                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                      September 6, 2012
                                     TENTH CIRCUIT
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff–Appellee,
                                                              No. 12-3006
 v.                                                (D.C. No. 2:11-CV-02477-CM and
                                                         2:09-CR-20143-CM-2)
 PAUL G. RAYFORD,                                             (D. Kansas)

               Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



       On May 18, 2012, Defendant received a certificate of appealability to appeal the

district court’s denial of his § 2255 habeas petition. As explained in the order granting

COA, Defendant’s § 2255 habeas claim was based on the apparent miscalculation of the

applicable sentencing guidelines range in his underlying criminal case. Specifically, the

sentencing court counted two prior drug trafficking convictions separately under U.S.S.G.

§ 4A1.2(a)(2) because the PSR indicated his sentencing for these convictions occurred on

two separate dates—“10/10/2000” and “10/12/2000.” However, Defendant submitted



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
with his § 2255 habeas petition a state court transcript that, if authentic, clearly shows he

was sentenced for both of these convictions on October 12, 2000. Defendant was granted

a certificate of appealability to challenge the district court’s conclusion that this error did

not entitle him to habeas relief.

       In 2010, Defendant pled guilty to one count of attempted bank robbery, one count

of carrying and using a firearm during and in relation to the attempted bank robbery, and

one count of being a felon in possession of a firearm. He was sentenced to a total of 144

months’ imprisonment—concurrent bottom-of-the-guidelines sentences of 84 months for

the first and third counts, followed by a consecutive 60-month sentence on the second

count. On appeal, Defendant’s appointed counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating there were no non-frivolous issues for Defendant

to raise on appeal. Defendant filed a pro se response in which he argued, inter alia, that

his sentences for these state court convictions should have been counted as a single

sentence under U.S.S.G. § 4A1.2(a)(2) because the sentences were imposed on the same

day. If these sentences had been counted together, Defendant’s criminal history category

would have been set at IV rather than V, resulting in an advisory range of 70–87 months

instead of the calculated range of 84–105 months.

       Defendant’s claim of sentencing error was rejected on direct appeal based on the

PSR’s listing of two different dates. When Defendant then filed the instant § 2255

petition, the district court denied habeas relief on the grounds that this argument had

already been disposed of on direct appeal. However, a judge of this court granted a

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certificate of appealability, concluding that reasonable jurists could debate whether the

circumstances of the case warranted an exception to the general rule against revisiting

issues decided on direct appeal.

       In its response brief, the government first argues that Defendant may not relitigate

the U.S.S.G. § 4A1.2(a)(2) sentencing calculation issue because it was decided on direct

appeal. “Absent an intervening change in the law of a circuit, issues disposed of on direct

appeal generally will not be considered on a collateral attack by a motion pursuant to §

2255.” United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (emphasis added).

We conclude that the unusual circumstances of this case warrant an exception to the

general rule. Because defense counsel filed an Anders brief that did not mention the

U.S.S.G. § 4A1.2(a)(2) sentencing issue, Defendant did not have the assistance of counsel

in raising this claim or obtaining access to the information needed to challenge this

particular aspect of his sentencing.1 This claim was therefore rejected on direct appeal

because the evidence refuting the PSR’s erroneous information was not brought to the

attention of the panel. However, Defendant has now obtained and presented evidence

that, assuming authenticity, shows he was indeed sentenced on the same date for both of

his prior drug trafficking convictions. Based on this new evidence, and in light of defense



       1
        As the Supreme Court stated in a somewhat different context, “The facts of this
case emphasize a different, albeit related, aspect of counsel’s role, that of expert
professional whose assistance is necessary in a legal system governed by complex rules
and procedures for the defendant to obtain a decision at all—much less a favorable
decision—on the merits of the case.” Evitts v. Lucey, 469 U.S. 387, 394 n.6 (1985).

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counsel’s failure to assist Defendant in litigating this issue on direct appeal, we will

depart from our general rule against considering on habeas an issue that was disposed of

on direct appeal. Cf. United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998)

(noting that we will depart from the law-of-the-case doctrine “when the evidence in a

subsequent trial is substantially different” or “when the decision was clearly erroneous

and would work a manifest injustice”); Johnson v. Champion, 288 F.3d 1215, 1226 (10th

Cir. 2002) (holding it would be manifestly unjust to adhere to a clearly erroneous finding

that imposed an unnecessary procedural hurdle on a state habeas petitioner).

       The government further argues Defendant’s claim of sentencing error does not rise

to the level of “a miscarriage of justice” and thus is not cognizable under § 2255. See

United States v. Talk, 158 F.3d 1064, 1070 (10th Cir. 1998) (“[N]umerous cases have

held that sentencing errors typically do not give rise to a miscarriage of justice sufficient

to excuse procedural default.”); cf. Narvaez v. United States, 674 F.3d 621, 627 (7th Cir.

2011) (holding that error in classifying defendant as a violent offender caused a

miscarriage of justice); Talk, 158 F.3d at 1070 (assuming without deciding that an “error

that results in a significantly miscalculated sentence”—in that case, a nine-level error that

increased the term of imprisonment from less than 52 months to 108 months—might be

cognizable under § 2255). We agree that, under the circumstances of this case, the

sentencing error here did not give rise to a miscarriage of justice.

       However, this conclusion does not end our inquiry. While Defendant may not be

able to obtain habeas relief via a direct challenge to the sentencing error, he argues he

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should still be able to proceed under a claim of ineffective assistance of counsel. Under

this theory, Defendant does not need to prove the sentencing error caused a significant

increase in his calculated sentencing range. Rather, when defense counsel provides

ineffective assistance by failing to raise a sentencing error during the sentencing

proceeding and on appeal, a defendant is prejudiced if “there is an increase in the actual

amount of jail time that may be served using the improperly-applied guideline range,”

even if that increase is minimal. United States v. Horey, 333 F.3d 1185, 1188 (10th Cir.

2003). Indeed, we found prejudice in Horey even though the 360-month sentence the

district court imposed was within the correctly calculated sentencing guidelines range of

292–365 months. We noted that the district court chose a bottom-of-the-guidelines

sentence under the improperly applied guidelines range, and we reasoned the court might

choose a bottom-of-the-guidelines sentence under the correct range as well. Id. The

same reasoning applies to Defendant’s bottom-of-the-guidelines sentence in the instant

case. Defendant has presented at least a facially plausible claim of ineffective assistance

of counsel.

       True, Defendant did not frame his claim in terms of ineffective assistance below,

and we generally will not consider issues raised for the first time on appeal. See United

States v. Mora, 293 F.3d 1213, 1218 (10th Cir. 2002). However, “[t]he matter of what

questions may be taken up and resolved for the first time on appeal is one left primarily to

the discretion of the courts of appeals, to be exercised on the facts of individual cases.”

Singleton v. Wulff, 428 U.S. 106, 121 (1976). In Mora, we exercised our discretion to

                                             -5-
consider an argument raised for the first time on appeal based on several circumstances,

including the petitioner’s pro se status, the fact that his incarceration limited his ability to

examine recent Supreme Court precedents, and the fact that “refusal to consider [his]

appeal now would effectively bar him from ever raising [this] claim.” Mora, 293 F.3d at

1218.

        We likewise exercise our discretion to consider the belatedly raised issue of

ineffective assistance here. Defendant is a pro se litigant who has been attempting since

at least his direct appeal to draw attention to what is alleged to be an obvious sentencing

error,2 while his attorney ignored the issue and told the court Defendant had no non-

frivolous grounds to raise on appeal. Under 28 U.S.C. § 2244, Defendant will never be

able to raise his non-frivolous claim of ineffective assistance of counsel if we prevent him

from doing so now. In light of all of the circumstances of this case—what appears to be a

typographical error in the PSR that led to an increase in Defendant’s criminal history

category and guidelines range; appellate counsel’s failure to raise this or any other issue

on appeal, even after Defendant attempted to call attention to the problem through his pro



        2
         The government argues the court’s sentencing calculation may not have been
incorrect. Even if a defendant is sentenced for two prior offenses on the same date, the
sentences are counted separately under U.S.S.G. § 4A1.2(a)(2) if the offenses were
separated by an intervening arrest. However, as the government concedes, the record
does not indicate whether there was an intervening arrest. Further factual development
may demonstrate that the sentencing calculation could have been sustained on this
alternate basis; however, as the record currently stands, the state sentencing transcript
(assuming authenticity) refutes the basis on which the sentences were counted separately
by the district court.

                                              -6-
se brief; and the fact that this is effectively Defendant’s last opportunity to have the

alleged obvious error in his sentencing addressed—we exercise our discretion to consider

this issue even though Defendant did not earlier frame his claim in precisely the terms we

usually require.

       As previously stated, we conclude that Defendant has raised at least a facially

plausible claim of ineffective assistance of counsel. The record includes evidence that, if

authentic, refutes the factual basis on which the sentencing court counted Defendant’s

prior offenses separately for criminal history purposes. Defendant asserts that he asked

defense counsel to raise this issue before sentencing, and the record reflects that defense

counsel did not raise this issue on direct appeal even after Defendant filed a pro se brief

asserting he was sentenced for the two prior offenses on the same date. Unless the

sentencing calculation could have been supported on the alternate basis of an intervening

arrest, the alleged sentencing error increased the advisory sentencing guidelines range and

thus resulted in prejudice under Horey. Of course, factual development may be required

to determine, inter alia, the authenticity of Defendant’s evidence, the extent to which

defense counsel knew or should have known of the alleged error, and the possibility that

the guidelines calculation would have been sustained on an alternate basis if defense

counsel had raised an objection to the PSR below. The district court is in the best

position to make any such factual determinations, and we remand for the district court to




                                              -7-
decide Defendant’s claim of ineffective assistance of counsel in the first instance.



       REVERSED and REMANDED.

                                                   ENTERED FOR THE COURT


                                                   Monroe G. McKay
                                                   Circuit Judge




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