ANDREW CHARLES MARTIN v. UNITED STATES OF AMERICA
No. 16-3864
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
May 14, 2018
18a0092p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
Nos. 1:12-cr-00574-1; 1:15-cv-00547—Christopher A. Boyko, District Judge.
Argued: January 24, 2018
Decided and Filed: May 14, 2018
Before: GIBBONS, WHITE, and STRANCH, Circuit Judges.
COUNSEL
ARGUED: Christian J. Grostic, KUSHNER, HAMED & GROSTIC CO., LPA, Cleveland, Ohio, for Appellant. Alejandro A. Abreu, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Christian J. Grostic, KUSHNER, HAMED & GROSTIC CO., LPA, Cleveland, Ohio, for Appellant. Henry F. DeBaggis, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee.
JANE B. STRANCH, Circuit Judge. Andrew Martin filed a
I. BACKGROUND
In 2011, a probate court appointed Joy Comey administrator of the estate of her brother, George Warehime. Later that year, Andrew Martin and his co-conspirator David Simons fraudulently took ownership of Warehime‘s property. Martin, then a nurse, accessed Warehime‘s medical records without authorization so that Simons could fabricate a story about a relationship with Warehime that would make the putative property transfer look legitimate. A dispute over the house followed in probate court.
During that time, Martin attempted to recruit a patient to “take [Comey] out.” The patient purported to agree, but then contacted the police. Before the Government brought federal criminal charges against Martin, Comey filed a Petition for Declaratory Judgment in probate court, naming Martin and Simons as defendants and alleging fraudulent transfer of Warehime‘s property. The probate court entered judgment against Martin and Simons.
In the time between his guilty plea and sentencing hearing, Martin filed a Rule 60(b) motion to vacate the judgment in probate court. In the motion, Martin presented a factual narrative of the conduct underlying his civil and criminal cases that contradicted aspects of the guilty plea statement. He denied “voluntarily or knowingly attempt[ing] to take fraudulent means or actions against” the victims, asserting that “[a]t no time did [he] attempt to defraud or maliciously act” against them. The Government brought Martin‘s motion to the district court‘s attention at the sentencing hearing, arguing that it was “inconsistent with acceptance of responsibility.” La Rue argued that the 60(b) motion was out of character for Martin, that Martin filed it in a misguided attempt to mitigate the damage done to his family, and that Martin nevertheless demonstrated an acceptance of responsibility by pleading guilty and in his allocution at the sentencing hearing.
The court was unpersuaded and declined to grant any reduction for acceptance of responsibility. Without the reduction, Martin‘s total offense level was 32, which, given Martin‘s criminal history category of I, resulted in a guideline range of 121-151 months in prison. Had Martin received the three-level reduction, his guideline range would have been 87-108 months. The court imposed a sentence of 144 months, three years of supervised release, and $83,401.29 in restitution, which we affirmed on appeal. United States v. Martin, 572 F. App‘x 334, 334 (6th Cir. 2014).
Martin then filed this pro se
The Government filed a response in opposition to Martin‘s
Martin filed a reply, alleging inconsistencies in the Government‘s response and supporting documents and attaching, among other things, a supplemental affidavit from himself and a printout of the civil case docket sheet with “[f]ile motion to set aside judgment” and “motion for reconsideration” handwritten on the bottom of the last page. Martin alleged that Thomarios gave him the printout with those instructions.
The district court denied Martin‘s
Martin then filed a
Martin argues that the district court erred in denying relief without holding an evidentiary hearing, and that the case should be reassigned to a different judge on remand. The Government does not contest that—if true—Martin‘s allegations would amount to ineffective assistance of counsel; it argues that the district court properly denied Martin‘s
II. ANALYSIS
A. Evidentiary Hearing
A district court‘s refusal to hold an evidentiary hearing on a
An evidentiary hearing “is required unless the record conclusively shows that the petitioner is entitled to no relief.” Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)); see also
Martin presents more than “mere assertions of innocence,” Valentine, 488 F.3d at 333, or conclusions, MacLloyd, 684 F. App‘x at 559. His
Because Martin has presented factual allegations that support his ineffectiveness claim, he is entitled to an evidentiary hearing unless the allegations cannot be accepted as true because “they are contradicted by the record” or are “inherently incredible.” MacLloyd, 684 F. App‘x at 559 (citation omitted). In denying Martin‘s
[Martin‘s] claim that counsel advised him to file the Rule 60(b) Motion is not credible. The attorneys representing him in this criminal case did not represent him in the civil case. [Martin] was referred to a law firm with experience in civil matters. The Court finds this allegation of ineffective assistance of counsel to be without merit.
In denying Martin‘s
First, the conclusion that neither of Martin‘s criminal defense attorneys provided representation to Martin in the civil case is not supported by the evidence. While Thomarios was not counsel of record in Martin‘s civil case, Thomarios‘s affidavit, fee agreement letter, and billing statement—all submitted by the Government in its opposition to Martin‘s
Second, the court‘s statement that Martin offered no proof beyond “mere self-serving allegations” fails to acknowledge that Martin did, in fact, support his allegations with more than his own words, and appears to overlook our governing precedent holding that a “self-serving” affidavit is not inherently incredible. See Pola v. United States, 778 F.3d 525, 535 (6th Cir. 2015) (“[T]he district court appears to find [the petitioner‘s] credibility lacking because the affidavit is ‘self-serving.’ But an affidavit is not incredible just because the asserted facts favor the affiant.“); see also MacLloyd, 684 F. App‘x at 562 (“In this circuit, defendant‘s statements alone are sufficient to support a finding that he would have accepted [a plea] offer.“); Smith v. United States, 348 F.3d 545, 551 (6th Cir. 2003) (noting that this court does not require that petitioners supply “objective” evidence beyond their own assertions that they would have accepted a plea offer (quoting Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2003))). The district court‘s conclusion that Martin‘s claim was not credible was based on both legal and factual errors.
On appeal, the Government argues that Martin‘s allegations are both contradicted by the record and inherently incredible, and thus that it was proper for the district court to deny his
The record from Martin‘s underlying criminal case is unlikely to conclusively show whether he is entitled to relief because Martin‘s allegations relate largely to “purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light.” Machibroda v. United States, 368 U.S. 487, 494-95 (1962); see also MacLloyd, 684 F. App‘x at 561. What Martin and his attorneys said or did not say during his sentencing hearing does not
To the extent that the sentencing hearing does cast light on Martin‘s allegations, it does not clearly contradict them. Martin‘s decision not to object to the Presentence Report is logical because the PSR included the three-point reduction for acceptance of responsibility. Martin was not asked whether he had been advised by his attorneys to file the 60(b) motion and, as he argues, had no reason to know at that time that such reliance could be legally relevant. Furthermore, it is unusual—and generally discouraged—for a represented defendant to make objections on his own, to make his own arguments outside allocution, or to otherwise interrupt the judge or lawyers at his sentencing hearing. Martin‘s failure to independently object may simply reflect a client‘s reasonable decision to rely on his attorneys and follow typical court procedures.
The Government further argues that Martin‘s allegations are inherently incredible, both because the timeline of events undermines them, and because Martin continued to deny responsibility for the fraud and health-information charges in his post-conviction challenge. According to Thomarios‘s billing documents, he conducted 60(b) research in March of 2013, met with Martin about the civil case several times in March and April, and ceased representing Martin in the civil case by May 1. On April 10, 2013, the district court scheduled Martin‘s change of plea hearing for April 18. Martin and Thomarios‘s April 15 meeting occurred before Martin entered his guilty plea, but after Thomarios knew Martin planned to plead guilty, and almost certainly after plea negotiations with the Government had begun. Thomarios continued to represent Martin in the criminal case through sentencing, which presumably included additional attorney-client meetings. While the timeline of events may not alone prove Martin‘s claim that Thomarios advised him regarding the 60(b) motion, it does not clearly contradict it or make it inherently incredible.
Finally, the Government contends that Martin‘s post-conviction denial of responsibility renders incredible his assertion that he filed the 60(b) motion following counsel‘s advice, encouragement, and assurances. In his pro se
Because “[r]easons other than the fact that he is guilty may induce a defendant to so plead,” North Carolina v. Alford, 400 U.S. 25, 33 (1970) (citation omitted), a petitioner‘s “repeated declarations of innocence do not prove . . . that he would not have accepted a guilty plea,” Griffin, 330 F.3d at 738. Valentine makes this clear: “although the government implies that [the petitioner‘s] protestations of innocence discredit his argument that he was willing to accept a plea, this circuit has rejected this reasoning in the past.” 488 F.3d at 333.
Martin‘s decision to plead guilty was likely informed by multiple factors independent of his own belief about his guilt or innocence. La Rue‘s affidavit supports this conclusion:
Mr. Martin did assert that he was coerced into many of the actions he later took in furtherance of the conspiracy . . . . Mr. Martin, having been advised of our belief, as his lawyers, that [our inability to corroborate the alleged coercion or threats] would place the entire burden
on [Martin] to convince the jury of these threats, chose voluntarily to enter a plea of guilty to all counts. . . . [A]s [Martin] well knew at the time, as a matter of the United States Sentencing Guidelines, because both of the additional charges brought by Information were nine (9) levels or more below the sentencing guidelines range for the Conspiracy to Commit Murder for Hire, the effect of this plea was that no additional time was to be assessed per U.S.S.G. Sec. 3D1.4(c).
In other words, Martin decided to plead guilty to the fraud and health-information charges in part due to anticipated difficulties in proof and because he believed that plea would most likely not increase his overall sentencing exposure. Martin‘s statements at the sentencing hearing likewise lend support to his claim. Despite apparent misgivings about the fraud and health-information charges, when given the opportunity to speak, Martin was contrite and expressed remorse for his criminal conduct, stating:
No words can explain my reprehensible actions, nor would I ever try to minimize what I‘ve done. More than anything, I would like to make amends and do what I can to make things right. The best that I can do is to acknowledge my wrongdoings, accept responsibility for my actions, pray for forgiveness, and give my heart over to God.
In short, Martin‘s repeated “protestations” may certainly be considered by the district court, Smith, 348 F.3d at 552, but they do not render inherently incredible his claim that he would not have voiced them in his 60(b) motion absent attorney advice.
In sum, the statements and omissions at sentencing, the timeline, and Martin‘s pro se pleadings do not “conclusively show” that Martin is entitled to no relief.
B. Reassignment on Remand
Martin also argues that his case should be reassigned to a different judge on remand because the district court “prematurely and improperly” decided the credibility of the parties, which will be an important issue at the evidentiary hearing.
We have the authority to reassign a case on remand under
- whether the original judge would reasonably be expected to have substantial difficulty in putting out of his mind previously expressed views or findings;
- whether reassignment is advisable to
preserve the appearance of justice; and - whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
That a district court erred by, for example, mischaracterizing evidence does not necessarily warrant reassignment. See id. at 501-02 (“We do not think that the district court‘s mischaracterization of the evidence is grounds for reassignment. If we reassigned the case every time a district court judge misconstrued some evidence, reassignment would surely cease to be ‘an extraordinary power . . . rarely invoked.‘” (quoting Armco, 280 F.3d at 683)); see also Solomon v. United States, 467 F.3d 928, 935 (6th Cir. 2006). Reassignment is not required where “there is no evidence in the record indicating that the district judge will have difficulty conducting [the proceedings upon remand].” United States v. Garcia-Robles, 640 F.3d 159, 168 (6th Cir. 2011).
In contrast, we have found it necessary to exercise our reassignment power when the district court has indicated an unwillingness or inability to “heed the guidance of this Court” on remand. United States v. Robinson, 778 F.3d 515, 524-25 (6th Cir. 2015); see also Rorrer v. City of Stow, 743 F.3d 1025, 1050 (6th Cir. 2014) (reassigning where the district court‘s statements and “questionably imposed” one-sided discovery order suggested that it may have substantial difficulty putting out of mind previously expressed views, and reassignment would protect the appearance of justice). Other courts have found reassignment necessary where the district court “rendered a visceral judgment on [the] appellant‘s personal credibility.” Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 142 (2d Cir. 2007); see also Earp v. Cullen, 623 F.3d 1065, 1072 (9th Cir. 2010).
At bottom, the district court‘s conclusion that Martin‘s claim was not credible was based on its determinations that Martin‘s allegations were self-serving and that the record did not support them. The first finding is partially true, but not legally decisive; the second is a misapprehension that this opinion has cured. There is no indication that the district court‘s conclusion was based on “a visceral judgment on [Martin‘s] personal credibility.” Shcherbakovskiy, 490 F.3d at 142. We are therefore “satisfied that the judge will re-visit the matter with a completely open mind.” Garcia-Robles, 640 F.3d at 168 (brackets and citation omitted). The record does not indicate that this is “an extraordinary case that warrants reassignment.” Howe v. City of Akron, 801 F.3d 718, 756 (6th Cir. 2015).
III. CONCLUSION
Because Martin has met the relatively light burden for establishing an entitlement to an evidentiary hearing, the district court abused its discretion by failing to hold a hearing. We therefore REVERSE the district court‘s denial of Martin‘s