Griffin v. U.S.

Decision Date04 June 2003
Docket NumberNo. 01-3818.,01-3818.
Citation330 F.3d 733
PartiesPhillip GRIFFIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Joseph M. Pinjuh, United States Attorney (briefed), Cleveland, OH, for Petitioner-Appellee.

Phillip Griffin (brief), Bradford, PA, pro se.

Before MOORE and GIBBONS, Circuit Judges; COHN, District Judge.*

OPINION

COHN, District Judge.

This is a habeas case under 28 U.S.C. § 2255. Phillip Griffin (Griffin), proceeding pro se, appeals from the district court's denial of his motion under section 2255. Griffin was convicted of distribution of cocaine base; his conviction was affirmed on appeal. He says that his trial counsel failed to tell him of a plea offer and argues that this constituted ineffective assistance of counsel. The government argues that the record shows that Griffin would not have accepted a plea offer even if he had been told about it.

For the reasons that follow, we reverse the decision of the district court and remand the case for an evidentiary hearing.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Griffin was indicted on four counts of distribution of cocaine base under 21 U.S.C. § 841 and for a criminal forfeiture action under 21 U.S.C. § 853. At his arraignment he pleaded not guilty. The district court held a hearing on Griffin's motion to suppress evidence seized during a search of his mother's home and on his motion to dismiss the distribution counts. The district court denied both motions.

Approximately two weeks prior to the trial date, the Assistant United States Attorney (AUSA) telephoned Griffin's trial counsel to discuss a plea agreement. The AUSA indicated that he thought a five year sentence would be possible. The government says that the plea agreement was contingent on Griffin cooperating with the authorities. Griffin's attorney responded — in that telephone conversation — that Griffin maintained his innocence and would not plead guilty. Griffin says that his attorney never mentioned the plea offer to him. Griffin's attorney does not recall any plea offer being made. Griffin says his attorney also never discussed his potential sentence exposure with him.

Griffin went to trial before a jury. His codefendants, Brooke Thompson (Thompson) and Keith Walker (Walker), entered cooperative agreements with the government. Both pleaded guilty; Thompson received a three year sentence and Walker received a six and a half year sentence. Both testified at Griffin's trial, and Griffin says their testimony destroyed his defense. Griffin's attorney never informed him that they were going to testify.

The district court granted Griffin's motion for a directed verdict as to counts three and four. The jury found Griffin guilty of counts one and two and entered a special verdict on the forfeiture action.

After he was convicted, Griffin obtained new counsel. His new attorney approached the government regarding Griffin's possible cooperation. Griffin executed a a proffer letter and agreed to make a statement. During the proffer, Griffin admitted selling drugs in the past but stated that he stopped some time in 1994 or 1995. He continued to deny his involvement in the offense for which he was convicted. The AUSA and a special agent advised Griffin that they doubted his veracity and terminated the proffer.

Griffin maintained his innocence in the preparation of the Presentence Investigation Report, which did not suggest any reductions for acceptance of responsibility. At the sentencing hearing he said:

I think — I know I'm innocent of this action. And I didn't get those two guys any drugs. I was getting blamed for something I didn't do. And I'm going to prove that I did it. And I ain't never been in trouble with no law or anything like that. And they trying to get me ten years to life for something I didn't even do. I shouldn't get no more than about two or three years for something like this.... If I knew I could have got on that stand to — told a lie to get three years, I would have did the same thing too. But I knew I was innocent, and I didn't have to get up on the stand and tell any lie.

J.A. 169-70.

The district court sentenced Griffin to 156 months custody, five years supervised release, and a $200.00 special assessment. The district court also entered a final order of forfeiture. Griffin appealed his sentence; this Court affirmed the judgment of conviction in an unpublished opinion. United States v. Griffin, No. 98-4364, 2000 WL 377346 (6th Cir. Apr.6, 2000) (unpublished).

The AUSA mentioned the plea offer to Griffin's appellate attorney prior to oral argument before this Court on direct appeal, saying that he was surprised Griffin did not accept the offer in light of the large amount of prison time he faced. Griffin's appellate attorney did not discuss the issue with Griffin until after the appeal. Griffin now says that given the potential sentence he faced, he would have accepted the plea offer had he known about it.

After learning about the plea offer, Griffin asked his trial attorney about it. The attorney wrote in reply:

... I have no recollection of any deal being offered for you to me. I do recall telling you that if a deal were sought from the government it would have to include your willingness to be a witness for the government. As to this, while I do not have any recollection of having told you, as I have others, the fact is that I prefer not to represent informers. Indeed, more than once I have backed away from clients who wanted me to engineer a deal that would entail me being privy to efforts made by the client to inveigle someone into committing a crime so that the client could benefit from their arrest.

This is not to say I have never represented an informer. I have never done so under the circumstances that were present when I represented you. I simply refuse to be conscripted into the war on drugs as a federal agent. I personally do not approve of many of their methods. And I believe the guidelines are not only unfair, but slanted against black people.

J.A. 54-54. Griffin's trial attorney also signed an affidavit in connection with this habeas motion stating,

I have no recollection of having been told by anyone that the government was offering the defendant, Phillip Griffin, a five (5) year sentence or, for that matter, a sentence of any set number of years. On the other hand, I do recall being told by Phillip Griffin that he wanted to go to trial. Obviously he was convinced, as I was, that his arrest and the searches centralized in [sic] his case were illegal. Also, Phillip Griffin advised me that those who would be testifying against him would have to lie. Unfortunately for him the jury convicted him.

Also, I recall indicating to him that to make a deal with the government in this case he would have to implicate other people. This he said he could not do because he would have to lie.

J.A. 37.

Griffin filed a habeas petition. The district court denied the petition, finding that "Griffin's statements at sentencing clearly demonstrate that he was not prepared to accept a specific plea bargain at the time of the trial."

II. DISCUSSION

To warrant relief under section 2255, a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Relief is warranted only where a petitioner has shown "a fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Claims of ineffective assistance of counsel are appropriately brought by filing a motion under section 2255. United States v. Galloway, 316 F.3d 624, 634 (6th Cir.2003). We review the denial of a section 2255 motion de novo. Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir.1999).

To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must establish two elements: (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for the deficiency, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Strickland standard applies to guilty pleas as well. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence ... The second, or "prejudice," requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Id. at 58-59, 106 S.Ct. 366. It is therefore easier to show prejudice in the guilty plea context because the claimant need only show a reasonable probability that he would have pleaded differently. See Ostrander v. Green, 46 F.3d 347, 352 (4th Cir.1995) overruled on other grounds by O'Dell v. Netherland, 95 F.3d 1214, 1222 (4th Cir.1996).1

A defense attorney's failure to notify his client of a prosecutor's plea offer constitutes ineffective assistance of counsel under the Sixth Amendment and satisfies the first element of the Strickland test. See Turner v. State, 858 F.2d 1201, 1205 (6th Cir.1988) (agreeing with the district court that "an incompetently counseled decision to go to trial appears to fall within the range of protection...

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