Roy Moses v. District Attorney Philadelphia

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 23-1403
ROY MOSES,
Appellant
v.
DISTRICT ATTORNEY PHILADELPHIA;
SUPERINTENDENT PHOENIX SCI
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 2:21-cv-05466)
District Judge: Honorable Joseph F. Leeson, Jr.
Argued on November 13, 2024
Before: RESTREPO, MONTGOMERY-REEVES, and
AMBRO, Circuit Judges
(Opinion filed: April 2, 2025)

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Abigail T. Burton [ARGUED]
Bruce P. Merenstein
WELSH & RECKER
306 Walnut Street
Philadelphia, PA 19106
Counsel for Appellant Roy Moses
Katherine E. Ernst
David Napiorski [ARGUED]
PHILADELPHIA COUNTY OFFICE OF DISTRICT ATTORNEY
3 S Penn Square
Philadelphia, PA 19107
Counsel for Appellees District Attorney
Philadelphia and Superintendent Phoenix SCI
___________
OPINION OF THE COURT
___________
AMBRO, Circuit Judge
When a prisoner has a substantial claim that his trial
counsel was constitutionally deficient and his postconviction
counsel’s own deficiency causes him to default on that claim,
equity allows us to hear it anyway. Truer still when the pris-
oner’s postconviction counsel abandons him midstream, forc-
ing him to carry on pro se.
After a Philadelphia jury convicted Roy Moses of vio-
lating state drug laws, he obtained a new lawyer and collater-
ally attacked his conviction in Pennsylvania state court. Before
that proceeding concluded, however, his lawyer disappeared.
Moses tried to press ahead without counsel, but the court

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ultimately dismissed his petition. He next moved to federal
court, where he petitioned for a writ of habeas corpus, arguing
that his trial lawyer violated his Sixth Amendment right to
counsel by neglecting to make certain sentencing arguments.
Though Moses failed to bring that claim in his state postcon-
viction proceeding, he argued that his postconviction lawyer’s
ineffectiveness caused that failure, so his default was excused
under Martinez v. Ryan, 566 U.S. 1 (2012). The District Court
dismissed his petition. In its view, Moses could not invoke
Martinez because he chose to forge ahead pro se in the state
postconviction proceeding. His choice to do so, coupled with
the failure to raise his trial-counsel ineffectiveness claim, had
barred him from relying on Martinez.
Before us are three questions. First, does the Martinez
framework apply when a prisoner proceeds pro se after his
postconviction counsel abandons him? Second, if so, was Mo-
ses’s procedural default excused under Martinez? And third, if
it was, is Moses entitled to relief on the merits of his trial-coun-
sel ineffectiveness claim? The answer to each question is yes,
so we reverse the District Court’s dismissal of Moses’s petition
and remand with instructions to grant a writ of habeas corpus
limited to resentencing.
I. BACKGROUND
A. The 2015 Trial: Court of Common Pleas,
Philadelphia County
Moses was convicted of various drug crimes in the Phil-
adelphia Court of Common Pleas. To determine his sentence,
the court consulted Pennsylvania’s sentencing guidelines.
Those guidelines weigh two main inputs. The first is the Of-
fense Gravity Score, which gauges the severity of the defend-
ant’s offense. 204 Pa. Code § 303.3. The second is the Prior

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Record Score, which represents the seriousness of the defend-
ant’s prior convictions. Id. § 303.4. The two combine to deter-
mine a recommended penalty on Pennsylvania’s Sentencing
Matrix. See id. § 303.16(a). The table below illustrates the Sen-
tencing Matrix’s layout:
Id. For each combination of Offense Gravity Score and Prior
Record Score, the Sentencing Matrix recommends a range
from which the trial court will select a minimum term of con-
finement. Id. § 303.9(e). The final sentence will include a min-
imum and a maximum term of confinement. 42 Pa. Cons. Stat.
§ 9756(b). The minimum term may not exceed one-half of the
maximum term. Id.
There are eight Prior Record Score categories. The first
six are numbered 0 through 5 and are based on points assessed
for prior convictions. The last two are RFEL (short for Repeat
Felony 1 and Felony 2 Offender Category) and REVOC (short
for Repeat Violent Offender Category). Unlike the first six cat-
egories, these two are career-offender classifications and rest
on more than points alone. 204 Pa. Code § 303.4. For example,
the RFEL category applies to “[o]ffenders who have previous
convictions or adjudications for Felony 1 and/or Felony 2 of-
fenses which total 6 or more points in the prior record.” Id.

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§ 303.4(a)(2) (emphasis added). Other kinds of convictions—
like those for third-degree felonies—do not count.
The trial court assigned Moses’s drug conviction an Of-
fense Gravity Score of 11. As for his Prior Record Score, the
Commonwealth and Moses’s trial counsel both agreed that he
fell within the RFEL category. The trial court thought so too. It
counted four points from Moses’s 1998 Pennsylvania convic-
tion for first-degree robbery and then two more from his 2003
federal conviction for being a felon in possession of a firearm
under 18 U.S.C. § 922(g)(1). In assessing the latter offense, the
trial court treated § 922(g)(1) as equivalent to Pennsylvania’s
felon-in-possession law, 18 Pa. Cons. Stat. § 6105—a second-
degree felony—because it determined that the elements of the
two statutes were substantially identical. See 204 Pa. Code
§ 303.8(f)(1). Four points from first-degree robbery plus two
points from second-degree unlawful possession of a firearm
yields six points from qualifying offenses.
For an Offense Gravity Score of 11 and a Prior Record
Score of RFEL, the guidelines recommended a minimum sen-
tence of between 84 and 102 months, plus or minus 12 months.
Id. § 303.16(a). Moses’s trial counsel requested a below-guide-
lines sentence of 60 to 120 months. The Commonwealth, by
contrast, asked for a statutory maximum sentence of 90 to 180
months. See 35 Pa. Cons. Stat. §§ 780-113(a)(30) (criminaliz-
ing possession with intent to deliver controlled substances),
(f)(1) (imposing 15-year maximum sentence for violations of
§ 780-113(a)(30)).
After hearing argument from counsel, the trial court is-
sued Moses’s sentence. It began by chastising him for commit-
ting another federal firearms offense while he had been out on
bail. The trial court described Moses as a “career criminal”
whose “appalling” behavior had resulted in multiple

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convictions. App. 117. It did “not think” that he could be “sub-
ject to rehabilitation based upon [his] record,” and “fear[ed]
that[,] when [he got] back out,” he would “be doing the same
things [he] did before [he was] incarcerated.” App. 117. Yet de-
spite those concerns, the court sentenced Moses to 72 to 144
months’ imprisonment. That sentence included a one-year
credit for time served on the federal firearms conviction be-
cause his attorney never moved to revoke his state bail so he
could begin accruing time in the state system.
Moses challenged his conviction and sentence on direct
appeal. The Pennsylvania Superior Court affirmed both, and
the Pennsylvania Supreme Court denied his request for permis-
sion to appeal further.
B. The 2018 Postconviction Proceedings: Post
Conviction Relief Act Court
Moses, without counsel, collaterally attacked his con-
viction under Pennsylvania’s Post Conviction Relief Act, 42
Pa. Cons. Stat. § 9541, et seq. (PCRA). The PCRA court ap-
pointed him a lawyer, who filed an amended petition raising
trial-counsel ineffectiveness claims. Finding no merit in those
claims, the PCRA court issued a notice of intent to dismiss the
petition under Pennsylvania Rule of Criminal Procedure 907.
Though Moses still had PCRA counsel at that point, that coun-
sel never responded to the Rule 907 notice, effectively aban-
doning him. So Moses responded himself. The PCRA court
dismissed his petition without a hearing anyway. He appealed
and the Pennsylvania Superior Court affirmed the PCRA
court’s dismissal.

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C. The 2021 Habeas Petition: Eastern District of
Pennsylvania
Moses next petitioned for a writ of habeas corpus in the
U.S. District Court for the Eastern District of Pennsylvania.
There, he asserted for the first time that his trial counsel was
constitutionally deficient for failing to challenge his Prior Rec-
ord Score. The Commonwealth argued that Moses had proce-
durally defaulted on that claim because he had never raised it
before the PCRA court. Moses for his part invoked the Su-
preme Court’s decision in Martinez v. Ryan, which holds that a
postconviction counsel’s constitutionally deficient assistance
can excuse a prisoner’s procedural default of his ineffective-
assistance-of-trial-counsel claim. The Commonwealth re-
sponded that Martinez did not apply because Moses’s underly-
ing claim lacked merit, and thus his postconviction counsel’s
failure to raise it did not amount to ineffective assistance.
The District Court referred the case to a magistrate
judge, who issued a report and recommendation concluding
that Martinez did not apply. The magistrate judge reached that
conclusion not because she thought, as the Commonwealth did,
that Moses’s underlying claim lacked merit, but because Moses
failed to raise the claim himself in his pro se filing to the PCRA
court. Over Moses’s objections, the District Court adopted the
magistrate judge’s report and recommendation in full. It agreed
that Moses could not invoke Martinez because he “failed to
raise the [trial-counsel ineffectiveness] claims in his pro se ob-
jections to the [PCRA court’s] Rule 907 notice.” App. 25. The
District Court declined to issue a certificate of appealability
and denied Moses’s motion to amend the judgment.
We, however, granted Moses a certificate of appealabil-
ity on two issues: whether Martinez should apply to excuse his

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procedural default and, if so, whether he is entitled to relief on
the merits.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction over Moses’s peti-
tion for a writ of habeas corpus under 28 U.S.C. §§ 2241 and
2254. We have jurisdiction over this appeal under 28 U.S.C.
§§ 1291 and 2253. We give fresh review to a district court’s
dismissal of a habeas petition when the court, as here, did not
hold an evidentiary hearing. Dennis v. Sec’y, Pa. Dep’t of Corr.,
834 F.3d 263, 280 (3d Cir. 2016) (en banc).
III. DISCUSSION
We need to drill through three layers of habeas law:
(1) does Martinez apply here at all? If so, (2) does it excuse the
procedural default Moses claims his PCRA counsel caused and
allow us to consider his trial-counsel ineffectiveness claim?
And if it does, (3) is Moses entitled to relief?
A. Martinez Applies Even Though Moses Could Have
Raised His Trial-Counsel Ineffectiveness Claim in
His Pro Se Filing.
Before a state prisoner can seek federal habeas relief, he
must exhaust his available state-court remedies, 28 U.S.C.
§ 2254(b)(1)(A), “thereby affording those courts ‘the first op-
portunity to address and correct alleged violations of the pris-
oner’s federal rights,’” Walker v. Martin, 562 U.S. 307, 315–16
(2011) (quoting Coleman v. Thompson, 501 U.S. 722, 731
(1991)) (brackets omitted). When “a claim has not been fairly
presented to the state courts[,] but further state-court review is
clearly foreclosed under state law,” we excuse exhaustion “on
the ground of futility.” Wenger v. Frank, 266 F.3d 218, 223
(3d Cir. 2001). “Under those circumstances, the claim is

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procedurally defaulted, not unexhausted ….” Id. “Ordinarily,
this procedural default would constitute an independent and
adequate state law ground” supporting the judgment and thus
“would bar our review.” Glenn v. Wynder, 743 F.3d 402, 409
(3d Cir. 2014). A state prisoner may still “obtain federal review
of a procedurally defaulted claim, however, if he demonstrates
cause for the default and prejudice arising from the violation
of federal law.” Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014).
Moses no doubt procedurally defaulted on his trial-court
ineffectiveness claim by failing to raise it in his initial-review
collateral proceeding. By the time he petitioned for federal ha-
beas relief, he was time-barred from raising his claim in Penn-
sylvania state courts.1 See 42 Pa. Cons. Stat. § 9545(b). So is
there a sufficient basis for excusing the procedural default?
1 The District Court held not only that Moses had procedurally
defaulted by failing to raise his trial-counsel ineffectiveness
claim in his pro se filing to the PCRA court; it also held that he
never exhausted his state-court remedies in the first place. In
our certificate of appealability, we assumed that Moses had
procedurally defaulted, and thus had exhausted his state-court
remedies. We were right to do so. The exhaustion requirement
“refers only to remedies still available at the time of the federal
petition,” and is “satisfied if it is clear that [the habeas peti-
tioner’s] claims are now procedurally barred under [state]
law.” Gray v. Netherland, 518 U.S. 152, 161 (1996) (citations
and internal quotation marks omitted) (brackets in original)
(emphasis added). The District Court concluded that Moses
had not exhausted his state-court remedies because Pennsylva-
nia case law left open the theoretical possibility that he had not
waived his trial-counsel ineffectiveness claim in the PCRA
court. Whatever Pennsylvania’s waiver law might be, it is

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Enter Martinez v. Ryan. There, the Supreme Court an-
swered a question left open by its earlier decision in Coleman
v. Thompson: “whether ineffective assistance in an initial-re-
view collateral proceeding on a claim of ineffective assistance
at trial may provide cause for a procedural default in a federal
habeas proceeding.” Martinez, 566 U.S. at 9 (discussing 501
U.S. 722 (1991)). It concluded that the answer was yes, on “eq-
uitable” grounds, id. at 13, to “protect prisoners with a poten-
tially legitimate claim of ineffective assistance of trial coun-
sel,” id. at 9. If a habeas petitioner’s trial counsel was uncon-
stitutionally deficient, and his postconviction counsel was in-
effective in failing to raise that claim at the first opportunity in
postconviction proceedings, then no state court would ever
hear the petitioner’s ineffective-trial-counsel claim. Id. at 14.
Two wrongs call for a right.
We have never addressed the effect of a pro se postcon-
viction filing under Martinez. See Marsalis v. Pa. Dep’t of
Corr., 37 F.4th 885, 889 (3d Cir. 2022) (“[N]either the Supreme
Court nor this Court has decided whether we should excuse a
default when a state appoints habeas counsel but the prisoner
then fires him and proceeds without a lawyer. That important
question merits attention in an appropriate case, but not here.”).
Both Moses and the Commonwealth agree that pro se postcon-
viction filings do not affect a prisoner’s entitlement to invoke
Martinez and ask us to provide clarity. We agree with the par-
ties and now hold that a prisoner who proceeds pro se in an
initial-review collateral proceeding—at least when his lawyer
beside the point. By the time Moses petitioned for habeas relief
in federal court, the statute of limitations to seek further PCRA
relief had long expired. See 42 Pa. Cons. Stat. § 9545(b)(1)
(PCRA petitions “shall be filed within one year of the date the
judgment becomes final”).

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abandons him—may invoke Martinez to excuse his procedural
default.
This principle flows naturally from Martinez’s core
rule: that habeas petitioners must have at least one meaningful
opportunity to present their “meritorious ineffective-assis-
tance-of-[trial]-counsel claims.” Richardson v. Superintendent
Coal Twp. SCI, 905 F.3d 750, 762 (3d Cir. 2018). The rule
adopted by the District Court, by contrast, collides head-on
with Martinez, which focuses the inquiry on whether counsel,
not the prisoner, raised the trial-counsel ineffectiveness claim
in the initial collateral proceeding. The prisoner, after all, is
likely to be “unlearned in the law,” and so “may not comply
with the [s]tate’s procedural rules or may misapprehend the
substantive details of federal constitutional law.” Martinez, 566
U.S. at 12. “To present a claim of ineffective assistance at
trial … , a prisoner likely needs an effective attorney.” Id.
The District Court should have allowed Moses to in-
voke Martinez. The Commonwealth put it best: we would ad-
vance neither justice nor Martinez’s point by “creat[ing] a new
exception for cases where petitioners proceeded pro se after
their court-appointed post-conviction counsel [was] arguably
ineffective and then abandoned them.” Appellees’ Br. 15 (ital-
ics omitted).
B. Moses’s Procedural Default Was Excused Under
Martinez.
We now know that Martinez can apply to excuse Mo-
ses’s procedural default. So does it? Martinez imposes “three
conditions” to excuse a procedural default. Cox, 757 F.3d
at 119. First, the postconviction counsel’s ineffective assis-
tance (or the absence of counsel) must have caused the default.
Id. Second, the petitioner must have defaulted in the “initial-

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review collateral proceeding”—that is, “the first collateral pro-
ceeding in which the claim could be heard.” Id. And third, “the
underlying claim of trial counsel ineffectiveness [must be]
‘substantial,’ meaning ‘the claim has some merit.’” Id. (quoting
Martinez, 566 U.S. at 14).
There is no dispute that the default here occurred at the
initial-review collateral proceeding, satisfying the second con-
dition. That leaves the first and third. We conclude that both
are satisfied—Moses’s trial-counsel ineffectiveness claim is
substantial, and his procedural default was caused by his post-
conviction counsel’s ineffectiveness.
1. Moses’s Trial-Counsel Ineffectiveness Claim Is
Substantial.
Whether an ineffectivessness claim is “substantial” is
“analogous to the substantiality requirement for a certificate of
appealability”: can reasonable jurists debate whether trial
counsel’s performance was ineffective? Gaines v. Superinten-
dent Benner Twp. SCI, 33 F.4th 705, 711 (3d Cir. 2022) (quot-
ing Cox, 757 F.3d at 119). The well-trodden framework for in-
effective assistance of counsel asks (1) whether the counsel’s
performance was deficient, in that it fell below an objective
standard of reasonableness, and if so, (2) whether the petitioner
suffered prejudice as a result. Strickland v. Washington, 466
U.S. 668, 687–88 (1984). Moses satisfies both prongs.
a. Moses’s trial counsel’s performance was
deficient.
Moses’s merits claim goes like this: his federal
§ 922(g)(1) conviction was improperly counted as a two-point
second-degree felony offense under the Pennsylvania sentenc-
ing guidelines, and his counsel failed to object. There is at least

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a reasonable probability that he received a higher sentence than
he would have if the trial court had properly characterized that
conviction as involving a third-degree felony.
We agree. Counsel’s performance is deficient when he
or she fails to cite existing case law casting doubt on a trial
court’s decision to apply a sentencing enhancement. See United
States v. Otero, 502 F.3d 331, 336 (3d Cir. 2007) (“Where de-
fense counsel fails to object to an improper enhancement under
the Sentencing Guidelines, counsel has rendered ineffective as-
sistance.” (quoting Jansen v. United States, 369 F.3d 237, 244
(3d Cir. 2004))). Just so here. Existing case law strongly sug-
gested that Moses’s § 922(g)(1) conviction was not a predicate
offense—that is, the kind of offense that would contribute to-
ward an RFEL designation under Pennsylvania’s sentencing
guidelines—and thus that the sentencing enhancement he re-
ceived was unwarranted.
i. Section 922(g)(1) is not equivalent to
Pennsylvania’s felon-in-possession law.
In Pennsylvania, “[a]n out-of-state, federal or foreign
conviction … is scored as a conviction for the current equiva-
lent Pennsylvania offense.” 204 Pa. Code § 303.8(f)(1).
“[W]hen determining the Pennsylvania equivalent statute for a
prior, out-of-state conviction for prior record score purposes,
courts must identify the elements of the foreign conviction
and[,] on that basis alone, identify the Pennsylvania statute that
is substantially identical in nature and definition to the out-of-
state offense.” Commonwealth v. Spenny, 128 A.3d 234, 250
(Pa. Super. Ct. 2015) (internal quotation marks omitted).
In calculating Moses’s Prior Record Score, the Pennsyl-
vania probation office and the trial court treated his § 922(g)(1)
conviction as equivalent to one under 18 Pa. Cons. Stat.

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§ 6105—the Commonwealth’s felon-in-possession law. But
those two statutes are not “substantially identical in nature and
definition” because they have different elements. Id. Sec-
tion 922(g)(1) bars firearm possession by anyone convicted of
“a crime punishable by imprisonment for a term exceeding one
year.” Section 6105, by contrast, prohibits possession by “[a]
person who has been convicted of an offense enumerated in
[§ 6105(b)],” which lists specific offenses, like robbery, as-
sault, and kidnapping.
Indeed, the Pennsylvania Supreme Court has said that
§ 6105 and § 922(g)(1) “differ in a highly relevant way”—the
status element for the former is a fixed list of crimes, but for
the latter it is any crime punishable by more than one year’s
imprisonment. Commonwealth v. Jemison, 98 A.3d 1254,
1260–61 (Pa. 2014). And if that were not enough, Jemison
states outright that “there is no question that the relevant spe-
cific enumerated offense is an essential element of” a convic-
tion under § 6105. Id. at 1261 (emphasis added).
The Commonwealth resists the effect of Jemison. It
points us instead to Commonwealth v. Keiper, an intermediate
court decision predating Jemison that stated “a prior conviction
is not an element of the offense under [§] 6105 but is merely a
precondition to charging the accused with a violation of that
section.” 887 A.2d 317, 318 (Pa. Super. Ct. 2005). The Com-
monwealth notes that several intermediate court decisions fol-
lowing Jemison have concluded that Keiper’s characterization
of § 6105(b) remains good law, at least for sentencing pur-
poses, because Jemison was not itself a sentencing case. See,
e.g., Commonwealth v. Patterson, 304 A.3d 782, 782 n.5 (Ta-
ble) (Pa. Super. Ct. 2023) (“The Pennsylvania Supreme Court
did not address sentencing in its decision or categorize the prior
offense as an element of [§] 6105 for sentencing purposes and,

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therefore, as other panels of this Court have held, Jamison [sic]
is not relevant to this sentencing issue.”).
We are bound to “follow state law as announced by the
highest state court.” Sheridan v. NGK Metals Corp., 609 F.3d
239, 253 (3d Cir. 2010) (internal quotation marks omitted).
When a state supreme court has not squarely addressed an is-
sue, we look to “all relevant sources of that state’s law in order
to isolate those factors that would inform its decision.”
McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662 (3d Cir.
1980). A considered state appellate decision is “a datum for as-
certaining state law which is not to be disregarded by a federal
court unless it is convinced by other persuasive data that the
highest court of the state would decide otherwise.” Sheridan,
609 F.3d at 254 (quoting Budget Rent–A–Car Sys., Inc. v.
Chappell, 407 F.3d 166, 174 (3d Cir. 2005)). The ultimate in-
quiry, though, is what we believe the Pennsylvania Supreme
Court would do, and so “state intermediate appellate court
precedents can be considered erroneous in a sense in which a
state’s highest court decisions cannot.” 19 Charles A. Wright
& Arthur R. Miller, Federal Practice and Procedure § 4507
(2016).
The Commonwealth asks us to follow Keiper and char-
acterize the predicate convictions in § 6105(b) as “precondi-
tion[s],” not elements. Appellees’ Br. 22. It asks us to do so
despite the Pennsylvania Supreme Court’s later holding that
“there is no question that the relevant specific enumerated of-
fense is an essential element of that crime.” Jemison, 98 A.3d
at 1261. True, the Superior Court has since stated its view that
Jemison is distinguishable because it did not involve sentenc-
ing. See Patterson, 304 A.3d at 782 n.5. But in law, as in life,
sometimes the most straightforward interpretation is the right
one. If there is a distinction between a precondition and an

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element, it eludes us—the Commonwealth offers no cogent an-
swer, and we cannot find one. We do not believe that the Penn-
sylvania Supreme Court would say, if confronted with the is-
sue, that § 6105(b) is an element of the crime for purposes of
conviction, but not for sentencing.
The Commonwealth’s fallback argument is that even if
the two statutes have dissimilar elements, Moses’s guidelines
calculation was still correct because both § 922(g)(1) and
§ 6105(b) capture Moses’s predicate offense—robbery. It di-
rects us to the Pennsylvania Superior Court’s decision in
Spenny, which in the Commonwealth’s view holds that “the
facts underlying an offense are not ‘wholly irrelevant’ and
‘may need to be considered for grading purposes’ when search-
ing for the Pennsylvania equivalent of an out-of-state convic-
tion.” Appellees’ Br. 23 (quoting 128 A.3d at 250). But the
Commonwealth distorts Spenny. The court there noted that
“the underlying record of the foreign offense may need to be
considered for grading purposes,” but only after “the court con-
ducts an analysis of the elements of the foreign offense and
finds the Pennsylvania offense that ‘is substantially identical in
nature and definition’ to the out-of-state statute.” Spenny, 128
A.3d at 250 (quoting Commonwealth v. Bolden, 532 A.2d 1172,
1176 (Pa. 1987)). It did not say that we may look at the facts of
the underlying offense instead of its elements to determine
whether the statutes are substantially identical.
ii. Moses’s trial counsel was ineffective for
failing to object to the characterization of
§ 922(g) as equivalent to § 6105.
Failing to raise obvious and potentially successful sen-
tencing arguments is not a strategic choice for counsel—it is
deficient performance. See United States v. Mannino, 212 F.3d
835, 844 (3d Cir. 2000) (finding ineffective assistance of

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counsel when there was “simply no rational basis to believe
that counsel’s failure to argue [an] issue on appeal was a stra-
tegic choice”). Constitutionally effective assistance seldom re-
quires counsel to make ingenious or pathbreaking arguments.
It does, however, require counsel to “make reasonable investi-
gations of the law” and to “cite favorable decisions.” Otero,
502 F.3d at 336. That includes arguments supported by “readily
available” cases like those from the state’s highest court. Jan-
sen, 369 F.3d at 244. Because Moses’s trial counsel did not cite
favorable and readily available case law bearing on the calcu-
lation of Moses’s sentencing guidelines range, his performance
was deficient.
b. Moses was prejudiced by his trial counsel’s
deficient performance.
A defendant is prejudiced if, but for his counsel’s defi-
cient performance, there is a reasonable probability that the
outcome of the proceeding would have been different. Strick-
land, 466 U.S. at 694. “A reasonable probability is a probabil-
ity sufficient to undermine confidence in the outcome.” Id.
This is not a “stringent” test. Baker v. Barbo, 177 F.3d 149, 154
(3d Cir. 1999). In the sentencing context, “[t]he prejudice
prong is satisfied ‘when a deficiency by counsel resulted in a
specific, demonstrable enhancement in sentencing.’” Otero,
502 F.3d at 337 (quoting United States v. Franks, 230 F.3d 811,
815 (5th Cir. 2000)).
i. Had trial counsel objected, there is a
reasonable probability that Moses’s Prior
Record Score would have changed from
RFEL to 5.
When a federal offense lacks a Pennsylvania equivalent,
a sentencing court must “determine the current equivalent

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Pennsylvania grade of the offense based on the maximum sen-
tence permitted, and then apply § 303.8(d)(2).” 204 Pa. Code
§ 303.8(f)(3). Section 303.8(d)(2), in turn, instructs that
“[w]hen a prior conviction … was for a felony, but the grade
of the felony is unknown, it shall be treated as a Felony 3.”
“In Pennsylvania, a person convicted of a felony may
be sentenced to a term of imprisonment of no more than twenty
years for an F1 [first-degree felony], ten years for an F2 [sec-
ond-degree felony], and seven years for an F3 [third-degree
felony].” Spenny, 128 A.3d at 254 (citing 18 Pa. Cons. Stat.
§ 1103). But a § 922(g)(1) conviction can carry various maxi-
mum sentences that bear on its felony classification. At the
time of Moses’s sentencing, the maximum sentence for a
§ 922(g)(1) conviction was ten years. 18 U.S.C. § 924(a)(2)
(2015). That would be a second-degree felony in the Pennsyl-
vania system. But under the enhancements in § 924(e)(1), a
person convicted of three or more certain drug or violent of-
fenses faced a higher mandatory minimum sentence of 15
years. That would be a first-degree felony. “[T]he grade of the
prior [§ 922(g)(1)] conviction is unknown” because the poten-
tial maximum sentences varies, so we must treat that convic-
tion as a third-degree felony. See Spenny, 128 A.3d at 242; see
also id. at 254 (Arizona criminal statute imposing ten-year
maximum sentence but permitting twelve-and-a-half-year
maximum sentence when aggravating factors applied was a
third-degree felony because its grade under Pennsylvania law
was unknown).
Third-degree felony offenses do not count toward an
RFEL designation and contribute only one point toward the
Prior Record Score. 204 Pa. Code §§ 303.4(a)(2), 303.7(a)(4).
If Moses’s § 922(g)(1) conviction were characterized as a
third-degree felony, the one point toward his Prior Record

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Score would give him five points in total—not enough to trig-
ger an RFEL designation. For an Offense Gravity Score of 11
and Prior Record Score of 5, the guidelines recommend a min-
imum sentence of between 72 and 90 months—12 months
lower at both ends than the 84–102-month range applied by the
trial court.
There is a reasonable probability that the trial court
would have correctly reassessed the points for Moses’s
§ 922(g)(1) conviction had his trial counsel pointed out the
mismatch between § 922(g)(1) and § 6105. And had it done so,
it would have assessed Moses just one point, not two, dropping
him out of the RFEL category. See 204 Pa. Code § 303.4.
ii. There is a reasonable probability that Moses
would have received a lower sentence had his
guidelines range been between 72 and 90
months.
The trial court, against a guidelines range of between 84
and 102 months, credited Moses one year of time for state bail
that should have been revoked, then sentenced him to 72 to 144
months’ imprisonment. The one year of credit came off the bot-
tom of the guidelines range (84 minus 12 equals 72), not the
statutory maximum sentence (180 months minus 12 equals
168, not 144). That move strongly suggests that the trial court
anchored its sentence at the bottom of the range, 84 months;
deducted 12 months; arrived at 72 months as a minimum sen-
tence; then doubled it to 144.
This is enough to show prejudice. “When a defendant is
sentenced under an incorrect Guidelines range—whether or not
the defendant’s ultimate sentence falls within the correct
range—the error itself can, and most often will, be sufficient to
show a reasonable probability of a different outcome absent the

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error.” Molina-Martinez v. United States, 578 U.S. 189, 198
(2016). The record here reflects a reasonable probability that
the incorrect guidelines range anchored the trial court’s sen-
tence.
The Commonwealth contends that even if the trial court
had miscalculated Moses’s guidelines range, he would not have
suffered prejudice because the court “suggested” that “he
would have gotten near the maximum.” Appellees’ Br. 26 (cit-
ing App. 117). But this case is a world away from the “exceed-
ingly rare instances” in which we have held an error in the sen-
tencing guidelines calculation did not prejudice a defendant.
United States v. Hester, 910 F.3d 78, 91 (3d Cir. 2018). Even
an “explicit statement that the district court would have im-
posed the same sentence under two different ranges” will not
insulate a sentence from challenge in the mine-run of cases.
United States v. Zabielski, 711 F.3d 381, 389 (3d Cir. 2013);
see also id. at 387 (it is “the rare case” in which it would be
“possible to discern from the record that the sentencing Guide-
lines range did not affect the actual sentence”); United States
v. Raia, 993 F.3d 185, 196 (3d Cir. 2021) (“[A]n explicit state-
ment that the same sentence would be imposed under a differ-
ent Guidelines range is insufficient if that alternative sentence
is not also a product of the entire [mandatory] sentencing pro-
cess.”); United States v. Smalley, 517 F.3d 208, 212 (3d Cir.
2008) (district court’s statement that “it would have given the
same sentence … if it had applied” the proper enhancement did
not render error harmless when the court did not identify the
alternative range or explain its deviation from that range).
In any event, given the strong indications that the trial
court anchored Moses’s penalty at the minimum end of the
range, there is more than a reasonable probability that his sen-
tence would have been different had the trial court correctly

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calculated the range. Because “any amount of actual jail time
has Sixth Amendment significance,” Glover v. United States,
531 U.S. 198, 203 (2001), Moses has shown prejudice from his
trial counsel’s deficient performance.
2. Moses’s PCRA Counsel Was Also
Unconstitutionally Deficient for Failing to Bring
the Trial-Counsel Ineffectiveness Claim.
Determining whether Moses’s PCRA counsel was defi-
cient for failing to raise the trial-counsel ineffectiveness claim
detailed above “requires the same showing as the first prong of
Strickland”—deficient performance.2 Richardson, 905 F.3d
at 762. In this case, that is straightforward.
We have excused procedural default under Martinez
when postconviction counsel missed a “substantial, obvious is-
sue” related to sentencing. Id. at 763. As we have explained,
Moses’s trial-counsel ineffectiveness claim is just that kind of
issue. We can “think of no strategic reason why” Moses’s
PCRA counsel would have forgone his ineffective-assistance-
of-trial-counsel claim, and the Commonwealth offers no “via-
ble explanation for such a glaring omission.” Bey v. Superin-
tendent Greene SCI, 856 F.3d 230, 244 (3d Cir. 2017). Its only
explanation rises and falls with its merits arguments that the
Prior Record Score was properly calculated and that any error
would not have affected Moses’s sentence anyway. But given
our conclusion that his sentencing-calculation arguments were
substantial—indeed, meritorious—this explanation will not
do. Because Moses’s default was caused by his PCRA
2 “A showing of prejudice is also required, but that occurs at
Cox’s third prong”—whether Moses’s underlying merits claim
is substantial. Richardson, 905 F.3d at 762 (citing 757 F.3d
at 119). As we explained above, it is. See supra Section III.B.1.

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counsel’s unconstitutionally ineffective assistance, we may ex-
cuse the default under Martinez.
C. Moses’s Trial-Counsel Ineffectiveness Claim
Succeeds on the Merits.
Because Moses has shown cause and prejudice to over-
come his procedural default under Martinez, we next consider
the merits of his underlying trial-counsel ineffectiveness claim.
Given what we have already said, resolving the merits requires
little additional discussion. For the same reason Moses’s inef-
fective-assistance-of-counsel claim is substantial under Mar-
tinez, he is able to carry his burden of showing that his trial
counsel’s assistance was unconstitutionally ineffective: he had
an obviously powerful argument, his lawyer did not make it,
and he was prejudiced as a result. See supra Section III.B.1.
IV. CONCLUSION
When a prisoner procedurally defaults on a substantial
trial-counsel ineffectiveness claim because his postconviction
counsel errs, we may excuse that default “as an equitable mat-
ter.” Martinez, 566 U.S. at 14. We can do so because an “initial-
review collateral proceeding, if undertaken without counsel or
with ineffective counsel, may not [be] sufficient to ensure that”
a prisoner deprived of his Sixth Amendment rights at trial re-
ceives proper consideration for his claim. Id. Excluding from
this equitable rule prisoners whose lawyers abandon them is
inconsistent with Martinez.
The District Court here should have applied Martinez to
determine whether Moses’s PCRA counsel’s ineffectiveness
caused him to default on a substantial trial-counsel ineffective-
ness claim. We believe that the answer was yes and that Moses
was deprived of his Sixth Amendment right to competent trial

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counsel. So we reverse the District Court’s judgment and re-
mand with instructions to grant Moses’s petition for a writ of
habeas corpus limited to resentencing.

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