Smith v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Smith v. United States No. 01-5215

ELECTRONIC CITATION: 2003 FED App. 0387P (6th Cir.)

File Name: 03a0387p.06 STATES ATTORNEY, Lexington, Kentucky, for Appellee.

ON BRIEF: Cheryl J. Sturm, Chadds Ford, Pennsylvania,

for Appellant. Charles P. Wisdom, Jr., ASSISTANT

UNITED STATES COURT OF APPEALS UNITED STATES ATTORNEY, Lexington, Kentucky, for

Appellee.

FOR THE SIXTH CIRCUIT

_________________ _________________

EDDIE D. SMITH, X OPINION

Petitioner-Appellant, - _________________

-

- No. 01-5215 DAVID M. LAWSON, District Judge. The petitioner

v. - appeals the denial of his motion to vacate sentence filed under

> 28 U.S.C. § 2255. He was convicted by a jury of several

, counts of sexual misconduct perpetrated against female

UNITED STATES OF AMERICA , -

Respondent-Appellee. - inmates at a federal prison while he was employed at the

facility as a prison guard. He also was found guilty of lying

N during a hearing into his misconduct before the Merit

Appeal from the United States District Court Systems Protection Board. The principal ground for Smith’s

for the Eastern District of Kentucky at Lexington. motion is that his attorney was constitutionally ineffective

No. 99-00086—Karl S. Forester, Chief District Judge. because he failed to properly advise and counsel Smith

concerning a pretrial guilty plea offer made by the

Argued: March 12, 2003 government that would have resulted in a sentence

considerably shorter than the 262 months Smith ultimately

Decided and Filed: November 3, 2003 received. We believe that the factual record before the district

court is not sufficient to properly adjudicate the motion. We

Before: MOORE and CLAY, Circuit Judges; LAWSON, therefore vacate the lower court’s judgment and remand for

District Judge.* an evidentiary hearing.

_________________ I.

COUNSEL On April 20, 1995, a federal grand jury sitting in the

Eastern District of Kentucky returned a multi-count

ARGUED: Cheryl J. Sturm, Chadds Ford, Pennsylvania, for indictment against petitioner Eddie D. Smith. A superseding

Appellant. John Patrick Grant, ASSISTANT UNITED indictment was handed down on August 16, 1995, which

charged Smith with eight counts of sexual misconduct and

one count of perjury. Counts one through five alleged that

*

Smith engaged in sexual acts by force with four different

The Honorable David M. Lawson, United States District Judge for inmates while he was employed as a correctional officer at the

the Eastern D istrict of M ichigan, sitting by de signation.

1

No. 01-5215 Smith v. United States 3 4 Smith v. United States No. 01-5215

Federal Medical Center (FMC) in Lexington, Kentucky, all in months imprisonment on count six, with three months of

violation of 18 U.S.C. § 2241(a)(1). Counts six and seven supervised release; six months imprisonment on count eight,

charged that Smith engaged in sex acts with one of the with three years of supervised release; and sixty months

previously-named inmates while she was under his authority, imprisonment on count nine, with three years of supervised

contrary to 18 U.S.C. § 2243(b). Count eight alleged that release. Count four was dismissed on the government’s

Smith engaged in sexual contact with yet a different inmate motion. The sentences were all to be served concurrently.

while she was officially detained and under his supervision in We affirmed Smith’s convictions on direct appeal on

violation of 18 U.S.C.§ 2244(a)(4). Finally, count nine March 20, 1998 in an unpublished opinion. United States v.

alleged that, on or about January 12, 1994, Smith gave false Smith, No. 96-5385, 1998 WL 136564 (6th Cir. Mar. 19,

material testimony under oath before United States 1998).

Administrative Law Judge Jack E. Salyer, during a Merit

Systems Protection Board proceeding concerning the removal On March 5, 1999, the petitioner filed a motion seeking to

of Smith from his position as a correctional officer at the vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

Lexington Medical Center, contrary to 18 U.S.C. § 1621. § 2255. In the motion Smith alleges that defense counsel was

ineffective for failing to advise him to accept the twenty-

At his arraignment, Smith was represented by the same month guilty plea agreement offered by the government, and

attorney that had appeared for him at the prior proceeding for failing to interview and call as a defense witness a FMC

before the Merit Systems Protection Board in which Smith inmate who would have testified that the government’s

was removed from his job with the Bureau of Prisons on witnesses fabricated the stories about Smith. Smith further

account of the same misconduct that led to his indictment. contended in the motion that his convictions violated the Fifth

Smith contends, and the government does not dispute, that Amendment’s prohibition against double jeopardy.

sometime before the indictment was returned, the prosecution

offered to allow Smith to plead guilty to a one-count The government responded to the motion on April 20,

information charging perjury with a maximum recommended 1999, attaching an affidavit of attorney Stephens. The

sentence of twenty months, in exchange for abandoning the affidavit states that Stephens’ conversations with predecessor

prosecution of the sexual misconduct offenses. Smith did not counsel indicated that Smith was aware, prior to the filing of

accept that offer. About one month after his arraignment, his the indictment, that an offer was on the table for a guilty plea

lawyer withdrew and attorney Andrew M. Stephens was to the perjury charge. Stephens Aff. at 1, J.A. at 69. The

appointed to represent Smith. Stephens avers that the guilty affidavit further states that “Mr. Smith had been fully active

plea offer remained open until approximately ten days before in participation of the pension denial hearings and his

trial. potential wrongful termination. It is also relevant to the

undersigned that Mr. Smith’s wife accompanied him on every

Trial commenced on September 25, 1995. Smith testified office conference, discovery conference, and discovery

on his own behalf, and maintained his innocence of the investigation conference of which there were at least fifteen

charges. However, the jury convicted Smith as charged on all or twenty.” Ibid. “At no time,” Stephens insists, “during the

counts but count seven, for which he was found not guilty. course of lengthy investigations, review of literally reams of

On March 8, 1996, Smith was sentenced to multiple terms of documents and travel between various Federal Correctional

262 months imprisonment on counts one, two, three and five, Institutions accomplished by the undersigned in investigation

with thirty-six months of supervised release to follow; twelve and defense of this case, did Mr. Smith ever consider the

No. 01-5215 Smith v. United States 5 6 Smith v. United States No. 01-5215

entry of a guilty plea.” Stephens Aff. at 2, J.A. at 70. The would have pleaded guilty even if he had received proper

affidavit speculates that “Smith at some point was attempting advice from his attorney. Ibid. The district court also

to save face in front of his wife during the pendency of their rejected Smith’s claim that Stephens was ineffective for

marriage and thus, that maybe [sic] the motivation for his failing to interview a witness, and that prosecuting Smith

denial of any desire to entry [sic] a guilty plea.” Ibid. following the administrative job-removal proceedings

Stephens also states, somewhat cryptically, that “[i]t would be violated the Double Jeopardy Clause.

incorrect for Mr. Smith to assert that their [sic] wasn’t some

talk of a guilty plea since the offer was made and held open The district court’s judgment against the petitioner was

by the United States until approximately ten days before timely appealed on February 5, 2001. The issues raised relate

trial.” Ibid. only to the question of whether Stephens’ advice to Smith

concerning the government’s guilty plea offer was

The evidence against Smith, Stephens insists, was constitutionally adequate, and whether the district court erred

overwhelming. He further states that he prepared with Smith by not conducting an evidentiary hearing to resolve that

more than he has with any other client. When the guilty plea question.

offer was discussed, “it was discussed with disgust.”

Stephens Aff. at 4, J.A. at 72. There was no doubt in his II.

mind, Stephens states, that Smith “never considered a plea

though a plea was discussed.” Stephens Aff. at 3-4, J.A. at On appeal of the district court’s denial of a motion to

71-72. “[N]ever ever was undersigned counsel directed to vacate, alter, or amend sentence pursuant to 28 U.S.C. § 2255,

explore negotiated plea offers even though same was made.” we review the lower court’s legal conclusions de novo and its

Stephens Aff. at 3, J.A. at 71. factual findings for clear error. Nagi v. United States, 90 F.3d

130, 134 (6th Cir. 1996). The district court’s decision

On March 28, 2000, Magistrate Judge James B. Todd filed whether to hold an evidentiary hearing on a Section 2255

a report recommending that the motion be denied. After motion is reviewed under the abuse of discretion standard.

considering the petitioner’s exceptions to that report, and the Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.

government’s response to those exceptions, the district court 1999).

adopted the report in an Opinion and Order filed January 11,

2001. No evidentiary hearing was conducted in the lower A prisoner who files a motion under Section 2255

court. The district court denied the motion on the ground that challenging a federal conviction is entitled to “a prompt

the petitioner had failed to show prejudice as required by hearing” at which the district court is to “determine the issues

Strickland v. Washington, 466 U.S. 668, 694 (1984), because and make findings of fact and conclusions of law with respect

there was no “objective evidence in the record demonstrating thereto.” 28 U.S.C. § 2255. The hearing is mandatory

a reasonable probability that, but for his counsel’s lack of “unless the motion and the files and records of the case

advice, he would have accepted the government’s offer.” conclusively show that the prisoner is entitled to no relief.”

Opinion and Order at 3; J.A. at 112. The district court Fontaine v. United States, 411 U.S. 213, 215 (1973) (citation

reasoned that Smith was aware of the government’s offer and omitted). See also Blanton v. United States, 94 F.3d 227, 235

rejected it, and instead protested his innocence at trial (which (6th Cir. 1996) (holding that “evidentiary hearings are not

resulted in a two-point offense level enhancement for required when . . . the record conclusively shows that the

obstruction of justice), and therefore it was unlikely that he petitioner is entitled to no relief.”). The statute “does not

No. 01-5215 Smith v. United States 7 8 Smith v. United States No. 01-5215

require a full blown evidentiary hearing in every instance . . . . The second, or “prejudice,” requirement . . . focuses on

Rather, the hearing conducted by the court, if any, must be whether counsel's constitutionally ineffective

tailored to the specific needs of the case, with due regard for performance affected the outcome of the plea process. In

the origin and complexity of the issues of fact and the other words, in order to satisfy the “prejudice”

thoroughness of the record on which (or perhaps, against requirement, the defendant must show that there is a

which) the section 2255 motion is made.” United States v. reasonable probability that, but for counsel’s errors, he

Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993). Furthermore, would not have pleaded guilty and would have insisted

“when the trial judge also hears the collateral proceedings . . . on going to trial.

that judge may rely on his recollections of the trial in ruling

on the collateral attack.” Blanton, 94 F.3d at 235 (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977)). However,

“[w]here there is a factual dispute, the habeas court must hold In this case, the trial court summarily rejected Smith’s

an evidentiary hearing to determine the truth of the ineffective assistance of counsel claim for failure of proof on

petitioner's claims.” Turner v. United States, 183 F.3d 474, this second element. The lower court found that a defendant’s

477 (6th Cir. 1999) (citing Paprocki v. Foltz, 869 F.2d 281, “own self-serving testimony” that he would have pleaded

287 (6th Cir.1989)). We have observed that a Section 2255 guilty if properly advised is not sufficient; in addition, the

petitioner’s burden “for establishing an entitlement to an lower court required that the defendant also present “objective

evidentiary hearing is relatively light.” Id. at 477. evidence” to establish prejudice. Opinion and Order at 3; J.A.

at 112. However, we recently stated: “Although some circuits

Here, Smith seeks a hearing on the question of whether his have held that a defendant must support his own assertion that

attorney was constitutionally ineffective. Such claims are he would have accepted the offer with additional objective

guided by the now familiar two-element test set forth by the evidence, we in this circuit have declined to adopt such a

Supreme Court in Strickland v. Washington, 466 U.S. 668 requirement.” Griffin v. United States, 330 F.3d 733, 737

(1984). First, a petitioner must prove that counsel’s (6th Cir 2003) (quoting Dedvukovic v. Martin, 36 Fed.Appx.

performance was deficient, which “requires showing that 795, 798 (6th Cir.2002) (unpublished)).

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the The district judge in this case, who also presided over

Sixth Amendment.” Id. at 687. The Court explained that to Smith’s trial, found that Smith was aware of the plea offer,

establish deficient performance, a petitioner must identify acts rejected it, and maintained his innocence throughout the

that were “outside the wide range of professionally competent proceedings, including to the point of testifying under oath at

assistance.” Id. at 690. Second, a petitioner must show that trial that he did not engage in the conduct described by his

counsel’s deficient performance prejudiced the petitioner. A accusers, which earned him a two-point enhancement of his

petitioner may establish prejudice by “showing that counsel’s offense level for obstruction of justice at sentencing. This

errors were so serious as to deprive the defendant of a fair point was addressed in Griffin as well, where we observed

trial.” Id. at 687. that defendants may enter a guilty plea while maintaining

innocence under North Carolina v. Alford, 400 U.S. 25, 33

The Supreme Court has applied this test to evaluate the (1970) (stating that “reasons other than the fact that he is

performance of attorneys representing guilty-pleading guilty may induce a defendant to so plead . . . and he must be

defendants, with special attention to the second element: permitted to judge for himself in this respect”); many

No. 01-5215 Smith v. United States 9 10 Smith v. United States No. 01-5215

defendants believe that they must maintain innocence right up seventeen-and-a-half years the defendant did receive was

to the point of pleading guilty in order to fortify their objective evidence that a plea would have been accepted).

bargaining positions; and the Fifth Amendment gives

defendants the right to assert their innocence throughout a In this case, the petitioner concedes that he was aware of

trial. Griffin, 330 F.3d at 738. We concluded, therefore, that the government’s guilty plea offer. However, citing Boria v.

it “does not make sense to say that a defendant’s protestations Keane, 99 F.3d 492 (2d Cir. 1996), Smith contends that his

of innocence belie his later claim that he would have accepted attorney was ineffective because, in light of the overwhelming

a guilty plea. . . . These declarations of innocence are . . . not evidence of guilt, the attorney did not insist that Smith plead

dispositive on the question.” Ibid. Protestations of innocence guilty and accept the twenty-month plea bargain. We do not

throughout trial are properly a factor in the trial court’s believe this to be a proper basis upon which to find deficient

analysis, however they do not, by themselves, justify performance by defense counsel. The decision to plead guilty

summary denial of relief without an evidentiary hearing. See – first, last, and always – rests with the defendant, not his

Cullen v. United States, 194 F.3d 401, 404-07 (2d Cir. 1999). lawyer. Although the attorney may provide an opinion on the

strength of the government’s case, the likelihood of a

In Griffin, there was no dispute over the fact that the successful defense, and the wisdom of a chosen course of

petitioner’s trial counsel failed to convey a pretrial guilty plea action, the ultimate decision of whether to go to trial must be

offer, and that the petitioner proceeded to trial, where he made by the person who will bear the ultimate consequence

testified that he was innocent. The panel noted that the of a conviction.

substantial disparity between the five-year sentence offered

by the government and the 156 months Griffin ultimately On the other hand, the attorney has a clear obligation to

received was enough to warrant further exploration of the fully inform her client of the available options. We have held

issue at an evidentiary hearing of the question of the that the failure to convey a plea offer constitutes ineffective

reasonable likelihood that Griffin, competently advised, assistance, see Griffin, 330 F.3d at 734, but in the context of

would have pleaded guilty. Griffin, 330 F.3d at 739. Other the modern criminal justice system, which is driven largely by

panels in this and other circuits have pointed to the disparity the Sentencing Guidelines, more is required. A criminal

between the plea offer and the potential sentence exposure as defendant has a right to expect at least that his attorney will

strong evidence of a reasonable probability that a properly review the charges with him by explaining the elements

advised defendant would have accepted a guilty plea offer, necessary for the government to secure a conviction, discuss

despite earlier protestations of innocence. See Magana v. the evidence as it bears on those elements, and explain the

Hofbauer, 263 F.3d 542, 552-53 (6th Cir. 2001) (finding the sentencing exposure the defendant will face as a consequence

difference between a ten- and twenty-year sentence of exercising each of the options available. In a system

significant); United States v. Day, 969 F.2d 39 (3d Cir. 1992) dominated by sentencing guidelines, we do not see how

(finding ineffective assistance of counsel when trial counsel sentence exposure can be fully explained without completely

mistakenly described the penalties at trial as ten years rather exploring the ranges of penalties under likely guideline

than the twenty-two years the defendant received at scoring scenarios, given the information available to the

sentencing, and where a plea offer of five years had been defendant and his lawyer at the time. See United States v.

made); United States v. Gordon, 156 F.3d 376, 377-81 (2d Day, 969 F.2d 39, 43 (3d Cir. 1992) (observing that “the

Cir. 1998) (holding that the wide disparity between the ten- Sentencing Guidelines have become a critical, and in many

year sentence recommended by the plea agreement and the cases, dominant facet of federal criminal proceedings” such

No. 01-5215 Smith v. United States 11 12 Smith v. United States No. 01-5215

that “familiarity with the structure and basic content of the our view, was necessary for a proper consideration of the

Guidelines (including the definition and implications of guilty plea offer – was ever conveyed to Smith before trial.

career offender status) has become a necessity for counsel

who seek to give effective representation.”). The criminal The failure of defense counsel to “provide professional

defendant has a right to this information, just as he is entitled guidance to a defendant regarding his sentence exposure prior

to the benefit of his attorney’s superior experience and to a plea may constitute deficient assistance.” Moss v. United

training in the criminal law. States, 323 F.3d 445, 474 (6th Cir. 2003). See also Magana,

263 F.3d at 550 (holding that the defense counsel’s erroneous

The record in this case leaves us in considerable doubt over advice concerning sentence exposure “fell below an objective

the nature and quality of the advice Smith received before he standard of reasonableness under prevailing professional

made his final decision to reject the government’s proposed norms”); Day, 969 F.2d at 43 (holding that incorrect advice

plea bargain. Attorney Stephens’ affidavit states that Smith about sentence exposure as a potential career offender

was aware of a plea offer, and that Smith was predisposed undermined the defendant’s ability to make an intelligent

against a plea to save face in front of his wife, but it does not decision about whether to accept a plea offer). Whether the

state that Stephens actually discussed the terms of the petitioner had this information before he rejected the plea

agreement with Smith. More importantly, the affidavit does offer is also an important factor in the consideration of the

not state that Stephens informed Smith of the dramatically reasonable likelihood that a properly counseled defendant

higher sentence potential (over ten times as much would have accepted the government’s guilty plea offer.

incarceration) to which Smith was exposed if he were

convicted of even one of many charges. The affidavit does Smith should have been given the opportunity at an

not claim that Stephens at any time expressed to Smith how evidentiary hearing to develop a record on these factual

unlikely he was to prevail at trial. issues in the lower court.

Stephens stated in his affidavit that Smith “knew by virtue III.

of letters sent from [Stephens] to him possibility [sic] of the

steep sentence which he ultimately got.” Stephens Aff., J.A. The petitioner asks that the matter be remanded to a

at 71. However, the only such correspondence in the record different judge to preserve the appearance of fairness.

came from Stephens after the trial. In his October 17, 1995 Although we have the authority to grant that request under 28

letter, Stephens wrote to Smith: “I wanted to formally advise U.S.C. § 2106, it is an “extraordinary power and should be

you of what I believe the relevant sentencing guideline rarely invoked.” Armco, Inc. v. United Steelworkers of

provisions are and to confirm with you the substance of my America, AFL-CIO, Local 169, 280 F.3d 669, 683 (6th Cir.

meeting with [the probation officer] and to give you your 2002) (citation omitted). The factors that we consider are

various options at this point.” Letter of Oct. 17, 1995 from “(1) whether the original judge would reasonably be expected

Stephens to Smith, J.A. at 105. There is no reference in the to have substantial difficulty in putting out of his mind

letter to earlier conversations or to pretrial discussions of the previously expressed views or findings; (2) whether

sentencing potential in the case. There is no other evidence reassignment is advisable to preserve the appearance of

that Smith’s sentencing exposure upon conviction of the justice; and (3) whether reassignment would entail waste and

charges in the superseding indictment – information that, in duplication out of proportion to any gain in preserving the

appearance of fairness.” Sagan v. United States, 342 F.3d

No. 01-5215 Smith v. United States 13

493, 501 (6th Cir. 2003) (citations omitted). See also Brown

v. Crowley, 312 F.3d 782, 791-92 (6th Cir. 2002).

None of these factors support the request to remand this

case to a different district court judge. The record contains no

evidence that the district court judge would have difficulty

considering the case on remand in an objective manner. In

fact, he is probably in a superior position to evaluate the

claims, since he presided over Smith’s criminal trial. His

familiarity with the case is no evidence of a lack of propriety

or fairness, since, as we observed earlier, the habeas judge

may rely on his or her memory of the trial when relevant to

the issues on collateral review. See Blanton, 94 F.3d at 235.

To require a different district court judge to become familiar

with the factual and procedural history of this case would

waste judicial resources.

For the foregoing reasons, we VACATE the judgment of

the district court denying the petitioner’s motion to vacate his

sentence under 28 U.S.C. § 2255, and REMAND to the

district court for an evidentiary hearing.