Kennedy v. United States

• Citation: 756 F.3d 492
• Decision Date: 24 June 2014
• Docket Number: No. 13–3820.,13–3820.
• Parties: Adam Jerome KENNEDY, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

756 F.3d 492

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.

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.

[756 F.3d 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. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (postindictment lineups); Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (postindictment plea negotiations). But not all pretrial events are included. Guided by the “plain language” of the Sixth Amendment and its purpose of protecting individuals in adversarial proceedings, the Supreme Court has held that the right to counsel “does not attach until the initiation of adversary judicial proceedings.” United States v. Gouveia, 467 U.S. 180, 187–90, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984); see also Moran v. Burbine, 475 U.S. 412, 428–31, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (no right to counsel in preindictment interrogations); Kirby v. Illinois, 406 U.S. 682, 688–90, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (plurality opinion) (no right to counsel at preindictment identifications).

Although the Moody panel thought applying this rule to preindictment plea negotiations was unfair, the panel applied it nonetheless. See Moody, 206 F.3d at 612–16. Binding decisions of the Supreme Court and of prior panels of this court prevented it from reaching a contrary result. See id. (citing, among other decisions...