Guerrero v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Guerrero v. United States No. 03-5886

ELECTRONIC CITATION: 2004 FED App. 0306P (6th Cir.)

File Name: 04a0306p.06 Harold B. McDonough, ASSISTANT UNITED STATES

ATTORNEY, Nashville, Tennessee, for Appellee.

ON BRIEF: Caryll S. Alpert, FEDERAL PUBLIC

UNITED STATES COURT OF APPEALS DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.

Harold B. McDonough, William Cohen, ASSISTANT

FOR THE SIXTH CIRCUIT UNITED STATES ATTORNEYS, Nashville, Tennessee, for

_________________ Appellee.

LUIS CARLOS GUERRERO , X _________________

Petitioner-Appellant, -

- OPINION

- No. 03-5886 _________________

v. -

> JOHN D. HOLSCHUH, District Judge. Petitioner Luis

, Carlos Guerrero was convicted of nine charges of cocaine

UNITED STATES OF AMERICA , -

Respondent-Appellee. - trafficking and sentenced to 175 years in prison. Pursuant to

28 U.S.C. § 2255, he moved to vacate his sentence, claiming

N that he was denied the effective assistance of trial counsel

Appeal from the United States District Court because his attorney failed to communicate a plea offer to

for the Middle District of Tennessee at Cookeville. him. Guerrero appeals from the district court’s order denying

No. 97-00040—William J. Haynes, Jr., District Judge. his motion to vacate his sentence. For the reasons set forth

below, we AFFIRM the district court’s order.

Argued: June 8, 2004

I.

Decided and Filed: September 9, 2004

On February 17, 1988, Luis Carlos Guerrero, a native of

Before: BOGGS and MOORE, Circuit Judges; Honduras, was indicted in federal court on nine counts,

HOLSCHUH, District Judge.* including conspiracy to import and distribute cocaine,

possession with intent to distribute more than a kilogram of

_________________ cocaine, and distribution of cocaine. At his first trial, held in

June of 1988, Guerrero was represented by John O’Donnell,

COUNSEL an experienced criminal defense attorney, and by attorney

Francis Clarke. After the jury failed to reach a verdict, the

ARGUED: William J. Steed III, FEDERAL PUBLIC court declared a mistrial. Guerrero was re-tried in July of

DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. 1988.1 This time, the jury convicted him of all nine counts.

1

*

Just prior to the second trial, the gov ernment filed a motio n to

The Honorable John D. Holschuh, United States District Judge for disqualify defense counsel. This motion was based on the governm ent’s

the Southern District of Ohio, sitting by designation. stated intention to call a co-defendant to testify about a m eeting with

1

No. 03-5886 Guerrero v. United States 3 4 Guerrero v. United States No. 03-5886

On August 29, 1988, the district court imposed a prison The motion included a claim, among others, that O’Donnell

sentence of 175 years and fines totaling more than $2 had failed to advise him of a plea offer. In support of this

million.2 claim, Guerrero submitted his wife’s affidavit concerning her

alleged conversation with O’Donnell. In response, the

Guerrero served the first nine years of his sentence at a government submitted O’Donnell’s affidavit, in which he

federal prison in Memphis, Tennessee. While he was there, stated that he no longer had the case file and did not

he exchanged letters with his wife, Nancy, but she visited him remember any plea offer, but that it was his practice to

only once. In March of 1997, he was transferred to a prison communicate all plea offers to his clients.

in Miami, Florida so that he could be closer to his family. He

alleges that shortly thereafter Nancy told him that, after the In an order dated March 4, 1999, the district court refused

second trial, O’Donnell told her that the government had to consider most of the ineffective assistance of counsel

made a plea offer, but O’Donnell had not conveyed the offer claims, noting that Guerrero had the opportunity to assert

to Guerrero because O’Donnell “didn’t think much of it.” them on direct appeal but had failed to do so. The only

Based, in part, on this new information, in 1997 Guerrero portion of Guerrero’s ineffective assistance of counsel claim

filed a motion to vacate his sentence under 28 U.S.C. § 2255.3 that the district court addressed was his claim that O’Donnell

had failed to inform him of O’Donnell’s own prior conviction

The motion alleged that O’Donnell’s performance had been for possession of cocaine. Citing Strickland v. Washington,

deficient in a number of ways, in violation of Guerrero’s right 466 U.S. 668 (1984), the court found that while O’Donnell’s

to the effective assistance of counsel under the Sixth and failure to disclose this conviction may have constituted

Fourteenth Amendments to the United States Constitution. deficient performance, Guerrero had failed to show that this

prejudiced his defense. The district court therefore denied

Guerrero’s motion to vacate his sentence.

O’D onne ll and the anticipated need for O’Do nnell and Clarke to take the This court subsequently issued a certificate of appealability

stand to rebut that testimony. It was eventually decided that O’D onne ll

would represent Guerrero and Clarke would act as a “case agent” who

with respect to Guerrero’s claim that O’Donnell had failed to

would testify if neede d. On direc t appeal, we rejected G uerrero’s claim tell him of an alleged plea offer, noting that this alleged

of ineffective assistance of counsel based on a potential conflict of ineffective assistance of counsel claim was based on a

interest. See United States v. Gu errero, No. 88-5986, 1990 WL 166414 different ground for relief than that which had been

(6th C ir. No v. 1, 19 90)(per curiam ). previously considered on direct appeal. Based on the

2 conflicting affidavits submitted by O’Donnell and Mrs.

The district judge imposed a sentence of 20 years on ea ch of 8 Guerrero, we vacated the district court’s decision with respect

counts and 15 years on 1 count, all sentences to run co nsecutively.

to this one claim and remanded the case for further

3 proceedings on that claim. See United States v. Guerrero,

28 U .S.C. § 225 5 provides, in relev ant part:

No. 99-5735, 2001 WL 1298843 (6th Cir. Aug. 7, 2001).

A prisoner in custody under sentence of a court established by

Act of Congress claiming the right to be released upon the On remand, Judge Aleta Trauger of the United States

ground that the sen tence was imposed in violation of the District Court for the Middle District of Tennessee conducted

Constitution or laws of the United States . . . may move the court an evidentiary hearing to determine whether a plea offer had

which imposed the sentenc e to vacate, set aside o r correct the been extended to Guerrero. At that hearing, held on June 17,

sentence.

No. 03-5886 Guerrero v. United States 5 6 Guerrero v. United States No. 03-5886

2002, Mrs. Guerrero testified that immediately after the The government then called O’Donnell as a witness.4

second trial she asked O’Donnell why her husband had not When asked if the government, at any time, offered a plea

been offered a plea agreement like the ones that had been bargain to Guerrero, O’Donnell replied, “I don’t remember

offered to the co-defendants. She stated that O’Donnell one way or the other.” J.A. at 102. However, he stated that

replied that the government had made an offer, but he did not if an offer had been made, he “would have conveyed it in

tell Guerrero about it because it was not a good offer, and he some manner to Mr. Guerrero,” because it was his practice to

knew that Guerrero would not accept it. Mrs. Guerrero convey all offers, good or bad, to his clients. J.A. at 103-104.

testified that she did not ask what the offer was, and He admitted that it was not uncommon for defendants in drug

O’Donnell did not volunteer that information. She also cases to negotiate plea bargains, and that it would have been

testified that, although she was upset that O’Donnell had not his usual practice to approach the government about the

told her husband about the alleged plea offer, she did not tell possibility. He also noted, however, that sometimes the

her husband about this conversation until mid-May of 1998, government was simply not interested in negotiating, and this

nearly ten years after he was convicted. She explained that could have been one of those cases.

because her husband had been in Memphis and she had been

able to visit him only once, she had not had the occasion to O’Donnell testified that he does not remember discussing

discuss it with him prior to that date. Mrs. Guerrero also the possibility of a plea agreement with Guerrero. Neither did

testified that, after she told her husband about the plea offer, he remember having a conversation with Mrs. Guerrero about

he sent the affidavit to her. Although she remembers signing a plea offer. He testified that her claim – that he told her that

it and sending it back to him, she does not remember having he did not communicate a plea offer to Guerrero – would have

her signature notarized. been inconsistent with his general practice. On cross-

examination, O’Donnell admitted that it was possible that a

At the same hearing, Guerrero testified that his attorneys plea offer had been extended to Guerrero; he simply did not

never discussed a possible plea bargain with him. He was led remember. Likewise, he could not say for certain that he did

to believe that any discussions concerning the possibility of not discuss a plea offer with Mrs. Guerrero; again, he simply

cooperating with the government in exchange for a more did not remember. O’Donnell no longer had Guerrero’s case

lenient sentence had to be initiated by the government. file, and attempts to locate it had been unsuccessful.

Guerrero also stated that if a plea had been offered, he would

have considered taking it. During the first trial, his attorneys Harold McDonough, the Assistant United States Attorney

told him that he could be sentenced to up to 180 years in who prosecuted the case at both trials, also testified at the

prison, yet they encouraged him to go to trial because they hearing. McDonough testified that he had no recollection of

believed that he would win. After the first trial ended in a any settlement discussions or plea offer, and there was no

mistrial, they told him not to worry because, even if he lost documentation in his files to support a finding that such an

the second trial, they had grounds to appeal. offer had been made. He stated that if a plea offer had been

made, he would have remembered; he also believed that he

would have made some notation in the file. McDonough

4

Francis Clarke, co-defense counsel at the first trial, died several

years before the evid entiary he aring.

No. 03-5886 Guerrero v. United States 7 8 Guerrero v. United States No. 03-5886

testified that the government would not have agreed to an to her husband. Furthermore, although Mrs. Guerrero’s

Alford plea, in which Guerrero would have been permitted to affidavit appeared to have been notarized, she testified that

plead guilty while maintaining his innocence.5 McDonough she did not remember having it notarized. Judge Haynes

also testified that it was unlikely that the government would considered Mrs. Guerrero’s testimony and also the testimony

have offered a plea bargain, since it was believed that of John O’Donnell, Harold McDonough, and Allen Brown.

Guerrero was a ringleader in the narcotics trafficking The court stated:

conspiracy and had testified untruthfully at the first trial.

John O’Donnell does not recall the statement, but given

The final witness was Allen Brown, the Drug Enforcement the defense trial strategy and Guerrero’s insistence on his

Administration (“DEA”) investigator assigned to the case. He innocence, that [sic] Court concludes that it seems

testified that he was present for both of Guerrero’s trials. unlikely that the subject would have come up.

Brown testified that if there had been plea negotiations, he McDonough, the prosecutor in this case, does not recall

would have been consulted. According to Brown, there was any such plea offer and the lead agent states that the

no discussion of a plea in this case, and defense counsel never Government never approached Guerrero . . . about a plea.

raised the subject. He stated, “[t]here were no plea

negotiations; I know that to be a fact.” J.A. at 149. J.A. at 31. The court also noted that it was unlikely that a

plea offer would have been extended since: (1) Guerrero was

At the end of the hearing, Judge Trauger recused herself at the top of the cocaine distribution ring, and the government

from the case. She stated that she had not realized that had already entered into plea agreements with several co-

McDonough would be testifying at the hearing. Since she defendants; (2) Guerrero insisted that he was innocent; and

had once been his supervisor at the United States Attorney’s (3) the government believed that Guerrero had testified

office, she believed that it would be improper for her to weigh untruthfully at the first trial. Judge Haynes found that

his credibility against that of the other witnesses. The case Guerrero had failed to establish, by a preponderance of the

was then assigned to Judge William Haynes. The parties evidence, that the government had extended a plea offer. He

agreed that there was no need for another evidentiary hearing, therefore denied Guerrero’s motion to vacate his sentence.

and that Judge Haynes could issue a decision based solely on

the hearing transcript. II.

In an Order and Memorandum dated June 24, 2003, Judge Guerrero now appeals from Judge Haynes’s order denying

Haynes denied Guerrero’s motion to vacate his sentence. In his motion to vacate his sentence. This court has jurisdiction

the Memorandum, the court initially observed that because a to review the district court’s order pursuant to 28 U.S.C.

defendant has the sole authority to decide whether to plead § 2253(a). While we review de novo a district court’s denial

guilty, a defense attorney has a legal duty to disclose all plea of a § 2255 motion, the factual findings made by the district

offers made. The court noted, however, that the only court in determining whether a petitioner has established

evidence of a plea offer in this case came from Mrs. Guerrero, ineffective assistance of counsel are reviewed for clear error.

who apparently waited ten years to disclose this information See Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003);

Thompson v. United States, No. 02-5564, 2004 WL 193162

at **3 (6th Cir. Jan. 30, 2004)(citing McQueen v. Scroggy, 99

5 F.3d 1302, 1310 (6th Cir. 1996)). See also Kinnard v. United

See Alford v. North Carolina, 400 U.S. 25 (19 70).

No. 03-5886 Guerrero v. United States 9 10 Guerrero v. United States No. 03-5886

States, 313 F.3d 933, 935 (6th Cir. 2002)(“On federal habeas credibility of witnesses; it also reflects and preserves the

corpus review, the appeals court reviews the district court’s proper relationship between trial courts and courts of

legal conclusions de novo and its factual findings for clear appeal.

error.”).

Id. (citations omitted).

Although not raised as an issue in his briefs, counsel for

Guerrero stated during oral argument that in this case the The decisions of this Court, however, were not in complete

district court’s factual findings should be given less deference agreement on this issue in 1981. The same year Jabara was

than clear error because Judge Haynes did not conduct the decided, this Court, in Lydle v. United States, 635 F.2d 763

evidentiary hearing and did not have the opportunity to judge (6th Cir. 1981) said:

the demeanor of the witnesses. Counsel contended that, under

these circumstances, the district court’s factual findings The major rationale for deferring to district court

should be subject to de novo review. findings which are not clearly erroneous is that the

district court is able, as we are not, to observe the

The same argument was made and rejected, however, in demeanor of witnesses. Where the trier of fact has

United States v. Jabara, 644 F.2d 574 (6th Cir. 1981), which observed no witnesses, the “clearly erroneous” test is

involved an appeal by the government from a finding of fact inapplicable.

made by the district court on a record that did not involve any

hearing or oral testimony. The government argued that Id. at 766 n.1. (citations omitted). See also K&M Joint

because there was no oral testimony below, the court of Venture v. Smith Int’l, Inc., 669 F.2d 1106, 1119 n.8 (6th Cir.

appeals had “the same ‘cold’ record upon which the trial court 1982)(Holschuh, J., concurring in part and dissenting in

based its decision,” id. at 577, and therefore the court of part)(citing Sixth Circuit cases that have followed the

appeals should review the record de novo to determine approach set forth in Jabara).

whether the district court’s factual finding was supported by

the record. This Court pointed out that Rule 52(a) of the The division of authority in this Circuit was mirrored on a

Federal Rules of Civil Procedure provides that an appellate national level by a conflict of authority among the circuits.

court must not set aside findings of fact of the district court To resolve this conflict, Rule 52(a) was amended in 1985 to

unless those findings are clearly erroneous, and that “[t]his provide that:

standard applies notwithstanding the fact that the appellate

record may consist entirely of documentary evidence.” Id. Findings of fact, whether based on oral or documentary

(citations omitted). The Court further noted that while the evidence, shall not be set aside unless clearly erroneous,

corresponding rule in criminal cases, Rule 23(c), does not and due regard shall be given to the opportunity of the

specify a standard of appellate review, the clearly erroneous trial court to judge the credibility of the witnesses.

test has also been applied with reference to findings of fact in The Advisory Committee, in explaining the rationale for the

criminal proceedings. The Court set forth the basis for the amendment, said:

clearly erroneous test as follows:

To permit courts of appeal to share more actively in the

The “clearly erroneous” test does not derive solely from fact-finding function would tend to undermine the

the trial judge’s superior opportunity to assess the legitimacy of the district courts in the eyes of litigants,

No. 03-5886 Guerrero v. United States 11 12 Guerrero v. United States No. 03-5886

multiply appeals by encouraging appellate retrial of some why Rule 52(a) should not be applied in § 2255 cases.6 The

factual issues, and needlessly reallocate judicial fundamental rationale for Rule 52(a) – as set forth in Jabara

authority. and the Advisory Committee’s note – applies with equal force

to appeals from the district court’s findings of fact in § 2255

Fed. R. Civ. P. 52(a) Advisory Committee’s notes. cases as it does in appeals from the district court’s findings of

fact in other civil cases.

It is interesting to note that the appellant in the present case,

Luis Carlos Guerrero, while serving the sentence in question, Having determined that the “clearly erroneous” standard of

filed a lawsuit against Francis White in the Middle District of review applies to the district court’s finding of fact that the

Tennessee, and raised the same issue as he does in the present government did not make a plea offer to Guerrero’s counsel,

case. In Guerrero v. White, No. 98-6342, 1999 WL 1282481 the final step is to apply that standard to the evidence in this

(6th Cir. Dec. 28, 1999), he appealed an adverse judgment on case. “A finding is ‘clearly erroneous’ when, although there

findings of fact and conclusions of law. With reference to the is evidence to support it, the reviewing court on the entire

standard of review, this Court said: evidence is left with the definite and firm conviction that a

mistake has been committed.” United States v. United States

Guerrero urges us to review the district court’s findings Gypsum Co., 333 U.S. 364, 395 (1948). The burden is on the

and the denial of his post-trial motion de novo because appellant to prove that a finding is clearly erroneous; this

the decision was based principally upon his deposition requires more than a showing of conflicting testimony. See

and other documentary evidence. While some federal Harrison v. Monumental Life Ins. Co., 333 F.3d 717, 722 (6th

courts took this approach prior to 1985, the amendments Cir. 2003).

to Fed.R.Civ.P. 52(a) settled the question and provide

that “[f]indings of fact, whether based on oral or III.

documentary evidence, shall not be set aside unless

clearly erroneous, and due regard shall be given to the Strickland v. Washington, 466 U.S. 668 (1984), sets forth

opportunity of the trial court to judge the credibility of the relevant standard for determining whether a criminal

the witnesses.” Further, we are bound to accept the defendant has received ineffective assistance of counsel. In

factual inferences drawn by the trial court from order to obtain habeas relief based on ineffective assistance of

undisputed facts unless they are clearly erroneous. See counsel, a petitioner must show that: (1) counsel’s

Commissioner v. Duberstein, 363 U.S. 278, 291 (1960). performance was deficient; and (2) counsel’s deficient

performance prejudiced the defense. Id. at 687.

Guerrero, 1999 WL 1282481 at **2.

To satisfy the first prong of Strickland, a petitioner must

In the present case, the parties agreed that a decision could show that his attorney’s performance fell below what would

be made by Judge Haynes based solely on the transcript of the

hearing held by Judge Trauger. For the purpose of deciding

which standard of review applies to Judge Haynes’s findings 6

Rule 12 of the Rules Governing Section 2255 Proceedings for the

of fact, we find no distinction between a transcript of United States D istrict Courts specifically provides that a district court

testimony in a hearing and a “deposition and other “may apply the Federal Rules of Criminal Procedure or the Federal Rules

documentary evidence.” Id. Furthermore, there is no reason of Civil Procedure, whichever it deems most appropriate, to motions filed

under these rules.”

No. 03-5886 Guerrero v. United States 13 14 Guerrero v. United States No. 03-5886

be considered objectively reasonable. Id. at 687-88. The There is admittedly some evidence to support a finding that

Sixth Circuit has previously held that a defense attorney’s the government did extend a plea offer to Guerrero, and that

failure to communicate a plea offer to his or her client O’Donnell failed to communicate it to him. At the

constitutes deficient performance as a matter of law. See evidentiary hearing, Guerrero testified that O’Donnell never

Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2003). discussed the possibility of a plea agreement with him. Mrs.

Therefore, if Guerrero could show that the government Guerrero testified that after her husband was convicted,

extended a plea offer that O’Donnell failed to communicate O’Donnell told her that the government had made a plea offer

to him, he would have established the first prong of the but that he decided not to tell Guerrero about it because he

Strickland test. With respect to the second prong of “didn’t think much of it.” J.A. at 39. O’Donnell conceded

Strickland, a petitioner may establish the requisite prejudice that Mrs. Guerrero might be correct; he simply did not

by demonstrating a “reasonable probability” that if he had remember one way or another whether a plea offer had been

been notified of the plea offer, he would have accepted it. Id. made. He conceded that it was his practice to engage in plea

See also Magana v. Hofbauer, 263 F.3d 542, 547-48 (6th Cir. negotiations with the government. He also acknowledged

2001); Turner v. Tennessee, 858 F.2d 1201, 1206 (6th Cir. that he had withheld other information from Guerrero,

1988), vacated on other grounds, 492 U.S. 902 (1989), including disclosure of his own arrest for possession of

reinstated on other grounds, 940 F.2d 1000, 1002 (6th Cir. cocaine. Guerrero contends that O’Donnell’s failure to

1991). disclose this information makes it more likely that he also

failed to convey the alleged plea offer.

On appeal, Guerrero argues that he was denied effective

assistance of counsel due to O’Donnell’s failure to inform There is, however, a great deal of evidence to support a

him of the alleged plea offer. He further claims that if finding that no plea offer was ever made. Allen Brown, the

O’Donnell had conveyed the alleged offer to him, there is a DEA Agent who participated in both trials, testified that if a

reasonable probability that he would have accepted it. The plea offer had been made, he would have known about it. He

threshold issue in this case, of course, is whether the stated, “[t]here were no plea negotiations; I know that to be a

government ever extended a plea offer to Guerrero through fact.” J.A. at 149. Likewise, Assistant United States

O’Donnell. This is a purely factual issue. The district court Attorney Harold McDonough testified that he would have

made the factual finding that no such offer had been made. remembered if a plea offer had been extended and probably

would have made some notation in the file. He did not

On consideration of the entire record, including the ten-year remember any settlement discussions, and there was no

delay in the assertion of this claim and the transcript of the documentation in the file indicating that a plea offer had been

testimony of all witnesses who testified at the evidentiary made. McDonough also testified that, because the

hearing, we are not left “with the definite and firm conviction government believed that Guerrero was one of the kingpins in

that a mistake has been committed.” We find, therefore, that the cocaine distribution ring and had testified untruthfully at

the district court’s finding of fact regarding the alleged plea the first trial, it was unlikely that the government would have

offer was not clearly erroneous.7 extended a plea offer to him.

O’Donnell testified that it was his practice to attempt to

7 negotiate a plea bargain. However, he explained that there are

Even if we reviewed this factual finding de novo, as urged by

Guerrero , we wo uld rea ch the sa me conclusion.

“some cases where it was clear that the prosecution didn’t

No. 03-5886 Guerrero v. United States 15 16 Guerrero v. United States No. 03-5886

want to make a deal. I don’t remember if this was one of testified that they did not remember extending a plea offer to

them.” J.A. at 115. He does not remember discussing a plea Guerrero, and to the testimony of John O’Donnell, who

agreement with either Mr. or Mrs. Guerrero. He did testify, testified that he had no recollection of plea negotiations in this

however, that it was his practice to convey all plea offers to case. The court found that this testimony was consistent with

his clients because “[i]t’s his choice, not mine.” J.A. at 104. the government’s theory. It noted:

Therefore, if the government had made an offer, O’Donnell

would have conveyed it to Guerrero, according to his First, the evidence is that Guerrero was at the top of the

testimony, even if he did not believe it was a good one. distribution ring that the government was prosecuting

and had pleas from one or more participants in this

The district court noted that the only evidence of a plea distribution ring. Second, Guerrero insisted upon his

offer came from Mrs. Guerrero. The court chose to discredit innocence, and such an offer would be inconsistent with

her testimony for several reasons. Mrs. Guerrero testified that any discussion of a plea by his counsel with the

she did not know the specific terms of the alleged plea offer; Government. Third, there had been a mistrial at which

O’Donnell did not tell her, and she did not ask. She testified Guerrero testified and in the Government’s view that

that even though she was upset when she learned that testimony was untruthful. A plea offer from the

O’Donnell had failed to tell her husband of the alleged plea Government based upon untruthful testimony by

offer, she did not tell her husband about this conversation Guerrero seems unlikely under these circumstances.

until ten years later. Furthermore, when questioned about the

affidavit, she stated that she remembered signing it and J.A. at 30.

sending it back to her husband, but she did not remember

having it notarized. Although the issue was not raised by either of the parties,

we find that the district court erred in considering Guerrero’s

Guerrero contends that the district court should not have insistence upon his innocence as a factor in determining

discredited his wife’s testimony just because she waited ten whether a plea offer was extended to him. We touched on

years to tell him about the plea offer. As a lay person, she this issue in Griffin v. United States, 330 F.3d 733 (6th Cir.

would not have understood the legal significance of 2003). In Griffin, it was undisputed that defendant’s counsel

O’Donnell’s alleged failure to communicate the plea offer. had failed to convey a plea offer to him; the first prong of

Furthermore, until her husband was transferred to Miami, she Strickland was therefore satisfied. The only question was

did not have the opportunity to communicate with him on a whether Griffin’s continued insistence upon his innocence

regular basis. She did, however, visit him once and foreclosed a finding that, if the offer had been conveyed to

exchanged letters with him. There was certainly sufficient him, he would have accepted it. See 330 F.3d at 738. We

communication between Mrs. Guerrero and her husband held that his repeated declarations of innocence were not

during a ten-year period that she could have told Guerrero dispositive on this issue and noted:

about a plea offer if, in fact, one had been made even if, as

claimed, she did not know the legal significance of Defendants must claim innocence right up to the point of

O’Donnell’s failure to convey it to Guerrero. accepting a guilty plea, or they would lose their ability to

make any deal with the government. It does not make

The district court chose to give more weight to the sense to say that a defendant must admit guilt prior to

testimony of Harold McDonough and Allen Brown, who accepting a deal on a guilty plea. It therefore does not

No. 03-5886 Guerrero v. United States 17

make sense to say that a defendant's protestations of

innocence belie his later claim that he would have

accepted a guilty plea. Furthermore, a defendant must be

entitled to maintain his innocence throughout trial under

the Fifth Amendment.

Id. While Griffin dealt with the prejudice prong of Strickland,

the same reasoning applies with equal force here. To

paraphrase Griffin, Guerrero was entitled to maintain his

innocence at all times. If he did not maintain his innocence,

he would have lost any ability to make a deal with the

government.

Even though the district court erred in considering

Guerrero’s repeated claims of innocence as a factor in

determining whether the government extended a plea offer to

him, this was harmless error. As discussed above, there was

more than enough additional evidence to support the district

court’s finding that no plea offer was extended in this case.

After reviewing the entire record, we are not left with a

definite and firm conviction that the district court made a

mistake in finding that the government did not extend a plea

offer to Guerrero. It follows that O’Donnell cannot be

charged with failing to communicate a non-existent offer to

his client. Because Guerrero has failed to show that

O’Donnell’s performance was deficient, he has failed to

satisfy the first prong of Strickland.

IV.

We conclude that the district court’s factual finding that the

government did not extend a plea offer to Guerrero is not

clearly erroneous. We therefore AFFIRM the district court’s

order denying Guerrero’s motion to vacate his sentence based

on ineffective assistance of counsel.