                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                     No. 09-13013                     SEPTEMBER 23, 2011
                               ________________________                   JOHN LEY
                                                                           CLERK
                  D. C. Docket Nos. 08-00051-CV-4, 05-00283-CR-4

JAMES CASWELL JONES,



                                                                        Petitioner-Appellant,

                                            versus

UNITED STATES OF AMERICA,

                                                                      Respondent-Appellee.


                               ________________________

                      Appeal from the United States District Court
                         for the Southern District of Georgia
                           _________________________

                                    (September 23, 2011)

Before HULL and ANDERSON, Circuit Judges, and VINSON,* District Judge.

PER CURIAM:

       *
         Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
          James Caswell Jones, a federal prisoner currently serving a term of

supervised release, appeals pro se the district court’s partial denial of his motion to

vacate under 28 U.S.C. § 2255, and his subsequent revised sentence.

                           I. JONES’S ARREST AND TRIAL

          On May 31, 2002, a Georgia detective arrested Jones on an outstanding

warrant for failure to pay child support. While searching Jones and his vehicle

incident to arrest, the officer found marijuana, crack cocaine, and $452 in cash.

          On June 1, 2002, Jones appeared before a Georgia magistrate judge for an

initial appearance and bond hearing on the state charges of intent to distribute

marijuana and cocaine. Jones filled out a form requesting the representation of

counsel and stating that he could afford to retain counsel.

          After the hearing, the arresting officer advised Jones of his Miranda rights,

obtained a signed waiver of those rights, and questioned Jones about the pending

state charges. Jones then confessed to possessing the drugs and cash seized during

his arrest and revealed that he had “a little bit of marijuana” at his house. Although

Jones refused to consent to a search of his home, the officer used Jones’s

admission to obtain a search warrant for Jones’s home. During the subsequent

search of Jones’s home, the officer found marijuana, two shotguns, and a 9mm

pistol.



                                              2
       After the discovery of the firearms, a federal grand jury indicted Jones for

possession with intent to distribute crack cocaine in violation of 21 U.S.C.

§ 841(a)(1) (Count One), possession with intent to distribute marijuana in violation

of 21 U.S.C. § 841(a)(1) (Count Two), and possession of a firearm by a convicted

felon in violation of 18 U.S.C. § 922(g)(1) (Count Three). Following a jury trial

in 2006, Jones was convicted on all three counts. The district court imposed

concurrent sentences of 77 months’ imprisonment as to each count.1 The district

court also imposed 6 years of supervised release on each of Counts One and Two,2

and 3 years of supervised release on Count Three, all to be served concurrently.

       Although Jones’s counsel moved in the district court to suppress Jones’s

post-arraignment statements to the arresting officer, the district court denied the

motion as untimely. In affirming Jones’s convictions on direct appeal, we held that

the district court properly denied Jones’s motion to suppress as untimely filed. See

United States v. Jones, 241 F. App’x 676, 678 (11th Cir. 2007).

       1
         In 2008, the district court reduced Jones’s original sentence to 70 months’ imprisonment
as a result of a retroactive amendment to the Guidelines regarding quantities of crack cocaine.
See 18 U.S.C. § 3582(c)(2).
       2
         The parties apparently agree that Jones’s presentence investigation report (“PSI”) and
the district court (by adopting the PSI’s Guidelines calculations at sentencing) erroneously
determined that Jones was subject to a mandatory term of supervised release of at least six years
for Counts One and Two under 21 U.S.C. § 841(b)(1)(C), because he had a prior felony drug
conviction. However, the government never filed the notice required by 21 U.S.C. § 851 and
therefore could not seek an enhanced penalty based on the prior conviction. See Perez v. United
States, 249 F.3d 1261, 1264-65 (11th Cir. 2001). Accordingly, Jones was properly subject to a
term of supervised release of not less than three years. See 21 U.S.C. § 841(b)(1)(C).

                                                3
                          II. JONES’S § 2255 MOTION

      Following his direct appeal, Jones in 2008 filed a motion to vacate under 28

U.S.C. § 2255 alleging ineffective assistance of trial counsel, based on his

counsel’s failure to file a timely motion to suppress Jones’s post-arrest statements

and the evidence seized from his home during the execution of the search warrant

that was obtained based on those statements. In February 2009, the district court

adopted the magistrate judge’s report finding that Jones’s trial counsel was

ineffective for failing to timely move to suppress Jones’s post-arrest statements and

that counsel’s ineffectiveness was prejudicial with respect to Jones’s conviction on

Count Three (the firearm charge). The district court ruled that the officer’s

subsequent interrogation, after Jones invoked his right to counsel, violated

Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404 (1986) (holding that, if police

initiate interrogation after a defendant invokes – at an arraignment or similar

proceeding – his right to counsel, any subsequent waiver of the right to counsel for

that police-initiated interrogation is invalid). Because Jones could not have waived

his right to counsel, the arresting officer’s interrogation of Jones and subsequent

search of Jones’s home were invalid under Jackson. In other words, if Jones’s trial

counsel had timely moved to suppress Jones’s post arrest statements to the

arresting officer, the motion to suppress would have been granted under Jackson.



                                           4
      Accordingly, the district court granted the § 2255 motion to vacate with

respect to Jones’s firearm conviction (Count Three), because the firearms were

seized during the search of Jones’s home following the illegal interrogation.

Nevertheless, the district court denied the motion to vacate Jones’s drug

convictions (Counts One and Two) on the ground that Jones failed to show

prejudice because the government “offered sufficient untainted evidence of Jones’s

guilt” to sustain the drug convictions. The district court then preliminarily

determined that Jones’s guidelines sentencing range without the firearm count

would be 33 to 41 months’ imprisonment.

                      III. NEW SENTENCE IN ABSENTIA

      In a written, April 20, 2009 order issued without a hearing and without the

benefit of briefing, the district court vacated Jones’s original Judgment and

Conviction in the underlying criminal case. The district court then stated that it

had considered the revised guidelines range and the 18 U.S.C. § 3553(a) factors

and sentenced Jones to 33 months’ imprisonment. The court continued, “If this

sentence is less than the amount of time that Jones has already served, then the

sentence is reduced to a ‘time served’ sentence.” In a separate April 21, 2009

order, the district court noted the revised sentence but ordered that “all other terms

and conditions shall remain in effect as originally imposed.” Finally, the court



                                           5
ordered the clerk to prepare a revised “Judgment and Commitment” order effecting

the terms and conditions of the revised sentences.

       The clerk duly entered a revised Judgment, but page one of the revised

Judgment improperly continues to show a conviction on Count Three (the firearm

count). Page two of the revised Judgment imposed a revised 33-month sentence

but does not limit the 33-month sentence to Counts One and Two. The revised

Judgment not only continues to show the six-year concurrent terms of supervised

release on Counts One and Two, but also improperly continues to impose a term of

supervised release and a special assessment on the firearm count (Count Three).

                      III. CERTIFICATE OF APPEALABILITY

       Jones appealed the partial denial of his petition,3 and this Court granted a

certificate of appealability (COA) as to the following two issues:

       (1) Whether the district court erred in partially denying the
       petitioner’s § 2255 motion, where the court conceded that trial
       counsel was ineffective for failing to file a timely motion to suppress,
       and acknowledged that the tainted evidence admitted at trial bolstered
       the government’s case with regard to petitioner’s drug convictions?

       (2) If the district court did not err in partially denying Jones’s § 2255
       motion, whether the court erred in resentencing Jones in absentia and
       without the assistance of counsel?




       3
         The government did not cross-appeal the district court’s grant of § 2255 relief with
respect to the firearm charge in Count Three.

                                                 6
      On appeal, and consistent with the COA, Jones argues that the district court

erred in finding that his trial counsel’s deficient performance was not prejudicial as

to his underlying drug convictions. Jones also argues that the district court

committed per se prejudicial error by resentencing him in absentia and without the

assistance of counsel as guaranteed under the Constitution and Fed. R. Crim. P. 43.

He asserts that the resentencing was not ministerial because the district court could

have imposed an even shorter sentence or a shorter term of supervised release on

Counts One and Two.

                          IV. STANDARD OF REVIEW

      With regard to a district court’s denial of a 28 U.S.C. § 2255 motion to

vacate, we “review legal conclusions de novo and findings of fact for clear error.”

Mamone v. United States, 559 F.3d 1209, 1210 (11th Cir. 2009). The statutory text

of § 2255 imposes a requirement that the movant be “in custody.” 28 U.S.C.

§ 2255(a). Jones satisfies this requirement because a person serving a term of

supervised release is “in custody” within the meaning of § 2255. United States v.

Brown, 117 F.3d 471, 475 (11th Cir. 1997).

  V. INEFFECTIVE ASSISTANCE OF COUNSEL UNDER STRICKLAND

      To make a successful claim of ineffective assistance of counsel, a defendant

must show that: (1) his counsel’s performance was deficient; and (2) the deficient



                                           7
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984). In determining whether counsel gave deficient

assistance under Strickland, “[t]he test for reasonableness is not whether counsel

could have done something more or different; instead,” the movant must show that

counsel’s performance fell outside the “wide range” of professionally competent

assistance. Payne v. Allen, 539 F.3d 1297, 1317 (11th Cir. 2008) (quotation marks

omitted).

      To establish prejudice under Strickland, the movant must show more than

that the error had “some conceivable effect on the outcome of the proceeding.”

Marquard v. Sec’y, Dep’t of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005)

(quotation marks omitted). “Rather, the [movant] must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. (quotation marks omitted). “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

A. Was Trial Counsel Deficient Under the First Prong of Strickland?

      We first conclude that the district court did not err in deciding that Jones

satisfied the first prong of Strickland: deficient performance of counsel. At the

time of Jones’s trial, Jackson held that if police initiate interrogation after the



                                            8
defendant asserts – at an arraignment or similar proceeding – his right to counsel,

any waiver of the defendant’s right to counsel for that police-initiated interrogation

is invalid. 475 U.S. at 636, 106 S. Ct. at 1411. Because the officer interrogated

Jones after he invoked his Sixth Amendment right to counsel at his initial

appearance before the state magistrate judge, all of the evidence secured as a result

of the interrogation should have been suppressed. We agree with the district court

that, at the time of Jones’s trial, his trial counsel was constitutionally deficient for

failing timely to raise this “bread and butter” Jackson argument in a motion to

suppress Jones’s statements and the evidence seized from his home.

B. Prejudice Under Strickland

       As to Strickland’s second prong, the district court determined that Jones

failed to show prejudice with respect to the drug convictions4 because the

government “offered sufficient untainted evidence of Jones’s guilt” to sustain the

drug convictions. However, we must vacate the district court’s prejudice ruling in

light of an intervening change in the law.

       After the district court’s February 2009 order on Jones’s motion to vacate,

the Supreme Court decided Montejo v. Louisiana, 129 S. Ct. 2079 (2009).


       4
        With respect to the firearm conviction on Count Three, the district court concluded that
Jones had shown prejudice because the charge was based solely on the firearms that were seized
from Jones’s home and should have been suppressed. As noted above, the government did not
cross-appeal this ruling, and we do not address it here.

                                                9
Expressly overruling Jackson, Montejo holds that a defendant’s request for counsel

at arraignment creates no presumption invalidating a defendant’s subsequent

waiver of his right to counsel at police-initiated interrogation. However, although

a defendant no longer enjoys a presumption that his waiver of his right to counsel

was invalid, the defendant may still assert that his waiver was invalid for other

reasons, such as that the waiver was not knowing, voluntary, and intelligent.

Montejo, 129 S. Ct. at 2085. Noting that the defendant in Montejo had not pursued

any alternative challenge to his waiver (because the waiver was per se invalid

under Jackson), the Supreme Court concluded that remand was necessary to allow

the defendant to pursue any alternative avenue for relief from his putative waiver.

Id. at 2091-92.

      Like the defendant in Montejo, Jones relied on Jackson’s presumption that

his waiver was invalid, and he therefore presented no alternative basis for

invalidating his waiver. We conclude that Jones, like the defendant in Montejo, is

entitled to a remand to allow the district court to determine in the first instance

whether Jones has any meritorious basis to challenge his waiver of the right to

counsel at the police-initiated interrogation (and in turn his confession and the

evidence obtained from the search of his home). Of course, on remand Jones’s

§ 2255 motion will be governed by Montejo, and the district court may determine



                                           10
that Jones is not entitled to any relief under § 2255 on either of Counts One and

Two.

       We recognize that remand would be moot under the government’s argument

that Jones cannot show prejudice because, even if the allegedly tainted evidence

was suppressed, the untainted evidence was sufficient to support Jones’s drug

convictions on Counts One and Two. However, we conclude that the district court

erred by using a sufficiency-of-the-untainted-evidence standard under Strickland’s

prejudice prong.

       Strickland counsels that, in determining whether a petitioner has shown

prejudice:

       a court hearing an ineffectiveness claim must consider the totality of
       the evidence before the judge or jury. Some of the factual findings
       will have been unaffected by the errors, and factual findings that were
       affected will have been affected in different ways. Some errors will
       have had a pervasive effect on the inferences to be drawn from the
       evidence, altering the entire evidentiary picture, and some will have
       had an isolated, trivial effect. Moreover, a verdict or conclusion only
       weakly supported by the record is more likely to have been affected
       by errors than one with overwhelming record support. Taking the
       unaffected findings as a given, and taking due account of the effect of
       the errors on the remaining findings, a court making the prejudice
       inquiry must ask if the defendant has met the burden of showing that
       the decision reached would reasonably likely have been different
       absent the errors.

466 U.S. at 695-96, 104 S. Ct. at 2069.




                                          11
      Here, Jones claims that his drug convictions should be overturned due to

ineffective assistance of counsel because there is a reasonable probability that he

would not have been convicted of Counts One and Two but for his counsel’s error.

To support conviction under 21 U.S.C. § 841(a)(1), the government must prove

that a defendant (1) knowingly (2) possessed a controlled substance (3) with intent

to distribute it. United States v. Harris, 20 F.3d 445, 453 (11th Cir. 1994). Each

of these elements, including intent to distribute, may be proven by direct or

circumstantial evidence. Id.

      The untainted evidence against Jones included: (1) two bags of marijuana,

(2) a container filled with ten pieces (weighing only 1.4 grams) of a substance

containing cocaine, (3) $452 in cash, and (4) a 1991 conviction for possession of

cocaine with intent to distribute. With the exception of the prior felony conviction,

all of this evidence was obtained during a valid search incident to an arrest for

unpaid child support.

      The potentially tainted evidence admitted against Jones at trial included the

following statements made during an unlawful interrogation: (1) that the drugs

found in the car belonged to Jones, (2) that Jones sold some drugs to make a little

bit of extra money, (3) that Jones sometimes smoked marijuana, but did not smoke

crack, and (4) that Jones had “a little bit of marijuana” at his house. Further



                                          12
potentially tainted evidence admitted at trial included the following items found

during a search of Jones’s home: (1) eighteen bags of marijuana, (2) loose

marijuana, (3) three guns, and (4) ammunition. If, on remand, Jones can

successfully challenge his waiver of his right to counsel after the initial appearance

on the state charges, all of this evidence should have been suppressed.

       If Jones successfully challenges his waiver, we are convinced that there is a

reasonable probability that without the tainted evidence Jones would not have been

convicted pursuant to § 841(a)(1) on either of Counts One or Two. Had the jury

been presented with only the untainted evidence, Jones could have avoided

conviction by arguing that the drug amounts found during the search incident to

arrest were consistent with personal use, and that the $452 in cash was consistent

with a normal paycheck. In other words, admission of the tainted evidence –

particularly Jones’s statements that he sold drugs and that he did not smoke crack,

and the large quantity of marijuana found in his home – “alter[ed] the entire

evidentiary picture,” Strickland, 466 U.S. at 696, 104 S. Ct. at 2069, and rendered

any such personal-use argument untenable.5 Thus, there is a reasonable probability

       5
         Our conclusion is bolstered by a review of the indictment. In Count One, the
government charged Jones with possession of crack cocaine on May 31, 2002 (the day of his
arrest). In Count Two, the government charged Jones with possession of marijuana on June 1,
2002, the day the government searched Jones’s home and discovered the 18 bags of marijuana.
Thus, although the government notes that Jones possessed an undetermined amount of marijuana
on the day of his arrest, Count Two apparently relied heavily on evidence that should have been
suppressed.

                                              13
that, but for counsel’s error leading to the admission of tainted evidence, the jury

would have found that the evidence failed to establish the third element of a

§ 841(a)(1) offense – i.e., that Jones intended to distribute the drugs. This

probability is sufficient to undermine confidence in the outcome of Jones’s trial

and convince us that Jones suffered prejudice under the second prong of

Strickland.6

                                     VI. CONCLUSION

       For the foregoing reasons, we vacate the district court’s denial of Jones’s

motion to vacate his drug convictions and remand for further consideration in light

of Montejo, including whether Jones can establish a meritorious basis for

invalidating the waiver of his right to counsel after his initial appearance on the

state charges.7


       6
         In the past, we have concluded that counsel’s errors were not prejudicial because of
“overwhelming evidence” of guilt that was properly submitted to jury. See, e.g., Harrison v.
Jones, 880 F.2d 1279, 1281-82 (11th Cir. 1989); Zamora v. Dugger, 834 F.2d 956, 961 (11th
Cir. 1987). Although overwhelming, untainted evidence of guilt may support a lack of prejudice
in the proper case, Strickland requires more than bare legal sufficiency of the untainted evidence.
See Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir. 1995).
       7
          Even if the ruling on remand does not result in the drug convictions being vacated, Jones
is still entitled to a new sentencing hearing on his two drug convictions because the district court
vacated the entire sentencing package and imposed the revised sentence without Jones’s having
an opportunity to be heard. See United States v. Taylor, 11 F.3d 149, 152 (11th Cir. 1994).
Accordingly, we also vacate the sentence imposed in the April 21, 2009, revised Judgment. But
nothing herein cabins the district court’s discretion as to the ultimate sentence imposed in the
event the drug convictions are not vacated. Finally, we also note that the revised Judgment has
clerical errors needing correction, such as the references to the firearm conviction in Count
Three.

                                                14
VACATED AND REMANDED FOR FURTHER PROCEEDINGS.




                     15
