John Turner v. United States, 885 F.3d 949

In 2007 John Turner robbed four businesses; state prosecutors indicted him and he was represented by counsel in state plea negotiations.
Federal prosecutors (AUSA) offered Turner a preindictment federal plea: 15 years, expiring upon federal grand-jury indictment; Turner says counsel informed him but he did not accept before indictment.
A federal grand jury later indicted Turner; he pleaded guilty with a new lawyer to a deal yielding 25 years and waived direct appeal.
Turner filed a 28 U.S.C. § 2255 motion claiming ineffective assistance by his first lawyer during preindictment federal plea negotiations. District court denied relief; a Sixth Circuit panel affirmed. The en banc court reviewed the question.
The en banc majority reaffirmed Sixth Circuit precedent that the Sixth Amendment right to counsel attaches only at or after initiation of adversary judicial proceedings (e.g., indictment) and thus does not cover preindictment plea bargaining; it affirmed denial of § 2255 relief.
Separate opinions: Judge Bush (dubitante) urged original-meaning reconsideration; Judge Clay concurred in judgment but urged rejecting application of dual-sovereignty to the right-to-counsel context; Judge Stranch dissented, arguing attachment can occur when a formal preindictment plea offer effectively initiates adversary proceedings.

Issue	Plaintiff's Argument (Turner)	Defendant's Argument (Gov't)	Held
Whether Sixth Amendment right to counsel attaches to preindictment plea negotiations	Preindictment plea offers are functionally adversarial/critical stages (per Frye/Lafler) and thus counsel should be provided; attachment and critical-stage analyses should be reconciled to protect defendants	Attachment occurs only once adversary judicial proceedings commence (formal charge, indictment, information, arraignment); Frye/Lafler address critical stages post-attachment and do not overrule Kirby/Gouveia	Held: No. Sixth Amendment right to counsel does not extend to preindictment plea negotiations; en banc affirms prior rule.
Whether a state indictment triggers Sixth Amendment attachment as to later federal charges based on same conduct	A state indictment for the same conduct should trigger the right to counsel for ensuing federal interactions (so Turner’s right had attached when federal plea offer was made)	Right is offense-specific; when conduct violates both state and federal law, dual-sovereignty treats them as separate offenses so state indictment does not trigger federal attachment	Held: Court adopts majority view that dual-sovereignty applies in Sixth Amendment context—state and federal prosecutions are separate offenses; state indictment did not trigger counsel right for separate federal charges.

Kirby v. Illinois, 406 U.S. 682 (1972) (right to counsel attaches at or after initiation of adversary judicial proceedings)
United States v. Gouveia, 467 U.S. 180 (1984) (adopts Kirby rule that attachment awaits initiation of adversary judicial proceedings)
Missouri v. Frye, 566 U.S. 134 (2012) (post-indictment plea negotiations are a critical stage requiring counsel duties such as communicating formal offers)
Lafler v. Cooper, 566 U.S. 156 (2012) (counsel errors in plea bargaining can constitute ineffective assistance where plea negotiations occur post-attachment)
Rothgery v. Gillespie County, 554 U.S. 191 (2008) (analysis of attachment focuses on when the machinery of prosecution is turned on; attachment may occur at initial arraignment-type events)
Texas v. Cobb, 532 U.S. 162 (2001) (Sixth Amendment is offense-specific; identity of offenses tested by Blockburger)
Blockburger v. United States, 284 U.S. 299 (1932) (test for whether two statutory offenses are the same: each must require proof of an element the other does not)
United States v. Moody, 206 F.3d 609 (6th Cir. 2000) (Sixth Circuit precedent refusing preindictment attachment for plea negotiations)