David MACLLOYD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case No. 14-2555
United States Court of Appeals, Sixth Circuit.
Filed April 04, 2017
684 F. App‘x 555
Amur and Kędzierski have appealed, arguing that the district court abused its discretion in granting the motion to dismiss for forum non conveniens. In particular, they claim that discovery in this matter had proceeded so far as to render FedEx‘s forum non conveniens claim untimely. We disagree. After carefully reviewing the record, the applicable law, and the parties’ briefs, we conclude that the district court did not abuse its discretion in dismissing the complaint. The district court‘s opinion carefully and correctly sets out the law governing the issues raised and clearly articulates the reasons underlying its decision. Thus, the issuance of a full written opinion by this court would serve no useful purpose. Accordingly, for the reasons stated in the district court‘s opinion, we AFFIRM.
David MacLloyd, Pro Se
Patricia Gaedeke, Law Office, Detroit, MI, for Respondent-Appellee
BEFORE: BOGGS, GILMAN, and DONALD, Circuit Judges
BERNICE BOUIE DONALD, Circuit Judge.
This case presents a dispute over the proper standard for deciding to forego an evidentiary hearing on a
I.
On May 22, 2008, a federal grand jury returned an indictment charging Defendant David MacLloyd and his brother, Clifford MacLloyd, among other co-defendants, with one count of conspiracy to distribute and to possess with the intent to distribute more than five kilograms of cocaine, in violation of
As Loeb and MacLloyd walked into the courtroom on the day of the January 13th hearing, Loeb mentioned to MacLloyd that “there are talks of a plea for 11-14 years.” (R. 252, ID 2469). Shortly thereafter, the hearing began. MacLloyd claims that Loeb‘s comment on the morning of the hearing was the first time that MacLloyd heard of this particular plea offer. During the hearing, Loeb informed the court that the parties had not reached an agreement on a plea and that MacLloyd would like to exercise his right to a trial. (R. 183, ID 871). At this point, the district court asked MacLloyd a series of questions regarding his understanding of the specifics of the plea he was turning down. (Id. at 872-73). The district court asked whether Loeb had reviewed the agreement with MacLloyd and whether he had an opportunity to discuss the agreement with Loeb. (Id.) After consulting with his attorney, MacLloyd answered each of these questions in the affirmative. (Id.) In the same hearing, MacLloyd‘s brother also indicated that he intended to go to trial, but only because the government‘s plea was contingent on both brothers entering a guilty plea and MacLloyd had made clear that he would be pleading not guilty. (Id. at 874).
After the hearing, Loeb allegedly told MacLloyd that Loeb‘s secretary would set up a time for Loeb to go over the plea with MacLloyd. (R. 267, ID 2547). However, when Loeb did contact MacLloyd days later, it was not to discuss the plea agreement, but rather MacLloyd‘s payment of the $15,000 unpaid balance on Loeb‘s retainer. (Id.) Loeb stated that he would not perform any further work on MacLloyd‘s case, including discussing the plea agreement, until payment was made. (Id.) A few weeks after this exchange, Loeb withdrew as MacLloyd‘s counsel, citing a breakdown in the attorney-client relationship. (R. 58, ID 192-95).
A little more than two weeks after the January 13th hearing, on January 29, 2009, a grand jury returned a superseding indictment charging MacLloyd with addi-
MacLloyd filed a timely pro se motion to vacate, set aside, or correct his sentence under
II.
a) Standard of Review
This court has held that “[a] decision not to hold an evidentiary hearing on a motion for relief under
b) The District Court Applied an Erroneous Evidentiary Hearing Standard
In line with the Supreme Court‘s reasoning in Machibroda, we have held that a district court may only forego a hearing where “the petitioner‘s allegations ‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.‘” Arredondo, 178 F.3d at 782 (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)); see also Valentine, 488 F.3d at 333. This Court has further determined that “[t]he burden on the petitioner in a habeas case for establishing an entitlement to an evidentiary hearing is relatively light.” Valentine, 488 F.3d at 333 (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). Although “[the statute does not require a full blown evidentiary hearing in every instance[,] ... where there is a factual dispute, the habeas court must hold an evidentiary hearing to determine the truth of the petitioner‘s claims.” Smith v. United States, 348 F.3d 545, 550-51 (6th Cir. 2003) (internal citations and quotation marks omitted).
In denying MacLloyd‘s ineffective assistance of counsel claims, the district court considered collectively, rather than individually, MacLloyd‘s complaints against four of the five attorneys who represented him throughout the proceedings against him. The district court concluded that “Defendant fails to identify exactly which acts or omissions were outside the wide range of professionally competent assistance with regard to each of the issues asserted,” and that “he has likewise failed to show the prejudice required for a finding of ineffective assistance of counsel.” (R. 268, ID 2555-56). The district court offered no reasoning to support a finding that, regarding MacLloyd‘s claims involving Loeb, the record conclusively shows that MacLloyd is not entitled to relief, nor did the district court expressly make that finding. The district court offered no discussion of the allegations offered by MacLloyd and made no mention whatsoever of the standard for foregoing an evidentiary hearing nor of the case law interpreting this standard.
The district court relied on this court‘s rejection of ineffective assistance claims “that rest upon conclusory, unsupported allegations of counsel‘s deficient performance.” (R. 268, ID 2555). This, however, would be a proper inquiry for the district court to make after an evidentiary hearing, having considered not only the pleading and the affidavits, but the whole of the testimony. Machibroda, 368 U.S. at 495, 82 S.Ct. 510. In determining whether to forego an evidentiary hearing, the dis-
c) Application of Appropriate Standard
In applying the proper standard for denying an evidentiary hearing for MacLloyd‘s ineffective assistance claims, we must consider whether the record “conclusively shows” that MacLloyd is entitled to no relief for his claims of ineffective assistance of counsel. To effectively make an ineffective assistance claim, MacLloyd must show that Loeb provided deficient performance and that MacLloyd was prejudiced by the deficient performance. Huff, 734 F.3d at 606; see also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (establishing the two-prong test for ineffective assistance of counsel claims). Considering the precedent of this court, the record in MacLloyd‘s case does not conclusively show that his claim of deficient performance lacks merit. Nor does the record conclusively show that the deficient performance did not prejudice his defense.
1) Deficient Performance
Reading the first prong of the Strickland test in accordance with the
The Supreme Court has held that “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Missouri v. Frye, 566 U.S. 134, 145, 132 S.Ct. 1399, 1408, 182 L.Ed.2d 379 (2012). Further, the Frye Court continued that where “defense counsel allow[s] the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.” Id. It is not enough that an attorney made the petitioner aware of the offer. Rather, the attorney must review the charges with the defendant, including a discussion of the elements necessary for the conviction, the evidence that may support those elements, and the sentencing exposure that the defendant faces. Smith, 348 F.3d at 552-53. “The failure of defense counsel to provide professional guidance to a defendant regarding his sentence exposure prior to a plea may constitute deficient assistance.” Id. at 553 (citations and quotation marks omitted).
MacLloyd alleges that Loeb provided ineffective assistance of counsel by not fully informing him of the written plea agreement offered by the government prior to the January 13, 2009 hearing. (R. 252, ID 2475). He claims that Loeb informed him moments before the hearing that “there [we]re talks of a plea for 11-14 years,” with no further specifics. (Id. at 2469). In support of this claim, MacLloyd offered his own testimony that he was unaware that there was a written formal plea offer, as well as corroborating evidence, particularly his surprise when his brother‘s attorney accosted MacLloyd about turning down the plea. He also provides a potential motive for Loeb‘s action, the alleged non-payment of Mr. Loeb‘s retainer. By contrast, the government‘s argument that the record forecloses the need for an evidentiary hearing relies primarily on MacLloyd‘s testimony during the January 13, 2009 hearing that he understood the plea and had discussed the plea with his attorneys. The government points out that the
An evidentiary hearing is required where the defendant “offers more than a mere assertion of his innocence,” but rather “presents a factual narrative of the events that is neither contradicted by the record nor ‘inherently incredible.‘” Valentine, 488 F.3d at 334 (citation omitted). MacLloyd has presented a factual narrative, including corroboration and motive, that rises above the level of mere assertions. However, MacLloyd‘s statements at the January 13, 2009 hearing that he had discussed the plea offer with counsel contradict MacLloyd‘s narrative on appeal that he had not discussed the offer with his counsel. In spite of this apparent contradiction, precedent favors granting MacLloyd a hearing, as this court has a history of granting hearings in spite of a defendant‘s statements on the record that he was aware of and rejected a plea offer.
In Smith, this court determined that, although the record clearly established that the defendant was aware of the plea offer, a hearing was still necessary in order to determine whether the defendant‘s attorney had fully informed the defendant of the nature of the plea agreement. 348 F.3d at 552-53. Further, the Supreme Court has held that, when considering whether an evidentiary hearing is appropriate, “the barrier of the plea or sentencing proceeding record, although imposing, is not invariably insurmountable.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Baker v. United States, the case cited by the government, is not persuasive. In Baker, this court rejected a defendant‘s attempt to vacate his guilty plea on the grounds that the prosecutor broke previously undisclosed promises offered in exchange for a plea. 781 F.2d 85, 92 (6th Cir. 1986). In that case, the defendant knowingly pled guilty after receiving advice from counsel, a point he did not contest in his appeal. Id. Further, the defendant acknowledged that he was fully aware of the government‘s promise, as was his attorney, at the time that he stated before the court that there had been no additional promises. MacLloyd‘s petition is more closely aligned with Smith than it is with Baker because Mr. MacLloyd asserts that he was unaware of the contours of the plea offer at the time he rejected it.
In addition, the factual narrative put forward by MacLloyd “relate[s] primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light.” Machibroda, 368 U.S. at 494-95, 82 S.Ct. 510. MacLloyd points to conversations, or the lack thereof, between Loeb and himself, which would not be reflected in the record before the court. Nor can we say that the district judge was able to “completely resolve [these questions] by drawing upon his own personal knowledge or recollection” of the proceedings. Id. at 495, 82 S.Ct. 510. The district court did not provide its reasoning for denying a hearing, and this court has previously declined to assume what the district court‘s unstated recollections would be under similar circumstances. Christopher v. United States, 605 Fed.Appx. 533, 538 (6th Cir. 2015).
Finally, the burden for receiving an evidentiary hearing under
2) Prejudice
Under Strickland, we must also determine whether the record conclusively shows that counsel‘s deficient performance could not have prejudiced MacLloyd‘s defense. In circumstances where “[h]aving to stand trial, not choosing to waive it, is the prejudice alleged,” a defendant must show that, but for the deficient performance of counsel, there is a reasonable probability: (1) “that the plea offer would have been presented to the court“; (2) “that the court would have accepted its terms“; and (3) “that the conviction or sentence, or both, under the offer‘s terms would have been less severe than under the judgment and sentence that in fact were imposed.” Lafler v. Cooper, 566 U.S. 156, 164, 132 S.Ct. 1376, 1385, 182 L.Ed.2d 398 (2012). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In showing that the plea would have been presented to the court, the defendant must show that he “would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances.” Id. In this circuit, defendant‘s statements alone are sufficient to support a finding that he would have accepted the offer. Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2003) (citation omitted). However, “[t]he failure to hold an evidentiary hearing would be of no import if the alleged defective performance were inconsequential.” Huff, 734 F.3d at 608.
MacLloyd asserts, and the government does not contest, that the only question is whether MacLloyd would have accepted the plea offer if he had been properly advised of it by counsel. In support of his argument that he was prejudiced by his counsel‘s deficient performance, MacLloyd asserts that he “would have definitely taken the plea bargain,” especially given the fact that it included the prospect of cooperation that could have reduced his sentence even further. (Dkt. No. 5-2 (quoting R. 252, ID 2475)). He also claims that the disparity between the 11-14 years offer and the potential life sentence he was facing, as well as the 30 years he ultimately received, establishes prejudice. Finally, he argues that the overwhelming evidence against him, coupled with the fact that he never actually claimed factual innocence, suggests that he was prejudiced by his counsel‘s actions.
Further, as discussed in the previous section, the burden for receiving an evidentiary hearing under
III.
Because MacLloyd has made the requisite showing to entitle him to a hearing on the grounds that his counsel rendered deficient performance and that he was prejudiced by the deficient performance, an evidentiary hearing is required by
BERNICE BOUIE DONALD
UNITED STATES CIRCUIT JUDGE