                                 PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT



                 No. 18-2663



      UNITED STATES OF AMERICA

                      v.

            MICHAEL SCRIPPS,

                                         Appellant



On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
   (District Court No.: 2-12-cr-00298-001)
   District Judge: Honorable Jan E. DuBois



 Submitted under Third Circuit L.A.R. 34.1(a)
              March 31, 2020


        (Opinion filed: June 10, 2020)
 Before: BIBAS, SCIRICA, and RENDELL, Circuit Judges


Vernon Z. Chestnut, Jr., Esq.
Suite 207
150 Monument Road
Bala Cynwyd, PA 19004

                    Counsel for Appellant

Terri A. Marinari, Esq.
Robert A. Zauzmer, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

                    Counsel for Appellee


                        OPINION


RENDELL, Circuit Judge:

        Michael Scripps appeals the denial of his motion for
relief pursuant to 28 U.S.C. § 2255, urging that the District
Court should have held an evidentiary hearing to determine
whether his appellate counsel was ineffective for failing to
raise a claim that the sentencing judge did not personally
address him during sentencing, as required by Federal Rule of
Criminal Procedure 32. For the following reasons, we




                                2
conclude that the District Court abused its discretion in failing
to conduct an evidentiary hearing. We will therefore remand
to the District Court for further proceedings consistent with this
opinion.


I.     BACKGROUND

       A.     Factual Background

       A jury convicted Scripps on seven counts of wire fraud
for fraudulently transferring millions of dollars from the bank
accounts of his mother and autistic uncle—heirs to the family’s
publishing fortune—into his own account. During the
sentencing hearing, the District Court heard arguments from
both parties’ counsel. The District Court indicated that Scripps
was invited to address the Court multiple times throughout the
hearing, but it never personally asked Scripps if he wished to
speak. For example, while addressing Scripps’s attorney, Mr.
Michael Dezsi, the sentencing judge stated:

       I haven’t heard acknowledgement just yet—
       maybe we’ll get there—of [Scripps’s] own
       responsibility for the choices that he has made.
        . . . Scripps is not, in my eyes, a victim of
       circumstances. He’s an intelligent, thoughtful
       man who has made his choices for the reasons he
       has made his choices. And he can tell me about
       them if he wants.

App. 89-90 (emphasis added).




                                3
       The sentencing judge later explicitly asked Mr. Dezsi
whether Scripps wished to address the court, and Mr. Dezsi
indicated that he would confer with Scripps:

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.

App. 103-04. 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.
App. 104. Before imposing his sentence, the sentencing
judge again asked Mr. Dezsi if Scripps wished to speak. Mr.
Dezsi informed the sentencing judge that Scripps did not wish
to exercise his right to allocution.

[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.

App. 119. 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.” App.




                              4
124. The District Court then sentenced Scripps to 108 months’
imprisonment, the maximum period of incarceration within the
advisory Guidelines range, and three years’ supervised release,
the maximum term of supervised release permitted under 18
U.S.C. § 3583(b)(2).

       B.     Procedural History

       Scripps appealed his sentence, and he was again
represented by Mr. Dezsi on appeal. Scripps raised several
issues on direct appeal, 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.” United States v.
Scripps, 599 F. App’x 443, 444 (3d Cir. 2015). We found no
error and affirmed. Id. at 448.

       Scripps then filed a pro se motion under 28 U.S.C §
2255 to vacate, set aside, or correct his sentence, raising several
claims of ineffective assistance of counsel. The District Court
appointed habeas counsel to represent Scripps, and thereafter,
Scripps withdrew his pro se motion, and his appointed counsel
filed an amended motion. Scripps’s amended motion raises
several issues, including whether his appellate counsel was
ineffective in failing to argue that the trial judge erred by not
personally inviting Scripps to speak during sentencing. 1
Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) (“Rule 32”)
requires a sentencing judge to “address the defendant


1
  Scripps alleged six other claims for relief, all related to the
ineffective assistance of counsel. These claims are not at
issue on appeal.




                                5
personally in order to permit the defendant to speak or present
any information to mitigate the sentence.”

       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.” App. 16-17.
Because counsel cannot be ineffective for failing to raise an
issue on appeal where there was no underlying error, see
Thomas v. Horn, 570 F.3d 105, 121 n.7 (3d Cir. 2009), the
District Court concluded that an evidentiary hearing was
unnecessary and denied Scripps’s § 2255 motion.
        Scripps timely filed a notice of appeal and requested a
certificate of appealability under 28 U.S.C. § 2253(c)(1). We
granted a certificate of appealability on one issue: “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.” App. 20 (internal citation omitted).
During the pendency of this appeal, Scripps was released from
prison and has since been serving his term of three years’
supervised release.
II.    JURISDICTION
      We must first address the threshold issue of whether this
case was rendered moot upon Scripps’s release from prison. 2
Under Article III, Section 2, of the Constitution, federal courts

2
  Although the parties agree that this case presents a live case
or controversy, we have an independent duty to analyze this
jurisdictional requirement before proceeding to our analysis on
the merits.




                               6
are limited to adjudicating “actual, ongoing cases or
controversies.” Khodara Envtl., Inc. ex rel. Eagle Envtl., L.P.,
237 F.3d 186, 192-93 (3d Cir. 2001) (Alito, J.). A court’s
ability to grant effective relief is central to the mootness
doctrine. See County of Morris v. Nationalist Movement, 273
F.3d 527, 533 (3d Cir. 2001).
        “[A] live case or controversy that a court can remedy
arises when a defendant challenges the sentence he is currently
serving . . . .” United States v. Jackson, 523 F.3d 234, 241 (3d
Cir. 2008). Here, Scripps challenges the validity of his
sentence, which includes his term of imprisonment and his
term of supervised release. See App. 125-26 (“So the total
period of confinement on the bills is 108 months total. . . . And
that will be followed by three years supervised release.”); see
also 18 U.S.C. § 3583(a) (“The court, in imposing a sentence
to a term of imprisonment for a felony or a misdemeanor, may
include as a part of the sentence a requirement that the
defendant be placed on a term of supervised release after
imprisonment . . . .” (emphasis added)). Although Scripps has
completed his period of imprisonment, he is currently serving
his term of supervised release. Accordingly, because Scripps
is directly challenging “the sentence he is currently serving,
issues of mootness do not arise.” Jackson, 523 F.3d at 241.3


3
  One of our precedents appears to suggest that this case is
moot. In Burkey v. Marberry, the petitioner, who was
challenging his exclusion from a program that would have
qualified him for early release, had already been released from
prison. 556 F.3d 142, 144-45 (3d Cir. 2009). His only hope of
relief was that the sentencing court might compensate for his
extra time in prison by reducing his supervised release term.
See id. at 146. We held that the case was moot because he




                               7
      We therefore have jurisdiction to review this matter
under 28 U.S.C. §§ 1291 and 2255(d). 4
III.   DISCUSSION
       Scripps argues that the District Court erred in denying
his request for an evidentiary hearing as to his claim that his
appellate counsel was ineffective for failing to raise the trial
court’s Rule 32 error on direct appeal. We review the District
Court’s failure to grant an evidentiary hearing for abuse of
discretion. See United States v. Lilly, 536 F.3d 190, 195 (3d
Cir. 2008), holding modified on other grounds by Vickers v.
Superintendent Graterford SCI, 858 F.3d 841 (3d Cir. 2017).
We exercise plenary review over the District Court’s legal
conclusions and apply a clearly erroneous standard to its


could not show that it was “likely” that the sentencing court
would award him that reduction. Id. at 149-50 (internal
quotation marks omitted).
Burkey is distinguishable for the reason given in the text: the
petitioner there challenged only his prison sentence, while here
Scripps challenges his entire sentence (including the
supervised-release portion). In any event, our logic in Burkey
appears to have been superseded by more recent Supreme
Court case law, which clarifies that a case is not moot if there
is any theoretical avenue of relief. See, e.g., Mission Prod.
Holdings v. Tempnology, LLC, 139 S. Ct. 1652, 1660 (2019)
(explaining that a case is moot “only if ‘it is impossible for a
court to grant any effectual relief whatever’” to the prevailing
party) (emphases added) (quoting Chafin v. Chafin, 567 U.S.
165, 173 (2013)).
4
 The District Court had jurisdiction over Scripps’s § 2255
motion under 28 U.S.C. § 1331.




                               8
factual findings. See Lambert v. Blackwell, 134 F.3d 506, 512
(3d Cir. 1997).
        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.”
United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005)
(quoting 28 U.S.C. § 2255). Thus, “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.”
Lilly, 536 F.3d at 195.
       A.     Strickland Test

        A criminal defendant has a right to the effective
assistance of appellate counsel on the first appeal as of
right. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). To assess
the performance of appellate counsel, we apply the two-prong
test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
See United States v. Cross, 308 F.3d 308, 315 n.12 (3d Cir.
2002). Under Strickland, a petitioner must first establish that
counsel’s performance “fell below an objective standard of
reasonableness.”        466 U.S. at 688.       In making this
determination, Strickland cautioned that courts should be
“highly deferential” when assessing counsel’s performance
and requires courts to “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. 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.” Id. at 694.




                                9
        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. We will analyze each argument under
the Strickland test to determine whether the record
conclusively shows that Scripps is not entitled to habeas relief.5

              i.      Objective Standard of Reasonableness
        In order to determine whether appellate counsel’s
performance fell below an objective standard of
reasonableness, we must analyze whether a Rule 32 error even
exists. If there was no underlying error, then appellate counsel



5
  In Hill v. United States, 368 U.S. 424 (1962), the Supreme
Court held that a defendant does not have a constitutional right
to allocution, and therefore cannot collaterally attack his
sentence under Rule 32 absent aggravating circumstances. Id.
at 428. However, in contrast to the petitioner in Hill, who
solely alleged that he had been denied the right to allocution,
Scripps alleges that he was denied the right to the effective
assistance of appellate counsel under the Sixth Amendment.
Thus, although the underlying error concerns a Rule 32
violation, Scripps presents a cognizable claim under § 2255.
See Kimmelman v. Morrison, 477 U.S. 365, 383 (1986)
(holding that a claim for ineffective assistance of trial counsel
is cognizable on habeas review where the petitioner alleged
that his trial counsel failed to raise a meritorious argument to
exclude evidence seized in an unconstitutional search).




                                10
was not ineffective for failing to raise this issue on appeal. See
Thomas, 570 F.3d at 121 n.7.
       Rule 32 protects a defendant’s right to allocution.
Specifically, the rule requires that courts “address the
defendant personally in order to permit the defendant to speak
or present any information to mitigate the sentence.” Fed. R.
Crim. P. 32(i)(4)(A)(ii) (emphasis added). The Supreme Court
has unequivocally instructed courts to “leave no room for
doubt that the defendant has been issued a personal invitation
to speak prior to sentencing.” Green v. United States, 365 U.S.
301, 305 (1961). Recognizing the long history of the common
law right of allocution, the Supreme Court stated in Green that
“there can be little doubt that the drafters of Rule 32[]
intended that the defendant be personally afforded the
opportunity       to     speak    before     imposition      of
                       6
sentence.” Id. at 304.
        We applied this rule in United States v. Adams, 252 F.3d
276 (3d Cir. 2001), holding that Rule 32 is not satisfied if the
sentencing judge asks the defendant’s attorney if the defendant
wishes to speak, but fails to address the defendant himself.
There, the trial judge made clear that the defendant was invited
to address the court, telling the defendant’s lawyer, “I want to
hear if the remorseful defendant has anything he wants to say.”
Id. at 278. After hearing arguments from defense counsel, the

6
  The current wording in Rule 32, which requires the court to
“address the defendant personally” before imposing its
sentence, was adopted in response to the Supreme Court’s
ruling in Green. See Fed. R. Crim P. 32, advisory committee’s
note to 1966 amendment; United States v. Adams, 252 F.3d
276, 279 n.2 (3d Cir. 2001).




                               11
trial judge specifically asked the defendant’s attorney: “Would
your client like to exercise his right of allocution?” Id. “After
a pause,” the defendant’s lawyer replied, “No.” Id. We noted
that while the trial judge was “obviously aware of [the
defendant’s] right of allocution,” “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.” Id. at 279. We therefore held that the
district court failed to comply with Rule 32. Id.
        The Government attempts to distinguish this case as
“that rare matter” where, although the sentencing judge did not
directly address Scripps, the record reflects that Scripps
nonetheless knew he could exercise his right to allocution.
Gov’t Br. 23. Both the District Court’s opinion and the
Government reason that, unlike in Adams, the trial judge
directed Scripps’s attorney to ask Scripps if he wished to speak
and, after conferring with his client, Scripps’s attorney
confirmed that he did not.7 The Government argues this is the
“functional equivalent” of personally addressing Scripps.
Gov’t Br. 24. We find this reasoning unpersuasive.
        As we held in Adams, an invitation to speak directed
through defense counsel is not an adequate substitute for a
personal invitation to the defendant himself. Our controlling
law and the text of Rule 32 make clear that courts must
personally address the defendant and that no substitute for such
a personal address will be permitted. Accordingly, we find that
the trial court erred in failing to personally address Scripps
before imposing its sentence.

7
  The District Court noted that “[i]n sharp contrast [to Adams],
in this case, not only did counsel confer with defendant on the
record, but he was directed by the Court to do so.” App. 17.




                               12
        Thus, it is possible that appellate counsel’s failure to
raise the Rule 32 error on direct appeal “fell below an objective
standard of reasonableness” under Strickland, 466 U.S. at 688.
See Goff v. Bagley, 601 F.3d 445, 466 (6th Cir. 2010) (“Failure
on the part of [] appellate counsel to raise such an obviously
winning claim clearly falls below an objective standard of
reasonableness . . . .”). However, without understanding
counsel’s reasons for failing to raise this error on appeal, we
cannot categorically conclude that appellate counsel fell below
an objective standard of reasonableness. See Marshall v.
Hendricks, 307 F.3d 36, 115 (3d Cir. 2002) (concluding that
the objective standard of reasonableness analysis “needs to be
made with an understanding of counsel’s thought process”).
This is because we cannot presume that counsel’s failure to
raise the Rule 32 error on appeal automatically constitutes
deficient performance. Rather, courts must “indulge a strong
presumption” that counsel was effective and may only find
otherwise if the defendant “overcome[s] the presumption that .
. . the challenged action might be considered sound trial
strategy.” Strickland, 466 U.S. at 689 (internal quotation
marks and citation omitted).

              ii.    Prejudice

       Even assuming counsel fell below an objective standard
of reasonableness, we would not grant habeas relief if the
defendant suffered no prejudice. See Strickland, 466 U.S. at
694. Where a petitioner challenges the validity of his sentence
under § 2255, “[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.” United States v.
Mannino, 212 F.3d 835, 844 (3d Cir. 2000).




                               13
       Scripps challenged his sentence on direct appeal, but we
found no error based upon the issues raised and affirmed his
sentence. See Scripps, 599 F. App’x 443. We must therefore
determine if there is a reasonable probability that Scripps’s
direct appeal would have come out differently if appellate
counsel had raised the Rule 32 error.
        In Adams, the defendant challenged the Rule 32 error on
direct appeal, and we applied a plain-error standard of review.
252 F.3d at 278. We held that prejudice is 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.” Id. at 287. We reasoned that the Rule 32 error
played a role during sentencing 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.” Id.
(citation omitted). Similarly, here, the sentencing judge
sentenced Scripps to a period of imprisonment at the top of the
Guidelines range and to the maximum period of supervised
release, and therefore retained discretion to grant Scripps a
lower sentence. Applying Adams’s view of plain-error
prejudice, we find that there is a reasonable probability that we
would have remanded for resentencing if counsel had raised
the Rule 32 error on direct appeal. Accordingly, prejudice is
satisfied under Strickland for Scripps’s ineffective assistance
of counsel claim. See Mannino, 212 F.3d at 845.
       B.     Evidentiary Hearing
       As we noted above, the record does not conclusively
show that Scripps is not entitled to habeas relief for his
ineffective assistance of appellate counsel claim. We cannot
determine whether counsel’s conduct fell below an objective
standard of reasonableness for, while it would be highly




                               14
unusual for counsel to omit such a clearly meritorious
argument, nonetheless counsel may have had reasons for doing
so. 8 But without an evidentiary hearing, we do not know
whether counsel had strategic reasons for failing to raise this
error on appeal, and therefore, we cannot conclude as a matter
of law that counsel was ineffective. See Strickland, 466 U.S.
at 681 (noting that “strategic choices must be respected” and
will “seldom if ever be found wanting” (internal quotation
marks and citation omitted)). Accordingly, we find that the
District Court abused its discretion in summarily denying
Scripps’s § 2255 motion without conducting an evidentiary
hearing, and we will remand to the District Court for further
proceedings.
IV.   CONCLUSION

      For the foregoing reasons, we will vacate the District
Court’s Order denying Scripps’s § 2255 motion as to this claim
and remand for further proceedings consistent with this
opinion.



8
  For example, perhaps Scripps informed counsel that he did
not intend to allocute even if he were resentenced, and
therefore counsel determined that raising the Rule 32 error
would not be beneficial. Counsel may also have anticipated
that the defendant would show no remorse and would argue
with the jury’s verdict on resentencing, causing the Judge, who
was already perturbed at defense counsel for making excuses
for Scripps’s embezzlement and blaming others, to find a way
to impose an even greater sentence on Scripps.




                              15
