651 F. App'x 405
6th Cir.2016Background
- Ewing pled guilty under Rule 11(c)(1)(C) to a drug-conspiracy charge on Nov. 5, 2012; plea specified an agreed sentencing range of 144–204 months and a broader contemplated range of 168–210 months.
- At sentencing the government noted the presentence report raised the guidelines range and recommended 180 months; the court sentenced Ewing to 180 months concurrent with his state life sentence.
- Ewing claimed (in affidavits) he pleaded guilty because defense counsel and/or the prosecutor told him the government would recommend 144 months and that he would receive ten months’ federal custody credit for time held in federal custody while serving a state sentence.
- Ewing appealed but the appeal was dismissed under his plea’s waiver-of-appeal provision; he then filed a 28 U.S.C. § 2255 petition asserting: (1) government breached oral promises; (2) ineffective assistance of counsel for misadvising about a 144-month recommendation; and (3) ineffective assistance for misadvising about federal custody credit.
- The district court denied the § 2255 petition but granted a certificate of appealability only as to denial of an evidentiary hearing; the Sixth Circuit affirmed, holding no hearing was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government breached an oral promise to recommend 144 months | Ewing: prosecutor orally agreed to recommend a 144-month sentence and that promise was part of the plea bargain | Gov: plea colloquy and written plea defined the bargain; no secret promise was made and any recommendation is not binding on the court | No breach — plea colloquy forecloses reliance on alleged oral promise; defendant bound by plea terms |
| Whether counsel was ineffective for advising that prosecutor agreed to 144 months | Ewing: Evans told him that the government agreed to 144 months, inducing the plea | Gov/Evans: any such misunderstanding was cured by a proper, thorough plea colloquy and Ewing confirmed understanding | Denied — under Ramos and Hill, no Strickland prejudice shown where court conducted proper plea allocution |
| Whether counsel was ineffective for advising Ewing he would receive ten months’ federal custody credit | Ewing: Evans assured him he would get credit for ten months in federal custody | Gov: custody-credit computation is a BOP matter; plea/agreement silent; Ewing did not raise custody-credit at sentencing or on appeal and ten months is immaterial given life sentence | Denied — allegations inherently incredible or immaterial; no reasonable probability counsel’s advice affected plea decision |
| Whether an evidentiary hearing was required on these claims | Ewing: hearing needed to develop factual record on what counsel/prosecutor said | Gov: record (plea colloquy, sentencing transcript, written plea) conclusively refutes claims; allegations are contradicted or incredible | Denied — judge did not abuse discretion in refusing a hearing because record conclusively showed no entitlement to relief |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance test)
- Hill v. Lockhart, 474 U.S. 52 (applies Strickland standard to guilty-plea prejudice inquiry)
- Smith v. United States, 348 F.3d 545 (discusses § 2255 evidentiary-hearing burden)
- Ramos v. Rogers, 170 F.3d 560 (a proper plea colloquy can cure counsel's misleading statements about plea terms)
- Baker v. United States, 781 F.2d 85 (defendant bound by plea colloquy; secret terms are not enforceable)
- Arredondo v. United States, 178 F.3d 778 (no hearing required where allegations are contradicted by record or inherently incredible)
- Engelen v. United States, 68 F.3d 238 (same principle regarding credibility of allegations)