Smith v. United States, 348 F.3d 545, 2003 Fed.App. 0387 (6th Cir. 11/03/2003)

[1] UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

[2] No. 01-5215

[3] 348 F.3d 545, 2003

[4] November 03, 2003

[5] EDDIE D. SMITH, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.

[6] Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 99-00086--Karl S. Forester, Chief District Judge.

[7] Counsel

[8] Argued: Cheryl J. Sturm, Chadds Ford, Pennsylvania, for Appellant.

[9] John Patrick Grant, Assistant United States Attorney, Lexington, Kentucky, for Appellee.

[10] Onbrief: Cheryl J. Sturm, Chadds Ford, Pennsylvania, for Appellant.

[11] Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, Kentucky, for Appellee.

[12] Before: Moore and Clay, Circuit Judges; Lawson, District Judge.*fn1

[13] The opinion of the court was delivered by: David M. Lawson, District Judge

[14] RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206

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

[16] Argued: March 12, 2003

[17] OPINION

[18] The petitioner 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 inmates at a federal prison while he was employed at the facility as a prison guard. He also was found guilty of lying during a hearing into his misconduct before the Merit Systems Protection Board. The principal ground for Smith's motion is that his attorney was constitutionally ineffective because he failed to properly advise and counsel Smith concerning a pretrial guilty plea offer made by the government that would have resulted in a sentence considerably shorter than the 262 months Smith ultimately received. We believe that the factual record before the district court is not sufficient to properly adjudicate the motion. We therefore vacate the lower court's judgment and remand for an evidentiary hearing.

[19] I.

[20] On April 20, 1995, a federal grand jury sitting in the Eastern District of Kentucky returned a multi-count indictment against petitioner Eddie D. Smith. A superseding 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 inmates while he was employed as a correctional officer at the Federal Medical Center (FMC) in Lexington, Kentucky, all in violation of 18 U.S.C. § 2241(a)(1). Counts six and seven charged that Smith engaged in sex acts with one of the previously-named inmates while she was under his authority, contrary to 18 U.S.C. § 2243(b). Count eight alleged that Smith engaged in sexual contact with yet a different inmate while she was officially detained and under his supervision in violation of 18 U.S.C.§ 2244(a)(4). Finally, count nine alleged that, on or about January 12, 1994, Smith gave false material testimony under oath before United States Administrative Law Judge Jack E. Salyer, during a Merit Systems Protection Board proceeding concerning the removal of Smith from his position as a correctional officer at the Lexington Medical Center, contrary to 18 U.S.C. § 1621.

[21] At his arraignment, Smith was represented by the same attorney that had appeared for him at the prior proceeding before the Merit Systems Protection Board in which Smith was removed from his job with the Bureau of Prisons on account of the same misconduct that led to his indictment. Smith contends, and the government does not dispute, that sometime before the indictment was returned, the prosecution offered to allow Smith to plead guilty to a one-count information charging perjury with a maximum recommended sentence of twenty months, in exchange for abandoning the prosecution of the sexual misconduct offenses. Smith did not accept that offer. About one month after his arraignment, his lawyer withdrew and attorney Andrew M. Stephens was appointed to represent Smith. Stephens avers that the guilty plea offer remained open until approximately ten days before trial.

[22] Trial commenced on September 25, 1995. Smith testified on his own behalf, and maintained his innocence of the charges. However, the jury convicted Smith as charged on all counts but count seven, for which he was found not guilty. On March 8, 1996, Smith was sentenced to multiple terms of 262 months imprisonment on counts one, two, three and five, with thirty-six months of supervised release to follow; twelve months imprisonment on count six, with three months of supervised release; six months imprisonment on count eight, with three years of supervised release; and sixty months imprisonment on count nine, with three years of supervised release. Count four was dismissed on the government's motion. The sentences were all to be served concurrently. We affirmed Smith's convictions on direct appeal on March20, 1998 in an unpublished opinion. United States v. Smith, No. 96-5385, 1998 WL 136564 (6th Cir. Mar. 19, 1998).

[23] On March 5, 1999, the petitioner filed a motion seeking to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §2255. In the motion Smith alleges that defense counsel was ineffective for failing to advise him to accept the twenty-month guilty plea agreement offered by the government, and for failing to interview and call as a defense witness a FMC inmate who would have testified that the government's witnesses fabricated the stories about Smith. Smith further contended in the motion that his convictions violated the Fifth Amendment's prohibition against double jeopardy.

[24] The government responded to the motion on April 20, 1999, attaching an affidavit of attorney Stephens. The affidavit states that Stephens' conversations with predecessor counsel indicated that Smith was aware, prior to the filing of the indictment, that an offer was on the table for a guilty plea to the perjury charge. Stephens Aff. at 1, J.A. at 69. The affidavit further states that "Mr. Smith had been fully active in participation of the pension denial hearings and his potential wrongful termination. It is also relevant to the undersigned that Mr. Smith's wife accompanied him on every office conference, discovery conference, and discovery investigation conference of which there were at least fifteen or twenty." Ibid. "At no time," Stephens insists, "during the course of lengthy investigations, review of literally reams of documents and travel between various Federal Correctional Institutions accomplished by the undersigned in investigation and defense of this case, did Mr. Smith ever consider the entry of a guilty plea." Stephens Aff. at 2, J.A. at 70. The affidavit speculates that "Smith at some point was attempting to save face in front of his wife during the pendency of their marriage and thus, that maybe [sic] the motivation for his denial of any desire to entry [sic] a guilty plea." Ibid. Stephens also states, somewhat cryptically, that "[i]t would be 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 by the United States until approximately ten days before trial." Ibid.

[25] The evidence against Smith, Stephens insists, was overwhelming. He further states that he prepared with Smith more than he has with any other client. When the guilty plea offer was discussed, "it was discussed with disgust." Stephens Aff. at 4, J.A. at 72. There was no doubt in his mind, Stephens states, that Smith "never considered a plea though a plea was discussed." Stephens Aff. at 3-4, J.A. at 71-72. "[N]ever ever was undersigned counsel directed to explore negotiated plea offers even though same was made." Stephens Aff. at 3, J.A. at 71.

[26] On March 28, 2000, Magistrate Judge James B. Todd filed a report recommending that the motion be denied. After considering the petitioner's exceptions to that report, and the government's response to those exceptions, the district court adopted the report in an Opinion and Order filed January 11, 2001. No evidentiary hearing was conducted in the lower court. The district court denied the motion on the ground that the petitioner had failed to show prejudice as required by Strickland v. Washington, 466 U.S. 668, 694 (1984), because there was no "objective evidence in the record demonstrating a reasonable probability that, but for his counsel's lack of advice, he would have accepted the government's offer." Opinion and Order at 3; J.A. at 112. The district court reasoned that Smith was aware of the government's offer and rejected it, and instead protested his innocence at trial (which resulted in a two-point offense level enhancement for obstruction of justice), and therefore it was unlikely that he would have pleaded guilty even if he had received proper advice from his attorney. Ibid. The district court also rejected Smith's claim that Stephens was ineffective for failing to interview a witness, and that prosecuting Smith following the administrative job-removal proceedings violated the Double Jeopardy Clause.

[27] The district court's judgment against the petitioner was timely appealed on February 5, 2001. The issues raised relate only to the question of whether Stephens' advice to Smith concerning the government's guilty plea offer was constitutionally adequate, and whether the district court erred by not conducting an evidentiary hearing to resolve that question.

[28] II.

[29] On appeal of the district court's denial of a motion to vacate, alter, or amend sentence pursuant to 28 U.S.C. § 2255, we review the lower court's legal conclusions de novo and its factual findings for clear error. Nagi v. United States, 90 F.3d 130, 134 (6th Cir. 1996). The district court's decision whether to hold an evidentiary hearing on a Section 2255 motion is reviewed under the abuse of discretion standard. Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999).

[30] A prisoner who files a motion under Section 2255 challenging a federal conviction is entitled to "a prompt hearing" at which the district court is to "determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255. The hearing is mandatory "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Fontaine v. United States, 411 U.S. 213, 215 (1973) (citation omitted). See also Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996) (holding that "evidentiary hearings are not required when . . . the record conclusively shows that the petitioner is entitled to no relief."). The statute "does not require a full blown evidentiary hearing in every instance . ... Rather, the hearing conducted by the court, if any, must be tailored to the specific needs of the case, with due regard for the origin and complexity of the issues of fact and the thoroughness of the record on which (or perhaps, against which) the section 2255 motion is made." United States v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993). Furthermore, "when the trial judge also hears the collateral proceedings . .. that judge may rely on his recollections of the trial in ruling on the collateral attack." Blanton, 94 F.3d at 235 (citing Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977)). However, "[w]here there is a factual dispute, the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims." Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999) (citing Paprocki v. Foltz, 869 F.2d 281, 287 (6th Cir.1989)). We have observed that a Section 2255 petitioner's burden "for establishing an entitlement to an evidentiary hearing is relatively light." Id. at 477.