Pough v. U.S.

• Decision Date: 31 March 2006
• Docket Number: No. 04-3863.,04-3863.
• Citation: 442 F.3d 959
• Parties: Lance POUGH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

442 F.3d 959

Lance POUGH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 04-3863.

United States Court of Appeals, Sixth Circuit.

Argued: February 1, 2006.

Decided and Filed: March 31, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: Spiros P. Cocoves, Toledo, Ohio, for Appellant. Robert J. Becker, Assistant United States Attorney, Akron, Ohio, for Appellee. ON BRIEF: Spiros P. Cocoves, Toledo, Ohio, for Appellant. Robert J. Becker, Assistant United States Attorney, Akron, Ohio, for Appellee.

Before: RYAN, CLAY, and GILMAN, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which RYAN, J., joined. CLAY, J. (pp. 971-974), delivered a separate dissenting opinion.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Lance Pough, a federal prisoner who first pled guilty to federal drug charges and later to a state murder charge, appeals the denial of his § 2255 motion to vacate his sentence. He contends that the two lawyers who represented him during the course of his plea proceedings in the district court, as well as his court-appointed appellate counsel on direct appeal, all rendered constitutionally ineffective assistance. Pough asserts that this entitles him to vacate his guilty plea or, at a minimum, to an evidentiary hearing. In response, the government maintains that none of the three lawyers performed deficiently, and that the district court should never have addressed the merits of Pough's case because his motion was untimely. For the reasons set forth below, we AFFIRM the judgment of the district court without reaching the government's argument as to timeliness.

I. BACKGROUND

Pough was arrested on May 28, 1999, arraigned that same day, and bound over to the grand jury the following week. Attorney Dennis Terez represented Pough at the arraignment, but Pough retained attorney Charles Mickens to appear on his behalf shortly thereafter. When Pough was subsequently indicted on one count of conspiracy to distribute both powder and crack cocaine, and on three counts of distributing those two substances, Mickens withdrew as counsel of record. Jacqueline Johnson of the Federal Public Defender's Office was then appointed to represent Pough on June 29, 1999.

In the summer and fall of 1999, Johnson entered into plea negotiations with Assistant U.S. Attorney Robert Becker on Pough's behalf. Becker sent Johnson a letter in August of 1999 to express the government's interest in meeting with Pough for an off-the-record proffer session. The letter sent by Becker explained that, while no statement made by Pough during the session would be used in the government's case-in-chief in any criminal matter, "the government may make derivative use of any information which [Pough] provides and may pursue investigative leads suggested by statements or other information which he provides."

In a letter dated September 16, 1999, Becker made a preliminary plea offer to Johnson, estimating that Pough would be sentenced to 14 years in prison, with a reduction of up to 2 years for good behavior. Pough, however, had previously contacted Becker and a state law-enforcement official to express his desire to cooperate in exchange for the government's promise to move for a subsequent reduction in his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. Subject to certain limitations, Rule 35(b) permits a district court to reduce the defendant's sentence if the government indicates in a motion that the defendant has provided "substantial assistance in investigating or prosecuting another person."

Becker informed Johnson that Pough had contacted him directly, and Johnson responded on September 22, 1999 with a stern letter to Pough. In relevant part, Johnson told Pough:

... I cannot stress enough that you must not have direct contact with [Becker] or any law enforcement officer without advice and notice to your counsel. I advised you in our last conversation that you should rely upon the advice of your state appointed counsel regarding your desire to cooperate. I advised [Becker] that you must have counsel because of the possibility of implicating yourself in uncharged state criminal offenses.

Instead, you ignored my advice and directly contacted the prosecutor to inform him that you want to cooperate. You've received direct advice from your state appointed counsel, not to make any further statements to the local law enforcement officers. If you continue to disregard my advice regarding your case, you may complicate and jeopardize the plea negotiations that I have already pursued with [Becker].

According to Pough's affidavit, he spoke to Johnson repeatedly after the government made its initial plea offer, expressing his desire to accept the plea agreement so long as he could secure a later reduction in his sentence via a motion brought by the government under Rule 35. Pough admits that he "would not accept the 1st plea of 14 years, unless [he] received a Rule 35 motion with it." At that point, the government had not included the possibility of such a motion in the plea agreement itself, and Becker's letters to Johnson on this issue indicated only that he "would be willing to consider a Rule 35 motion at a later date, depending on what deal [Pough] is able to make with, and what value [Pough] is to, the state authorities." Pough rejected the government's offer.

Sometime prior to October 4, 1999, the government hardened its position. Although the record does not contain Becker's October 4th letter to Johnson, Becker recounted the content of that letter in subsequent correspondence with Johnson. According to Becker, the government learned at some point that the state of Ohio was preparing to indict Pough for the murder of Brad McMillan, an informant for the Bureau of Alcohol, Tobacco, and Firearms who was scheduled to testify against Pough on drug-related charges pending in state court. Becker claimed that, consistent with ethical principles, he could not ignore that information and would have to include the murder as relevant conduct for the purposes of Pough's sentencing, thus exposing Pough to a potential life sentence in federal prison in addition to a possible death sentence under state law.

In his October 4, 1999 letter, and again in a letter dated January 31, 2000, Becker outlined a "best case scenario" under which Pough would plead guilty in both state and federal court, receive credit for accepting responsibility and assisting the government in other prosecutions, and would serve his federal and state sentences concurrently in federal facilities. Becker also addressed Pough's concern that the only basis for the state charges was information that Pough had provided to federal authorities during the proffer session, explaining that state and federal authorities knew about the murder prior to the proffer and that derivative evidence (which the proffer agreement expressly allowed the government to use) "substantiated what the investigation previously produced."

Pough appeared before the district court on February 14, 2000 and entered a plea of guilty to the one conspiracy count. After entering his plea, Pough again changed counsel, retaining attorney Edwin Vargas, who entered an appearance on April 10, 2000. Vargas sought to continue the sentencing hearing in order to investigate Pough's allegations that the authorities had violated the proffer agreement and to decide whether Pough should withdraw his plea.

The sentencing hearing was eventually held on July 19, 2000. Vargas informed the district court that he had reviewed the plea agreement with Pough and had answered all of the questions that Pough had regarding that agreement. The district court then explained to Pough the details and consequences of his agreement with the government, including his waiver of his rights to appeal and to seek habeas corpus relief. After accepting the plea agreement, the court sentenced Pough to 204 months (17 years) in prison, the sentence to run concurrently with his state sentence for murder. In addressing the court, Pough told the district judge:

I'm glad I got the deal that I got, your Honor, because I feel I got it off my chest, and I did what I felt was best ... During this process, I know it didn't go exactly like I thought it was going to go, and things didn't go in favor for me like I thought they were going to, but I feel confident in what went on.

Notwithstanding the plea agreement's waiver of his right to appeal, Pough filed a notice of appeal anyway, and attorney Richard Lillie was appointed by the district court to represent him. Lillie subsequently filed an Anders brief in this court and sought permission to withdraw from the case. In an unpublished order, this court granted Lillie's motion to withdraw, noted that he had "filed an acceptable Anders brief," and found that "[c]ounsel reviewed the record and properly concluded that no relief is warranted." Rejecting all of Pough's challenges as meritless, this court summarily affirmed his sentence. The mandate issued on October 11, 2001.

Pough's next move was to collaterally attack his conviction and sentence under 28 U.S.C. § 2255, which permits district courts to vacate, set aside, or correct sentences in federal cases. On September 29, 2002, Pough petitioned the district court for an extension of the limitations period within which to file for relief under § 2255. Pough's motion was submitted just 13 days before the one-year statute of limitations period under § 2255 would have expired. The district court denied Pough's request for an extension, but Pough proceeded to file his § 2255 motion anyway on April 16, 2003. In response, the government argued that Pough's motion was untimely. The district court agreed, and therefore granted the government's motion to dismiss on May 30, 2003.

Pough then asked the district court to reconsider its decision to dismiss his § 2255 motion, citing the Second Circuit's decision in Green v....