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U.S. v. Day

filed: July 13, 1992; As Amended August 17, 1992. Second Amendment September 2, 1992. As Corrected September 28, 1992.


On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Crim. No. 89-00012-04)

Before: Becker, Nygaard, and Roth, Circuit Judges

Author: Becker


BECKER, Circuit Judge.

William Day appeals from the dismissal of his pro se petition brought under 28 U.S.C. § 2255 (1988), in which he seeks to have his conviction and sentence set aside. Day's primary claim is that his trial counsel afforded him ineffective assistance of counsel regarding a plea offer by giving him substandard advice about his sentence exposure under the Sentencing Guidelines. More specifically, Day alleges that his counsel failed to explain his possible career offender status and told him that the maximum prison sentence that he could receive if he stood trial was eleven years, when in fact he is serving nearly twenty-two years and could have received a far greater sentence. Day contends that this deficient advice led him to decline a plea offer that would have resulted in a five-year sentence. He now seeks to plead guilty pursuant to the alleged plea bargain and to have that five-year sentence imposed instead of his current sentence.

The district court for the Eastern District of Pennsylvania denied Day's petition without holding a hearing or directing a response from the government. The court held that no prejudice can inure from a not-guilty plea, and that even if prejudice could result, there is no reliable way to reconstruct what would have happened had Day been properly counseled. The court also implied that Day's proposed remedy of specific performance would be inappropriate because the government has lost whatever benefit it would have gained from any plea bargain. Finally, the district court rejected Day's additional claims that (1) when sentencing him, the court failed to recognize its authority to depart from the Guideline range, and (2) under 21 U.S.C. § 851 (1988) the government was required to, but did not, provide him with advance notice that it would seek to enhance his sentence under the career offender provisions. Day's appeal from the district court's order dismissing his petition presents all these issues.

We hold that Day's petition raises a facially valid claim of ineffective assistance of counsel during plea bargaining. We have previously held that constitutionally significant prejudice can inhere from ineffective assistance at that stage, and Day's petition alleges both clearly deficient performance by counsel and sufficient prejudice. The district court therefore erred in not conducting a hearing on that claim, unless it can conclude on remand that there is no "reasonable probability" that it would have approved the alleged plea agreement. We also hold that the district court properly dismissed Day's other two claims without a hearing. The district court's order will therefore be affirmed in part and vacated in part, and the case remanded for further proceedings.


A jury convicted Day along with five codefendants of possession with intent to distribute and conspiracy to distribute a large quantity of cocaine, in violation of 21 U.S.C.A. §§ 841 and 846 (West, 1981 & 1992 Supp.). Day's Presentence Investigation Report calculated his offense level as 28 (a base level of 26, plus 2 because a handgun was present) and his criminal history category as IV (he had 8 points). Those scores would have created a sentence range of 110 to 137 months (9 years, 2 months to 11 years, 5 months).*fn1 Because Day had two previous convictions for violent felonies, however, the probation officer noted that Day might be considered a career offender under U.S.S.G. § 4B1.1, under which his offense level would be elevated to 34 (the statutory maximum for the offense was more than 25 years) and his criminal history category to VI. The district court concluded that Day was a career offender and sentenced him to 262 months (21 years, 10 months) in prison, at the bottom of the applicable range of 262 to 327 months. On direct appeal, we summarily affirmed. United States v. Day, 902 F.2d 1562 (3d Cir. 1990).

Day, acting pro se, then filed a petition under 28 U.S.C. § 2255 to set aside his conviction and sentence. Day's petition raised two grounds for relief. First, he alleged that his trial counsel's failure to advise him of the impact of his prior convictions on his potential sentence deprived him of effective assistance of counsel when deciding whether to accept a plea offer.*fn2 Day also attacked his sentence on the ground that the district court mistakenly believed it lacked the authority to depart below the Guideline range, even though, in Day's view, his criminal history score grossly overrepresented the seriousness of his criminal history. Day later amended his petition to allege a third ground: that the government failed to notify him, as he argues is required by 21 U.S.C. § 851 (1988), that his sentence might be enhanced because he was a career offender.

Day subsequently retained counsel, who filed an entry of appearance and a motion for leave to amend the petition. Although the district court had taken no action and the government had not responded to Day's petition, the district court did not grant Day's motion for leave to amend. Instead, in a written opinion, the district court denied Day's petition outright without holding an evidentiary hearing. Day filed a timely appeal, over which we have jurisdiction under 28 U.S.C. §§ 2253 and 2255 (1988).



The District Court's Duty and Our Standard of Review

Section 2255 itself limits the discretion of a district court to summarily dismiss a petition brought under that section:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and ...

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