5th Cir.

2003) (citing U

nited States v. Bass

, 310 F.3d 321, 325 (5th Cir.2002); United States v. Faubion

, 19

F.3d 226, 228 (5th Cir.1994)).

III. DISCUSSION

A. Section 2255 relief from federal custody

Section 2255 “provides the federal prisoner with a post-conviction remedy to test the legality

of his detention by filing a motion to vacate judgment and sentence in his trial court.” K uhn v. United

States , 432 F.2d 82, 83 (5th Cir. 1970). The statute establishes that a prisoner in custody under a

sentence of a court established by Congress “may move the court whi ch imposed the sentence to

vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. Where there has been a “denial or

infringement o f the constitutional rights of the prisoner as to render the judgment vulnerable to

collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner

or resentence hi m or grant a new trial o r correct the sentence as may appear appropriate.” I d

.4

(emphases added).

B. Ineffective assistance of counsel under Strickland

To prevail on an ineffective assistance of counsel claim, Grammas must satisfy the two-part

test enunci ated i

n S trickland v. Washington

, 466 U.S. 668, 687 (1984). First, Grammas must

demonstrate that counsel’s performance fell below an objective standard of reasonableness. I d. “We

have described that standard as requiring that counsel ‘research relevant facts and law, or make an

informed decision that certain avenues will not be fruitful.’” C onley

, 349 F.3d at 841 (citations

omitted). Second, Grammas must pro ve that he was prejudiced by counsel’s substandard

performance. “[T]o prove prejudice, the defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id. at 841-42. “And, of course, ‘any amount of actual jail time has Sixth Amendment significance,’

which constitutes prejudice for purposes of the Strickland test.” C onley

, 349 F.3d at 842 (citing and

quoting Glover v. United States , 531 U.S. 198, 203 (2001), and United States v. Franks , 230 F.3d

811, 815 (5th Cir. 2000) (finding prejudice where defendant was sentenced under Guidelines range

of 70 to 87 months instead of the proper 57 to 71 months range)). Additionally, “[o]ne of the most

precious applications of the Sixth Amendment may well be in affording counsel to advise a defendant

concerning whether he should enter a plea of guilty.” R eed v. United States

, 354 F.2d 227, 229 (5th

Cir. 1965).

(1) Harris’s performance fell below an objective level of reasonableness.

“Failing to properly advise the defendant of the maximum sentence that he could receive falls

below the objective standard required by Strickland

. When the defendant lacks a full understanding

of the risks of going to trial, he is unable to make an intelligent choice of whether to accept a plea or5

take his chances in court.” T eague v. Scott

, 60 F.3d 1167, 1171 (5th Cir. 19 95). “‘By grossly

underestimating [the defendant’s] sentencing exposure

. . . , [counsel] breache[s] his duty as a defense

lawyer in a criminal case to advise his client fully on whether a particula r plea to a charge appears

desirable.’” United States v. Ridgew ay , 321 F.3d 512, 514 (5th Cir. 2003) (alterations in original)

(citing and quoting United States v. Gordon

, 156 F.3d 376, 380 (2d Cir. 1998)). Grammas contends

that he was denied his constitutional right to effective counsel relative to his decision to stand trial

rather than plead guilty. He argues that Harris’s performance was deficient because, among other

things, Harris was unfamiliar with the Sentencing Guidelines and substantially misstated Grammas’s

exposure if he were to be found guilty at trial.

Harris conceded these mistakes. Regarding the prior convictions, the Go vernment’s

indictment states that one of Grammas’s prior o ffenses was for burglary of a building. In reality,

Grammas had been previously convicted of burglary of a habitation—a crime of violence—which

raised his base offense level. Harris failed to confirm that the prior conviction related to a burglary

of a building, admitting that “the defense did rely on that original contention that this was a burglary

of a building.” Even the most basic research on Grammas’s background would have revealed that

the prior burglary was a burglary of a hab it at io n. The indictment also alleges a prior felony

conviction for escape. This Court decided nearly two years before Grammas’s trial that an escape

constitutes a crime of violence. United States v. Ruiz

, 180 F.3d 675, 676-77 (5th Cir. 1999). Had

Harris realized that either one of Grammas’s prior convictions was a crime of violence, Harris would

have known that the base offense level would be significantly higher. Harris’s mistaken belief that

Grammas’s prior convictions were not crimes of violence, Harris conceded, “may even have gone to

affect whether or not we negotiated any type of plea agreement or settlement agreement considering3 Despite this statement by Grammas’s trial counsel, the dissent asserts that Grammas

“would have likely gone to trial even if his attorney had correctly advised him as to the applicable

sentence range.” Simply because Grammas’s decision to go to trial was “influenced” by factors

“other than the applicable sentence range,” does not, as the dissent maintains, lead to the

conclusion that ignorance as to the true sentencing range was immaterial. Grammas and his

counsel both argue that had Grammas’s exposure been accurately assessed, he likely would have

pleaded guilty, and the Government does not contest this argument.

Furthermore, the dissent’s repeated attempts to refute Grammas’s petition for relief based

on “implicit[ ] conce[essions]” made therein, see

, e.g. , __ F.3d at __ (dissent at 2), are

inappropriate given that Grammas is pro se

. Perez v. United States , 312 F.3d 191, 194-95 & n.13

(5th Cir. 2002) (“[C]ourts have adopted the rule that a pro se plaintiff’s pleadings are liberally

construed.”) (citing Haines v. Kerner , 404 U.S. 519, 520 (1972) (holding that allegations in a pro

se complaint are to be held “to less stringent standards than formal pleadings drafted by lawyers”),

and SEC v. AMX, Int’l, Inc. , 7 F.3d 71, 75 (5th Cir. 1993) (recognizing the established rule that

this Court “must construe [a pro se party’s] allegations and briefs more permissively”)).

4 The Government’s non-responsive and off-topic brief does not contest Grammas’s claim

that Harris told him his exposure would be 6 to 12 months. Arguments not made in the briefs are

waived. See

, e.g

., Hobbs v. Haw kins , 968 F.2d 471, 474 n.2 (5th Cir. 1992).

6 the greater exposure.” 3

Harris further demonstrated a complete lack of familiarit y with the Guidelines. He admits that

he used the incorrect sectio n o f t he Guidelines, and his argument for a base offense level of 8

illustrates this lack of understanding. Sentencing Guidelines § 2K2.1—the section under which

Grammas was sentenced—does not even contain a base offense level of 8. S ee U.S. S ENTENCING

G UIDELINES M ANUAL § 2K2.1 (2001). Harris, based on his misunderstanding of the Guidelines,

advised Grammas that he would, at most, be imprisoned for 6 to 12 months if he were to be

convicted. 4 Harris’s assistance fell well below the objective standard of reasonableness required by

Strickland

.

(2) Grammas was prejudiced by Harris’s deficient performance.

The only remaining issue is whether Grammas was prejudiced by Harri s’s deficient

performance. Grammas’s conviction occurred a fter a unanimous Supreme Court in Glover rejected7

the Seventh Circuit’s rule that “a minimal amount of additional time in prison cannot consti tute

prejudice.” G lover , 531 U.S. at 203. The Supreme Court noted that, “[q]uite to the contrary , our

jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance.” Id.

(emphasis added). In a recent case this Court analyzed the prejudice prong by considering whether

the petitioner could “demonstrate a reasonable probability that, but for his counsel’s actions, he would

have received a ‘significantly less harsh’ sentence.” Ridgew ay

, 321 F.3d at 515 (quoting Daniel v.

Cockrell

, 283 F.3d 697, 706 (5th Cir. 2002)). However, we noted in R idgeway that Glover “arguably

cas t s do ubt on the ‘significantly less harsh test,’” R idgeway

, 321 F.3d at 515 n.2 (quotati ons and

citations omitted), and implied that the “significant ly less harsh test” only applied in Ridgew ay

because Glover does not apply retroactively. R idgeway

, 321 F.3d at 515 n.2. We hold that G lover

a brogates the significant ly less harsh test, and that any additional time in prison has const itutional

significance. A ccord Conley

, 349 F.3d at 842 (noting that “of course, ‘any amount of actual jail time

has Sixth Amendment significance,’ which constitutes prejudice for purposes of the Strickland test”)

(citing and quoting Glover

, 531 U.S. at 203, and Franks

, 230 F.3d at 815 (finding prejudice where,

as here, defendant was sentenced under Guidelines range of 70 to 87 months instead of the proper

range of 57 to 71 months)).

Grammas argues that he suffered prejudice because Harris’s assessment that Grammas only

would face 6 to 12 months imprisonment gros sly underestimated Grammas’s 70-month sentence.

Had he known about his greater sentencing exposure, Grammas maintains, he would have been far

more likely to plead guilty (and thereby avail himself of the Guideli nes § 3E1.1 reducti on f or

acceptance of responsibility) rather than to proceed to trial. S ee U.S. S ENTENCING G UIDELINE S

M ANUAL § 3E1.1 (2001). Had Grammas decided to plead guilty he likely would have received a 2-8

to 3-point reduction in base offense level for acceptance of resp o nsibility. S ee U.S. S ENTENCING

G UIDELINES M ANUAL § 3E1.1 (2001); United Stat es v. Baker , 78 Fed. Appx. 318, 321 (5th Cir.

2003) (unpublished opinion) (“Section 3E1.1 applies ‘[i ]f t he defendant clearly demonstrates

acceptance of responsibility for his offense.’”).

Grammas’s decision not to plead guilty likely led to a longer term of imprisonment. Grammas

faced no statutory minimum t erm o f imprisonment for the two counts of his conviction. S ee 18

U.S.C. §§ 511(a)(1), 922(g)(1), 924(a)(2). Grammas’s base offense level, given the gun conviction

and prior convictions for crimes of violence, was 21; he had a criminal history category of 5; and he

was subject to a sentencing range of 70 to 87 months. S ee U.S. S ENTENCING G UIDELINES M ANUAL

Ch. 5 Pt. A (2001). The district court imposed the minimum, 70-month sentence. Had Grammas

received the 2-point deduction for acceptance of responsibil it y in Guidelines § 3E1.1(a), the

Guidelines range would have been 57 to 71 months. I d .; U.S. S ENTENCING G UIDELINES M ANUAL

§ 3E1.1(a). Had Grammas pleaded before the Government allocated resources to preparing for trial

and received the additional 1-point deduction i n Sentencing Guidelines § 3E1.1(b), the Guidelines

range would have been 51 to 63 months. Id

.

Because Gr ammas was convicted after G lover was decided, Glover applies to Grammas’s

case. Grammas was sentenced to at least 7 and up to 19 months more time than he would have

received had he pleaded guilty and qualified for a three point reduction under Guidelines § 3E1.1(b).

Had Grammas only received a 2-point reduction under Guidelines § 3E1.1.(a), he still would have

been eligible for a 13-month shorter sentence (the court sentenced Grammas at the absolute bottom

of the Guidelines range). Grammas’s sentence would n ot have decreased only if he received the 2-

point reduction and were then sentenced to the maximum sentence in that range (i.e., 71-months).5 The dissent’s focus on the unavailability of a plea bargain is misplaced. Our holding rests

on the reasonable probability of a lesser sentence had Grammas pleaded guilty, see U.S.S.G. §

3E1.1, regardless of whether the Government offered a plea bargain.

9 While it is impossible t o kno w whether Grammas would have received either a 2- or 3-point

reduction, and where within the range he would have been sentenced, Grammas has demonstrated

a “reasonable probability” that “but for counsel’s unprofessional errors, the result of the proceeding

would have been different” because he would have received a lesser sentence. Conley

, 349 F.3d at

841-42 (citations and quotations omitted). Consequently, Grammas has demonstrated that he was

prejudiced by Harris’s deficient performance, satisfying Strickland ’s second prong.

The dissent maintains that Grammas was not prejudiced because he was not “misled by trial

counsel concerning his eligibility for a 2-point reduction under § 3E1.1(a).” However, the dissent

ignores Grammas’s argument that the deficient performance of his counsel led to a longer sentence,

regardless of whether that sentence was within the statutory limits. Grammas maintains—and the

Government does not contest—that had he known of his true sentencing exposure, he would have

sought out a

plea bargain or would have pleaded guilty to avail himself of the acceptance of

responsibility decrease in sentencing. See U.S.S.G. § 3E1.1.

We fin d a reaso nable probability that, had constitutionally sufficient counsel informed

Grammas of his true exposure, Grammas would have pleaded guilty and thereby would have been

sentenced to less time in prison. 5 This Court has long recognized that to show prejudice, a defendant

“must demonstrate a reasonable probability that, but for his counsel’s actions, he would have received

a ‘significantly less harsh’ sentence.” U nited States v. Ridgew ay

, 321 F.3d 512, 515 (5th Cir. 2003)

(E. M. Garza, J.) (discussing potential prejudice resulting from counsel’s alleged failure to inform the

defendant of his sentencing exposure if he proceeded to trial instead of pleading guilty, but finding10

no prejudice because the 120-month sentence the defendant might have received had he pleaded

guilty was not “significantly less harsh” than the 121-month sentence he received after being found

guilty at trial). Our holding today recognizes that the Supreme Court’s decision in G lover v. United

States

, 531 U.S. 198, 203 (2001) (noting that “any amount of jail time has Sixth Amendment

significance”), abrogates our “significant ly less harsh” test and replaces it with the “any amount of

jail time” test. S ee supra

. The dissent does not challenge our reading of G lover

, and aside from the

change in law mandated by Glover , this opinion faithfully follows the dictates of this Court as

explained in Ridgew ay

.

Tellingly, even after adm it t ing t hat Grammas’s counsel’s performance was deficient, and

assuming that Grammas was prejudiced by that deficient performance, the dissent contends that this

opinion “improperly vacates [Grammas’s] convictions.” The dissent takes the curious position that

a defendant whose counsel is deficient in a way that is prejudicial to the defendant—thereby sat isfying

both prongs of Strickland ’ s constitutionally ineffective counsel test—can nonetheless be “rightly

convicted pursuant to a constitutionally valid trial

. . . .” That, to us, seems a “bizarre result” indeed.

Perhaps this is another method of arguing that Grammas was not prejudiced by counsel’s

performance. See supra . However, it seems highly incongruous to assume arguendo that counsel

was constitutionally defective and yet still conclude, as the dissent does, that “there was no error in

adjudication of

. . . guilt or in the rendering of judgment

. . . .” Because a defendant cannot be

convicted absent the effective assistance of counsel (or a voluntary, knowing and intelligent waiver

of such counsel), see U.S. C ONST

. amend. VI; Strickland v. Washington

, 466 U.S. 668, 687 (1984),

we think it inappropriate to describe a defendant convicted without the effective assistance of counsel

(or without a valid waiver) as “rightly convicted.”11 IV. CONCLUSION

Grammas demonstrates that Harris provided ineffective assistance of counsel in violation of

the Sixth Amendment. Because Harris’s deficient performance infected Grammas’s decision whether

to plead guilty, Grammas’s conviction itself must be reversed so that Grammas has the opportuni ty

to decide how to plead without the taint of ineffective assistance of counsel. Therefore, the district

court’s denial of Grammas’s § 2255 motion is REVERSED, Grammas’s conviction is VACATED,

and this case is REMANDED for a new trial or other disposition not inconsistent with this opinion.12

EMILIO M. GARZA, Circuit Judge, dissenting.

The majority opinion fails to address Grammas’s ineffective assistance of counsel claim at the

level of specificity required to address the issues presented in this appeal. Because of this generalized

approach, the majority opinion incorrectly concludes that Grammas was p r ejudiced by his trial

counsel’s defic ient performance. Grammas fails to establish a causal connection between his

attorney’s conduct and the alleged prejudice )) the opportuni ty of a 2 or 3-point reduc tion to hi s

offense level for admission of guilt. Further, the majority opinion improperly vacates Grammas’s

convictions without establishing eit her a deficiency in the judgment or the process by which the

judgment was imposed. Accordingly, I respectfully dissent.

I agree with the majority opinion that Harris, Grammas’s trial counsel, provided deficient

advice by failing to ascertain that two of Grammas’s prior crimes were “crimes of violence” under

§ 2K2.1, and by consequently not informing Grammas of the proper sentencing range for the crimes

for which he was charged. This Grammas contends, and the majority opinion concludes, induced

him to go to trial rather than to plead guilty. At first blush, and at this level of generality, Grammas’s

contention might appear to be beyond reproach. However, Grammas’s own words should cause the

majority to question its conclusion. At his sentencing hearing, Grammas explained that “I was never

offered a plea bargain or a [§ 5K1] departure. I had no alternative but to take it to trial and prove

my innocence.” See Petitioner’s Brief, p. 22 (quoting R-6, Sentencing Hearing Transcript, p. 324)

(emphasis added). This statement to the sentencing court directly contradicts Grammas’s contention

to this Court that his decision to go to trial was driven by what was then his understanding of the

potential length of his sentence. Further, Grammas admits in his brief that his decision to go to trial

was directly influenced by his attorney’s advice “not to worry because the government could not get6 The majority claims that acknowledging these concessions is “inappropriate” because

they were included in Grammas’s pro se pleadings. See F.3d at n.3. (majority opinion at 6

n.3) (citing Perez v. United States , 312 F.3d 191, 194-95 & n.13 (5th Cir. 2002)). The majority’s

concern regarding pro se pleadings does not apply to Grammas’s first statement because

Grammas made that statement at his sentencing hearing, when he was represented by counsel.

Consideration of the second statement is also appropriate because it was one of the factual

allegations underlying Grammas’s claim for habeas relief and not a legal argument. We liberally

construed the pro se pleadings in Perez to avoid “punishing [the pro se plaintiff] for lacking the

linguistic and analytical skills of a trained lawyer” because courts adopted the rule requiring liberal

construction of pro se pleadings precisely to prevent such a result. Perez , 312 F.3d at 195. The

liberal construction of pro se pleadings does not preclude reliance upon the factual statements

contained within those pleadings and on which Grammas himself relies in order to establish his

habeas claim.

13 a conviction because Mr. Grammas was not in ‘actual possession’ of the said firearm.” Petitioner’s

Brief, p. 2, 17 (emphasis added). Grammas has thus twice conceded that factors other than his

attorney’s advice concerning his sentencing range drove him to decide to go to trial rather than to

plead guilty. 6

More important ly, as a matter of law, Grammas was not prejudiced: Harris’s failure to

determine, and inform Grammas, that his prior crimes of violence would increase his sentencing range

did not prejudice Grammas because his sentencing range under § 2K2. 1 was not affected by his

decision to go to trial. The applicable sentencing range would have been the same whether Grammas

had pled guilty or had his guilt determined by trial. Thus Harris’s failure to ascertain and properly

advise Grammas as to the effect of his previous crimes of violence on his potential sentence made him

no worse off as to his sentencing range than he would have been had his attorney provided him with

accurate information.

The majority opinion must use a separate basis for establishing prejudice. It finds that

Grammas was prejudiced because he was denied the opportunity to receive a reduction in his offense

level for acceptance of responsibility, see U.S. S ENTENCING G UIDELINES M ANUAL § 3E1.1 (2001),7 The majority opinion properly admits that the sentencing court may not have granted

Grammas this reduction even if he had pleaded guilty. Of course, Grammas may still not receive

this reduction to his offense level even if he now decides to plead guilty to these charges.

8 Grammas was not foreclosed from receiving a reduction to his offense level simply

because he decided to go to trial rather than plead guilty. See U.S. S ENTENCING G UIDELINES

M ANUAL § 3E1.1, cmt. n.2 (“Conviction by trial, however, does not automatically preclude a

defendant from consideration for such a reduction. In rare situations a defendant may clearly

demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his

constitutional right to trial.”).

14 or, in the alternative, that he would have sought a plea bargain. Assuming the oppo rtunity for

reduction in a petitioner’s offense level can constitute prejudice, 7 Grammas does not allege, or argue,

that he was misled by his trial counsel concerning his eligibilit y under § 3E1.1 for a reduction to his

offense level. Grammas implicitly concedes that he knew t hat he would have been eligible for a

reduction to his offense level had he pled guilty and that by making the decision to go to trial rather

than plead guilty he was most likely forfeiting that opportuni ty in exchange for the possibility of an

acquittal. 8

The district court found that there is no evidence suggesting that the Government would have

accepted a plea bargain offer from Grammas, or that it would have offer ed one of its own. Thi s

conclusion is not clearly erroneous. See Dison v. Whitley

, 20 F.3d 185, 186 (5th Cir. 1994) (“We

review the district court’s findings of fact for clear error.”). Grammas admitted at his sentencing

hearing that the Government had not offered him a plea bargain, see R-6, Sentencing Hearing

Transcript, p. 324, and there is no evidence suggesting that the Government would have offered him

one had he asked. Additionally, Grammas has never suggested that he had anything to offer the

Government in exchange for a plea bargain. The majority opinion, however, simply surmises that the

Government would have offered him one despite the district court’s conclusion otherwise.15

To establish Strickland prejudice a petitioner must not only prove that he was prejudiced in

the proceedings, he must also prove that his counsel’s errors caused that prejudice. See Strickland

v. Washington

, 466 U.S. 668, 694, 104 S. Ct. 2052 (1984) (“The defendant must show that

. . . but

for counsel’s unprofessional errors, the result of the procee ding would have been different.”)

(emphasis added); Buxton v. Lynaugh

, 879 F.2d 140, 147 (5th Cir. 1989) (The petitioner must show

that “the failure of his counsel caused [him] to suffer preju dice.”) (emphasis added). Grammas is

unable to establish a causal connection between his trial counsel’s deficient conduct under § 2K2.1

and the prejudice he alleges he suffered under § 3E1.1.

The majority opinion concludes that Grammas was generally prejudiced because the effect of

his decision not to plead guilty was the lengthening of his actual sentence if not his sentencing range.

However, the majority opinion is unable to cite a single cas e where we have found S trickland

prejudice when there was no direct casual relationship between the attorney’s deficient conduct under

§ 2K2.1 and the specific prejudice alleged by t he petitioner under § 3E1.1. This highlights the

unprecedented nature of its conclusion.

Grammas knew that if he went to trial he would most likely be giving up the opportunity to

receive a reduction to his offense level for acceptance of responsibility. He cannot now come before

this Court and claim that he was prejudiced by his informed decision to give up that opportunity. Had

Grammas established that had he pleaded guilty his sentencing range would have been less than it was

after he went to trial then he would have es t ablished prejudice sufficient to sustain this S trickland

claim. However, he has not, and cannot, meet this burden as his sentencing range was not affected

by that decision.

Even assuming Grammas was able to establish Strickland prejudice the majority opinion16

improperly vacates his convictions. Grammas has not established any deficiency in the adjudication

of his guilt or in the calculation of his sentence. S ee 28 U.S.C. § 2255. Grammas is thus properly

in federal custody and is not entitled to habeas corpus relief.

After a fair and constitutionally sound trial, Grammas was found guilty of knowingly altering

a Vehicle Identification Number and being a felon in possession of a firearm. In his habeas petition,

Grammas does not challenge his convictions. In fact, Grammas seeks only the opportunity to plead

guilty to the charges. There is little doubt as to Grammas’s guilt and t here is no doubt as to the

validity of the judgment rendered against him.

Grammas also does not challenge the legal validity of the sentence imposed against him. He

does not argue that his sentence is in excess of the maximum authorized by law, nor does he claim

t hat the sentencing court misapplied the Sentencing Guidelines or in some other way erred in

calculating or imposing his sentence. Grammas seeks relief not authorized by § 2255.

The federal habeas statute provides for habeas relief if either the petitioner’s judgment or

sentence is in some way unlawful. S ee 28 U.S.C . § 2255 (providing that a petitioner’s conviction

should be set aside if “the judgment was rendered without jurisdiction, or that the sentence imposed

was not authorized by law or otherwise open to collateral attack, or that there has been such a denial

or infringement of the constitution a l rights of the prisoner as to render the judgment vulnerable to

collateral attack”); Thomas v. United States

, 368 F.2d 941, 944 (5th Cir. 1966) (“Where the sentence

is within the limit set by the statute, we are barred, except in the mo st exceptional ci rcum stances,

from any inquiry we might be otherwise inclined to take.”). Consistent with this principle we

generally grant habeas relief when there has been some error in either the judgment or the process of

determining the judgment, see e.g. United States v. Guerra

, 94 F.3d 989 (5th Cir. 1996) (overturning17

conviction because plea was made involuntarily), or, the sentence or th e process of i m posi ng the

sentence, see e.g. United States v. Conley

, 349 F.3d 837 (5th Cir. 2003) (vacating sentence because

trial counsel failed to object to imposition of improper sentence).

There are no such errors in this case. There was no error in the adjudication of Grammas’s

guilt or in the rendering of judgment against him, nor was there any error in the imposition or

calculation of his sentence. Consequently, granting habeas relief in this case involves freeing from

custody an individual who was rightly convicted pursuant to a constitutionally valid trial where the

sentence imposed is consistent with the requirements of the law. The habeas statute does not provide

for this bizarre result, notwithstanding the majority opinion’s claims otherwise.

Further, the majority opinion vacates Grammas’s judgment presumably so that he can now

plead guilty to these charges and receive a reduction in his sentence. The reasoning behind this result,

at minimum, presumes that to the extent that Harris provided ineffective assistance of counsel, that

ineffective assistance did not prejudice Grammas in regards to the judgment rendered against him.

This absence of prejudice regarding Grammas’s judgment explains why the majority now expects him

to plead guilty and voluntarily re-institut e t he convictions it now vacates. However, despite

Grammas’s contention that he would have, and will now, plead guilty to these charges the majority

opinion’s approach to this case does not guarantee that result. Grammas may yet again decide to not

plead guilty and take his chances with a second trial. At best , this means that Grammas will be

furnished with another opportuni ty to contest his guilt despite having already been found guilty by

the one constitutionally sound trial he is guaranteed under the law. At worst, it means that Grammas

may go free despite having already been properly adjudicated guilty and having all but confessed to

his crimes in his petition to this Court.18

Lastly, to the extent that the facts before us are conflicted we have a duty to remand to the

district court for findings of fact. S ee Shinall v. Breazeale

, 404 F.2d 785, 787 (5th Cir. 1968)

(finding that case should be remanded to district court because findings of fact necessary t o grant

habeas relief were not made by district court); M iranda v. Bennett

, 322 F.3d 171, 175 (2d Cir. 2003)

(citing cases).

Accordingly, I respectfully dissent.