McAdoo v. Elo

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 McAdoo v. Elo No. 01-2050

ELECTRONIC CITATION: 2003 FED App. 0339P (6th Cir.)

File Name: 03a0339p.06 Debra M. Gagliardi, OFFICE OF THE ATTORNEY

GENERAL, CORRECTIONS DIVISION, Lansing,

Michigan, Appellee. ON BRIEF: James R. Gerometta,

UNITED STATES COURT OF APPEALS FEDERAL PUBLIC DEFENDERS OFFICE, Detroit,

Michigan, for Appellant. Debra M. Gagliardi, OFFICE OF

FOR THE SIXTH CIRCUIT THE ATTORNEY GENERAL, CORRECTIONS DIVISION,

_________________ Lansing, Michigan, Appellee.

SILAS MCADOO , X _________________

Petitioner-Appellant, -

- OPINION

- No. 01-2050 _________________

v. -

> JULIA SMITH GIBBONS, Circuit Judge. Silas McAdoo

, appeals the district court’s denial of his petition for a writ of

FRANK ELO , Warden -

Respondent-Appellee. - habeas corpus. McAdoo pled guilty in Michigan state court

to one count of second-degree murder and two counts of

N assault with intent to commit murder. Pursuant to a plea

Appeal from the United States District Court agreement, he was sentenced to three life sentences to run

for the Eastern District of Michigan at Detroit. concurrently. McAdoo later claimed that his attorney

No. 98-74705—Paul D. Borman, District Judge. misinformed him about the consequences of a life sentence.

McAdoo raises three issues in this appeal, arguing that (1) his

Argued: February 5, 2003 guilty plea was not knowing and voluntary because he

misunderstood its consequences, (2) his plea was illusory

Decided and Filed: September 23, 2003 based on the effective unavailability of parole for those

serving a statutory life sentence, and (3) his trial counsel was

Before: GILMAN and GIBBONS, Circuit Judges; ineffective for allegedly misinforming McAdoo about his

POLSTER, District Judge.* possible sentence. For the following reasons, we affirm the

district court’s denial of habeas relief.

_________________

I.

COUNSEL

McAdoo was charged in Michigan state court with one

ARGUED: James R. Gerometta, FEDERAL PUBLIC count of first-degree murder and two counts of assault with

DEFENDERS OFFICE, Detroit, Michigan, for Appellant. intent to commit murder. The charges arose from the

stabbing death of McAdoo’s wife, Alicia Kelley, and the

stabbing of two of his daughters. At McAdoo’s preliminary

*

hearing, his ten and fourteen year old daughters testified

The Ho norable Dan Aaron Polster, United States District Judge for

the Northern District of Ohio, sitting by designation.

1

No. 01-2050 McAdoo v. Elo 3 4 McAdoo v. Elo No. 01-2050

about the facts of McAdoo’s offenses, all of which occurred there was confusion when McAdoo entered his plea about

in the family home. what the sentence would be. The prosecutor responded that

there was some confusion at sentencing, “but not at plea

On January 9, 1995, the trial date, McAdoo entered a time.”

guilty plea to the lesser offense of second-degree murder and

two counts of assault with intent to commit murder. The At the resentencing hearing, McAdoo, who was not under

agreement was in exchange for the dismissal of the first- oath, had the following exchange with the state trial court:

degree murder charge that carried a maximum sentence of life

without parole. At the plea proceeding, McAdoo’s attorney THE COURT: Mr. McAdoo, sir, do you wish to say

told the court that the plea agreement indicated three life anything before this Court imposes the correct sentence,

sentences. McAdoo signed the plea form, which stated that which was pursuant to the plea agreement?

the agreement was for three life sentences. McAdoo stated to

the court under oath that no one had promised him anything DEFENDANT McADOO: Yes, Judge Braxton. The

other than what the plea form indicated. day that you accepted my plea, I don’t know if you

remember. I know you have a lot of cases that you have

Sentencing was held on February 1, 1995. At the outset, to do, but when Batchelor first came before you with me,

McAdoo’s attorney stated that McAdoo did not want to and you asked me more than once did I understand, and

withdraw his plea, and McAdoo agreed on the record. The you asked me how did I plead, and I pled not guilty.

court stated that it was ready to “impose a sentence in accord

with the sentence agreement.” It then sentenced McAdoo to Then he took me, and we went into the back chambers

parolable life for the murder conviction and two concurrent or in another room, and he made the statement to me, and

terms of twenty years imprisonment for the assault maybe I am wrong, but I was told that the three life

convictions. The sentencing judge stated “Count one and sentences would be 20, 20, 20 to run concurrently, and

murder two for a term of statutory life which is 20 years.” that my kids would not have to be subjected to the Court.

Although the judge indicated an intent to sentence McAdoo

in accord with the plea agreement, she failed to do so. First, THE COURT: But he did inform you that they were

a statutory life term does not equal twenty years in Michigan. three life sentences. Is that correct?

Second, the plea agreement did not call for twenty-year

sentences for the assault convictions. DEFENDANT McADOO: Yes, Ma’am.

The prosecution then moved to amend the sentence to THE COURT: Which is indicated on this form.

conform to the plea agreement, which had provided for three MR. DEFENDANT: But he, I guess what I am trying to

concurrent life sentences rather than one life sentence and two say is, Judge Braxton, that if I had understood what he

twenty-year sentences. Resentencing occurred on March 24, was telling me which, as I stated to you before, I had no

1995. McAdoo, then represented by his second counsel, knowledge of what was going on whatsoever. I have no

Robert Plumpe, requested the withdrawal of his guilty plea, –

claiming that he did not understand the nature of his plea

agreement and that he was under the influence of medication THE COURT: Now you had some knowledge because

at the time he entered his plea. Defense counsel argued that I spoke to you. But you go ahead.

No. 01-2050 McAdoo v. Elo 5 6 McAdoo v. Elo No. 01-2050

DEFENDANT McADOO: What I am trying to say is McAdoo was then appointed a third counsel, Edward

my lawyer, Batchelor, he never spoke with me about Jabbour, who filed another motion to withdraw McAdoo’s

anything. It was just the first time I ever saw this piece guilty plea, arguing that the plea was not knowing and

of paper here was the day that you took my plea voluntary. The sentencing court held a hearing on this motion

agreement. When I first saw you, and it was more or less on March 7, 1996. Jabbour argued that McAdoo entered his

stated to me accept it or get another attorney. I wrote all plea believing that he would be released after twenty years

this up, and I turned it in to the Grievance Commission. imprisonment and that this alleged misunderstanding nullified

the plea.

But anyway to sum it all up, he told me something that

was different than what you did, and that’s the only thing The court conducted an evidentiary hearing on May 9,

I am arguing, and is the fact that I didn’t understand what 1996, to determine whether McAdoo’s alleged

he was doing. If I would have understood that he was misunderstanding nullified his plea. At the May 9, 1996,

sentencing me to three life sentences to the point, why hearing, Batchelor testified that his understanding was that

not fight the case? the penalty for first-degree murder in Michigan was a

sentence of “natural life” and the penalty for second-degree

I didn’t want my kids to be subjected to it. It was murder was a sentence of “parolable” life. He testified that he

enough that they went through. And then for him to tell was familiar with the “Lifer Law,”2 which would have

me that it would be the three life sentences, I know I governed McAdoo’s possibility of parole. When asked what

need to be punished for what I did. No problem his understanding of the “Lifer Law” was, Batchelor stated,

whatsoever with that. But that’s not what he explained “in terms of what I remember in discussion with Mr. McAdoo

to me. That’s all I am trying to say to the Court. with regards to the Lifer Law, we never discussed it.” When

asked whether he had said anything to McAdoo about what a

The court then conformed the sentence to the written plea sentence of life imprisonment means, Batchelor responded, “I

agreement and stated that it would consider McAdoo’s don’t recall saying anything to him about life imprisonment.”

motion to withdraw the plea if he presented evidence that his

mental state and medication prevented him from knowingly McAdoo presented the testimony of Michael Patrick

entering a guilty plea.1 Martin, prisoner advocate for the Wayne County jail at the

time of McAdoo’s incarceration there, and Mark Carrico of

2

The “Lifer La w,” M.C.L. § 791.233b; M.S.A. § 28.303(3) provides

1

that prisoners convicted of an enumerated offense (such as second-degree

On May 4, 199 5, the court conducted a hearing on that issue. Dr. murder) are not eligible for parole until the prisoner has served the

Ke ith Dlugokinski, a psychologist from the prison where McAdoo was minimum term less available d isciplinary cred its. People v. Lino, 539

incarcerated, testified that McA doo was suffering from major depression N.W.2d 545 , 549 (M ich. Ct. A pp. 1 995 ), overruled on other grounds by

and was being medicated at the time he entered his plea. However, Peo ple v. Carson, 560 N.W.2d 657, 665 (M ich. Ct. App. 1996). In

Dlugokinski also testified that McAd oo’s medications would not have McA doo’s case, the “Lifer Law” would have m eant that he was likely to

significantly impaired his cognitive abilities. Although no order denying be eligible for parole after serving appro ximately fifteen years. Lino, 539

the motio n to withd raw the plea appe ars in the record, it is evident that the N.W.2d at 548-49 (defendant serving parolable life sentence for crime

court denied the mo tion. T he issue of M cAd oo’s p sychological state and committed on or after O ctober 1, 1992 , is subject to the jurisdiction of the

med ications has no t been raised in this app eal. parole board and eligible for parole after fifteen years imprisonment).

No. 01-2050 McAdoo v. Elo 7 8 McAdoo v. Elo No. 01-2050

the Team for Justice, who visited McAdoo after his Upon questioning Mr. Batchelor, he indicated there was,

incarceration. Jabbour asked Martin if McAdoo told him in fact, a plea bargain that was made on the day of trial.

about the sentence agreement contained in the plea He testified further that he, being Mr. Batchelor, was of

agreement. The prosecution objected to this evidence as the opinion that the plea offered the defendant would

hearsay. Jabbour argued that the evidence was “state of give him a better opportunity to put his client in the best

mind” testimony, but the court sustained the objection. possibl[e] posture that he could be in, and he made it

Jabbour attempted to elicit the same information from Carrico know[n] to his client what his options were at the time

that he had from Martin. Carrico stated that, at some ...

unspecified time before McAdoo was transferred to a state

prison to serve his sentence, McAdoo told Carrico he would This Court, after listening to the witnesses and the

“get out in 17 years.” Jabbour then asked the court to rule testimony that was presented in terms of the defendant's

that if McAdoo testified, he could not be questioned about the state of mind, the defendant stated it was his

underlying facts of the offense. The court ruled that McAdoo understanding he would be parolable in 17 years which,

could be questioned about any facts that were relevant to the in fact, is the truth. And this Court, when taking a plea

motion to withdraw the plea. McAdoo did not testify.3 from any defendant as best as I can recall, I’m very

meticulous in terms of whether or not the defendant has

At the close of the hearing, the court denied McAdoo’s an understanding of what it is he's doing. Of course, I

motion to withdraw his guilty plea, concluding: cannot and I do not go behind the scene to ask questions

as to w[he]ther or not--what the defendant's particular

If I look at the testimony and my view of the witnesses understanding is of what a certain word means to a

that testified this afternoon, he stated – Mr. Carrico stated particular defendant. That I do not do. So, based upon the

he met the defendant back in 1994, and that the testimony I've heard, I deny the defendant’s motion.

defendant’s mother called him because he’s a member of

the Team for Justice. He further testified that he visited Following denial of his second motion to withdraw his

weekly with the defendant before he was sent to Jackson guilty plea, McAdoo filed a delayed application for leave to

[prison], and Mr. Carrico also testified he was at the appeal to the Michigan Court of Appeals. This application

sentencing. Mr. Carrico further testified that defendant was denied for lack of merit in the grounds presented.

told him he would be eligible for parole in 17 years. McAdoo then filed a delayed application for leave to appeal

That’[s] what your witness means to the understanding to the Michigan Supreme Court, which was denied.

the defendant had at that time.

McAdoo then filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. On June 18, 2001, the district

court entered an order denying the petition for habeas corpus.

3 McAdoo was granted a certificate of appealability with

McAdoo later stated in an affidavit filed in the district court that

Batchelor had told him that a “life sentence” in M ichigan was the

respect to his claims that his plea was involuntary, that his

equivalent of a twenty-year sentence and that he would be paroled in

app roxim ately seventeen-and -a-half years. Beca use this affidavit was not

part of the record before the state court, we do not consider it in assessing

whether the state court’s decision to deny M cAd oo’s m otion to withdraw

his plea was objec tively unreasonable.

No. 01-2050 McAdoo v. Elo 9 10 McAdoo v. Elo No. 01-2050

plea was illusory, and that his defense counsel was ineffective errors in state procedure and/or evidentiary law do not rise to

in advising him about the consequences of his plea.4 the level of federal constitutional claims warranting relief in

a habeas action unless the error renders the proceeding so

II. fundamentally unfair as to deprive the petitioner of due

process under the Fourteenth Amendment. Estelle v.

The Antiterrorism and Effective Death Penalty Act McGuire, 502 U.S. 62, 69-70 (1991).

(“AEDPA”) governs this case. Under 28 U.S.C. § 2254(d),

a federal court may not grant habeas relief unless the III.

adjudication in the state court proceedings:

A.

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly We apply the standards of AEDPA to McAdoo’s three

established Federal law, as determined by the claims. His first contention is that his guilty plea was not

Supreme Court of the United States; or knowing and voluntary because he was misinformed by his

attorney about the consequences of his plea. Although

(2) resulted in a decision that was based on an McAdoo acknowledges that he was aware that he was

unreasonable determination of the facts in light of receiving a life sentence, he argues that he misunderstood the

the evidence presented in the State court proceeding. implications of a life sentence because of erroneous

statements made to him by his lawyer and that the state court

Under AEDPA, “[a] federal habeas court may not issue the finding otherwise was objectively unreasonable.

writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly The Supreme Court has held that a defendant must have

established federal law erroneously or incorrectly.” Williams “sufficient awareness of the relevant circumstances and likely

v. Taylor, 529 U.S. 362, 411 (2000). Rather, the issue is consequences” of his plea. Brady v. United States, 397 U.S.

whether the state court’s application of clearly established 742, 748 (1970). A guilty plea must be accompanied by “an

federal law was “objectively unreasonable.” Id. at 409. affirmative showing that it was intelligent and voluntary.”

Boykin v. Alabama, 395 U.S. 238, 242 (1969). Such a

A federal court is to apply a presumption of correctness to showing is generally made by the government’s production of

state court findings of fact for habeas corpus purposes unless a transcript of state court proceedings to establish that the plea

clear and convincing evidence is offered to rebut this was made voluntarily. Garcia v. Johnson, 991 F.2d 324, 326

presumption. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 (6th Cir. 1993).

F.3d 358, 360-61 (6th Cir. 1998). The appeals court gives

complete deference to the federal district court’s and state Prior to entering his plea, McAdoo signed the Pretrial

court’s findings of fact supported by the evidence. Clemmons Settlement and Notice of Acceptance, which indicated that the

v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). Trial court sentence for each of the three offenses would be life

imprisonment. When entering the plea, McAdoo stated under

oath that he understood the terms of the plea agreement and

4

A certificate of appealability was denied on McAdo o’s claim that his that he knowingly and voluntarily entered into the agreement.

attorney was ineffective for failing to pursue a diminished capa city McAdoo also testified that no additional promises, other than

defense.

No. 01-2050 McAdoo v. Elo 11 12 McAdoo v. Elo No. 01-2050

those contained in the plea agreement, had been made to him. immediately qualified that information by adding that the

Shortly before McAdoo entered his plea, his attorney stated maximum period he could serve for the sentence would

to the court that the plea agreement called for three life be 15 years. Nowhere does the record show that Hart was

sentences and that he had discussed the agreement with informed before entering his plea of the true sentence, a

McAdoo. The attorney also stated that he had explained minimum of 30 years and a maximum of 75. He was

McAdoo’s constitutional rights to him and McAdoo had informed by the court of this range at his sentencing

indicated his understanding. hearing, but again at the hearing, the court stated that

under Ohio law he would only serve 15 years of the

McAdoo does not contend that the plea colloquy was sentence. . . . Although this statement occurred after Hart

inadequate. He acknowledges that he knew he was agreeing entered his plea, it is evidence that the trial judge himself

to a life sentence. His argument is rather that there was did not understand the consequences of the plea

confusion about the consequences of a parolable life sentence agreement and, accordingly, did not give Hart correct

in Michigan at the time and that he relied on the alleged out- information on the consequences of his plea.

of-court statements of his attorney. In further support of the

existence of confusion, he cites the statement of the judge at Id. at 258. This case differs from Hart in that McAdoo was

sentencing that he would receive “a term of statutory life aware he was receiving a life sentence. Unlike the court in

which is 20 years” and the attorneys’ silence after that Hart, the state court in this case made its sole misstatement at

statement. 5 the sentencing, only after the plea had been entered and

accepted. Any misstatement by the judge at sentencing could

McAdoo contends that his case is analogous to Hart v. not possibly have affected McAdoo’s understanding at the

Marion Correctional Institution, 927 F.2d 256 (6th Cir. time he entered his plea, the relevant time for our inquiry.

1991). In Hart, the state trial judge and Hart’s attorneys

incorrectly informed him that his maximum period of After an evidentiary hearing about whether McAdoo’s plea

incarceration would be fifteen years if he pled guilty. The was entered knowingly, the state court found that his alleged

maximum was actually seventy-five years. This court stated: misunderstanding did not invalidate the plea. The state court

accepted as true McAdoo’s evidence (in the form of Carrico’s

This record shows that the court informed Hart he could testimony) that he believed he would be paroled in seventeen

be sentenced from 60 to 150 years. The court years. This evidence, however, does not show that his plea

was unknowingly entered, as the state court correctly found.

See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (“We have never

5

McAdoo also attempts to show confusion about the consequences held that the United States Constitution requires the State to

of a parolable life sentence by submitting evidence that the State Bar of furnish a defendant with information about parole eligibility

Michigan addressed the issue of the consequences of a life sentence at an in order for the defendant’s plea of guilty to be voluntary.”);

annual meeting in September 2000, some five and a half years after

McAdoo entered his guilty plea and so me four and a half years after his

James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (“The United

state evidentiary hearing. Evidence about this meeting obviously was not States Constitution does not require the State to furnish a

a part of the reco rd co nsidered b y the state court. In any event, statements

at the annual meeting tend to show that there was confusion about the

likelihood of parole for prisoners sentenced to parolab le life, but they do

not indicate that it was reasonable to believe that a life sentence in

Michigan meant anything other than what its name implies.

No. 01-2050 McAdoo v. Elo 13 14 McAdoo v. Elo No. 01-2050

defendant with information about parole eligibility in order did not affect the outcome of the state hearing. The state

for the defendant’s plea of guilty to be voluntary.”). 6 court heard testimony from Carrico that McAdoo believed

that he would be eligible for parole in seventeen and a half

McAdoo’s argument that at the time of his guilty plea there years. It accepted that testimony as truthful and also

was confusion in Michigan about the consequences of a determined that McAdoo’s belief was consistent with his

parolable life sentence is intertwined with an argument that actual date of parole eligibility under Michigan law.

the state court made erroneous evidentiary rulings at the

hearing on his request to withdraw his plea.7 First, McAdoo McAdoo attempts to characterize his misunderstanding

contends that the state court erroneously excluded Martin’s about the consequences of his sentence of parolable life as a

“state of mind” testimony. Second, he contends that the state misunderstanding about more than his parole eligibility date

court’s incorrect ruling that, if McAdoo testified, he could be or the likelihood of parole. He argues that he in fact thought

cross-examined about the underlying facts of the case forced a life sentence meant a twenty-year sentence. Although

him to elect not to testify.8 Whatever the merit of these McAdoo presented no evidence of this belief to the state

evidentiary arguments, the state court’s evidentiary rulings court, at resentencing (in an unsworn statement during his

allocution), he told the state court that Batchelor told him that

“the three life sentences would be 20, 20, 20 to run

6

concurrently.”

As a practical matter, any information given to a defendant about

paro le at the time he pleads guilty is inherently imprecise. Both parole In Ramos v. Rogers, 170 F.3d 560 (6th Cir. 1999), the

eligibility and likelihood are unpredictable. A number of factors, such as

the earning of sentence credits, may affect the time at which a prisoner

defendant attempted to withdraw his guilty plea after

becomes eligible for parole. Furthermore, factors such as the crimes of sentencing. While accepting his plea, the state trial court

conviction, the entire crimina l record, and behavior in prison may impact asked Ramos whether he understood that he was not going to

the likelihood of parole at a particular time after a prisoner becomes receive probation under any circumstances. Id. at 562.

eligible for parole. The likelihood of parole is also affected by changes Ramos responded that he understood. Later, he attempted to

in the law and in the comp osition and attitudes of parole bo ard members.

See James, 56 F.3 d at 666 (noting that changes in L ouisiana’s

withdraw his guilty plea, arguing that his lawyer had actually

commutation procedures made paro le more difficult to attain). As promised him that he would receive “supershock probation.”

McAd oo’s evidence of the 2000 Michigan bar meeting suggests, the fact Id. at 562-63. On appeal, Ramos contended that he was told

that few Michigan prisoners sentenced to parolable life are paroled when only that he was ineligible for probation, but not that he was

they are first eligible is attributable to a “political shift.” An assessment ineligible for supershock probation. Id. at 563. He testified

of the likeliho od that M cAd oo w ill be paroled when he becom es eligible that he did not know the difference between supershock

in 201 0 wo uld have be en speculative in 199 5 whe n he pled guilty and is

speculative today, beca use there is no m eans o f ascertaining future paro le probation and “regular” probation. Id. The court was not

boa rd policy or other relevant factors. persuaded by the argument that the individual defendant’s

misunderstanding of a commonly used term rendered his plea

7

McAdoo d oes not claim that these evidentiary rulings made the void. It held that “such word games cannot be permitted to

proceedings so fund amentally unfair as to dep rive him of due p rocess. vitiate the use of simple words in court.” Id. at 565 n.6.

8

Ramos essentially asked the court to rely on his subjective

McAd oo’s description of the state court ruling is not pre cisely impression of the words used, garnered from his lawyer’s

accurate. W hile certainly the state court left open the possibility of such misstatements, rather than the plain meaning of the statements

cross-examination, it did so only to the extent an underlying fact might be

relevant to the motion to withdraw the plea.

made in court. This court declined to do so:

No. 01-2050 McAdoo v. Elo 15 16 McAdoo v. Elo No. 01-2050

If we were to rely on Ramos’s alleged subjective pleas). McAdoo acknowledged in court under oath that he

impression rather than the record, we would be rendering was agreeing to a life sentence, and the evidence and his

the plea colloquy process meaningless, for any convict unsworn statement presented to the state court failed to show

who alleges that he believed the plea bargain was that he reasonably believed he was actually agreeing to a

different from that outlined in the record could withdraw maximum sentence of only twenty years.

his plea, despite his own statements during the plea

colloquy . . . indicating the opposite. This we will not Therefore, the state court did not err in finding that

do, for the plea colloquy process exists in part to prevent McAdoo understood the consequences of his plea. The state

petitioners such as Ramos from making the precise claim court’s findings are entitled to considerable deference under

that is today before us. Where the court has scrupulously AEDPA. A federal court may grant habeas relief only where

followed the required procedure, the defendant is bound the state court proceeding “resulted in a decision that was

by his statements in response to that court’s inquiry. based on an unreasonable determination of the facts in light

of the evidence presented.” 28 U.S.C. § 2254(d).

170 F.3d at 566 (internal quotation marks omitted). Considering the record here, we cannot say that the state

court’s determination that McAdoo knowingly and

The present case presents a closer question than Ramos. voluntarily entered his plea was unreasonable.

However, as in Ramos, we hold that a term that is

unambiguous on its face and agreed to by the defendant in B.

open court will be enforced. See Hall v. Maggio, 697 F.2d

641, 643 (5th Cir. 1983) (per curiam) (holding that McAdoo next contends that his plea bargain was illusory

defendant’s misunderstanding about life sentence, based on because he obtained no real benefit from entering a guilty

“common knowledge” and attorney’s misadvice, did not plea. The Michigan Parole Board rarely grants parole to

invalidate plea). We note that the term “life sentence” is not prisoners sentenced to parolable life, as explained by the

ambiguous. The United States Constitution does not require Michigan Court of Appeals in People v. Lino:

judges to explain the meaning of “life sentence” and other

unambiguous terms during the plea colloquy in order to The reality is that those who receive nonmandatory life

combat alleged misinformation that is not revealed on the sentences are rarely paroled after ten years, and, in fact,

record. Cf. Boykin, 395 U.S. at 243-44 (requiring explicit the majority of defendants sentenced to life

waiver of certain constitutional rights on the record when imprisonment are never granted parole. . . . [F]rom 1986

court takes guilty plea); United States v. Hanley, 906 F.2d through 1990, only seven prisoners serving parolable life

1116, 1121 (6th Cir. 1990) (holding that defendant was not sentences were paroled. Of the 975 prisoners serving

entitled to relief on his claim of ineffective assistance of such a term in 1990, only two were paroled. In 1991,

counsel where his counsel incorrectly advised him that he only one prisoner serving a parolable life term was

would be eligible for parole in a third of the time he received paroled. In 1992, again only one prisoner serving a

for a sentence because the court informed the defendant of the parolable life term was paroled.

potential range of incarceration for his crime and advised him

that he would be sentenced under the guidelines); see also 539 N.W.2d at 549 (citations omitted). In view of these

Fed. R. Crim. P. 11(b) (setting forth the elements the federal statistics, McAdoo argues that his “promised benefit will not

court must address when considering and accepting guilty materialize.” He argues that he is entitled to a new trial or a

No. 01-2050 McAdoo v. Elo 17 18 McAdoo v. Elo No. 01-2050

second chance to negotiate a plea bargain because he federal court to undertake independent review of state court

“expected he would be released on parole given the decision when state court decides claim without explanation

information he received concerning the workings of parole in of its decision). The independent review is not, however, “a

Michigan.” full, de novo review of the claims, but remains deferential

because the court cannot grant relief unless the state court’s

This argument fails, however, because McAdoo did obtain result is not in keeping with the strictures of the AEDPA.” Id.

his bargained-for benefit, the possibility of parole. Under at 943. Thus, the independent review determines whether the

Michigan law, a defendant convicted of first-degree murder state court decision is contrary to federal law, unreasonably

faces a sentence of mandatory non-parolable life while applies clearly established federal law, or is based on an

second-degree murder carries a sentence of parolable life or unreasonable determination of the facts in light of the

any term of years. Pursuant to his plea agreement, McAdoo evidence presented. Id.

was sentenced to three concurrent terms of parolable life. It

was not necessary for the prosecutors or the court to explain The Supreme Court has adopted a two-pronged test for

the likelihood of parole to McAdoo. Hill, 474 U.S. at 56. A determining whether a defendant received adequate assistance

defendant’s mere expectation about the parole process is of counsel. Strickland v. Washington, 466 U.S. 668, 687

“simply no ground for habeas relief.” James, 56 F.3d at 667. (1984). First, a defendant must show that counsel’s

As the district court stated, “the relative reluctance of the performance was deficient, which “requires a showing that

Michigan Parole Board to grant parole to prisoners sentenced counsel made errors so serious that counsel was not

to life does not render his plea illusory.” We hold that functioning as the ‘counsel’ guaranteed the defendant by the

McAdoo derived a benefit by avoiding a trial on the first- Sixth Amendment.” Id. at 687. The reviewing court should

degree murder charge which was punishable by life without “indulge a strong presumption that counsel’s conduct falls

parole and receiving instead a sentence of life with the within the wide range of reasonable professional assistance.”

possibility of parole. As such, his plea was not illusory. Id. at 689. Second, a defendant must show that counsel’s

deficient performance prejudiced the defendant. Id. at 687.

C. In order to satisfy the “prejudice” requirement in a plea

agreement context, “the defendant must show that there is a

Finally, McAdoo claims that his counsel, Batchelor, was reasonable probability that, but for counsel’s errors, he would

constitutionally ineffective for allegedly misinforming him of not have pleaded guilty and would have insisted on going to

the consequences of his plea. He requests that this issue be trial.” Hill, 474 U.S. at 58-59.

remanded for an evidentiary hearing.

McAdoo’s argument that his counsel was ineffective is

McAdoo presented his ineffective assistance of counsel closely tied to his argument that his guilty plea was not

claim in his application for leave to appeal in both the knowing and voluntary. With respect to the ineffective

Michigan Court of Appeals and Michigan Supreme Court. assistance issue, his brief to this court states that he should

Neither court discussed the merits of the issue, and both receive an evidentiary hearing because the district court

denied leave to appeal in orders of one sentence. When a erroneously relied on the state court’s finding that McAdoo

state court declines to address the merits of a properly raised understood the amount of prison time that he would be

issue, this court conducts an independent review of the issue. required to serve. McAdoo’s reply brief simply states that the

Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000) (requiring district court erred in accepting the findings of the state trial

No. 01-2050 McAdoo v. Elo 19 20 McAdoo v. Elo No. 01-2050

court because McAdoo was denied a full and fair hearing on true, his argument that his counsel’s performance was

the issue. His brief in the district court states that the deficient may have merit.

incorrect advice establishes deficiency of performance, as a

result of which he entered a plea that was not knowing and McAdoo’s ineffective assistance claim fails in any event,

voluntary, and “that fact establishes the prejudice prong.” however, because it would not have been unreasonable for the

state courts to conclude that he had failed to establish

Considerable case law supports a determination that giving prejudice had they included an analysis of the ineffective

erroneous advice about parole may constitute deficient assistance issue in their opinions. The prejudice prong of

performance. Affirmative misstatements about parole Strickland requires McAdoo to show that there is a reasonable

possibilities are more objectively unreasonable than failure to probability that, but for counsel’s errors, he would not have

inform the defendant about the parole possibilities. James, 56 pleaded guilty and would have gone to trial.

F.3d at 667 (noting that “this Court and others have

recognized that affirmatively erroneous advice of counsel as McAdoo’s exchange with the state judge at resentencing is

to parole procedure is much more objectively unreasonable at best ambiguous. While he suggested that he might have

than would be a failure to inform of parole consequences”). fought the case if he had known he would serve a life

When defense counsel grossly misinforms a defendant about sentence, he also said that he did not want his children to be

details of parole and the defendant relies on that subjected to a trial. Prior to this time McAdoo had been

misinformation, the defendant may have been deprived of his present at the preliminary hearing and was aware that the

constitutional right to counsel. See Strader v. Garrison, 611 evidence against him, which included his daughters’

F.2d 61, 65 (4th Cir. 1979). In Meyers v. Gillis, 142 F.3d 664 testimony, was overwhelming, a fact that the state courts were

(3d Cir. 1998), a habeas petitioner argued that his counsel was entitled to take into account in determining whether he would

ineffective for giving him incorrect advice about parole have pled guilty in the absence of any erroneous advice rather

eligibility. The Third Circuit granted habeas relief, stating than going to trial on first degree murder charges. McAdoo

that “Meyers did not realize he was, in all reality, pleading also conceded that Batchelor and the court informed him that

guilty to an offense that did not allow him to receive parole in he would receive three life sentences. He signed the plea

the future.” Id. The court noted that while a defendant does form indicating three life sentences. Moreover, Batchelor

not have a constitutional right to be provided with parole testified that he did not discuss the Lifer Law with McAdoo.

eligibility information prior to entering a plea, any

information that is provided by defense counsel must be Given this record, the state courts were not unreasonable in

accurate. Id. at 667 n.2. McAdoo argues that Batchelor was rejecting McAdoo’s ineffective assistance claim. While they

ineffective because he allegedly gave McAdoo incorrect could have concluded that McAdoo had established a

information regarding the terms of the plea agreement. He reasonable probability that he would not have pled guilty in

claims that Batchelor told him that he would serve at most the absence of erroneous advice, it also would not have been

twenty years in prison.9 Assuming McAdoo’s claim to be unreasonable for them to conclude otherwise. Thus, after

independent review, we conclude that the state court’s

9

At his state evidentiary hearing, McAdoo’s counsel did not

specifically ask Batchelor whether he made this statement to McAdoo. M cAdoo did not discuss the Lifer Law. McAdoo , as previously noted,

Batchelor, however, implicitly denied the statement by saying that he and did not testify.

No. 01-2050 McAdoo v. Elo 21 22 McAdoo v. Elo No. 01-2050

decision was not contrary to federal law, did not unreasonably Section § 2254(e)(2) may or may not preclude remand for

apply federal law and was not based on an unreasonable an evidentiary hearing on the ineffective assistance issue.10

determination of the facts. See Harris, 212 F.3d at 943. We need not reach this issue, however. Even if we could

remand for an evidentiary hearing, doing so would be futile.

McAdoo requests an evidentiary hearing on the ineffective The present record appears to be complete. McAdoo points

assistance of counsel issue and argues that he did not receive to no fact that he could develop on remand that would result

a “full and fair” hearing in state court. Under AEDPA, a in the granting of the writ. His affidavit in the district court

defendant who “failed to develop the factual basis of a claim addresses his claims about erroneous advice, but does not

in State court proceedings” cannot obtain an evidentiary contain anything that relates to the prejudice issue. Nor does

hearing unless he satisfies two statutory exceptions not he identify any such evidence in his briefs; he simply relies

applicable here. 28 U.S.C. § 2254(e)(2). However, when a on his claim of an invalid plea to establish prejudice. Yet the

defendant diligently seeks an evidentiary hearing in the state state court did not unreasonably find his plea to be valid.

courts in the manner prescribed, but the state courts deny him Thus, McAdoo’s claim of prejudice fails.

that opportunity, he can avoid § 2254(e)(2)’s barriers to

obtaining a hearing in federal court. Williams v. Taylor, 529 IV.

U.S. 420, 437 (2000). A defendant fails to develop the factual

basis of a claim only when he is at fault for failing to develop For all the foregoing reasons, we affirm the district court’s

the factual record in state court, as when he or his counsel has denial of McAdoo’s petition for writ of habeas corpus.

not exercised proper diligence, or greater fault, in failing to

develop the record. Id. at 432 ; Moss v. Hofbauer, 286 F.3d

851, 858-59 (6th Cir.), cert. denied, 537 U.S. 1092 (2002).

The test for “failed to develop” is defined as a “lack of

diligence, or some greater fault, attributable to the prisoner or

the prisoner’s counsel” in his or her attempts to discover and

present a claim in the state court. Williams, 529 U.S. at 432;

Thompson v. Bell, 315 F.3d 566, 594 (6th Cir. 2003).

Diligence for purposes of § 2254(e)(2) depends upon

“whether the prisoner made a reasonable attempt, in light of

the information available at the time, to investigate and

pursue claims in the state court.” Williams, 529 U.S. at 435;

Thompson, 315 F.3d at 594. If the petitioner did not fail to

develop the facts in the state court, then the district court may

hold an evidentiary hearing. Williams, 529 U.S. at 433;

Thompson, 315 F.3d at 594; Moss, 286 F.3d at 859.

10

Addressing the effect o f § 22 54(e)(2) on M cAd oo’s request for an

evidentiary hearing would require us to consider the state court’s

evidentiary rulings and M cAdoo ’s decision not to testify at the state court

hearing on his motion to withdraw his plea.