USA v. Massey, No. 20-10478 (5th Cir. 2023)
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Prisoner, DefendanDefendant, a prisoner, brought an ineffective-assistance-of-counsel claim under 28 U.S.C. Section 2255. His claims rest on the argument that his sentence for the latter offense should have been adjusted to reflect the 13 months he had already spent in prison for his first conviction. Defendant brought this 2255 petition in the Northern District of Texas, faulting his trial counsel for failing to adequately advocate for “back time” at sentencing and faulting his appellate counsel for not raising the issue on appeal. The magistrate judge recommended that relief be denied. The district judge (the same judge who sentenced Defendant in the Northern District) adopted the recommendation, dismissed the claims, and denied a certificate of appealability.
The Fifth Circuit granted a certificate of appealability and affirmed. The court explained that it is true that the Sentencing Guidelines call for credit for time served if there are two related offenses. Both parties agree the offenses are related here. Yet the Guidelines are not obligatory, and the judge in the Northern District of Texas instead sentenced Defendant under U.S.S.G. Section 5G1.3(d). Thus, Defendant’s sentences were treated as concurrent from the day of the second sentencing but did not account for the 13 months of back time. None of this means that Defendant’s lawyers were constitutionally deficient. Defendant’s trial counsel argued for the application of U.S.S.G. Section 5G1.3(b) in a memorandum and noted the argument in open court; he was not constitutionally obliged to do more. Defendant’s appellate counsel was not deficient for failing to raise the issue because the district court did not contravene any binding case law.
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