Arredondo v. U.S.

• Citation: 178 F.3d 778
• Decision Date: 28 May 1999
• Docket Number: Nos. 96-2126,96-2583,s. 96-2126
• Parties: Ricardo ARREDONDO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

178 F.3d 778

Ricardo ARREDONDO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 96-2126, 96-2583.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 11, 1998.

Decided May 28, 1999.

Ricardo Arredondo, Federal Correctional Institute, Milan, MI, Kevin M. Schad (argued and briefed), Schad, Buda & Cook, Cincinnati, Ohio, for Petitioner-Appellant.

Michael Hluchaniuk (argued and briefed), Office of the U.S. Attorney, Bay City, MI, David J. Debold, Office of the U.S. Attorney, Detroit, MI, for Respondent-Appellee.

Before: BOGGS and MOORE, Circuit Judges; DOWD, ^* District Judge.

OPINION

MOORE, Circuit Judge.

Ricardo Arredondo was convicted for his role in a conspiracy to distribute heroin and cocaine in Saginaw, Michigan. This court affirmed his conviction on appeal, and he filed a petition to vacate his sentence. He argued, pro se, that his counsel was ineffective for failing to tell him about a plea offer on the eve of trial and for failing to object to the government's assertion that he was responsible for more than one kilogram of heroin. When the district court denied the petition, Arredondo requested reconsideration and appealed to this court. After the motion for reconsideration was denied, he also appealed that ruling. Both appeals are now before us.

We hold that the district court erred in refusing to hold an evidentiary hearing to address Arredondo's claim of ineffective assistance based on his lawyer's failure to challenge the conclusory attribution to him of more than one kilogram of heroin. We also hold that the district court erred in denying Arredondo's motion for reconsideration with respect to the alleged failure to communicate a plea offer. We therefore VACATE the district court's denial of the petition to vacate, REVERSE its denial of the motion for reconsideration, and REMAND this case for further proceedings.

I. BACKGROUND

Arredondo was charged with being part of a conspiracy to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 841(a) and 846, and with two specific acts of distributing heroin, in violation of 21 U.S.C. § 841(a). The conspiracy centered around a house from which Arredondo's supplier, Anacleto Sepulveda, distributed the drugs. From 1987 to 1989, Arredondo was one of several drug dealers who bought from Sepulveda on a regular basis and re-sold small, personal-use quantities to his customers.

The government asserts that a "final status conference/plea cut-off" meeting was held on August 27, 1990, and was the last opportunity for any defendant to enter into a negotiated plea. Arredondo did not plead guilty. At his trial, which he shared with several other defendants, he was represented by Thomas Plachta and was convicted on all three counts.

In the Presentence Report ("PSR"), the probation officer summarized the total amount of drugs involved in the entire conspiracy and then stated:

18. Information indicates that beginning in 1987 RICARDO ARREDONDO began purchasing heroin from Anacleto Sepulveda at the rate of several times a week.

19. Based on the evidence provided, it is felt that RICARDO ARREDONDO would be responsible for between 1 and 3 kilograms of heroin.

Joint Appendix ("J.A.") at 152(PSR). The PSR also stated:

20. MR. ARREDONDO, upon the advise [sic] of his attorney, provided no information regarding his involvement in this offense. The defendant's attorney advised the Probation Office would be provided a written statement as to MR. ARREDONDO's involvement no later than October 26, 1990. As of the writing of this report, this information has not been received. [The PSR is dated November 20, 1990.]

J.A. at 152(PSR). Defense counsel filed no objections to the PSR. The district court adopted the findings and conclusions in the PSR, also without any substantive objection by defense counsel. Sent. Hr'g Tr. at 3-4. Under the Sentencing Guidelines, Arredondo's total offense level was 32, and his criminal history category was III. See U.S. SENTENCING GUIDELINES ("U.S.S.G.") § 2D1.1(c) (1990) ¹; J.A. at 153(PSR). Under the Guidelines, this would have led to a sentence of 151 to 188 months (12.6 to 15.7 years). See U.S.S.G. § 5A (Sentencing Table). However, because Arredondo had one prior felony drug conviction and was responsible for more than one kilogram of heroin, he was sentenced to twenty years in prison, the statutory minimum. ² See 21 U.S.C. § 841(b)(1)(A)(i).

Plachta continued to represent Arredondo on appeal and did not challenge the district court's attribution of more than one kilogram of heroin to his client. This court affirmed the conviction. United States v. Robelin, 983 F.2d 1070 (Table), 1993 WL 6828 (6th Cir.), cert. denied, 507 U.S. 1009, 1011, 1039, 113 S.Ct. 1658, 1662, 1869, 123 L.Ed.2d 277, 280, 489; 508 U.S. 953, 510 U.S. 831, 834, 113 S.Ct. 2449, 114 S.Ct. 101, 109, 124 L.Ed.2d 666, 126 L.Ed.2d 68, 75 (1993).

Arredondo later obtained an affidavit from Maria Teneyuque, whose sister, Mary Jane Dietrich, was a witness at the trial. Teneyuque stated that Dietrich told her about an incident that occurred just before the start of the trial, on September 10, 1990. Teneyuque says that Dietrich overheard the prosecutor tell Plachta that he would let Arredondo plead guilty with a ten-year maximum sentence. Arredondo claims that on the same day he saw Plachta talking to the prosecutor and "terminate the conversation ... by making a shaking gesture with his head indicating a negative 'no.' " J.A. at 33 (Arredondo Aff. 3/12/96).

Arredondo attached Teneyuque's affidavit to his pro se motion pursuant to 28 U.S.C. § 2255. The motion argued that Plachta was ineffective for failing to tell Arredondo about the alleged plea offer and for failing to object to the drug amounts asserted in the PSR and adopted by the district court. Arredondo also challenged, on the merits, the amount of heroin attributed to him. In its May 31, 1996, response, the government submitted affidavits from Plachta and from the prosecuting attorney, Michael Hluchaniuk, both of whom denied that the September 10 plea offer had occurred. However, Hluchaniuk's affidavit also mentioned that some time before the August 27 plea cut-off date the government had extended a plea offer, which was rejected by defense counsel. J.A. at 59 (Hluchaniuk Aff.).

The district court denied Arredondo's petition on June 27, 1996, adding, "Any appeal from this order would be frivolous and not in good faith.... Thus, no certificate of probable cause [to appeal] will issue." J.A. at 69 (Dist.Ct.Op.). Arredondo filed a "Motion for Reconsideration," which we construe as a Motion to Alter or Amend Judgment under Federal Rule of Civil Procedure 59(e). To his motion, he attached an affidavit in which he stated that his lawyer had never informed him of any plea offer from the government, and that the prosecutor's affidavit was the first he had heard of the earlier offer. He also reiterated that he had continually pestered his attorney to obtain a plea bargain, and he elaborated on his September 10, 1990, observations, surmising that perhaps the attorneys were discussing the earlier plea offer. ³ The district court denied the motion for reconsideration, and Arredondo appealed. In the meantime, he had also appealed the denial of his petition. Continuing pro se as he negotiated a procedural thicket, see Arredondo v. United States, 120 F.3d 639, 639-40 (6th Cir.1997) (per curiam order), Arredondo eventually obtained a new attorney to represent him in these appeals.

II. ANALYSIS

A. PLEA OFFERS

To obtain relief under § 2255 on the grounds of ineffective assistance of counsel, Arredondo must establish (1) that his lawyer's performance was deficient as compared to an objective standard of reasonable performance and (2) that there is a reasonable probability that the lawyer's errors prejudiced the outcome of the proceedings against him. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome"; it is a less demanding standard than "more likely than not." Id. at 693-94, 104 S.Ct. 2052. We review ineffective-assistance claims de novo. See Watkins v. Kassulke, 90 F.3d 138, 143 (6th Cir.1996).

The government concedes that failure to inform a client of a plea offer is probably a serious enough error to satisfy the performance prong of Strickland. See United States v. Blaylock, 20 F.3d 1458, 1465-66 (9th Cir.1994) (collecting cases from several circuits); Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir.1988) (holding that incompetent advice resulting in defendant's rejection of plea offer is deficient performance under Strickland ), vacated on other grounds, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989). Its defense to Arredondo's petition is that the alleged plea offer never happened. Thus, the issue on appeal is primarily whether the district court was obliged to conduct an evidentiary hearing on whether a plea offer was extended and not conveyed to Arredondo.

We review the district court's refusal to conduct an evidentiary hearing for abuse of discretion. See Blanton v. United States, 94 F.3d 227, 235 (6th Cir.1996). An evidentiary hearing is required unless "the record conclusively shows that the petitioner is entitled to no relief." Id. Thus, no hearing is required if the petitioner's allegations "cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995). Where, as here, the judge considering the § 2255 motion also conducted the trial, the judge may rely on his or her recollections of the trial. See Blanton, 94 F.3d at 235.

The district court decided not to conduct a hearing with respect to the alleged September 10 plea offer for the following reasons. First, the only pieces of evidence that a plea...