756 F.3d 492 (6th Cir. 2014), 13-3820, Kennedy v. United States

Docket Nº:13-3820
Citation:756 F.3d 492
Opinion Judge:MURPHY, District Judge.
Party Name:ADAM JEROME KENNEDY, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee
Attorney:Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant. Benjamin C. Glassman, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.
Judge Panel:Before: ROGERS and COOK, District Judges; MURPHY, District Judge.[*]
Case Date:June 24, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 492

756 F.3d 492 (6th Cir. 2014)

ADAM JEROME KENNEDY, Petitioner-Appellant,

v.

UNITED STATES OF AMERICA, Respondent-Appellee

No. 13-3820

United States Court of Appeals, Sixth Circuit

June 24, 2014

Appeal from the United States District Court for the Southern District of Ohio at Columbus. Nos. 2:10-cr-00095-1; 2:12-cv-00365; Edmund A. Sargus, Jr., District Judge.

ON BRIEF:

Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant.

Benjamin C. Glassman, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.

Before: ROGERS and COOK, District Judges; MURPHY, District Judge.[*]

OPINION

MURPHY, District Judge.

While being investigated for drug trafficking, Adam Jerome Kennedy learned from his attorney that he might be able to reduce his sentencing exposure by pleading guilty to an information. Unsure of what to do, he sought the advice of a second attorney. This second attorney promised to beat the government's case. Kennedy accordingly switched attorneys, heard from his new attorney the government might be bluffing, and decided not to negotiate a guilty plea.

Unfortunately for Kennedy, the government was not bluffing. It soon indicted him on multiple drug-trafficking, firearms, and money-laundering charges and then caught him accepting a marijuana shipment. After changing attorneys twice more, Kennedy pleaded guilty and received a below-guidelines sentence of 180 months.

Page 493

Kennedy later moved to vacate his sentence under 28 U.S.C. § 2255. He argued that he would have negotiated a preindictment plea agreement and received a lower sentence but for the ineffective assistance of his second attorney. The district court denied the motion because United States v. Moody, 206 F.3d 609 (6th Cir. 2000), held that there is no Sixth Amendment right to counsel in preindictment plea negotiations. We affirm.

The Sixth Amendment guarantees a right to counsel at critical stages of a criminal proceeding. Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009). Those critical stages include some pretrial proceedings, such as postindictment interrogations, postindictment identifications, and postindictment plea negotiations. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (postindictment interrogations); United States v....

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