No. 97-5757 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 WILLIE FRANK GRAVETTE, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS E. BOOTH Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether petitioner's attorney rendered ineffective assistance at petitioner's sentencing proceeding by failing to contest the validity of a prior conviction used to establish petitioner's status as a career offender subject to Guidelines 4B1.1. 2. Whether the Sentencing Commission exceeded its authority by determining that prior state convictions for violent felonies may be used to establish a recidivist defendant's status as a career offender. 3. Whether petitioner was required to obtain a certificate of appealability in order to appeal the denial of his motion under 28 U.S.C. 2255, where the motion was filed in the district court before the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996, but the notice of appeal was filed after the effective date of the Act. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 No. 97-5757 WILLIE FRANK GRAVETTE, PETITIONER v. UNITED STATES OF AMERICA PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A2) is unreported, but the judgment is noted at 106 F.3d 392 (Table). The opinion of the district court (Pet. App. B1-B5) is unreported. JURISDICTION The judgment of the court of appeals was entered on February 5, 1997. The petition for a writ of certiorari was filed on May 1, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) . STATEMENT In the United States District Court for the Western District of North Carolina, petitioner pleaded guilty to three counts of ---------------------------------------- Page Break ---------------------------------------- 2 armed bank robbery, in violation of 18 U.S.C. 2113 (d); and one count of using or carrying a firearm during and in relation to a violent felony, in violation of 18 U.S.C. 924 (c). He was sentenced to concurrent terms of 210 months' and 60 months' imprisonment. Petitioner subsequently filed a motion under 28 U.S.C. 2255 to vacate his sentence. The district court denied the motion. Pet. App. B1-B5. The court of appeals denied petitioner's request for a certificate of appealability and dismissed the appeal. Id. at A1-A2. 1. During December 1990 and January 1991, petitioner conspired with Shane Teasley and Charles Huggins to rob several banks in North Carolina. On December 5, 1990, Huggins robbed a bank in Hildebran, North Carolina, while petitioner waited in a getaway car outside. On December 17, Huggins and Teasley robbed a bank in Bethlehem, North Carolina, while petitioner waited in a getaway car. On January 9, 1991, petitioner and Huggins robbed a bank in Hickory, North Carolina, while Teasley waited in the getaway car. Presentence Report (PSR) 5-14. 2. Petitioner entered into a plea agreement with the government to dispose of the charges. The agreement required petitioner to waive his right to appeal the sentence on direct appeal and on collateral attack. Plea Agreement 8. The agreement also provided that if petitioner were determined to be a "career offender" under Guidelines 4B1.1, the government would recommend a sentence at the low end of the Guidelines range. Plea Agreement 9. ------------------------------------------ Page Break ---------------------------------------- 3 The PSR concluded that petitioner was a career offender subject to Guidelines 4B1.1. PSR 53. The PSR explained that petitioner had pleaded guilty to second-degree assault in Washington in 1976 and had been convicted by a jury of kidnapping, robbery, attempted sodomy, and second-degree assault in Oregon in 1980. PSR 51-52. The PSR stated that petitioner had been represented by counsel at both trials. Ibid. Petitioner's response to the PSR did not challenge the validity of his prior convictions. See Objection to the Presentence Report (filed June 12, 1991). 3. In 1992, petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. 2255. Petitioner contended, inter alia, that he was not a "career offender" because the 1976 conviction had been obtained in violation of Boykin v. Alabama, 395 U.S. 238 (1969), which held that a trial court may not accept a guilty plea to a criminal charge without an affirmative showing that the plea is intelligent and voluntary, and that the defendant has validly waived his rights against compulsory self-incrimination, to a trial by jury, and to confront his accusers. See id. at 242-243. Petitioner argued that his attorney in the 1991 proceeding had been ineffective in not challenging that conviction at sentencing. He also claimed that the Sentencing Commission lacked the authority to include a state felony conviction in determining "career offender" status. The district court assigned the motion to a magistrate judge. On October 23, 1995, the magistrate judge recommended dismissal of ---------------------------------------- Page Break ---------------------------------------- 4 the motion. Pet. App. C1-C10. On April 24, 1996, while petitioner's motion was pending in the district court, the President signed into law the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA or Act). Title I of the Act made changes to the law governing motions for collateral relief for federal prisoners under 28 U.S.C. 2255. Section 102 of the Act amended 28 U.S.C. 2253 to require a prisoner to obtain a "certificate of appealability" before appealing from a district court's denial of his Section 2255 motion. The new provision states that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from * * * the final order in a proceeding under section 2255." 28 U.S.C. 2253 (c) (1) (B). A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253 (c) (2). On July 29, 1996, the district court denied petitioner's Section 2255 motion. Pet. App. B1-B5. The court rejected petitioner's claim of ineffective assistance of counsel, explaining that petitioner could not show prejudice from counsel's failure to attack the 1976 conviction because petitioner could have been sentenced as a "de facto career offender" even if the prior convictions had been shown to be constitutionally infirm. Id. at B5. The court also ruled that Congress had intended that the Sentencing Commission include state felony convictions in determining "career offender" status. Id. at B3-B4. ---------------------------------------- Page Break ---------------------------------------- 5 Petitioner filed a notice of appeal. The court of appeals dismissed the appeal. Pet. App. A1-A2. The court stated that it had "reviewed the record and the district court's opinion" and that it "f[ou]nd no reversible error." Id. at A2. The court therefore denied petitioner a certificate of appealability and "dismiss[ed] the appeal on the reasoning of the district court." Ibid. ARGUMENT 1. Petitioner contends (Pet. 2-13) that his attorney in the 1991 sentencing proceeding rendered ineffective assistance of counsel by failing to challenge the validity of his 1976 state conviction. That claim is without merit. In Custis v. United States, 114 S. Ct. 1732 (1994), this Court held that, absent express statutory authorization, a recidivist defendant in a federal criminal proceeding may not collaterally attack state convictions on which a sentence enhancement is based unless those convictions are shown to have been uncounseled. The Court applied that rule to, inter alia, Custis's claims "that his guilty plea was not knowing and intelligent, and that he had not been adequately advised of his rights in opting for a 'stipulated facts' trial." Id. at 1738. The failure of petitioner's counsel to challenge the validity of the earlier plea cannot be deemed ineffective assistance because, under Custis, such a challenge would not have been cognizable at petitioner's sentencing proceeding. See United States v. Garcia, 42 F.2d 573, 575-581 (10th Cir. 1994) (except for a claim based on complete denial of the right to counsel, defendant at federal sentencing proceeding may not collaterally attack prior ---------------------------------------- Page Break ---------------------------------------- 6 conviction used to establish career offender status under Guidelines 4B1.1). 1. 2. Petitioner contends (Pet. 13-25) that the Sentencing Commission lacked authority to make the career offender Guideline applicable to persons who have previously been convicted of state offenses involving crimes of violence. Petitioner's claim raises no constitutional issue, and his appeal is therefore barred by the limitations on appellate review in Section 2255 proceedings imposed by the AEDPA. See 28 U.S.C. 2253 (c) (2) (certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right"). The claim is also foreclosed by the waiver of appeal provision in petitioner's plea agreement. See page 2, supra. In any event, petitioner's claim lacks merit. The Sentencing Reform Act directs the Commission to "assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for" a defendant who "has been ___________________(footnotes) 1 Petitioner argues (Pet. 11) that the controlling circuit ---------------------------------------- Page Break ---------------------------------------- 7 convicted of a felony that is * * * a crime of violence" or a specified federal drug offense, and who "has previously been convicted of two or more prior felonies, each of which is * * * a crime 994 (h 1675 of violence" or a specified federal drug offense. 28 U.S.C. ; see generally United States v. LaBonte, 117 S. Ct. 1673, 1997) . In order to implement that directive, the Commission promulgated Guidelines 4B1.1, which establishes a methodology for determining the sentence of a "career offender." Section 4B1.1 states that "[a] defendant is a career offender if (1) the defendant was at least instant offense, (2) the that is either a crime eighteen years old at the time of the instant offense of conviction is a felony of violence or a controlled substance offense, and (3) the defendant "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." Guidelines 4B1.2 defines to mean "any offense under federal imprisonment torn a term exceeding the term "crime of violence" or state law punishable by one year" that satisfies specified criteria. It is thus entirely clear and petitioner acknowledges, see Pet. 17 that the Commission intended that prior state convictions for violent felonies could be used to establish a defendant's status as a career offender. In our view, 28 U.S.C. 994(h) unambiguously directs the Commission to provide for terms of imprisonment at or near the maximum term authorized for defendants (such as petitioner) who have been convicted of violent felonies and have two previous state convictions for violent felonies. Nothing-in the text of Section ---------------------------------------- Page Break ---------------------------------------- 8 994(h) suggests that the phrase "crime of violence" should be limited (in derogation of its plain meaning) to federal crimes of violence. Cf. United States v. Gonzalez, 117 S. Ct. 1032 (1997) (18 U.S.C. 942(c)(1) , which provides that the term of imprisonment imposed under that Section shall not "run concurrently with any other term of imprisonment, " requires that the sentence for the Section 924(c)(1) offense must run consecutively to state as well as federal sentences) . Even if 28 U.S.C. 994(h) did not re quire the Commission to include prior state convictions for violent felonies in the career offender Guideline, moreover, nothing in Section 994(h) or in the rest of the Sentencing Reform Act would preclude the Commission from doing so. Section 994(h) directs the Commission to ensure that the Sentencing Guidelines specify terms of imprisonment at or near the maximum term authorized for certain categories of offenders; it does not preclude the Commission from mandating similarly long sentences for defendants who are not within the enumerated categories but are believed by the Commission to be similarly situated in relevant respects. So long as it does not purport to authorize or require sentences outside the ranges established by statute, the Commission "enjoys significant discretion in formulating guidelines" for sentencing in federal criminal cases. Mistretta v. United States, 488 U.S. 361, 377 (1989) ; see 28 U.S.C. 994 (a). That discretion easily encompasses the authority to determine that persons previously convicted of state violent felonies should be sentenced in the same manner as ---------------------------------------- Page Break ---------------------------------------- 9 persons previously convicted of equivalent federal offenses. 2. 3. Petitioner also contends (Pet. 25-29) that he was not required to obtain a certificate of appealability because his Section 2255 motion was pending in the district court on April 24, 1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act. Although that issue is the subject of a circuit conflict, petitioner's claim lacks merit, the issue is of no prospective importance, and resolution of the issue in petitioners favor would not in any event afford petitioner any relief. Because petitioner did not file a notice of appeal until after the AEDPA's effective date, the certificate-of-appealability 2 Petitioner acknowledges that "[t]he Commission may well be free under 994(a) to specify equally long terms for defendants not covered by 994(h)," but argues that the Commission has expressed no intention of extending the career offender Guideline to persons not within the coverage of Section 994(h). See Pet. 16. Guidelines 4B1.1 cannot, however, be plausibly construed as limited to the categories of defendants listed in Section 994(h). The current version of the Commentary to Section 4B1.1 makes clear that, while "the definition of a career-offender track[s] in large part the criteria set forth in 28 U.S.C. 994 (h)," the Sentencing Commission "has modified this definition in several respects to focus more precisely on the class of recidivist offenders for whom a lengthy term of imprisonment is appropriate and to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct." Guidelines 4B1.1 (Background) (quoting 28 U.S.C. 991(b)(1)(B)). In particular, the term "controlled substance offense" as used in the career offender Guideline is defined to include, inter alia, "an offense under federal or state law prohibiting the manufacture, import, export, distribution, or dispensing of a controlled substance," Guidelines 4B1.2(2) (emphasis added) , even though the only drug offenses covered by Section 994(h) are offenses defined by federal law, see 28 U.S.C. 994(h)(2)(B). The Commission's decision to include defendants with prior state drug convictions within the career offender Guideline strongly suggests that it would have included defendants previously convicted of state violent felonies even if it had not believed those defendants to be covered by Section 994(h). I ---------------------------------------- Page Break ---------------------------------------- 10 requirement did apply to petitioner. In Lindh v. Murphy, 117 S. Ct. 2059 (1997), this Court concluded that Congress generally intended "to apply the [AEDPA] amendments to chapter 153 only to such cases as were filed after the statute's enactment." Id. at 2063; see Id. at 2068. In so holding, the Court reasoned that the express provision that the Act's amendments to Chapter 154 of Title 28 "shall apply to cases pending," AEPDA 107(c), implied that the Act's amendments to Chapter 153 should not apply to pending cases. The Act's provision requiring a certificate of appealability for federal prisoners is an amendment to Chapter 153 of Title 28; accordingly, under Lindh, that provision does not apply to "cases pending" on April 24, 1996. The facts of Lindh, however, did not involve a petition for post-conviction relief in which the appeal was filed after the effective date of the Act. See id. at 2061- 2062. And the Court did not address whether, for purposes of the applicability of the certificate-of-appealability requirement, the "case" that has to be pending on the effective date of the Act is the "case" on appeal or the original "case" filed in the district court. In this case, petitioner's motion for relief was filed in the district court before the effective date of the Act, but his case on appeal was filed after the effective date of the Act. Such a case is subject to the Act's certificate-of-appealability requirement because the appeal the relevant case was neither "filed" nor "pending" on April 24, 1996. Although the Eighth Circuit has agreed with that approach, see Tiedeman v. Benson, 122 F.3d 518, 521 (8th Cir. 1997) (certificate ---------------------------------------- Page Break ---------------------------------------- 11 of appealability is required whenever the notice of appeal is filed after the effective date of the Act; "we can think of no reason why a new provision exclusively directed towards appeal procedures would depend for its effective date on the filing of a case in a trial court, instead of on the filing of a notice of appeal or similar document"), seven courts of appeals have held, since Lindh, that the certificate-of-appealability requirement does not apply to petitions for post-conviction relief that were filed in the district court before the effective date of the Act. 3. The disagreement between those courts and the court below, however, concerns an issue that is of rapidly diminishing importance. Its principal remaining significance is for the dwindling set of Section 2255 cases filed before April 24, 1996, in which no appeal has yet been taken. Moreover, because petitioner's claims clearly fail on the merits, resolution of the certificate-of-appealability issue would not affect the outcome of this case. 4. Accordingly, review by this Court to resolve the disagreement among the circuits 3 United States v. Kunzman, No. 96-1310J 1997 WL 602507, at *3 (10th Cir. Oct. 1, 1997); United States v. Skandier, No. 97-3129, 1997 WL 581662, at *1-*5 (3d Cir. Sept. 22, 1997); KOO v. McBride, No. 96-2271, 1997 WL 549557, at *1-*2 (7th Cir. Sept. 3, 1997); Hardwick v. Sinqletary, 122 F.3d 935, 936 (11th Cir. 1997) ; Nelson v. Walker, 121 F.3d 828, 831-832 (2d Cir. 1997) ; Arredondo v. United States, 120 F.3d 639, 640 (6th Cir. 1997); United States V. Carter, 117 F.3d 262, 264 (5th Cir. 1997). 4 In the instant case, the court of appeals stated that it had "reviewed the record and the district court's opinion" and that it "f[ou]nd no reversible error." pet. App. A2. There is no reason to believe that petitioner would have prevailed in his appeal if the court had concluded -that the certificate-of-appealability requirement did not apply. I ---------------------------------------- Page Break ---------------------------------------- 12 on the issue is not warranted. 5. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS E. BOOTH Attorney OCTOBER 1997 5 The Court has denied certiorari in five cases in which courts of appeals applied the certificate-of-appealability requirement to cases (like this one) that were pending in the district court on the effective date of. the Act, but in which a notice of appeal was not-filed until after that date. Matthews v. United States, No. 96-8310, cert. denied, 117 S. Ct. 2485 (1997); Zarnes V. United States, No. 96-1324, cert. denied, 117 S. Ct. 1842 (1997) ; Durham v. United States, No. 96-7329, cert. denied, 117 S. Ct. 1699 (1997); England v. United States, No. 96-6826, cert. denied, 117 S. Ct. 969 (1997); Travis v. United States, No. 96- 6585, cert. denied,- 117 S. Ct. 968 (1997).