US v. Jamar Randall, No. 13-7354 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7354 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMAR SERON RANDALL, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:10-cr-00174-MOC-1; 3:13-cv-00154-MOC) Submitted: January 21, 2014 Decided: April 2, 2014 Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges. Vacated in part and remanded by unpublished per curiam opinion. Jamar Seron Randall, Appellant Pro Se. William A. Brafford, Jennifer Lynn Dillon, Melissa Louise Rikard, Jenny Grus Sugar, Assistant United States Attorneys, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jamar Seron Randall filed a 28 U.S.C. § 2255 (2012) motion, contending, inter alia, that his counsel was ineffective in advising him with regard to two plea offers and that, based on that faulty advice, he rejected the first plea offer and accepted the second one. * court s order denying Randall seeks to appeal the district § 2255 relief. For the reasons that follow, we grant a certificate of appealability, vacate in part the district court s order, and remand for further proceedings. A federal grand jury charged Randall with possession of a firearm § 922(g) a (2012). agreements. levels by of convicted The felon, Government in violation offered Randall 18 U.S.C. two plea Under the original plea deal, in addition to two reduction responsibility pursuant in to offense U.S. level for Sentencing acceptance Guidelines of Manual § 3E1.1(a) (2010), the Government would have recommended that Randall receive an additional one-level * reduction under USSG In his § 2255 motion, Randall also asserted he was denied effective assistance of counsel with regard to a motion to suppress. By failing to challenge the district court s rejection of this claim in his informal appellate brief, Randall has forfeited review of this issue. See 4th Cir. R. 34(b) (directing appealing parties to present specific arguments in an informal brief and stating that this court s review on appeal is limited to the issues raised in the informal brief). 2 § 3E1.1(b). Randall was informed that, if he did not accept the plea deal by December 15, 2010, he would not receive the third level of reduction. Randall He did not accept this plea offer. accepted a second executed on January 3, 2011. that [t]he parties agree plea agreement that was That agreement expressly stated that with regard to acceptance of responsibility, a decrease of defendant s offense level by one additional level is not appropriate under [USSG] § 3E1.1. district court subsequently sentenced Randall to The ninety-two months imprisonment, the bottom of the Guidelines range. Randall appealed, challenging, among other issues, the validity of his guilty plea and the district court s denial of his motion to withdraw his guilty plea. This Court affirmed the district court on these issues and dismissed the remainder of Randall s appeal as barred by the provision in the plea agreement. waiver-of-appellate rights See United States v. Randall, 478 F. App x 5 (4th Cir. 2012) (No. 11-5160). In Randall his claimed § 2255 that motion, he was as relevant denied to effective counsel in connection with the two plea offers. this appeal, assistance of Regarding the first plea deal, Randall claimed that counsel told him he would receive a thirty-six-month sentence if he accepted that offer but then advised him to reject it because successfully move to suppress the firearm. 3 counsel could He also said his attorney because counsel s accepted advised he had a faulty the him to reject viable advise, first plea the double jeopardy Randall offer Government s and claim. asserted, would plea he have offer Without would have received the additional one-level reduction for acceptance of responsibility. Turning to his ineffective assistance claim concerning the second plea offer, Randall said that his attorney conducted the same Guidelines calculations as he had with the first offer, but advised that the Guidelines range under the new offer would now be forty-one to fifty-one months because Randall lost the additional one-level reduction for acceptance of responsibility. He claimed that counsel assured him he would still proceed with the motion to suppress and the double jeopardy challenge, but advised him to accept the plea to lock the [G]overnment in to a particular sentence in the event that those challenges were unsuccessful. Randall stated that, but for counsel s faulty advice and misrepresentations, he would have rejected the plea offer and proceeded to trial. The district court denied relief. Citing United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005) (absent compelling evidence to the contrary, truth of sworn statements made during a Rule 11 colloquy is conclusively established ), the district court held that Randall s claims were belied by his sworn testimony at his Rule 11 hearing. 4 The court rejected Randall s reliance on two recent Supreme Court cases addressing ineffective assistance of counsel during the plea bargaining process, Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), concluding that the Supreme Court had not held that these cases established a new right that was retroactively applicable to cases on collateral review. Furthermore, the district court held that the Fourth Circuit had already rejected Randall s ineffective assistance claims on direct appeal. We conclude that the district court applied the wrong standard in denying Randall s claims. In Lafler, the Court held that the Sixth Amendment right to counsel applies to the plea bargaining process and that prejudice occurs when, absent deficient advice, the defendant would have accepted a plea deal that would have been approved by the court, and that the conviction or sentence, or both, under the offer s terms would have been less severe than under the judgment and sentence that in fact were imposed. 132 S. Ct. at 1385. Because Lafler was the law in effect at the time Randall s conviction became final, the district court was bound to apply it in reviewing Randall s ineffective-assistance claim. Moreover, the district court erred in its alternative holding that the issues raised in Randall s § 2255 motion were in fact litigated on direct review. 5 Randall s claim on direct review involved only whether his guilty plea was knowing and voluntary -- assistance. not whether his lawyer provided ineffective Indeed, we declined on direct appeal to consider any evidence of Randall s counsel s ineffectiveness not in the record, and invited Randall to file a § 2255 motion if he wished to make out an ineffective assistance claim. Randall, 478 F. App x at 5 n.*. Accordingly, we grant a certificate of appealability, vacate the portion of the district court s order denying relief on Randall s claims of ineffective assistance during the plea bargaining process, and remand consistent with this opinion. merits of Randall s claims. for further proceedings We express no view as to the We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. VACATED IN PART AND REMANDED 6
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