EMOND DUREA LOGAN v. UNITED STATES OF AMERICA
No. 17-1996
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
December 13, 2018
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0267p.06. Argued: October 18, 2018. Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. Nos. 1:08-cr-00274-16; 1:15-cv-00076—Paul Lewis Maloney, District
Before: GRIFFIN and DONALD, Circuit Judges; BERTELSMAN, District Judge.*
COUNSEL
*The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky, sitting by designation.
OPINION
GRIFFIN, Circuit Judge.
Two heads are not always better than one. Petitioner Emond Durea Logan learned as much when he received conflicting advice from his two attorneys while considering whether to accept a plea offer with a ten-year sentencing cap. His counsel of record told him it was a very good plea deal that avoided the high risks of proceeding to trial, and Logan signed the plea agreement. However, his second attorney—retained by Logan‘s family but not counsel of record—subsequently persuaded Logan to withdraw from the plea agreement. Ultimately, Logan accepted a second plea agreement that did not include a sentencing cap and received a much longer sentence than contemplated by the first agreement. In the district court and now on appeal, Logan claims ineffective assistance of counsel on the basis of his retained attorney‘s advice. On these facts, the district court held that Logan did not sustain his burden of showing a Sixth Amendment violation. We agree and, therefore, affirm the judgment of the district court.
I.
Logan was a drug courier in a cross-country drug ring from 2004 to 2007. In this role, he routinely transported “loads of cocaine from the Los Angeles, California area to the Detroit, Michigan area, using a tractor-trailer,” and returned with the resulting “drug proceeds in the form of United States currency from Michigan to California.” In total, Logan transported over 150 kilograms of cocaine from California to Michigan.
Logan was arrested and indicted in California, was transferred to the Western District of Michigan, and pleaded not guilty to charges of conspiracy to distribute cocaine,
Zambon next met with petitioner on November 2, 2009. Logan reiterated his preference that Terrell represent him,
Terrell finally paid his admission fee to the Western District of Michigan on January 15, 2010, but did not file a motion to substitute as defense counsel until February 4. Zambon again met with petitioner around this time and advised him that he “did not think the court would allow the substitution of attorneys as it appeared that Mr. Terrell had a conflict of interest because of his joint representation of several of [Logan]‘s family members who were either potential witnesses or potential co-defendants.” Nevertheless, petitioner informed Zambon that he supported Terrell‘s motion and wanted Zambon off the case. Therefore, Zambon filed a motion to withdraw as counsel based on the deterioration of the attorney-client relationship.
On February 17, 2010, the court denied both Terrell‘s motion to substitute as counsel and Zambon‘s motion to withdraw, leaving Zambon as petitioner‘s only attorney of record. Two days later, Zambon again met with petitioner to discuss a plea offer. This plea offer required petitioner to plead guilty to the conspiracy-to-distribute-cocaine charge in exchange for dismissal of the money-laundering charge and a ten-year sentencing cap. In addition, the prosecution agreed not to bring criminal charges against Logan‘s wife, brother, and sister-in-law for their conduct relating to the criminal conspiracy. Zambon explained to Logan that he believed it was a very good plea agreement and, while Zambon testified that he “never tell[s] a client what to do,” based upon his familiarity with the case he “had to tell Mr. Logan that this was a very good plea agreement.” Petitioner agreed; Zambon and Logan signed the plea offer and the Assistant United States Attorney (AUSA) signed and filed it with the court. Over the weekend, however, Terrell and Logan had four separate phone conversations. Through these conversations, Terrell convinced Logan to reject the plea deal at the change of plea hearing, because Terrell thought he could “beat the case.”
The parties appeared for the plea hearing the following Monday. Petitioner rejected the plea offer in open court, claimed that he only signed the plea agreement because he felt “pressured” into doing so, and stated that he was not guilty of any crime. The prosecution stated on the record that if petitioner rejected this plea agreement, it would no longer make any offers with a ten-year sentencing cap. Petitioner persisted and the government terminated its offer.
The government then dismissed the indictment and filed a second, superseding indictment in a multi-defendant companion case. The second superseding indictment again accused petitioner of conspiracy to distribute five kilograms or more of cocaine,
On direct appeal, Logan argued only that the government breached his plea agreement by opposing his request for a two-level sentencing reduction for acceptance of responsibility. United States v. Logan, 542 F. App‘x 484, 489 (6th Cir. 2013). On plain error review, we affirmed, reasoning that while released on bond Logan funded a marijuana grow operation, encouraged a government witness not to cooperate, and threatened to kill both a co-conspirator and the AUSA assigned to his case. Id. at 489-92.
Petitioner filed this
Petitioner now appeals.
II.
We review de novo a district court‘s decision denying a
III.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.”
Under Strickland‘s two-part framework, a criminal defendant claiming ineffective assistance of counsel during plea negotiations must prove that (1) counsel‘s performance was deficient, i.e., that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficient performance prong is “measured against an objective standard of reasonableness under prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotation marks omitted) (citations omitted). “To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel‘s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.” Frye, 566 U.S. at 147.
The parties agree that the pertinent considerations for whether petitioner received ineffective assistance of counsel all come from the few days between when Zambon advised Logan to plead guilty, and when Terrell eventually convinced him otherwise, resulting in petitioner rejecting the plea agreement with a sentencing cap. The parties agree Zambon provided effective assistance of counsel; Terrell‘s performance, however, is a different matter.
The district court stated that “Terrell‘s shadow representation [of Logan] was certainly ‘ineffective’ in many senses,” but concluded that it did not require the conclusion that Logan‘s right to effective assistance of counsel was violated. We agree that Terrell‘s services were deficient. Even beyond his hair-trigger advice during the plea-agreement phase, his conduct was continually questionable throughout the proceedings below. Terrell represented other defendants in the case until he was finally precluded from doing so by the district court, due to some compelling conflict-of-interest problems. Furthermore, Terrell was not the attorney of record at the time Zambon negotiated the plea agreement because Terrell delayed filing a notice of appearance for over two months—a delay he chalked up to his busyness with other cases and his need to research the law and issues related to Logan‘s case.1 But both below and before this court, petitioner has limited his ineffective assistance claim to Terrell‘s behavior surrounding the plea offer, so we need not consider these other exceedingly questionable acts.
Collectively, then, petitioner received both competent and deficient advice on whether to accept the February 19 plea
require effective counsel during plea negotiations. Anything less might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.” (internal quotation marks and ellipsis omitted)). But as these recitations have been framed and phrased, they encompass an affirmative right (the right to effective assistance of counsel at critical proceedings), not a negative right (the right to be completely free from ineffective assistance). Because Zambon adequately assisted Logan at the plea-bargain stage, Logan received his Sixth Amendment right to effective assistance of counsel, regardless of Terrell‘s subsequent, contradictory advice.
While unpublished, and thus not binding on this panel, this Court‘s decision in Santosuosso v. United States, 74 F.3d 1240; 1996 WL 15631 (6th Cir. 1996) (per curiam) (unpublished table decision), is instructive on this issue, and comes to the same conclusion. There, the defendant pleaded guilty to participating in an illegal gambling business upon the advice of his defense counsel that the defendant was highly likely to be convicted at trial and would face an eighteen-month sentence, rather than the three-month sentence offered in the plea deal. Santosuosso, 1996 WL 15631, at *1. Around this same time, the defendant received advice from two other lawyers, who were not his attorneys of record and who convinced the defendant to reject the plea deal and hire them to represent him in his criminal proceedings. Id. Defendant was ultimately convicted of two counts of perjury at trial and sentenced to twenty-one months in prison. Id. at *2. This court denied relief, finding persuasive a Ninth Circuit decision concluding “that ‘[t]he Sixth Amendment right to effective assistance of counsel . . . does not include the right to receive good advice from every lawyer a criminal defendant consults about his case.‘” Id. at *3 (quoting United States v. Martini, 31 F.3d 781, 782 (9th Cir. 1994) (per curiam) (citation omitted)); see also Faison v. United States, 650 F. App‘x 881, 888 (6th Cir. 2016) (quoting approvingly from Martini and Santosuosso).
Here, in a similar vein, Zambon—petitioner‘s counsel of record at the time—advised Logan about the risks of going to trial; Logan even testified that he signed the plea agreement because he was guilty and was worried about facing a sentence of thirty years or more, meaning that he was aware of the risks of proceeding to trial. Zambon also told Logan that this was a very good plea deal and explained the risks of either accepting or rejecting it. On the other hand, Terrell—who was not petitioner‘s counsel of record at the time—recommended rejecting the plea and proceeding to trial because he thought he could get Logan off on the charges. And even Terrell advised Logan both that whether to accept the plea offer was ultimately Logan‘s decision and that the fear of a higher sentence after trial was a valid concern. In short, petitioner received all the information needed to make an informed decision on whether to accept the plea deal from his counsel of record. Id.
As the Supreme Court has noted, “[a] defendant . . . has the ultimate authority to determine whether to plead guilty.” Florida v. Nixon, 543 U.S. 175, 187 (2004) (internal quotation marks omitted); see also Smith v. United States, 348 F.3d 545, 552 (6th Cir. 2003) (“The decision to plead guilty—first, last, and always—rests with the defendant, not his lawyer.“). And “[i]f a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” Lafler, 566 U.S. at 168. Logan undoubtedly received as much from Zambon. Because he failed to show that he was denied his Sixth Amendment right to effective assistance of counsel, the district court did not err in denying his motion to vacate his sentence under
And because petitioner relies heavily on Lafler, the seminal case on ineffective assistance during plea bargaining, we must note the differences between the two cases. In Lafler, the defendant had only one attorney, who told him to reject a favorable plea and proceed to trial because “the prosecution would be unable to establish his intent to murder [the victim] because [the victim] had been shot below the waist.” 566 U.S. at 161. This was legally incorrect, and the defendant was convicted. Id. at 161-62. The Court agreed with the lower courts that the defendant had been prejudiced by his counsel‘s advice. Id. at 174. In analyzing the deficient performance prong, the Court merely noted that “deficient performance has been conceded by all parties. The case comes to [the Supreme Court] on that assumption, so there is no need to address this question.” Id. But on that point the Court also stated that “an erroneous strategic prediction
Here, petitioner‘s counsel of record told him the risks he faced in going to trial, including that he could face more jail time than was offered in the ten-year-capped plea deal. Zambon told petitioner that he could face a sentence in the range of thirty years to life. Terrell‘s erroneous contrary prediction that there would be ways to get petitioner to “walk“—meaning no additional jail time—is not necessarily deficient performance under Lafler. Id. Hindsight, as we know, is not the lens through which we grade attorney performance. See Premo v. Moore, 562 U.S. 115, 125 (2011) (“Failure to respect the latitude Strickland requires can create at least two problems in the plea context. First, the potential for the distortions and imbalance that can inhere in a hindsight perspective may become all too real. The art of negotiation is at least as nuanced as the art of trial advocacy, and it presents questions farther removed from immediate judicial supervision. There are, moreover, special difficulties in evaluating the basis for counsel‘s judgment: An attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as full as it is after a trial.“). That said, we have already noted our agreement with the district court that Terrell‘s counsel was deficient for numerous reasons. But unlike in Lafler, the deficient performance was not all that petitioner received. Logan was also counseled by Zambon, who provided all that the Sixth Amendment requires. In sum, petitioner was given all he needed to make an informed decision on the plea offer from Zambon, his attorney of record, and, under these facts, the counsel he received was sufficient under the Sixth Amendment. Lafler, 566 U.S. at 168.
Finally, petitioner also now argues that his claim of ineffective assistance succeeds because Zambon never advised him to take the plea deal and merely told him it was a good one, while Terrell explicitly told him not to take the deal. In other words, he argues that his deficient attorney explicitly told him not to take the plea deal, whereas his good attorney only advised him that a “very good” plea deal existed. But below, petitioner argued and testified that Zambon gave him good advice—to accept the plea—that he should have followed. Though Zambon testified that he did not directly tell Logan whether to take the plea deal and left the decision up to him, the district court did not clearly err in its factual finding that Zambon advised Logan to take the “very good plea agreement.” See Guerrero, 383 F.3d at 414.
IV.
We affirm the judgment of the district court.