New opinion: Third Circuit vacates denial of 2255 relief on allocution-offer claim

U.S. v. Scripps—habeas / § 2255—reversal—Rendell

Rule 32 of the Federal Rules of Criminal Procedure requires the sentencing judge to “address the defendant personally in order to permit the defendant to speak.” But at Michael Scripps’s sentencing, the judge asked counsel whether the defendant wanted to speak, and, after directing counsel to discuss it with his client, accepted counsel’s negative response. The defendant filed a motion for postconviction relief under 28 USC § 2255, alleging that his counsel was ineffective for failing to challenge the judge’s failure to personally invite him to allocute. The district court denied the petition without an evidentiary hearing (and did not even grant a certificate of appealability).

Today, the Third Circuit vacated and remanded, holding that the district court abused its discretion in denying the 2255 motion without an evidentiary hearing. Dismissal without a hearing is appropriate only when the record “conclusively show[s]” that the petitioner isn’t entitled to relief, and here it did not because the court’s failure to personally address the defendant was error and counsel’s reasons for not challenging this error were not in the record: “while it would be highly unusual for counsel to omit such a clearly meritorious argument, nonetheless counsel may have had reasons for doing so.”

The court also considered the possibility that the case became moot when the petitioner was released from prison during the pendency of the appeal, concluding it did not because he still is subject to supervised release.

Joining Rendell were Bibas and Scirica. The appeal was decided without oral argument.