885 F.3d 949 (6th Cir. 2018), 15-6060, Turner v. United States

Docket Nº:15-6060
Citation:885 F.3d 949
Party Name:John R. TURNER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Attorney:Robert L. Hutton, Glankler Brown, PLLC, Memphis, Tennessee, for Appellant. Kevin G. Ritz, United States Attorney’sOffice, Memphis, Tennessee, for Appellee. Robert L. Hutton, Glankler Brown, PLLC, Memphis, Tennessee, for Appellant. Kevin G. Ritz, Murrell G. Martindale, United States Attorney’sOffi...
Judge Panel:Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, and BUSH, Circuit Judges. BATCHELDER, J., delivered the opinion of the court in which GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, THAPA...
Case Date:March 23, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 949

885 F.3d 949 (6th Cir. 2018)

John R. TURNER, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 15-6060

United States Court of Appeals, Sixth Circuit

March 23, 2018

Argued: October 11, 2017

Page 950

Appeal from the United States District Court for the Western District of Tennessee at Memphis. Nos. 2:12-cv-02266; 2:08-cr-20302-1— Samuel H. Mays, Jr., District Judge.

ARGUED EN BANC:

Robert L. Hutton, Glankler Brown, PLLC, Memphis, Tennessee, for Appellant.

Kevin G. Ritz, United States Attorney’sOffice, Memphis, Tennessee, for Appellee.

ON SUPPLEMENTAL BRIEF:

Robert L. Hutton, Glankler Brown, PLLC, Memphis, Tennessee, for Appellant.

Kevin G. Ritz, Murrell G. Martindale, United States Attorney’sOffice, Memphis, Tennessee, for Appellee.

Steven J. Mulroy, University of Memphis, Memphis, Tennessee, Stephen Ross Johnson, Ritchie, Dillard, Davies & Johnson, P.C., Knoxville, Tennessee, Adam Lamparello, Newport, Kentucky, for Amici Curiae.

Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, and BUSH, Circuit Judges.[*]

BATCHELDER, J., delivered the opinion of the court in which GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, THAPAR, and BUSH, JJ., joined, and CLAY and WHITE, JJ., joined in the result. BUSH, J. (pp. 955-66), delivered a separate dubitante opinion in which KETHLEDGE, J., joined. CLAY, J. (pp. 966-76), delivered a separate concurrence in the judgment only in which WHITE, J., joined in Part I. WHITE, J. (pp. 976-77), delivered a separate concurrence in the judgment only. STRANCH, J. (pp. 977-84), delivered a separate dissent, in which COLE, C.J., and MOORE and DONALD, JJ., joined.

OPINION

Page 951

Appellant John Turner asks us to overrule nearly four decades of circuit precedent holding that the Sixth Amendment right to counsel does not extend to preindictment plea negotiations. See United States v. Moody, 206 F.3d 609, 614-15 (6th Cir. 2000) (citing United States v. Sikora, 635 F.2d 1175 (6th Cir. 1980)). We decline to do so. Our rule— copied word for word from the Supreme Court’s rule— is that the Sixth Amendment right to counsel attaches only " at or after the initiation of judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id. at 614 (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (plurality opinion)); see also United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). The district court followed this rule, and we AFFIRM.

I.

In 2007, after appellant John Turner robbed four Memphis-area businesses at gunpoint, he was arrested by a Memphis police officer who was part of a joint federal-state " Safe Streets Task Force." Turner hired an attorney. A Tennessee grand jury indicted Turner on multiple counts of aggravated robbery, and Turner’s attorney represented him in plea negotiations with state prosecutors.

During the state proceedings, the state prosecutor informed Turner’s attorney

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that the United States Attorney’s Office planned to bring federal charges against Turner. Turner’s attorney contacted the Assistant United States Attorney (" AUSA" ) responsible for Turner’s case, who confirmed that the United States planned to bring federal robbery and firearms charges that could result in a mandatory minimum of eighty-two years’ imprisonment for the firearms charges alone. The AUSA conveyed to Turner’s attorney a plea offer of fifteen years’ imprisonment which would expire if and when a federal grand jury indicted Turner.

Turner’s attorney says that he correctly and timely relayed the federal plea offer to Turner, but that Turner refused it. Turner disputes this. In any event, Turner did not accept the federal plea offer before the federal grand jury in the United States District Court for the Western District of Tennessee indicted him in 2008. Turner hired a new attorney and negotiated a plea deal which resulted in twenty-five years’ imprisonment. As part of Turner’s plea agreement, he waived his right to file a direct appeal.

In 2012, Turner filed a 28 U.S.C. § 2255 motion alleging that his original attorney rendered constitutionally ineffective assistance during the federal plea negotiations. The district court, following Sixth Circuit and Supreme Court precedent, found that Turner’s Sixth Amendment right to counsel had not yet attached during his preindictment federal plea negotiations and denied his motion.

A panel of this court affirmed the district court. Turner v. United States, 848 F.3d 767 (6th Cir. 2017). Turner then filed a petition for rehearing en banc, which this court granted. Turner v. United States, 865 F.3d 338 (6th Cir. 2017).

II.

Turner raises two issues: (1) whether the Sixth Amendment right to counsel extends to preindictment plea negotiations; and (2) whether an indictment in a state prosecution triggers a criminal defendant’s Sixth Amendment right to counsel for the purposes of forthcoming federal charges based on the same underlying conduct. Both of these issues are questions of law that we review de novo. See Moody, 206 F.3d at 612.

A.

" In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defen[s]e." U.S. CONST. amend. VI. The Sixth Amendment right to counsel " does not attach until a prosecution is commenced." Rothgery v. Gillespie Cty., 554 U.S. 191, 198, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). A prosecution commences only at or after " the initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id. (quoting Gouveia, 467 U.S. at 188, 104 S.Ct. 2292).

Once the Sixth Amendment right to counsel attaches, criminal defendants have a right to the assistance of counsel during " critical stages" of the prosecution. Missouri v. Frye, 566 U.S. 134, 140, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009). The " core purpose" of the Sixth Amendment right to counsel was to ensure that criminal defendants could receive assistance of counsel " at trial," United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), but the Supreme Court has " expanded" the right to certain pretrial " trial-like confrontations" that present " the same dangers that gave birth initially to the right itself."

Page 953

Id. at 311-12, 93 S.Ct. 2568. These critical stages include " arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea." Frye, 566 U.S. at 140, 132 S.Ct. 1399.

Six years ago, in Missouri v. Frye, 566 U.S. at 144, 132 S.Ct. 1399, and Lafler v. Cooper, 566 U.S. 156, 162, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the Supreme Court extended the Sixth Amendment right to counsel to a new critical stage: plea negotiations. It did so because plea negotiations have become " central to the administration of the criminal justice system" and because they frequently determine " who goes to jail and for how long," making them potentially " the only stage when legal aid and advice would help" many criminal defendants. Frye, 566 U.S. at 143-44, 132 S.Ct. 1399 (citations omitted). In both Frye and Lafler, however, the plea negotiations occurred after the criminal defendants had been formally charged. See id. at 138, 132 S.Ct. 1399; Lafler, 566 U.S. at 161, 132 S.Ct. 1376. Neither Frye nor Lafler specifically addresses attachment, but they are critical-stage cases which we have found " accept the rule that the right to counsel does not attach until the initiation of adversary judicial proceedings." Kennedy v. United States, 756 F.3d 492, 493 (6th Cir. 2014).

Turner argues that the Supreme Court’s reasoning for holding that postindictment plea negotiations are critical stages applies equally to preindictment plea negotiations. But Turner makes the fundamental " mistake" of confusing the " critical stage question" with the " attachment question." Rothgery, 554 U.S. at 211, 128 S.Ct. 2578 (internal quotation marks omitted). These questions must be kept " distinct." Id. at 212, 128 S.Ct. 2578 (citation omitted). That is why the Supreme Court has repeatedly rejected attempts by criminal defendants to extend the Sixth Amendment right to counsel to preindictment proceedings, even where the same proceedings are critical stages when they occur postindictment. Compare

United States v. Wade, 388 U.S. 218, 236-37, 87 S.Ct. 1926, 18 L.Ed.2d 1149...

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