                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0651n.06
                                                                                           FILED
                                            No. 10-2601
                                                                                      Jun 20, 2012
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


DARRON DEON HOWARD,                    )
                                       )
      Petitioner-Appellant,            )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE WESTERN
                                       )                  DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,              )
                                       )
                                                                  OPINION
      Respondent-Appellee.             )
_______________________________________)


Before: MOORE, SUTTON, and STRANCH, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Darron Deon Howard (“Howard”) appeals

from the denial of his motion to vacate his sentence under 28 U.S.C. § 2255 on the basis of

ineffective assistance of counsel. Howard claims that his counsel’s performance was deficient

because counsel failed to argue either at sentencing or on direct appeal that certain criminal history

points did not apply. For the following reasons, we REVERSE the district court’s judgment and

REMAND for an evidentiary hearing as discussed herein.

                                       I. BACKGROUND

       In February 2006, the Grand Rapids Police Department was responding to a report of an

altercation when they approached Howard, who was in the area. Howard fled, discarding a handgun

underneath a parked vehicle in the process. The police subdued and detained Howard and recovered

the handgun. Howard admitted possessing the gun, which he claimed to have taken from someone
No. 10-2601
Howard v. United States


else at the scene to diffuse the altercation. Howard was indicted for being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). The district court accepted a plea of guilty on May

22, 2007,1 and sentenced Howard to 120 months of imprisonment, the statutory maximum.

       The PSR calculated Howard’s total offense level as 28 and his criminal history as category

VI. His criminal history score was thirteen points, which included six points relating to five juvenile

offenses starting when Howard was eleven years old. At sentencing, Howard’s counsel objected to

the inclusion of three of the prior juvenile offenses for (1) malicious destruction of a building (PSR

¶ 39), (2) possession of marijuana and giving false information to a police officer (PSR ¶ 41), and

(3) unlawful driving away of an automobile (PSR ¶ 42). The district court agreed that the first two

of these offenses should be excluded because Howard was sentenced more than five years before the

instant offense. The district court denied the objection as it related to the offense in paragraph 42.

After removing the two excluded offenses, Howard had eleven criminal history points, which placed

him in Category V. His sentencing guidelines range was therefore 130 to 162 months of

imprisonment, and the district court sentenced Howard to the statutory maximum for the offense of

120 months of imprisonment. Howard’s counsel filed a direct appeal raising only certain objections




       1
          Howard initially signed a written plea agreement in November 2006, which he was permitted
to withdraw by the district court at his original sentencing hearing. On April 30, 2007, the first day
of trial, Howard again pleaded guilty, but without a written agreement.

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Howard v. United States


to the calculation of Howard’s offense level.2 We affirmed. United States v. Howard, 301 F. App’x

446 (6th Cir. 2008) (unpublished opinion).

       On February 16, 2010, Howard filed pro se a timely motion under 28 U.S.C. § 2255 arguing

that his criminal history category was erroneously high due to the wrongful inclusion of the offenses

in paragraphs 38, 42, and 43 of the PSR, and that his counsel’s performance was deficient for not

presenting this issue. Howard claims that before sentencing, he wrote to his counsel asking him to

object to the addition of two criminal history points for the offense in paragraph 38 of the PSR, for

retail fraud, curfew violation, and unarmed robbery committed when Howard was only 11. His

counsel failed to raise any argument before the district court with respect to that offense. Before his

direct appeal was filed, Howard claims that he again reached out to counsel about including

objections to his criminal history points. Howard’s counsel did not respond, and no challenges were

made on direct appeal to the inclusion of any criminal history points, including the challenge to

paragraph 42 previously rejected by the district court. The district court denied Howard’s § 2255

motion, without a hearing, on the grounds that Howard’s claims were procedurally defaulted and that

Howard had failed to show cause and prejudice to overcome the default. R. 72 (D. Ct. Op. & Order

at 5, 15). The district court also denied a certificate of appealability (“COA”). Id.; see also R. 76

(D. Ct. Op. & Order at 10-11). Howard filed a pro se motion for a COA before this court, which we

granted.



       2
        Howard did not raise any objections to the calculation of his total offense level on collateral
review and does not raise those issues on this appeal. Appellant Br. at 7 n.3.

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Howard v. United States


                                       II. JURISDICTION

       We have jurisdiction to review any final order denying relief under 28 U.S.C. § 2255, but

only if a COA has been granted. 28 U.S.C. § 2253(c)(1)(B). Here, a COA was issued, but it does

not identify the issues for which appeal is authorized as required by § 2253(c)(3). However, the

Supreme Court has recently clarified that the specificity requirement in § 2253(c)(3) is mandatory,

but not jurisdictional. Gonzalez v. Thaler, 132 S. Ct. 641, 656 (2012). Therefore, the fact that the

COA failed to comply with § 2253(c)(3) does not divest us of jurisdiction to hear Howard’s appeal.

       The next question that we must resolve is what issues were covered by the general COA. The

parties do not argue, and we do not ourselves hold, that our review is limited to the issues identified

in Howard’s request for a COA. Howard’s pro se request for a COA sought review only of the

district court’s discussion of his prior offenses in paragraphs 42 and 43 of the PSR, but made no

mention of reviewing the district court’s decision with respect to paragraph 38, which is the primary

offense argued on appeal. R. 74 (Request for COA). Howard’s brief on appeal filed by appointed

counsel addresses paragraphs 38 and 42, both of which were addressed by the district court, and the

government has responded fully to these claims. We have previously recognized our inherent

authority to expand sua sponte the scope of the COA to encompass additional issues briefed and

addressed on the merits before the district court, and we exercise that authority now to expand the

scope of Howard’s COA to encompass the issues briefed on appeal. See Meadows v. Doom, 450 F.

App’x 518, 519 n.1 (6th Cir. 2011) (unpublished opinion); Humphreys v. United States, 238 F.

App’x 134, 138-39 (6th Cir. 2007) (unpublished opinion); Mack v. Holt, 62 F. App’x 577, 578 (6th


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Howard v. United States


Cir.) (unpublished opinion), cert. denied, 540 U.S. 862 (2003); see also United States v. Shipp, 589

F.3d 1084, 1087-88 (10th Cir. 2009) (collecting cases).

               III. CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

       Howard argues that his counsel was ineffective for failing to object to the inclusion of two

of his juvenile convictions in his criminal history calculation. He argues that counsel’s performance

was prejudicially deficient for not objecting to paragraph 38 because the relevant offense did not

include a “sentence to confinement” under U.S. Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)

§ 4A1.2(d)(2)(A) and therefore should have been only one point rather than two, or may have been

a “diversionary disposition” under U.S.S.G. § 4A1.2(f) and should have been zero points. He argues

that counsel’s performance was also prejudicially deficient for not objecting to paragraph 43 because

the particular offense was an uncounted misdemeanor under U.S.S.G. § 4A1.2(c)(1). We decline

to resolve these issues, however, because we agree with Howard that the district court erred in not

conducting an evidentiary hearing in this case.

       We review for abuse of discretion the district court’s decision not to hold an evidentiary

hearing on a motion for relief under 28 U.S.C. § 2255. Valentine v. United States, 488 F.3d 325, 333

(6th Cir. 2007), cert. denied, 552 U.S. 1217 (2008). “A district court abuses its discretion when it

relies on clearly erroneous findings of fact, when it improperly applies the law, or when it uses an

erroneous legal standard.” Kuhn v. Sulzer Orthopedics, Inc., 498 F.3d 365, 368-69 (6th Cir.), cert.

denied, 552 U.S. 1040 (2007). Unlike the limited availability of hearings with motions under 28

U.S.C. § 2254, the statutory language of § 2255 expressly instructs the district court to “grant a


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Howard v. United States


prompt hearing” to resolve any factual questions not conclusively resolved by the record. 28 U.S.C.

§ 2255(b). “In reviewing a § 2255 motion in which a factual dispute arises, ‘the habeas court must

hold an evidentiary hearing to determine the truth of the petitioner’s claims.’” Valentine, 488 F.3d

at 333 (emphasis added) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). The

exception is if the “record conclusively shows that the petitioner is entitled to no relief.” Id. (quoting

Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)); see also 28 U.S.C. § 2255(b).

        The district court did not discuss the standard for granting an evidentiary hearing. Although

it deemed Howard’s claims meritless, the district court did not determine that the existing record

conclusively showed that Howard’s ineffective-assistance claims lacked merit. Instead, the district

court determined that Howard’s failure to raise his ineffective-assistance claim on direct appeal

constituted waiver and applied the standard that a defendant must meet to overcome a procedural

default. The district court determined that Howard’s claims failed because Howard did not “present

affirmative evidence and argument as to the precise cause and the precise prejudice produced”

necessary “[t]o overcome [the] strong presumption against using collateral review to raise” these

supposedly defaulted claims. R. 72 (D. Ct. Order at 6, 8). The Supreme Court, however, has made

clear that claims of ineffective assistance of trial counsel may be raised for the first time on collateral

review under § 2255. Massaro v. United States, 538 U.S. 500, 505 (2003). Indeed, we frequently

refuse to hear claims of ineffective assistance of counsel on direct appeal precisely because such

claims are better suited for review on a § 2255 motion in a forum wherein factual disputes may be

considered and resolved. United States v. Bradley, 400 F.3d 459, 461-62 (6th Cir.) (citing Massaro,


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Howard v. United States


538 U.S. at 503-05), cert. denied, 546 U.S. 862 (2005). The district court therefore abused its

discretion in declining to grant an evidentiary hearing on Howard’s claims by subjecting Howard to

an erroneously high legal burden rather than considering whether the record conclusively showed

that his claims lacked merit.

       Howard’s first two arguments require an evidentiary hearing because the record is deficient

regarding the nature of his juvenile sentences that ultimately required his attendance at the Glen

Mills program in Pennsylvania. Under U.S.S.G. § 4A1.2(d)(2)(A), a defendant should receive two

criminal history points for any “juvenile sentence to confinement of at least sixty days if the

defendant was released from such confinement within five years of his commencement of the instant

offense.” U.S.S.G. § 4A1.2(d)(2)(A). The Guidelines do not further define the meaning of

“confinement,” but we have previously held that a defendant’s “commitment to a juvenile facility

constitutes” confinement within the meaning of the enhancement. United States v. Hanley, 906 F.2d

1116, 1120 (6th Cir.) (citing United States v. Kirby, 893 F.2d 867, 868 (6th Cir. 1990)), cert. denied,

498 U.S. 945 (1990). Whether a juvenile placement can be classified as confinement is a question

of fact. United States v. Williams, 176 F.3d 301, 311 (6th Cir. 1999).

       Here, the record contains a dearth of information regarding the nature of Howard’s stay at

Glen Mills and whether his time there was the result of an adjudication of guilt for any specific

offense and not simply a result of his being a ward of the state. The PSR refers to it as a

“commitment,” but we have trouble reading this language as conclusively showing that Howard’s

claim lacks merit when his very claim is that counsel was ineffective for failing to object to the


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No. 10-2601
Howard v. United States


PSR’s categorization of this offense. Nor does the PSR contain additional factual recitations about

Howard’s stay at Glen Mills or the juvenile proceedings that led up to his stay there from which we

could conclude that the record conclusively shows that his stay constituted a juvenile commitment

under Hanley. Indeed, counsel at sentencing referred to it as a “wonderful school,” R. 55 (Sent. Hr’g

Tr. at 9), and the PSR also suggests that Howard was easily able to leave to visit his family. Suffice

it to say, the record does not conclusively show that Howard was “commit[ted] to a juvenile facility”

following an adjudication of guilt by the Michigan juvenile court. Howard has made more than just

bare assertions of a fact dispute on this issue; he therefore should have received an evidentiary

hearing. Valentine, 488 F.3d at 333.

       For the same reasons, Howard’s claim regarding a potential diversionary disposition must

also be remanded. Section 4A1.2(f) provides:

       Diversion from the judicial process without a finding of guilt (e.g., deferred
       prosecution) is not counted. A diversionary disposition resulting from a finding or
       admission of guilt, or a plea of nolo contendere, in a judicial proceeding is counted
       as a sentence under § 4A1.1(c) even if a conviction is not formally entered, except
       that diversion from juvenile court is not counted.

The commentary explains that adult diversionary sentences resulting in a determination of guilt are

counted because “defendants who receive the benefit of a rehabilitative sentence and continue to

commit crimes should not be treated with further leniency.” U.S.S.G. § 4A1.2 cmt. n.9. For both

adults and juveniles, therefore, diversions without a finding of guilt are not counted at all.

Diversions that include an admission of guilt are counted for adults, but not juveniles. There is no

further guidance on the meaning of “diversion.”


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Howard v. United States


        We adopt the well-reasoned approach of the First Circuit in United States v. DiPina, 178 F.3d

68 (1st Cir. 1999). Where we simply lack the juvenile records from which to conclude whether the

defendant received a diversionary disposition, the proper course is to remand for resolution of the

fact question in the first instance. Id. at 77; see also United States v. Martinez-Martinez, 41 F. App’x

96, 99 (9th Cir. 2002) (unpublished opinion) (remanding for determination of whether disposition

to “juv. facility” was diversionary). Although classifying a sentence as diversionary under the

Guidelines is a question of federal law, Williams, 176 F.3d at 311-12, determining the actual terms

of a juvenile’s sentence requires careful analysis of the state laws under which a defendant was

sentenced, see id. (looking to state law for details of state sentence but not classification). The record

does not cite any provision of Michigan law or juvenile records from which we could conclusively

determine the nature of the charges against Howard.

        The district court considered the merits of this argument only as a stand-alone claim and

concluded that Howard “has not carried [his] burden” under AEDPA “by presenting or pointing to

any hard evidence proving that these convictions were in fact diversionary.” R. 72 (D. Ct. Op. &

Order at 13). This was not the correct standard for reviewing a new claim of ineffective assistance

of counsel under § 2255; instead, the district court must first determine if the record “conclusively

show[s]” that Howard’s claim has no merit. 28 U.S.C. § 2255(b). Because this record does not

conclusively show that Howard’s counsel was not deficient for failing to argue that Howard’s

sentence was diversionary, the district court erred in not holding an evidentiary hearing to resolve




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No. 10-2601
Howard v. United States


this claim. We must therefore remand for an evidentiary hearing on whether counsel could have

reasonably concluded that Howard’s sentence for this offense was not diversionary.

        Finally, we do not agree with the government that Howard waived his argument with respect

to the inclusion of paragraph 43 for giving false information to a police officer. Howard’s initial pro

se § 2255 motion clearly argued that counsel was ineffective for not objecting to the inclusion of this

specific offense. Howard admittedly did not cite U.S.S.G. § 4A1.2(c)(1) until appeal, but he relied

in part on United States v. Hall, 531 F.3d 414 (6th Cir. 2008), a case applying that provision (and

only that provision). That sufficed to preserve the argument here. Under U.S.S.G. § 4A1.2(c)(1),

a misdemeanor offense for giving false information to a police officer should not be counted in a

defendant’s criminal history unless “(A) the sentence was a term of probation of at least one year or

a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant

offense.” The government does not dispute that Howard was not sentenced to a term of probation

of at least one year for this offense, and the government does not dispute that giving false

information to a police officer is not similar to the instant offense of being a felon in possession of

a firearm. Appellee Br. at 25. The government argues only that Howard was sentenced to continue

his stay at Glen Mills for this offense, that he was at Glen Mills for at least thirty days, and that Glen

Mills constitutes “imprisonment” under the Guidelines.

        The PSR, however, makes it unclear whether Howard’s sentence for this offense involved

a stay at Glen Mills. Paragraph 43 of the PSR states that Howard provided the Grand Rapids Police

Department a false name and date of birth on November 3, 2001. PSR ¶ 43. Under “Disposition,”


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Howard v. United States


the PSR states, “04-18-02/Continued temporary ward of the court, probation; 10-17-02/Discharged

from probation.” Id. Howard was on probation at the time for his previous offenses, and the PSR

further notes that “Mr. Howard’s previous non-compliance with his probation term has been detailed

above in paragraph 3[8].” Id. Nothing in paragraph 43 suggests that placement at Glen Mills was

part of his sentence for the offense of giving false information. Paragraph 38, however, states that

after his arrest for giving a false name, he “was ordered to complete the Glen Mills Program.” PSR

¶ 38.

        The record does not conclusively show that an objectively reasonable counsel would have

ignored this objection. U.S.S.G. § 4A1.2(c) explicitly excludes the misdemeanor offense of giving

false information absent certain sentences for the conduct. The PSR gives inconsistent accounts of

his state sentence (if any), making it impossible to tell whether the guidelines calculation was

correct. On remand, Howard may also introduce state-court records to show that his false-

information charge should have been disregarded.

                                      IV. CONCLUSION

        For the aforementioned reasons, we REVERSE the district court’s judgment and REMAND

for further proceedings consistent with this opinion.




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