Frank CHRISTOPHER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 14-1659.
United States Court of Appeals, Sixth Circuit.
April 3, 2015.
782 F.3d 533
C.
Finally, Bistline argues that his 366-day sentence is substantively unreasonable. That sentence, to be clear, amounts to more than an 80% reduction from the low end of his original guidelines range. Suffice it to say that, for all of the reasons already stated in our prior opinions in this case, Bistline‘s sentence is not unreasonably harsh. See Bistline I, 665 F.3d at 764-768; Bistline II, 720 F.3d at 634-35.
The district court‘s judgment is affirmed.
CLAY, Circuit Judge.
Defendant Frank Christopher appeals the district court‘s denial of his petition to vacate or set aside his conviction pursuant to
BACKGROUND
On April 21, 2009, Christopher was charged with one count of conspiracy to possess with intent to distribute, and distribution of cocaine. The government‘s case against Christopher was strong--it
Christopher claims that he did not directly appeal his conviction based on the advice of his trial attorney. In January of 2012, Christopher wrote the court asking that his case be reviewed because his “lawyer failed to properly advise [him] about taking [the] deal that was offered or going to trial due to his cocaine abuse.” (R. 2308, 2255 Ltr., PageID # 16368). It had only just dawned on Christopher “that being represented by a fellow cocaine abuser may not have been in [his] best interest.” (Id.) Christopher alleged that he “[had] done cocaine with [his attorney] at least 20 times,” including while reviewing discovery materials. (Id.) The court construed Christopher‘s letter as a motion to vacate or set aside the judgment pursuant to
Christopher was appointed counsel, and supplemental briefing was filed on January 9, 2014. He confirmed (in a declaration made under penalty of perjury) the allegations made in his letter. He also explained that he had known his attorney personally for nearly thirty years and offered additional details respecting their joint cocaine usage during the pendency of his case. Christopher alleged that during the representation “he delivered cocaine to [his attorney] on approximately twelve occasions, always in an amount of two grams.” On one occasion, he alleged, his attorney directed him to search for his name among a stack of discovery materials while they both were high on cocaine. That is the only time, according to Christopher, that they reviewed the evidence--he did “not receive a copy of any discovery ... and did not hear any” of the incriminating phone calls prior to his trial. (R. 2530-1, Decl., PageID # 18601) The only advice allegedly offered by Christopher‘s attorney was that “the government‘s case was weak and [that] conspiracy was difficult to prove.” (Id.) On that basis alone, Christopher asserted, he rejected the plea deal, which he would have otherwise accepted had he known the strength of the government‘s case against him.
The government asserted below that Christopher would not have pleaded guilty, inasmuch as he protested his innocence throughout trial, and for that reason, he was not entitled to any relief. The government also asserted that Christopher‘s allegations did not amount to a claim for ineffective assistance of counsel, and that the allegations were unbelievable because they were contradicted by the record. The district court adopted without qualification the reasoning provided in the government‘s brief and denied Christopher‘s motion. This appeal followed.
DISCUSSION
The district court‘s denial of a
Ineffective assistance of counsel claims are typically governed by Strickland v. Washington, where a petitioner must demonstrate (1) that the attorney‘s performance was constitutionally deficient, and (2) that he was prejudiced by this deficiency. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).1 The second prong is satisfied only if there exists a reasonable probability that the trial‘s outcome would have differed but for the attorney‘s error. Ross v. United States, 339 F.3d 483, 490 (6th Cir.2003). The Strickland test also applies in the plea-bargaining context, where it is naturally less burdensome to prove prejudice, because the petitioner “need only show a reasonable probability that he would have pleaded differently.” Griffin, 330 F.3d at 737.
“A claim of ineffective assistance can hinge on one allegation or, as here, the cumulative effect of several.” Caballero v. Keane, 42 F.3d 738, 741 (2d Cir.1994). Christopher has alleged sufficient facts to support, if true, a finding that he received ineffective assistance. On its own, drug usage may “be a significant factor when determining the [in]adequacy of [the] representation.” Id. at 740. Actual conflicts of interest also provide cause to find ineffective assistance of counsel. See Moss v. United States, 323 F.3d 445 (6th Cir.2003). The alleged supplier-client relationship in this case suggests the possibility of an actual conflict of interest on the theory that, were Christopher to cooperate with the government and divulge information about his cocaine distribution, Christopher‘s attorney would be at risk of the government discovering his own illegal drug use. See Rugiero v. United States, 330 F.Supp.2d 900, 907 (E.D.Mich.2004) (“It is the existence of this undeniable uncertainty regarding [the attorney‘s] own liberty and financial interests before and during Petitioner‘s trial and [the attorney‘s] knowledge of this uncertainty that gives rise to the actual conflict in this case.“). Even absent this conflict, Christopher has sufficiently alleged deficient performance: he alleged both that his attorney failed to review or inform him of the evidence in his case and that he was told not to worry because “the government‘s case was weak and conspiracy was difficult to prove.” (R. 2530-1, Decl., PageID # 18601). The failure to review salient evidence with a client or to offer meaningful advice as to the likelihood of conviction at trial are both grounds for finding ineffective assistance. See Smith v. United States, 348 F.3d 545, 552 (6th Cir.2003) (“A criminal defendant has a right to expect at least that his attorney will review the charges with him by explaining the elements necessary for the government to secure a conviction, discuss the evidence as it bears on those elements, and explain the sentencing exposure the defendant will face as a consequence of exercising each of the options available.“). For the aforementioned reasons, Christopher may have satisfied the first prong of the Strickland inquiry.
We next turn to whether the facts as alleged support a finding of prejudice. They do. Christopher averred that he would have pleaded guilty had he understood the strength of the case against him. “Although some circuits have held that a defendant must support his own assertion that he would have accepted the offer with additional objective evidence, we in this circuit have declined to adopt such a requirement.” Griffin, 330 F.3d at 737. Moreover, the substantial difference between Christopher‘s actual sentence and the range of sentences available under the plea he was offered is “strong evidence of a reasonable probability” that he would have accepted the agreement were it not for his attorney‘s deficient counsel. Smith, 348 F.3d at 552. The government‘s contention--that Christopher‘s claim is foreclosed because he continued to protest his innocence at trial--has previously been rejected by this Court. See id. Christopher has asserted that he would have accepted the plea and, under these circumstances, that is enough if his allegations are shown to be truthful.
The final inquiry is whether the district court was required to hold an evidentiary hearing before denying Christopher‘s claim. Valentine v. United States, 488 F.3d 325, 331 (6th Cir.2007). We review the district court‘s denial of a hearing for an abuse of discretion. Ross v. United States, 339 F.3d 483, 490 (6th Cir.2003). At the outset, we recognize that “a full blown evidentiary hearing” is not required in every instance. Smith, 348 F.3d at 550 (internal quotation marks omitted). However, a petitioner is due some form of hearing suited to the circumstances, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”
Christopher has satisfied his burden. The government points to a status conference where the incriminating phone calls were mentioned as proof that Christopher was aware of the evidence against him. We are unpersuaded by this line of argument. The government places too much significance on this fleeting reference in a single status conference. Even accepting that Christopher was fully aware that the government‘s evidence included allegedly incriminating phone calls, there is no inconsistency with the notion that he was unaware of those phone calls’ content or legal import. We are also not persuaded by the fact that Christopher‘s attorney acknowledged on the record that Christopher was aware of but rejected the plea offer. We previously held in Smith that an evidentiary hearing was required, despite the attorney‘s sworn affidavit attesting that the petitioner “never considered a plea [even] though it was discussed.” Smith, 348 F.3d at 550. The natural purpose of the hearing, in that instance, was to determine
We recognize that the district judge may be familiar with the parties and is in the best position to gauge a petitioner‘s credibility. However, without the benefit of the district court‘s reasons for denying the motion, we are left with only the record and Christopher‘s declaration for our consideration. Christopher‘s burden for obtaining a hearing was light, and he met that burden because the record did not “conclusively show” that he was entitled to no relief. Valentine, 488 F.3d at 332.
CONCLUSION
We find that the district court abused its discretion by dismissing Christopher‘s petition without a hearing. The judgment of the district court is therefore REVERSED and REMANDED for further proceedings.