659 Fed.Appx. 1013 (11th Cir. 2016), 14-12774, Carmichael v. United States

Docket Nº:14-12774 Non-Argument Calendar
Citation:659 Fed.Appx. 1013
Opinion Judge:PER CURIAM
Party Name:LEON CARMICHAEL, SR., Petitioner - Appellant, v. UNITED STATES OF AMERICA, Respondent - Appellee
Attorney:For LEON CARMICHAEL, SR., Petitioner - Appellant: Mark Gonzalo Montiel, Mark G. Montiel, PC, MONTGOMERY, AL. LEON CARMICHAEL, SR., Petitioner - Appellant, Pro se, ESTILL, SC. For UNITED STATES OF AMERICA, Respondent - Appellee: Sandra J. Stewart, Matthew S. Miner, A. Clark Morris, Christopher A. ...
Judge Panel:Before ROSENBAUM and JILL PRYOR, Circuit Judges, and SCHLESINGER,[*] District Judge.
Case Date:August 30, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1013

659 Fed.Appx. 1013 (11th Cir. 2016)

LEON CARMICHAEL, SR., Petitioner - Appellant,

v.

UNITED STATES OF AMERICA, Respondent - Appellee

No. 14-12774 Non-Argument Calendar

United States Court of Appeals, Eleventh Circuit

August 30, 2016

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the Middle District of Alabama. D.C. Docket Nos. 2:10-cv-01106-MHT-WC, 2:03-cr-00259-001-MHT-WC-1.

For LEON CARMICHAEL, SR., Petitioner - Appellant: Mark Gonzalo Montiel, Mark G. Montiel, PC, MONTGOMERY, AL.

LEON CARMICHAEL, SR., Petitioner - Appellant, Pro se, ESTILL, SC.

For UNITED STATES OF AMERICA, Respondent - Appellee: Sandra J. Stewart, Matthew S. Miner, A. Clark Morris, Christopher A. Snyder, U.S. Attorney's Office, MONTGOMERY, AL; Arthur Lee Bentley, III, U.S. Attorney's Office, TAMPA, FL.

Before ROSENBAUM and JILL PRYOR, Circuit Judges, and SCHLESINGER,[*] District Judge.

OPINION

PER CURIAM

Appellant Leon Carmichael, Sr., appeals the district court's denial of his pro se 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. This Court granted a certificate of appealability on the issue of whether the district court abused its discretion in denying, without an evidentiary hearing, Carmichael's claim that he would have pled guilty if his trial counsel had advised him of the extent and nature of the Government's evidence, the possibility of pleading guilty, and the Government's informal plea offers.

Recently, the Government filed a supplemental brief to this Court. In it, the Government conceded that the district court abused its discretion when it denied Carmichael's ineffective-assistance claim without first conducting an evidentiary hearing. Because we agree with the parties and find that Carmichael alleged sufficient facts in his § 2255 motion and affidavit that, if proved true at an evidentiary hearing, would establish deficient performance and prejudice, we reverse the district court's denial of Carmichael's § 2255 petition and remand to the district court to hold an evidentiary hearing regarding Carmichael's ineffective-assistance claim.

I. Background

A. Carmichael's Underlying Conviction and Direct Appeal

On June 17, 2005, following an eleven-day trial, a jury found Carmichael guilty of two offenses: a marijuana-distribution conspiracy concerning 7,000 pounds of marijuana, and a money-laundering conspiracy. The district court sentenced Carmichael to 480 months in prison, consisting of 480 months in prison on the marijuana-distribution conspiracy conviction and 240 months in prison on the money-laundering offense, to run concurrently with each other. In addition to Carmichael's prison sentence, the court also ordered Carmichael to forfeit the Carmichael Center (an entertainment complex and music venue that Carmichael owned), Carmichael's personal residence, and an automobile.

Carmichael timely filed a notice of appeal from the final judgment. After oral argument, this Court affirmed Carmichael's conviction and sentence, see United States v. Carmichael, 560 F.3d 1270 (11th Cir. 2009), and denied Carmichael's petition for rehearing, see

United States v. Carmichael, 347 Fed.Appx. 556 (11th Cir. 2009). The United States Supreme Court denied Carmichael's petition for writ of certiorari on January 11, 2010. See Carmichael v. United States, 558 U.S. 1128, 130 S.Ct. 1093, 175 L.Ed.2d 912 (2010). None of the issues Carmichael raised in his direct appeal relate to the issues currently before us.

B. Carmichael's § 2255 Motion and Allegations of Ineffective Assistance of Counsel

Carmichael, proceeding pro se, timely filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (" Motion" ). He asserted that when he was deciding whether to plead guilty or risk a conviction at trial, his attorneys failed to explain the weight and extent of the Government's evidence, advise him of the applicable sentence if he was convicted, pursue plea negotiations, and convey plea offers from the Government. Carmichael also alleged that he was entitled to an evidentiary hearing on his claims.

In Carmichael's affidavit in support of the Motion, he alleged specific facts about his interactions with counsel regarding plea negotiations, alleging that if he had been better informed, he " would not have gone to trial but rather pleaded guilty. . . ." Specifically, Carmichael attested that he initially asked the lead attorney on his case, Stephen Glassroth, about pursuing plea negotiations with the Government. Glassroth responded that he wanted to complete discovery before negotiating a plea deal. But Glassroth left the case before conducting plea negotiations, and Lisa Wayne, who had been assisting Glassroth before he left, took over as lead attorney on Carmichael's case.1 Wayne was located in Denver, Colorado. Attorney Marion Chartoff assisted Wayne. Glassroth had previously hired Chartoff as a contract attorney to conduct research, draft motions and briefs, and assist Glassroth and Wayne with tasks related to the case. After Glassroth withdrew from Carmichael's case, Carmichael also hired attorney Susan James to assist Wayne.

According to Carmichael, when he asked James about pursuing plea negotiations, James responded that she was new to the case and advised Carmichael that he should contact Wayne. James also informed Carmichael that Wayne directed James not to do anything on the case without Wayne's permission.

As for Wayne, Carmichael alleged that she said that she would make several trips to Montgomery to work on the case and conduct plea negotiations, if possible. But, Carmichael attested, Wayne never made the promised trips to Montgomery and instead arrived in Montgomery only two days before the start of Carmichael's trial.

Carmichael further alleged that Wayne never mentioned any plea offers to Carmichael and, from that, Carmichael " assumed, in [the] absence of word from [his] attorneys to the contrary, that the Government did not want to negotiate a plea." As Carmichael related the relevant facts, Carmichael discovered only later that the Government was receptive to negotiating a plea and did offer plea deals.

In addition, Carmichael asserted that James told him that she and Wayne had gotten their signals crossed when it came to communicating plea offers to Carmichael. According to Carmichael, Wayne thought James was communicating with Carmichael regarding plea negotiations because James was local counsel and Wayne was in Colorado, but James was not because she had received no such direction from Wayne. As a result, Carmichael contended that he was never fully advised about his case or plea negotiations " because each of [his] lawyers thought the others were discussing such matters with [him]." Carmichael stated that he " sensed a large measure of dysfunction and lack of coordination between attorneys Wayne, James, and Chartoff," and that, because of this dysfunction, he believed that plea offers made by the Government were never relayed to him.

As an example in support of Carmichael's allegation that his defense counsel lacked coordination and failed to communicate with him regarding plea negotiations, Carmichael alleged that after the jury returned its verdict, he overheard a conversation between Assistant United States Attorney Stephen Feaga and James in which Feaga referred to a previous five-year plea offer that Carmichael had never heard about from his attorneys.

After hearing this conversation, Carmichael asked James about the five-year plea offer, but James refused to respond to his inquiries and instead referred Carmichael to Wayne. Wayne, in turn, told Carmichael that " local" counsel would take care of such matters and would be responsible for any and...

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