McGowan v. Burt
| Decision Date | 08 June 2015 |
| Docket Number | No. 14–2186.,14–2186. |
| Parties | Demetric McGOWAN, Petitioner–Appellee, v. Sherry BURT, Respondent–Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF: John S. Pallas, Linus Richard Banghart–Linn, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Samuel Allen Early, III, Detroit, Michigan, for Appellee.
BEFORE: McKEAGUE and DONALD, Circuit Judges; MATTICE, District Judge.*
This is an appeal from an order of the district court conditionally granting habeas relief to petitioner Demetric McGowan. McGowan is a prisoner in the custody of the Michigan Department of Corrections, serving a sentence of from 195 to 480 months for drug trafficking and firearms offenses, in addition to a 24–month sentence for a felony firearm offense. The appeal is brought by the State in the name of Sherry Burt, Warden of the Muskegon Correctional Facility, where McGowan is currently incarcerated. The order granting habeas relief has been stayed pending appeal. The district court determined that McGowan received ineffective assistance of counsel during plea negotiations, which adversely affected his decision to reject the prosecution's plea offer. In so ruling, the State contends the district court failed to give required deference to the contrary ruling of the Michigan Court of Appeals. We agree with the State and, for the reasons that follow, vacate the judgment of the district court.
Trial took place in the Monroe County Circuit Court on December 11, 2006. McGowan was charged—as a habitual offender, third offense—with (1) possession with intent to deliver 50 or more but less than 450 grams of cocaine; (2) felon in possession of a firearm; (3) possession of a firearm during commission of a felony; and (4) carrying a concealed weapon. At the start of the day, last-minute plea negotiations ensued. The prosecution agreed that, if McGowan pled guilty to counts 1 and 3 as a second-offense habitual offender, it would recommend a minimum sentence of five years on the cocaine charge and a two-year mandatory consecutive sentence on the felony firearm charge.
McGowan's counsel, Attorney Craig Tank, advised McGowan that he estimated the sentencing guidelines minimum-sentence range (on the cocaine offense as a second-offense habitual offender) to be 45 to 93 months.1 The trial court then advised McGowan that “there's really no telling until we did a presentence investigation report to know for sure what the guidelines would be” ... and further, that “any sentence that the Court would fashion might be different” than the five-years-plus-two-years sentence discussed. R.7–5, Trial Tr. at 5–6, Page ID 331–32. Counsel then elicited confirmation from McGowan on the record that they had discussed the guidelines and the prosecution's offer at length, that counsel had no position on whether to go to trial or not, and that the decision was solely up to McGowan. Without hesitation, McGowan elected to “proceed forward to trial.” Id. at 6, Page ID 332.
After a one-day jury trial, McGowan was found guilty on all four charges. Sentence was imposed on January 18, 2007. The parties agreed at sentencing that 78 to 195 months was the minimum-sentence range for the count 1 charge. Attorney Tank acknowledged “this came out a little bit different than I thought,” referring to his earlier estimate when McGowan rejected the prosecution's plea offer. R. 7–6, Sent. Tr. at 16, Page ID 679. The court imposed a sentence of 195 to 480 months on the count 1 cocaine charge; sentences of 34 to 120 months on the count 2 and 4 charges, to run concurrently with the count 1 sentence; and a mandatory 24–month sentence on count 3, to be served consecutively.
McGowan moved for a new trial, contending his counsel's erroneous pretrial reading of the sentencing guidelines constituted ineffective assistance of counsel. The trial court conducted an evidentiary hearing and received testimony from McGowan and his former counsel. In rejecting the prosecution's offer, McGowan said he understood that the 45–to–93–month range represented the minimum-sentence range he would be exposed to if he were subsequently convicted of the count 1 offense in trial. R. 7–8, Hrg. Tr. at 7, Page ID 716. Reasoning that the 60–month sentence the prosecution offered to recommend was only 33 months less than his “maximum minimum” exposure if found guilty of count 1 by the jury, McGowan decided to go to trial. Had he known that the actual guidelines range would ultimately be 78 to 195 months, McGowan said he would not have rejected the offer. Rather, he would have pled guilty and foregone the right to assert his trial defense—i.e., that he had no intent to deliver the cocaine he possessed. Id. at 14, Page ID 723.
For his part, although he did not remember the specific numerical calculations, McGowan's former counsel conceded that his pretrial estimate had been incorrect. Tank recalled having spent about a half-hour discussing the plea offer with McGowan. He said “a portion of that time was devoted to what my guideline calculations were and a portion of that time was talking about the pros and cons of—of the trial and what I thought that the evidence was that would be significant.” Id. at 37, Page ID 746. He did not recall specifically why McGowan decided to go to trial, although he remembered that McGowan denied having intent to distribute the cocaine to anyone.
The trial court denied the motion for new trial. The court first explained its impression that McGowan had received fair and effective representation from his attorney. As to the admitted error in counsel's pretrial estimate of the guidelines range, the court emphasized that both the court and counsel explicitly advised McGowan that the estimate was just that—an estimate—and that it might not be accurate; and that ascertainment of the actual range after preparation of the presentence report could “change everything.” Id. at 51–52, Page ID 760–61. In other words, the court essentially found that Attorney Tank's performance was not “deficient” in a constitutional sense, and that the guidelines error did not prejudice McGowan in making an informed decision whether to accept or reject the prosecution's offer, because McGowan was clearly warned that the estimate was not necessarily reliable. Moreover, the court noted that if McGowan had accepted the offer and the prosecution had recommended a 60–month sentence—well below what turned out to be the low end of the actual guidelines range—the court likely would not have honored the parties' plea agreement and would have given McGowan the opportunity to withdraw his plea anyway.
The Michigan Court of Appeals affirmed. People v. McGowan, No. 275781, 2008 WL 723945 (Mich.Ct.App. Mar. 18, 2008). The court held the trial court's findings that counsel's performance was not deficient and that McGowan was not prejudiced by the error were not clearly erroneous.Id. at *6–7. The court dismissed as self-serving and uncorroborated McGowan's statement that he would have accepted the prosecution's offer had he known what the actual guidelines range would be. The Michigan Supreme Court denied leave to appeal and this habeas petition followed.
The district court acknowledged the deference due the Michigan courts' rejection of McGowan's ineffective-assistance claim, but its analysis more closely resembles de novo review. In short, the district court determined that defense counsel admitted his error; that McGowan would have pled guilty but for the error; that the trial court would have accepted the plea; and that the sentence imposed pursuant to the plea agreement would have been less severe than the sentence ultimately imposed. R. 28, Opinion and Order at 15–18, Page ID 1341–44. The district court ordered the State to re-offer the plea agreement proposed at the time of trial within ninety days. We granted the State's motion to stay the district court's order pending appeal.
Our analysis is guided by two recent Supreme Court opinions, both originating in the Sixth Circuit and both involving claims of ineffective assistance of counsel at the plea bargaining stage: Burt v. Titlow, ––– U.S. ––––, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013), and Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). In Titlow, the Court identified the governing standard of review as follows:
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