On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 97-cr-00193) District Judge: The Honorable Berle M. Schiller.
The opinion of the court was delivered by: Nygaard, Circuit Judge.
BEFORE: NYGAARD, SMITH, and FISHER, Circuit Judges.*fn1
Appellant Felton Jones was convicted by a jury of conspiracy to distribute cocaine and distribution of cocaine within 1,000 feet of a school, in violation of 21 U.S.C. § 860 and 21 U.S.C. § 846. The District Court determined that Jones' prior convictions placed him in Criminal History Category II under the Guidelines and sentenced him to 188 months' imprisonment. Jones filed a pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, which was denied by the District Court. He now appeals. Essentially, Jones contends that his sentencing counsel was ineffective for failing to argue that he was denied counsel in one of the prior convictions used to compute his criminal history category. We will affirm.
The facts relating to Jones' underlying cocaine conviction are not relevant for purposes of this habeas petition. After being convicted by a jury of conspiracy to distribute cocaine, and distribution of cocaine within 1,000 feet of a school, Jones was sentenced. Initially, the District Court imposed a sentence of 168 months' imprisonment, which the Judge described as "very harsh." Immediately after this sentence was imposed, however, the Government objected, arguing that for a defendant with a Category II criminal history designation, the Sentencing Guidelines mandated a longer sentence. After reviewing Jones' criminal history designation and the Guidelines, the District Court agreed and imposed a sentence of 188 months' imprisonment.
Jones' criminal history designation was the result of two prior convictions: a 1991 New Jersey conviction for simple assault and a 1992 conviction for cocaine possession. At the time of his sentencing, Jones did not object to the use of the 1991 conviction. Almost a year later, however, Jones filed a pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He asserted that in his 1991 guilty plea for simple assault, he was denied his right to counsel, and therefore the conviction cannot be used to enhance his sentence. More specifically, Jones alleged that his sentencing counsel was ineffective for failing to challenge the use of the 1991 simple assault charge to enhance his sentence.
A Magistrate Judge held a hearing and appointed counsel to address the limited issue of whether Jones knowingly and voluntarily waived his right to counsel in the 1991 simple assault guilty plea. No court records exist to indicate whether Jones knowingly and voluntarily waived his right to counsel, or whether he was even advised of his right. Consequently, the Magistrate Judge also addressed the question of whether Jones or the Government bore the burden of proving that Jones had waived his right to counsel. The Magistrate Judge concluded that the presumption of regularity applied to the New Jersey proceedings, and therefore Jones bore the burden of proving that he had been unconstitutionally denied his right to counsel. The Magistrate Judge went on to conclude that Jones had failed to meet his burden. Accordingly, Jones could not prove that he suffered any prejudice, even assuming that his counsel had erred by failing to raise the issue. The District Court adopted the Magistrate Judge's Report and Recommendation and denied the habeas petition.
We granted a certificate of appealability on the narrow issue of whether a section 2255 movant bears the burden of proof in demonstrating that a prior uncounseled guilty plea, which has been employed to enhance the sentence of a subsequent federal conviction, was not knowing, intelligent, and voluntary where the record is silent and the movant affirmatively alleges that there was no valid waiver of counsel. We need not reach that issue. Assuming, without deciding, that Jones did not knowingly waive his right to counsel, we conclude that Jones was not constitutionally entitled to counsel for his 1991 simple assault plea. Thus, his sentencing counsel was not ineffective in failing to object to his criminal history category.
Because the 1991 simple assault conviction is at the heart of this appeal, we will address it in some detail. That said, there are no transcripts of the guilty plea, so we know relatively little about the conviction. We know that Jones entered a guilty plea to the charge of simple assault in the Municipal Court of Phillipsburg, New Jersey. In New Jersey, the crime of simple assault is considered a disorderly persons offense, or in some cases, a petty disorderly persons offense. N.J. STAT. ANN. § 2C:12-1 (1990). We know that Jones was unrepresented when he entered his plea. We know that Jones was not actually imprisoned for his crime; the only punishment he received was an order to pay a fine and restitution totaling approximately $150.*fn2 Finally, we know that there is ...