United States Court of Appeals,

                                             Fifth Circuit.

                                            No. 95-50678.

                          UNITED STATES of America, Plaintiff-Appellee,

                                                   v.

                          Robert Rolando GUERRA, Defendant-Appellant.

                                           Sept. 12, 1996.

Appeal from the United States District Court for the Western District of Texas.

Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.

       REYNALDO G. GARZA, Circuit Judge:

       Robert Rolando Guerra appeals a judgment of the United States District Court for the

Western District of Texas denying his motion to set aside, correct, or vacate his sentence under 28

U.S.C. § 2255. The court found that Guerra was procedurally barred from attacking his sentence

and, despite the bar, that Guerra's guilty plea was free of any defect. We find error on both parts and

therefore REVERSE the judgment of the district court and REMAND this case with instructions to

set aside the defendant's conviction and to grant him all relief to which he is entitled.

                                I. Facts and Summary of Proceedings

       On November 28, 1972, a federal grand jury in San Antonio indicted the defendant, Robert

Rolando Guerra, on two counts relating to an alleged sale of heroin in July 1972: 1) conspiracy to

possess heroin with intent to distribute, in violation of 21 U.S.C. § 846; and 2) possession of heroin

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At rearraignment, the district court

informed Guerra that, because of his prior drug convictions, he was subject to enhanced criminal

penalties under the federal statutes as a repeat offender under authority of 21 U.S.C. § 841(b)(1)(A).

Thus instead of facing a possible 30-year term for both counts, the court was of the view that a 60-

year term was possible.

       On this point, however, the district court was mistaken. The enhanced sentences for repeat


                                                   1
offenders were applicable only where a defendant had previously been convicted of federal drug

offenses. Guerra had been convicted of drug offenses in the courts of Illinois and Texas, but not of

the United States. The enhancement was therefore improper and thus Guerra was legally only subject

to fifteen years incarceration on each count.

         Unaware of the district court's error, Guerra pleaded guilty in February 1973 to the possession

count in exchange for dismissal of the conspiracy count. The court found Guerra guilty and, again

believing it could sentence Guerra to thirty years in prison, sentenced him to a fifteen-year prison term

and a fifteen-year special parole term.1 This sentence was in fact the maximum allowable under the

law, although the court saw it as only half the amount it could impose.

         Following his conviction Guerra wrote letters to the court indicating that he wished to appeal

and that he would require the assistance of counsel. Treating these as motions, the court ordered that

notice of appeal be filed, but denied Guerra's motion for appointment of counsel. Guerra's trial

counsel, A.L. Hernden, moved to withdraw from the case and to have other counsel appointed by the

court for the appeal. The court denied this motion. Hernden then filed a motion to allow Guerra to

appeal in forma pauperis, which the government opposed and the district court denied under the

mistaken belief that there were no appealable issues. At this time, Guerra asked this Court to allow

an appeal in forma pauperis but we denied his request. We eventually dismissed his appeal for failing

to docket it timely. Guerra v. United States, No. 73-8142 (5th Cir. filed July 11, 1973). Guerra

received no assistance from his trial counsel and apparently was unable to afford the filing fee in this

Court.

         Guerra has since twice sought collateral relief. In August 1990, he moved to vacate, set aside,

or correct his sentence, under the authority of 28 U.S.C. § 2255. The district court denied this

motion in June 1991. Guerra filed notice of appeal in July 1991, but we dismissed his appeal for want

   1
    Guerra completed his prison term in 1988. He is again in prison, however, for having violated
his special parole term in 1989. Further, it appears that Guerra attempted to escape from prison
following his parole revocation. It is not revealed in the record whether the district court
sentencing Guerra for the attempted escape used the 1973 sentence as an enhancement under the
Sentencing Guidelines. The case is therefore not moot.

                                                   2
of prosecution. He then moved to reinstate his appeal, which motion this Court granted. In June

1992, this Court affirmed the judgment of the district court. United States v. Guerra, No. 91-5695,

(5th Cir. filed July 6, 1992).

        Guerra's second—and present—attempt at habeas relief under § 2255 began in July 1993

when he complained of the trial court's above-mentioned error with respect to sentencing and of

ineffective assistance of counsel at trial. The magistrate judge recommended that the district court

dismiss Guerra's motion for abuse of the writ. The district court agreed with respect to the ineffective

assistance claim because it had been the subject of the first § 2255 motion, but not as to the

sentencing issue; the court found that Guerra had attempted to raise this issue in his first habeas

proceeding, but that the government and the district court had not addressed it and we refused to

address it on appeal given that the parties had not fully litigated it below. The court sent this part of

the case back to the magistrate for further review.

        The magistrate ordered the government to respond to Guerra's petition, which it did. It did

not, however, raise the issue of procedural bar of the writ, despite the magistrate's admonition that

the defense be raised in its first response. The magistrate appointed counsel for Guerra and set a date

for an evidentiary hearing. The United States at this time filed an amended response, without leave,

in which it raised the defense. Guerra objected to the amended response and moved to strike it, but

the magistrate overruled him.

        The magistrate judge, in his Second Memorandum and Recommendation, found that the

sentencing court had violated Rule 11 of the Federal Rules of Criminal Procedure and Guerra's

constitutional rights when it misinformed him of the penalties he faced. He also found, however, that

the court's misplaced reliance on the enhanced-penalty scheme was harmless error given that Guerra's

actual sentence was within the proper range set for that offense. Further, he concluded that Guerra

procedurally defaulted this issue by failing to pursue his direct appeal. The districtendations and

denied relief. Guerra appeals.

                                        II. Standard of Review


                                                   3
        We review the district court's findings of fact in a § 2255 proceeding for clear error. United

States v. Mimms, 

, 220 (5th Cir.1995). Questions of law are reviewed de novo. United

States v. Gipson, 

, 214 (5th Cir.1993).

                                         III. Procedural Bar

        The first issue we must address concerns the issue of procedural bar to Guerra's attempt to

seek relief under the writ, which the district court found was applicable here. The effect of

procedural bar is to preclude a defendant from attacking his conviction or sentence on collateral

review. It arises where a defendant had the opportunity to raise contested issues in a direct appeal

from his conviction but failed to do so. To overcome the bar, a defendant must show both "cause"

for failing to raise the issue on direct appeal and "actual prejudice" flowing from the errors alleged.

                  A. Did the Government Properly Raise the Bar in its Pleadings?

         Guerra contends that the district court committed reversible error by allowing the

government to amend its pleadings before the magistrate to raise the procedural bar. We review the

district court's decision to allow an amendment to pleadings in this situation for abuse of discretion.

Briddle v. Scott, 

, 379 (5th Cir.), cert. denied, --- U.S. ----, 

, 

(1995).

        As noted above, the government raised the defense of procedural bar in an amended pleading

to its response to Guerra's second § 2255 motion. The government amended the pleading without

leave of court, approximately one month before the evidentiary hearing scheduled by the magistrate.

Guerra argues that the district court abused its discretion and violated Federal Rule of Civil Procedure

15 by allowing the government to amend its pleading in this manner. He also contends that the

government's failure to seek leave and attempt to amend pleadings at such an advanced stage of the

proceedings constituted a waiver of the defense of procedural bar.

       These arguments are not well taken. To invoke the procedural bar regarding a petitioner's

delay in filing a § 2255 motion, the government must raise it in the district court. United States v.

Drobny, 

, 995 (5th Cir.1992). The government raised the defense before the


                                                   4
magistrate's filing of report and recommendation and before t he district court's ruling. Because

Guerra's motion was still pending at the time of the government's amendment, the issue was "raised

in the district court."

         Rule 15 does not prevent the government from amending its pleadings when it did. As the

government and magistrate note, the Rules Governing Section 2255 Proceedings for the United

States District Courts govern procedures under § 2255. Rule 12 provides as follows:

         If no procedure is specifically prescribed by these rules, the district court may proceed in any
         lawful manner not inconsistent with these rules, or any applicable statute, and may apply the
         Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it
         deems most appropriate, to motions filed under these rules.

It is obvious, then, that a district court is not obligated to apply Federal Rule of Civil Procedure 15's

requirement that parties must obtain leave of court before making amendments. Rather, the court

may do as it did here and allow the government to amend its pleadings without leave. We do not find

that this decision amounts to an abuse of discretion.

                                  B. Can Guerra Surmount the Bar?

         Having found that the government properly raised the bar, Guerra must show both "cause"

for his failure to raise the sentencing issue on direct appeal and "actual prejudice" resulting from the

error.    United States v. Shaid, 

, 232 (5th Cir.1991) (en banc) (applying

cause-and-prejudice requirement of Wainwright v. Sykes, 

, 

, 

(1977), to all proceedings under § 2255), cert. denied, 

, 

, 

(1992).

                                                1. Cause

         The "cause" standard requires Guerra to show that "some objective factor external to the

defense" prevented him from raising on direct appeal the claim he now advances. Romero v. Collins,

, 1183 (5th Cir.1992) (quoting Murray v. Carrier, 

, 488, 

,

2645, 

(1986)). Objective factors that constitute cause include interference by

officials that makes compliance with the procedural rule impracticable, a showing that the factual or

legal basis for the claim was not reasonably available to counsel at the prior occasion, and ineffective

                                                    5
assistance of counsel in the constitutional sense. 

that he can satisfy the "cause" prong of the test because of inter alia ineffective

assistance of counsel at the time of his direct appeal. He contends that his lawyer's failure to file his

appeal despite his request that he do so meets the requirements for this finding. We agree.

        An accused is entitled, as a matter of constitutional law, to assistance of counsel on a direct

appeal as of right. Douglas v. California, 

, 

, 

(1963).

Further, this representation must be effective. Evitts v. Lucey, 

, 

, 

(1985); Lombard v. Lynaugh, 

, 1481 (5th Cir.1989). The appeal at issue

here was from the district court to this Court, and thus was one of right; as a consequence, Guerra

was constitutionally entitled to effective appellate counsel. This he did not have.

         His failure to have it stems from two sources, one of which was Hernden's inadequate

representation of his client. The Texas Code of Professional Responsibility required Hernden, whom

Guerra had retained as his attorney, to represent him until such time as the court allowed him to

withdraw. Because the court denied his motion to withdraw, Hernden remained obligated to pursue

Guerra's interests, including an appeal. That Hernden 2 constitutes ineffective assistance of counsel.

Castellanos v. United States, 

, 718 (7th Cir.1994) ("If the defendant told his lawyer to

appeal, and the lawyer dropped the ball, then the defendant has been deprived, not of effective

assistance of counsel, but of any assistance of counsel on appeal."); United States v. Horodner, 

, 195 (9th Cir.1993); Abels v. Kaiser, 

, 823 (10th Cir.1990). Cf. Lombard v.

Lynaugh, 

, 1480 (5th Cir.1989). Prejudice in the Strickland v. Washington sense of


   2
    The following is the text from a letter Guerra sent to the district court on February 22, 1973,
seven days following entry of his guilty plea:

                Sir:

                        Would like [sic] to serve notice to appeal my conviction. I have asked my
                attorney to come and discuss my case—as yet Mr. A.L. Hernden has not shown
                up. I believe that there is only a ten (10) days waiting period [sic] in which to
                appeal. Since I am unable to get a hold of my attorney, I would like this court to
                send him to me or appoint me an attorney.

                                                   6
the word need not be shown here. Penson v. Ohio, 

, 

, 

(1988); 

.3

                                            2. Prejudice

        In addition to cause, Guerra must show actual prejudice to overcome the procedural bar.

. The movant makes this showing where he demonstrates that, but for the

error, he might not have been convicted. In the context of a guilty plea, Guerra must show that

absent the error by the district court he would not have pleaded guilty and would have insisted on

going to trial. We find that Guerra has made the requisite showing here. We do not find it difficult

to imagine that the district court's erroneous statement to Guerra that he faced a possible sentence

of 60 years in prison upon conviction on both counts might have led him to enter into plea

negotiations for a reduced sent ence on a single count, rather than go to trial and face maximum

exposure on both counts.

       Because Guerra has shown both cause and prejudice, he has surmounted the procedural bar.

We turn to his challenge to the validity of his conviction and sentence.

                                  IV. Guerra's Sentencing Claim

        Federal Rule of Criminal Procedure 11 provides, in relevant part:

              (c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the
       court must first address the defendant personally in open court and inform the defendant of,
       and determine that the defendant understands, the following:

                      (1) ... the mandatory minimum penalty provided by law, if any, and the
               maximum possible penalty provided by law, including the effect of any special parole
               or supervised release term, ...

                                         * * * * * *

              (h) Harmless Error. Any variance from the procedures required by this rule which
       does not affect substantial rights shall be disregarded.

       The error of which Guerra complains, the court's failure to notify him of the correct maximum


   3
   Because we have found Hernden's representation to have been constitutionally ineffective, we
need not address Guerra's claim that the district court's refusal to appoint counsel, and the
government's opposition to such appointment, constituted "official interference."

                                                 7
sentence he faced when he entered into plea negotiations with the government, comes under the

rubric of Rule 11(c)(1). In United States v. Johnson, 

(5th Cir.1993) (en banc), we held

that all errors made during Rule 11 proceedings are subject to the harmless error analysis contained

in Rule 11(h). Our task is to determine whether the district court's failure to inform Guerra that, in

fact, he faced only half of what he thought he faced, constitutes harmless error. We hold that the

district court's error was not harmless.

        The test for harmlessness focuses on "whether the defendant's knowledge and comprehension

of the full and correct information would have been likely to affect his willingness to plead guilty."

We must base our decision solely on the basis of the Rule 11 transcript and other portions

of the limited record available to us from the plea hearing. 

that reveals the

defendant's knowledge and understanding at the time the court takes his plea is not found in this

limited record, we will not consider it in determining harmlessness; we will not remand a case for fact

finding on this point. 

of the arraignment and rearraignment reveal the following information. The

assistant U.S. attorney prosecuting the case informed Guerra that he faced a possible thirty-year term.

At that time, the district court interrupted and stated that because of the prior drug felonies, an

enhancement was required, in which position the government concurred. The government then

informed Guerra that he faced sixty years on the indicted charges, that the term s could run

consecutively, and that they might not run concurrently with a pending state conviction and sentence.

All told, Guerra was informed that he faced a potential seventy years in prison.

       The government correctly noted at oral argument that the transcript at rearraignment implies

that Guerra may have had other reasons for plea bargaining aside from fear of a lengthy sentence.

The transcript shows that Hernden made the following statement to the Court, at the bench:

       Mr. HERNDEN: Judge, I have been talking with the gentleman [Guerra] about changing his
             plea all along. He didn't think the other guy was going to testify against him but the
             guy told him—the guy is sitting out there—he was going to testify against him. Can
             I talk to him a few minutes. [sic]

(App. Record 158). After conversing with Guerra, the transcript reveals that Hernden returned with

                                                  8
Guerra's guilty plea. While this information, if accurate as to Guerra's sentiments, does show that this

concern was a factor in his decision, it does not prove that the district court's gross sentencing error

was not, nor does it prove that the sentencing error was harmless.

        In Johnson, we stated that application of the harmless error analysis "cannot be viewed as in

any way "nullifying important Rule 11 safeguards.' " 

(quoting advisory committee notes

to FED.R.CRIM.P. 11). One of the most important safeguards of Rule 11 is the requirement that a

defendant know his possible exposure when he decides to plea. We are loath to permit error on this

point, although we have in some situations. E.g., United States v. Bond, 

, 702 (5th

Cir.1996) (failure to advise of statutory minimum harmless under circumstances).

        In United States v. Whyte, 

(5th Cir.1993), we were faced with a situation where

the trial court had understated the minimum and maximum penalty, term of supervised relief, and

maximum fine for the charged offense when informing the defendant of the consequences of his guilty

plea. On the minimum penalty, for instance, it understated the minimum penalty by five years. The

defendant, however, had previously received the correct sentencing information from his counsel and

the court sentenced him to less time than it stated was possible. Nevertheless, we held that the trial

court's error was not harmless and ordered that the defendant's conviction be vacated and his guilty

plea withdrawn.

        We find ourselves in a situation similar to that in Whyte. There is nothing in the record

indicating that Guerra received the correct information from his counsel, Hernden. Had Hernden

realized the district court's error, one would hope he would have brought it to the court's attention.

Further, there seems to ue is understated versus where it is overstated. In the former situation, a

defendant may be lulled into thinking that a conviction would not be so painful. In the latter situation,

a defendant may feel he has no choice but to plea bargain and cut his possible exposure. And, like

in Whyte, the court's error with respect to possible exposure was severe. We cannot say that the

district court's error was not "a material factor" affecting Guerra's decision to plead guilty. 

(quoting United States v. Bachynsky, 

(5th Cir.) (en banc), cert. denied,


                                                   9


, 

, 

(1991)) (emphasis added).

                                          V. Conclusion

       For the foregoing reasons, the judgment of the district court is REVERSED and this case is

REMANDED with instructions to vacate Guerra's conviction and withdraw his guilty plea.4 The

district court must also determine whether this conviction has been used to enhance the sentence of

any other conviction to which Guerra has been subject and, if so, remedy the situation.




   4
    We note that Guerra has served all of the time it was possible for him to have served. The
government will obviously have to decide whether a second prosecution and conviction is worth
the trouble.

                                                10