United States v. Michael Arrington, 13 F.4th 331

Michael Arrington was convicted of conspiring to distribute heroin and related charges after a jury trial; several co‑conspirators testified against him.
Trial counsel Laurence Kress decided Arrington would not testify, allegedly without informing Arrington that the decision was his to make or obtaining his consent.
Arrington claimed he would have testified to explain absconding from parole for minor/parole reasons, not because of drug involvement; he filed a pro se § 2255 motion asserting ineffective assistance for waiving his right to testify.
The District Court denied the § 2255 motion without an evidentiary hearing, concluding Arrington’s proposed testimony would not have changed the outcome and alternatively rejecting deficient performance.
On appeal, the Third Circuit held the District Court misstated the standard for granting a § 2255 hearing (confusing it with a Rule 29 sufficiency standard) but affirmed because Arrington’s claim conclusively failed Strickland’s prejudice prong.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an evidentiary hearing was required on Arrington’s §2255 Strickland claim	Kress waived Arrington’s right to testify without consent; nonfrivolous factual allegations entitle him to a hearing	The record conclusively shows no relief; movant must show reasonable probability of different result to get a hearing	Court: District Court used wrong standard, but no hearing required because claim fails Strickland prejudice as a matter of law
Proper standard for granting a §2255 hearing on ineffective assistance	Movant need only allege nonfrivolous, not‑conclusively contradicted facts that, if true, would plausibly entitle him to relief	Govt urged a higher standard—movant must show a reasonable probability of a different trial result before a hearing	Court: Hearing standard is low—assume movant’s nonfrivolous allegations true and hold a hearing unless claim fails as a matter of law under Strickland
Whether Arrington showed Strickland prejudice from not testifying	Arrington would have explained parole absences and asserted innocence; that testimony could have undermined guilty inference	Testimonial evidence against him was overwhelming; testifying would invite damaging cross‑examination and impeachment by prior convictions	Court: Prejudice not shown; proposed testimony unlikely to help and likely to harm, so claim is not colorable

Strickland v. Washington, 466 U.S. 668 (1984) (established deficient‑performance and prejudice test for ineffective assistance)
United States v. Dawson, 857 F.2d 923 (3d Cir. 1988) (standard for §2255 hearings: assume nonfrivolous allegations true; hearing required unless claim fails as a matter of law)
United States v. McCoy, 410 F.3d 124 (3d Cir. 2005) (§2255 mandates an evidentiary hearing unless claim conclusively fails)
United States v. Scripps, 961 F.3d 626 (3d Cir. 2020) (review of denial of §2255 hearing for abuse of discretion; remand where record inconclusive)
Saranchak v. Secretary, Pennsylvania Dep’t of Corrections, 802 F.3d 579 (3d Cir. 2015) (Strickland prejudice does not depend on sufficiency of evidence)
United States v. Booth, 432 F.3d 542 (3d Cir. 2005) (district court abuses discretion by denying hearing when files and records are inconclusive)
United States v. Wines, 691 F.3d 599 (5th Cir. 2012) (discusses risks of defendant testifying and potential for "scorching" cross‑examination)
United States v. Pennycooke, 65 F.3d 9 (3d Cir. 1995) (counsel must advise defendant about the right to testify and ensure any waiver is knowing and intelligent)
United States v. Teague, 953 F.2d 1525 (11th Cir. 1992) (en banc) (counsel’s failure to inform defendant that decision to testify is the defendant's can constitute deficient performance)
United States v. Begin, 696 F.3d 405 (3d Cir. 2012) (distinguishes colorable legal merit from actual merit in habeas contexts)