Friday, December 22, 2017
The United States Court of Appeals for the Fourth Circuit sustained a claim of ineffective assistance of counsel
In this appeal, we consider the district court’s dismissal of a motion for postconviction relief under 28 U.S.C. § 2255. We decide whether our decision on direct appeal, that a sentencing court did not plainly err in designating a defendant as a “career offender,” requires a conclusion on collateral review that trial counsel did not render ineffective assistance by failing to object to that designation. Upon our review, we conclude that the standards for plain error and ineffective assistance of counsel are distinct and do not necessarily result in equivalent outcomes for the defendant. Under the circumstances presented here, we hold that the defendant’s trial counsel rendered ineffective assistance by failing to understand the required legal analysis, and by failing to make an obvious objection to the career offender designation. These failures by counsel resulted in prejudice to the defendant by increasing his sentence by more than seven years’ imprisonment. We therefore vacate the defendant’s sentence, and remand the case to the district court for resentencing.
The issue involved the impact of a prior offense
The [career offender] recommendation was based on Carthorne’s two prior convictions, including the one conviction at issue here for Virginia assault and battery of a police officer (ABPO), in violation of Virginia Code § 18.2-57(C). The probation officer concluded that ABPO qualified as a “crime of violence” under Section 4B1.2(a) of the Guidelines, thereby qualifying Carthorne for the career offender enhancement. The ABPO offense, committed in 2002, occurred as a result of Carthorne spitting in the face of a police officer without further altercation. United States v. Carthorne, 726 F.3d 503, 508 (4th Cir. 2013) (Carthorne I)...
Carthorne’s retained trial counsel did not object to the career offender designation, or argue more specifically that ABPO failed to qualify as a predicate offense.
Trial counsel failed to understand and apply the required legal analysis
Here, counsel demonstrated that he was not even aware of the analysis required by the categorical approach or its application in assessing predicate offenses for purposes of the career offender enhancement. As noted above, in his colloquy with the court, counsel explained: “I would like to have been lucky to have found a case that says spitting on an officer is not an assault.” Counsel mentioned the “categorical approach,” but apparently did not understand that the facts of the original “spitting” offense were irrelevant to the predicate offense inquiry. Moreover, contrary to the above-stated authority, counsel actually admitted that any argument that ABPO was not a crime of violence was “without merit.”
Counsel should have known that the above-stated precedent raised serious questions whether ABPO qualified as a crime of violence under the Guidelines, and that he had a duty to object to Carthorne’s designation as a career offender on those grounds. See Strickland, 466 U.S. at 691; Williamson, 183 F.3d at 463; Ramirez, 799 F.3d at 855. Instead, counsel referenced research only addressing the question whether spitting on a person constitutes an assault and battery, which question would have been relevant only on a direct appeal of the original ABPO conviction. Such a misunderstanding on the part of counsel illustrates his basic failure to comprehend the relevant legal analysis.
The court further concluded that there was no strategic reason for the lapse.
Money quote from counsel when the issue came up
MR. JOHNSON: Judge, I have labored over that case long, looked and researched for a long time trying to develop and asking providence for a lucky break. I’m not a good lawyer. Sometimes I just like to be lucky if I could [sic], and I would like to have been lucky to have found a case that says spitting on an officer is not an assault. Notwithstanding the fact that he plead [sic] guilty, was sentenced to it, notwithstanding the fact that the facts of it are the officer is just walking down the street saying “what’s up,” you say “what’s up,” and you spit back on the officer. I’d like to take an argument and say, well, he didn’t strike the officer. He didn’t hurt him. There was no violence. But right now I think the categorical approach that the—as I understand it, the Supreme Court and the Fourth Circuit has taken would render such an argument—
THE COURT: Without merit.
MR. JOHNSON: Yes, Your Honor. So I would rather argue, Judge, that he was just a fool.