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Third Circuit: Yes, a 2255 Requires an Evidentiary Hearing on [some] Fact Issues

In United States vs. Michael Scripps, No. 18-2663, the Third Circuit held that a 2255 required an evidentiary hearing when there was no justification on the record as to why Appellate Counsel did not make arguments about the lack of allocution.

In United States vs. Michael Scripps, No. 18-2663, the Third Circuit held that a 2255 required an evidentiary hearing when there was no justification on the record as to why Appellate Counsel did not make arguments about the lack of allocution.

Scripps was convicted of wire fraud at trial. During sentencing, the court asked several times if the wanted to address the court.

The Court: Does [Scripps] want to talk to me?
Mr. Dezsi: I’m sorry?
The Court: Does he want to speak to me?
Mr. Dezsi: Your Honor, I’m going to confer with my client before we do that.
The Court: Sure. Go ahead.
The sentencing judge then directed Mr. Dezsi to ask Scripps whether he wished to make a statement:
The Court: Okay. You need to speak with [Scripps] about whether he wishes to speak to me. But I’ll hear from the government first.
Mr. Dezsi: Okay. Thank you, Your Honor

Again, before imposing sentence the court said:

[The Court:] Does he want to speak to me, sir?
Mr. Dezsi: Your Honor, having discussed it—the matter with my client, he’s opting not to address the court, Your Honor. He will not be making a statement.
The Court: Okay. That’s fine.

After hearing from the parties, "the sentencing judge concluded that '[t]here’s nothing in this record from which I could fairly conclude there’s any remorse whatsoever.'" The court sentenced Scripps to 108 months imprisonment and three years' supervised release.

Scripps's Appeal

Scripps appealed his sentence and was represented by the same attorney. Scripps raised several issues including “the District Court’s supplemental jury instructions, the impartiality of members of the prosecution team, the exclusion of certain expert testimony, and the reasonableness of his sentence.” The court affirmed.

Scripps' 2255 motion

Scripps, first pro se, and then with counsel, filed a 2255. "Among his issues were that whether his appellate counsel was ineffective in failing to argue that the trial judge erred by not personally inviting Scripps to speak during sentencing. Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) (“Rule 32”) requires a sentencing judge to “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”

On the 2255, the District Court determined that there was no Rule 32 error because the trial court “afforded [Scripps] an opportunity to speak several times during sentencing,” and thus Scripps “was able to exercise his rights under Rule 32…Because counsel cannot be ineffective for failing to raise an issue on appeal where there was no underlying error[.]" Because of this the district court concluded that an evidentiary hearing was unnecessary and denied the 2255.

Scripps filed a notice of appeal and requested a Certificate of Appealability, which was granted on “whether the District Court erred in denying, without an evidentiary hearing, the claim that appellate counsel was ineffective for failing to raise a claim that the District Court did not personally address Appellant at sentencing.” While the appeal was pending, Scripps was released and has been serving his term of supervised release.


First the court had to determine if the case was rendered moot after Scripps was released from prison. The Third Circuit noted that "[h]ere, Scripps challenges the validity of his sentence, which includes his term of imprisonment and his term of supervised release." The court noted that he was serving a term of supervised release. Because he is challenging the sentence that he is currently serving, the case was not moot and the court could hear it.


The Third Circuit stated that a district court must hold an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Because of this “the District Court’s decision not to hold an evidentiary hearing will be an abuse of discretion unless it can be conclusively shown that [Scripps] cannot make out a claim for ineffective assistance of counsel.” In order to determine if Scripps suffered ineffective assistance of counsel the court used the familiar Strickland test. "A petitioner must first establish that counsel’s performance 'fell below
an objective standard of reasonableness.'” "Second, a petitioner must show that he was prejudiced by counsel’s deficient performance, meaning that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.'"

"Scripps argues that his appellate counsel was ineffective in failing to raise the trial court’s failure to personally address him during sentencing. He further argues that he was prejudiced by his appellate counsel’s deficient performance because, if this issue had been raised on direct appeal, we would have remanded for resentencing instead of affirming the trial court’s sentence."

Was there deficient performance?

The Third circuit indicated that under Rule 32, the court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” The court noted that in United States v. Adams, the Court indicated that Rule 32 was not satisfied if the sentencing judge asks the defendants attorney if he wants to speak, but fails to address the defendant himself. In Adams, the court stated to the lawyer that the court wanted to hear if the defndadnt had anything to say. The attorney in that case consulted with his client and then the attorney said that the defendant had nothing to say. The Third circuit ruled that “the Supreme Court has held that this query, directed towards counsel, does not satisfy the requirement that the district court personally address the defendant himself.” Contrary to the government's assertion, it is not enough if the defendant knows that he can allocute, there must be a personal invitation to the defendant.

Because of this, appellate counsel's failure to raise the Rule 32 error “fell below an objective standard of reasonableness.” However there was no understanding as to why counsel did not raise this. Such reasoning would have came up in an evidentiary hearing.

Was there prejudice?

Next the court looked at if there was prejudice. “[T]he test for prejudice under Strickland is not whether petitioners would likely prevail upon remand, but whether we would have likely reversed and ordered a remand had the issue been raised on direct appeal.” The court reasoned that the task here was to determine if there was a reasonable probability that the direct appeal would have come out differently if appellate counsel had raised the Rule 32 error.

Going back to Adams, the court held that prejudice was presumed where the defendant demonstrates the “opportunity for such a [Rule 32] violation to have played a role in the district court’s sentencing decision.” In Adams, this was so because the defendant was sentenced "“roughly in the middle of the applicable Guidelines range, and therefore the District Court clearly retained discretion to grant [the defendant] a lower sentence. In the same way Scripps was sentenced to the tip of the guidelines. The court could have retained discretion to grant Scripps a lower sentence. Because of these things, prejudice was satisfied.

The remand

The record did not show that Scripps is not entitled to habeas relief. There was no evidentiary hearing to get into counsel's possibly strategic reasons as to why this issue was not brought up on appeal. Because of this there should have been an evidentiary hearing. The Third circuit held it was error for the district court to rule without an evidentiary hearing, vacated the District Court's order denying Scripps's 2255 and remanding the case back to the district court.

United States vs. Michael Scripps, No. 18-2663

Jeremy's notes: there is a lot going on here. First, Scripps was able to proceed with his 2255 appeal even though he was out of prison. In plain english, this was because he was still serving his sentence. Supervised release is part of the sentence.

Second, the court found that there was no justification as to why the failure to allocute was listed on the docket. I read through the docket and did not see that his former attorney gave a statement or declaration. This unfortunately happens often. If your appeal is denied without an evidentiary hearing then it is vital to seek an appeal of the denial of your 2255 so you can argue this on COA.

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