Turner v. United States

• Citation: 848 F.3d 767
• Decision Date: 15 February 2017
• Docket Number: No. 15-6060,15-6060
• Parties: John R. TURNER, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

848 F.3d 767

John R. TURNER, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 15-6060

United States Court of Appeals, Sixth Circuit.

Argued: October 20, 2016

Decided and Filed: February 15, 2017

ARGUED: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant. Murrell G. Martindale, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant. Murrell G. Martindale, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

Before: MERRITT, BATCHELDER, and ROGERS, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

This case arises because our system of federalism allows dual prosecutions by both state and federal sovereigns for one criminal episode without the protection of double jeopardy. Abbate v. United States , 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). This appeal presents the question of whether the Sixth Amendment right to counsel may attach before formal charges are filed in federal court. Defendant John Turner was arrested in Memphis by officers working with a joint federal-state anticrime task force. He was charged with aggravated robbery pursuant to Tennessee law, and retained counsel to represent him. During the pendency of the state proceedings, the United States Attorney's Office and Turner's attorney in the state proceeding discussed settlement regarding forthcoming federal charges arising out of the same conduct that led to the state charges. Turner rejected a federal plea offer regarding the as-yet uncharged federal case, but he subsequently pled guilty to the federal charges pursuant to a less-favorable plea agreement. He filed a motion pursuant to 28 U.S.C. § 2255 to vacate or set aside his federal conviction based on ineffective assistance of counsel during plea negotiations concerning the federal charges. The government argued that because Turner had no Sixth Amendment right to counsel regarding plea negotiations conducted prior to the filing of formal charges against him, counsel could not be constitutionally ineffective. Following Sixth Circuit precedent holding that the Sixth Amendment right to counsel does not attach before formal charges are filed, the district court denied the motion without reaching the merits of the ineffective assistance of counsel claim. Because our precedent requires us to do so, we affirm the judgment of the district court.

I.

The relevant facts are undisputed. Turner robbed four Memphis-area businesses at gunpoint on October 3, 2007. He was arrested by a Memphis police officer working as part of the "Safe Streets Task Force," a joint federal-state task force created to target and prosecute individuals involved in serious crimes.¹ The complaint was presented to a Shelby County General Sessions judge who signed the arrest warrant. Turner was arrested by state officers, some of whom were assigned to the task force.

Turner retained attorney Mark McDaniel. Several months later, in February 2008, a grand jury in Shelby County returned three indictments charging Turner with aggravated robbery under Tennessee law. The fourth indictment, also for aggravated robbery, was returned in June 2008. Turner was then offered a plea deal on the state charges that would result in a negotiated sentence of eight or nine years. The state charges were resolved through the plea agreement in March 2009 and are not at issue in this appeal.

Although an exact date is not given by the parties, at some point during the summer of 2008 while McDaniel represented Turner on the state charges, the state district attorney told McDaniel that the United States Attorney's Office planned to bring federal charges against Turner and told McDaniel to call Assistant United States Attorney Tony Arvin. Arvin told McDaniel that the United States planned to bring federal charges against Turner under the Hobbs Act, 18 U.S.C. § 1951, which criminalizes interference with commerce by threats or violence, and for using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) for each of the four robberies. On the federal firearm charges alone Turner faced a mandatory minimum of 82 years. Assistant United States Attorney Arvin told McDaniel that he would offer Turner a sentence of 15 years on the federal charges on the condition that Turner accept the offer before the federal indictment was returned.

McDaniel contends that he relayed the federal plea deal correctly and timely to Turner, but Turner did not want to take it.² McDaniel claims he spoke to Turner numerous times over the summer of 2008, and Turner told him he understood the federal charges against him and understood that they were separate from the state charges. McDaniel says he met with Turner on July 28, 2008, to reiterate to Turner that the United States Attorney was waiting for an answer and that the plea offer of 15 years would expire shortly after September 15, 2008, when the charges would be presented to a federal grand jury. McDaniel says that Turner told him that 15 years was too much time for what he did. Turner disputes McDaniel's version of the events, but he does not dispute that he did not accept the plea offer before the federal indictment was returned. Turner then discharged McDaniel and hired a new attorney. A new Assistant United States Attorney took over Turner's case and the best deal that Turner's new attorney could negotiate was a 25–year sentence. Turner accepted the plea deal with a sentence of 25 years, pleading guilty to four counts of robbery affecting commerce in violation of 18 U.S.C. § 1951, and one count of using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). He was sentenced to 25 years. He waived his right to direct appeal on the federal charges pursuant to the terms of the plea agreement.

In 2012, Turner filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. The sole issue presented was whether defense counsel McDaniel rendered ineffective assistance of counsel during the plea negotiations on the federal charges. The district court denied the motion without holding an evidentiary hearing because it did not reach the factual question of whether McDaniel was ineffective. Instead, it decided the issue on the purely legal question of whether Turner's Sixth Amendment right to counsel on the federal charges had attached at all when Turner rejected the government's plea offer and found that it had not.

II.

On appeal, Turner raises two issues: (1) whether his Sixth Amendment right to counsel attached during plea negotiations that occurred prior to his federal indictment, and (2) whether the district court should have granted an evidentiary hearing to develop this claim.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. Whether the Sixth Amendment right to counsel attaches during preindictment plea negotiations is a question of law we review de novo . United States v. Moody , 206 F.3d 609, 612 (6th Cir. 2000).

A. Supreme Court Precedent

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). Some pretrial proceedings qualify as critical stages, but only if formal charges have been filed. See Missouri v. Frye, 566 U.S. 133, 132 S.Ct. 1399, 182 L.Ed.2d 379, (2012) (postindictment plea negotiations); United States v. Wade , 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (postindictment lineups); Massiah v. United States , 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (postindictment interrogations). The Supreme Court has not squarely addressed whether a defendant has the right to counsel during preindictment plea negotiations, but it has consistently drawn the line at the time of filing of formal charges, holding that the right to counsel attaches only after the formal initiation of judicial proceedings, relying on a purely chronological, bright-line test. See Moran v. Burbine , 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (rejecting claims that Sixth Amendment right to counsel should attach when confessions during police interrogation about crimes not yet charged may well seal suspect's fate); United States v. Gouveia , 467 U.S. 180, 192–93, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) (no right to counsel during preindictment administrative detention of inmates); Kirby v. Illinois , 406 U.S. 682, 689–90, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (plurality opinion) (refusing to extend the right to counsel during preindictment police lineup).

Despite the Court's recognition that certain proceedings "might well settle the accused's fate and reduce the trial itself to a mere formality," Wade , 388 U.S. at 224, 87 S.Ct. 1926, the bright-line test persists. In addition, the Court has repeatedly recognized that the transition from investigation by law enforcement to accusations by a prosecutor is a critical juncture. See Gouveia , 467 U.S. at 188–89, 104 S.Ct. 2292 (recognizing the importance of counsel at "critical" proceedings, including "when the accused is confronted with both the intricacies of the law and the advocacy of the public prosecutor"); Wade , 388 U.S. at 227–28, 87 S.Ct. 1926 (counsel attaches at "critical" stages of the criminal process). Recognizing that plea bargains have "become so central to the administration of [the] criminal justice system," the Court held in two companion cases that a defendant is entitled to the effective assistance of counsel during plea negotiations. Missouri v. Frye , 132 S.Ct. at 1407 (defense counsel has a duty to communicate formal offers from the prosecution); see also Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (defendant was entitled to relief...