Humphress v. U.S., 03-5951.

Citation398 F.3d 855
Decision Date25 February 2005
Docket NumberNo. 03-5951.,03-5951.
PartiesJackie HUMPHRESS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED: William S. Walton, Miller & Martin, Nashville, Tennessee, for Appellant. Hilliard H. Hester, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: William S. Walton, Miller & Martin, Nashville, Tennessee, for Appellant. Hilliard H. Hester, Assistant United States Attorney, Nashville, Tennessee, for Appellee

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

OPINION

BATCHELDER, Circuit Judge.

Petitioner Jackie Humphress appeals the district court's denial of his motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or amend his sentence, imposed after a jury convicted him on charges of conspiracy to murder an officer or employee of the United States on account of performance of official duties, in violation of 18 U.S.C. § 1117, and attempted murder of an officer or employee of the United States on account of performance of official duties, in violation of 18 U.S.C. §§ 1114 and 2. Humphress argues that the district court erred in concluding that he was not denied the effective assistance of counsel during plea negotiations. In a supplemental brief, Humphress argues that his sentence was increased on the basis of facts found by the sentencing court, in violation of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Because the Supreme Court's intervening decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005), which now governs Humphress's Blakely claim, does not apply retroactively to cases already final on direct review and because there is no reasonable probability that, but for his counsel's allegedly deficient performance, Humphress would have pled guilty, we will AFFIRM the district court's denial of the § 2255 motion.

I.

Humphress's underlying conviction is based on an agreement to murder an FBI agent, which he entered into with his co-defendant, Ronald Dick. While serving a prison sentence on a drug conviction, Dick told his cellmate that he wished to have several federal officials, including an FBI agent, murdered. Unbeknownst to Dick, his cellmate informed the FBI and began assisting FBI agents in an investigation which eventually led to Humphress's indictment on charges of conspiracy to commit murder, attempted murder, aiding and abetting murder, soliciting a crime of violence, and utilizing a firearm in relation to a crime of violence.

Humphress retained Charles Ray, an experienced criminal defense attorney, to represent him. During December of 1996, Hilliard Hester, the Assistant United States Attorney assigned to Humphress's case, discussed with Ray the possibility of a plea agreement in which Humphress would plead guilty to the charge of using a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1) and another substantive count in exchange for the Government's recommendation of a ten-year prison sentence. Hester testified that this agreement was never reduced to writing, and Ray was unable to produce any record of the negotiations. Ray discussed the terms of the agreement with Humphress and recommended that he decline the offer. The parties dispute the extent to which Ray counseled Humphress on the sentencing guidelines and whether Ray warned Humphress of the risks associated with going to trial, but in any event Ray sent the United States Attorney's office a letter advising that Humphress was unwilling to accept the plea agreement.

Despite overwhelming evidence to the contrary, Humphress testified at trial that he had not willingly conspired with Dick to murder the FBI agent. He claimed that he had participated in the murder plot only because two or three unknown men had threatened his family. The jury rejected Humphress's duress defense and convicted him on the conspiracy, attempt, and aiding and abetting counts. Humphress was acquitted of soliciting a crime of violence and utilizing a firearm in relation to a crime of violence. In calculating Humphress's sentence, the district court increased the base offense level from 28 to 37 based on factual findings, at least some of which had not been found by the jury. The court then sentenced Humphress to 210 months' imprisonment, the minimum sentence allowed under the guidelines.

After his sentence was affirmed by this court on direct appeal, see United States v. Dick & Humphress, 194 F.3d 1314 (Table), 1999 WL 825037 (6th Cir.1999), Humphress filed this motion under 28 U.S.C. § 2255 attacking his convictions and resulting sentence on numerous grounds. A magistrate judge issued a report and recommendation concluding that all of Humphress's claims, save the claim of ineffective assistance of counsel, should be denied. The district court adopted and approved the magistrate judge's report and recommendation. After conducting an evidentiary hearing on the ineffective assistance of counsel claim, the magistrate judge concluded that Ray's failure to advise and inform his client on the plea agreement constituted ineffective assistance of counsel, but that because Humphress had not shown that there was a reasonable probability that he would have pled guilty but for the alleged errors of his trial attorney, Humphress had failed to demonstrate prejudice resulting from counsel's ineffective assistance. The magistrate judge therefore recommended that the claim should be denied and the motion dismissed.

The district court agreed that Humphress had failed to demonstrate prejudice, but also concluded that Humphress had failed to prove that his trial counsel was ineffective. Humphress timely appealed, and we issued a Certificate of Appealability on the issue of "whether trial counsel rendered ineffective assistance by failing to adequately advise Humphress about a plea offer."

II.

In reviewing the denial of a motion to vacate, alter, or amend a sentence pursuant to 28 U.S.C. § 2255, we review the district court's factual findings for clear error and its legal conclusions de novo. Smith v. United States, 348 F.3d 545, 550 (6th Cir.2003). "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." Griffin v. United States, 330 F.3d 733, 736 (6th Cir.2003).

Humphress argues that the district court's denial of habeas relief was erroneous because he did not receive effective assistance of counsel during plea negotiations. Defendants have a constitutional right to effective assistance of counsel during plea negotiations. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The two-prong ineffective assistance of counsel analysis that the Supreme Court announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to claims that counsel's performance was constitutionally deficient during plea negotiations. Hill, 474 U.S. at 58, 106 S.Ct. 366. A petitioner who claims that he was denied effective assistance of counsel with regard to whether or not to plead guilty must prove that (1) counsel rendered constitutionally deficient performance, and (2) there is a reasonable probability that but for counsel's deficient performance, the petitioner would have pled guilty. Magana v. Hofbauer, 263 F.3d 542, 547-48 (6th Cir.2001) (citing Turner v. Tennessee, 858 F.2d 1201, 1206 (6th Cir.1988)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Even assuming that Ray's performance was constitutionally deficient, see Strickland, 466 U.S. at 697, 104 S.Ct. 2052 ("a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed"), Humphress's petition must fail because he has not established a reasonable probability that he would have pled guilty if properly advised by counsel.

During the evidentiary hearing, Humphress's appellate counsel asked him "do you believe that [counseling on the Sentencing Guidelines] would have influenced your decision at all whether to proceed to trial if you had some kind of knowledge about how the sentencing guidelines might affect your case if you were found guilty?" Humphress answered "it's hard to say what — speculate on what I would have done, but it's — if I would have knew then the facts that I know now, I would have had a lot better chance to make a more intelligent decision in what we could do."

On cross-examination, counsel for the government asked Humphress "[a]re you telling the judge that if you had it to do all over again today that you'd plead guilty instead of going to trial?" Humphress answered "[i]t's hard to say what I would do today. I mean, there's no — it's not a black and white issue." The government's counsel persisted, asking "are you telling us that you would have insisted on pleading guilty, that's what you wish you had done and that's what you would do if you had the chance to do it all over again?" Humphress responded equivocally: "[t]o a certain extent, yes, sir." Humphress's evasive answers preclude a finding that there is a reasonable probability that he would have chosen to plead guilty.

Humphress's assertions of his innocence at trial and during the magistrate's evidentiary hearing lend additional support to the district court's conclusion that Humphress would not have pled guilty. During the evidentiary hearing, Humphress repeatedly asserted that he never willingly entered into an agreement to murder a federal official....

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