Guerrero v. U.S., 03-5886.

• Decision Date: 09 September 2004
• Docket Number: No. 03-5886.,03-5886.
• Citation: 383 F.3d 409
• Parties: Luis Carlos GUERRERO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

383 F.3d 409

Luis Carlos GUERRERO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 03-5886.

United States Court of Appeals, Sixth Circuit.

Argued: June 8, 2004.

Decided and Filed: September 9, 2004.

Appeal from the United States District Court, William J. Haynes, Jr., J Caryll S. Alpert (briefed), Asst. Federal Public Defender, William J. Steed, III (argued), Federal Public Defender's Office, Nashville, TN, for Petitioner-Appellant.

William Cohen (briefed), Asst. U.S. Attorney, Harold B. McDonough (argued and briefed), Asst. U.S. Attorney, Nashville, TN, for Respondent-Appellee.

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

OPINION

HOLSCHUH, District Judge.

Petitioner Luis Carlos Guerrero was convicted of nine charges of cocaine trafficking and sentenced to 175 years in prison. Pursuant to 28 U.S.C. § 2255, he moved to vacate his sentence, claiming that he was denied the effective assistance of trial counsel because his attorney failed to communicate a plea offer to him. Guerrero appeals from the district court's order denying his motion to vacate his sentence. For the reasons set forth below, we AFFIRM the district court's order.

I.

On February 17, 1988, Luis Carlos Guerrero, a native of Honduras, was indicted in federal court on nine counts, including conspiracy to import and distribute cocaine, possession with intent to distribute more than a kilogram of cocaine, and distribution of cocaine. At his first trial, held in June of 1988, Guerrero was represented by John O'Donnell, an experienced criminal defense attorney, and by attorney Francis Clarke. After the jury failed to reach a verdict, the court declared a mistrial. Guerrero was re-tried in July of 1988.¹ This time, the jury convicted him of all nine counts. On August 29, 1988, the district court imposed a prison sentence of 175 years and fines totaling more than $2 million.²

Guerrero served the first nine years of his sentence at a federal prison in Memphis, Tennessee. While he was there, he exchanged letters with his wife, Nancy, but she visited him only once. In March of 1997, he was transferred to a prison in Miami, Florida so that he could be closer to his family. He alleges that shortly thereafter Nancy told him that, after the second trial, O'Donnell told her that the government had made a plea offer, but O'Donnell had not conveyed the offer to Guerrero because O'Donnell "didn't think much of it." Based, in part, on this new information, in 1997 Guerrero filed a motion to vacate his sentence under 28 U.S.C. § 2255.³

The motion alleged that O'Donnell's performance had been deficient in a number of ways, in violation of Guerrero's right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution. The motion included a claim, among others, that O'Donnell had failed to advise him of a plea offer. In support of this claim, Guerrero submitted his wife's affidavit concerning her alleged conversation with O'Donnell. In response, the government submitted O'Donnell's affidavit, in which he stated that he no longer had the case file and did not remember any plea offer, but that it was his practice to communicate all plea offers to his clients.

In an order dated March 4, 1999, the district court refused to consider most of the ineffective assistance of counsel claims, noting that Guerrero had the opportunity to assert them on direct appeal but had failed to do so. The only portion of Guerrero's ineffective assistance of counsel claim that the district court addressed was his claim that O'Donnell had failed to inform him of O'Donnell's own prior conviction for possession of cocaine. Citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court found that while O'Donnell's failure to disclose this conviction may have constituted deficient performance, Guerrero had failed to show that this prejudiced his defense. The district court therefore denied Guerrero's motion to vacate his sentence.

This court subsequently issued a certificate of appealability with respect to Guerrero's claim that O'Donnell had failed to tell him of an alleged plea offer, noting that this alleged ineffective assistance of counsel claim was based on a different ground for relief than that which had been previously considered on direct appeal. Based on the conflicting affidavits submitted by O'Donnell and Mrs. Guerrero, we vacated the district court's decision with respect to this one claim and remanded the case for further proceedings on that claim. See Guerrero v. United States, No. 99-5735, 2001 WL 1298843 (6th Cir. Aug.7, 2001).

On remand, Judge Aleta Trauger of the United States District Court for the Middle District of Tennessee conducted an evidentiary hearing to determine whether a plea offer had been extended to Guerrero. At that hearing, held on June 17, 2002, Mrs. Guerrero testified that immediately after the second trial she asked O'Donnell why her husband had not been offered a plea agreement like the ones that had been offered to the co-defendants. She stated that O'Donnell replied that the government had made an offer, but he did not tell Guerrero about it because it was not a good offer, and he knew that Guerrero would not accept it. Mrs. Guerrero testified that she did not ask what the offer was, and O'Donnell did not volunteer that information. She also testified that, although she was upset that O'Donnell had not told her husband about the alleged plea offer, she did not tell her husband about this conversation until mid-May of 1998, nearly ten years after he was convicted. She explained that because her husband had been in Memphis and she had been able to visit him only once, she had not had the occasion to discuss it with him prior to that date. Mrs. Guerrero also testified that, after she told her husband about the plea offer, he sent the affidavit to her. Although she remembers signing it and sending it back to him, she does not remember having her signature notarized.

At the same hearing, Guerrero testified that his attorneys never discussed a possible plea bargain with him. He was led to believe that any discussions concerning the possibility of cooperating with the government in exchange for a more lenient sentence had to be initiated by the government. Guerrero also stated that if a plea had been offered, he would have considered taking it. During the first trial, his attorneys told him that he could be sentenced to up to 180 years in prison, yet they encouraged him to go to trial because they believed that he would win. After the first trial ended in a mistrial, they told him not to worry because, even if he lost the second trial, they had grounds to appeal.

The government then called O'Donnell as a witness.⁴ When asked if the government, at any time, offered a plea bargain to Guerrero, O'Donnell replied, "I don't remember one way or the other." J.A. at 102. However, he stated that if an offer had been made, he "would have conveyed it in some manner to Mr. Guerrero," because it was his practice to convey all offers, good or bad, to his clients. J.A. at 103-104. He admitted that it was not uncommon for defendants in drug cases to negotiate plea bargains, and that it would have been his usual practice to approach the government about the possibility. He also noted, however, that sometimes the government was simply not interested in negotiating, and this could have been one of those cases.

O'Donnell testified that he does not remember discussing the possibility of a plea agreement with Guerrero. Neither did he remember having a conversation with Mrs. Guerrero about a plea offer. He testified that her claim — that he told her that he did not communicate a plea offer to Guerrero — would have been inconsistent with his general practice. On cross-examination, O'Donnell admitted that it was possible that a plea offer had been extended to Guerrero; he simply did not remember. Likewise, he could not say for certain that he did not discuss a plea offer with Mrs. Guerrero; again, he simply did not remember. O'Donnell no longer had Guerrero's case file, and attempts to locate it had been unsuccessful.

Harold McDonough, the Assistant United States Attorney who prosecuted the case at both trials, also testified at the hearing. McDonough testified that he had no recollection of any settlement discussions or plea offer, and there was no documentation in his files to support a finding that such an offer had been made. He stated that if a plea offer had been made, he would have remembered; he also believed that he would have made some notation in the file. McDonough testified that the government would not have agreed to an Alford plea, in which Guerrero would have been permitted to plead guilty while maintaining his innocence.⁵ McDonough also testified that it was unlikely that the government would have offered a plea bargain, since it was believed that Guerrero was a ringleader in the narcotics trafficking conspiracy and had testified untruthfully at the first trial.

The final witness was Allen Brown, the Drug Enforcement Administration ("DEA") investigator assigned to the case. He testified that he was present for both of Guerrero's trials. Brown testified that if there had been plea negotiations, he would have been consulted. According to Brown, there was no discussion of a plea in this case, and defense counsel never raised the subject. He stated, "[t]here were no plea negotiations; I know that to be a fact." J.A. at 149.

At the end of the hearing, Judge Trauger recused herself from the case. She stated that she had not realized that McDonough would be testifying at the hearing. Since she had once been his supervisor at the United States Attorney's office, she believed that it would be improper for her to weigh his credibility against that of the other witnesses. The case was then assigned to Judge William Haynes....