U.S. v. Morris

• Citation: 470 F.3d 596
• Decision Date: 07 December 2006
• Docket Number: No. 05-2133.,05-2133.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Richard MORRIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 596

470 F.3d 596

UNITED STATES of America, Plaintiff-Appellant, v. Richard MORRIS, Defendant-Appellee.

No. 05-2133.

United States Court of Appeals, Sixth Circuit.

Argued: July 20, 2006.

Decided and Filed: December 7, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellant. John R. Minock, Cramer & Minock, Ann Arbor, Michigan, for Appellee. ON BRIEF: Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellant. John R. Minock, Cramer & Minock, Ann Arbor, Michigan, for Appellee.

Before MARTIN and COLE, Circuit Judges; JORDAN, District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Defendant Richard Morris was charged in Michigan state court with three firearm and drug related charges. The investigation and prosecution of his alleged crimes was conducted through Project Safe Neighborhoods, a joint effort between the federal government and Michigan state authorities to address problems related to gun violence. Morris initially pled not guilty to charges brought in state court, at which point they were dropped. His case was then referred to the United States Attorney's office and he was eventually indicted in federal court. He subsequently filed a motion to "remand" to state court, on the basis that he was denied effective assistance of counsel in the state proceedings. After conducting two days of evidentiary hearings, the district court agreed that Morris was denied effective assistance of counsel, and granted his motion. The government now appeals.

I.

On February 25, 2004, Morris was arraigned in state court on charges of possession and delivery of marijuana, felon in possession of a firearm, and unlicensed possession of a concealed firearm, in violation of MICH. COMP. LAWS §§ 333.7401, 750.224(f), and 750.227(b), respectively. He requested and was assigned counsel on February 26, 2004, the date on which communication between state and federal authorities began regarding their cooperative effort to prosecute Morris. On March 3, 2004, he took part in a "pre-preliminary examination"¹ as part of Project Safe Neighborhoods.

Immediately before this examination, Morris met with his attorney for the first time. She advised him of a state plea offer as well as the federal sentencing guideline range as she understood it. The state's offer encompassed the charges of possession with intent to deliver marijuana and unlicensed firearm possession, and included a sentence of one to four years for the marijuana count, plus two consecutive years for the unlicensed firearm possession count. Morris's attorney, who had not practiced in federal court and had no experience interpreting the Federal Sentencing Guidelines, had been given an estimate of his federal guideline range by the state prosecutor, who had himself been advised of the range by an Assistant United States Attorney. This estimate was 62 to 68 months, and defense counsel passed it on in turn to Morris. As it turned out, this estimate was incorrect. Morris was in fact subject to a federal guidelines range of 90 to 97 months if he pled guilty, or 101 to 111 months if he did not.² Morris's attorney, who had not received complete discovery at the time, was able to speak only briefly with her client in the "bull pen." The "bull pen" is a cell located behind a courtroom. It is usually crowded with detainees and requires attorneys and clients to shout their communication. Attorneys, court personnel, and officers often walk the corridor where the bull pen is located, further diminishing attorney-client privacy. Morris's attorney was forced to communicate with him through a meshed screen in the presence of other detainees.

Immediately after this meeting, Morris was taken into the pre-preliminary examination, where the prosecution made a plea offer—one to four years for the marijuana charge, plus two consecutive years for the felony firearm charge. The offer required an immediate decision by Morris. The judge informed him that if he declined, he would be referred to federal court to answer charges which could result in a more severe sentence. Morris was not able to discuss his options privately with his attorney. His attorney did not have knowledge of the strength of the case; nor was she given time to investigate or interview witnesses. He rejected the state's offer and was referred to federal court pursuant to Project Safe Neighborhoods, with the understanding that his federal guideline range would be 62 to 68 months.

The government filed an indictment in the district court on March 18, 2004. On September 9, 2004, Morris filed a motion in the district court to remand to state court on the ground that his state court trial attorney's failure to properly advise him of the applicable federal sentencing range, in conjunction with the system of attorney consultation, denied him his Sixth Amendment right to counsel. After two days of evidentiary hearings, the district court granted Morris's motion. It reasoned that Project Safe Neighborhoods was a joint effort between state and federal prosecutors, and it thus had "power to remedy any constitutional errors" in the state proceedings. D. Ct. Op. at 6. The district court also found that the pre-preliminary examination was a critical stage of the proceedings at which point the right to counsel attached under Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Finally, the district court concluded that Morris suffered a constructive absence of counsel and was denied effective assistance of counsel, and that the appropriate remedy was to dismiss the federal charges and reinstate the state plea offer.

II.

In reviewing the dismissal of an indictment, we review de novo the district court's legal conclusions, and "the factual findings supporting its ruling for clear error." United States v. O'Dell, 154 F.3d 358, 360 (6th Cir.1998).

A. The District Court's Ability to Remedy the Constitutional Violation in State Court

At the outset, we address the government's claim that the district court had no authority to address perceived constitutional errors in the state proceedings by dismissing the federal indictment and "remanding" to state court. We agree with the government that the district court lacked jurisdiction to remand the case to state court. The district court does have authority to enforce a plea agreement, however. United States v. Lukse, 286 F.3d 906, 910 (6th Cir.2002). We have held that plea agreements are contractual in nature and interpreted using traditional principles of contract law, and that a district court can utilize specific performance to remedy any breach of the agreement. Id. Of course in this case an agreement was never reached on the state court plea offer. Even so, under Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), a criminal defendant is entitled to competent advice of counsel in plea negotiations. Further, where the state extends a plea offer but simultaneously denies a defendant the effective assistance of counsel at the plea stage, a necessary part of the district court's remedial authority include its ability to put the defendant back in the position he would have been but for the ineffective assistance of counsel. Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir.1988), vacated on other grounds, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989), reinstated, 726 F.Supp. 1113 (M.D.Tenn.1989), aff'd, 940 F.2d 1000 (6th Cir.1991), cert. denied, 502 U.S. 1050, 112 S.Ct. 915, 116 L.Ed.2d 815 (1992) ("[T]he only way to neutralize the constitutional deprivation suffered by Turner would seem to be to provide Turner with an opportunity to consider the State's two-year plea offer with the effective assistance of counsel."); United States v. Allen, 53 Fed.Appx. 367, 373-74 (6th Cir.2002) ("[I]f it were shown that defense counsel provided ineffective assistance, the remedy is to compel the government to reinstate the prior plea offer, restoring Mr. Allen to where he was before ineffective assistance was rendered.").

This case is different from Turner or Allen, in that Allen involved a plea offer made in a federal prosecution that was under direct review, and Turner was a habeas corpus appeal, where the federal courts have explicit statutory authority to remedy constitutional violations in state court prosecutions. Here, instead, we are faced with a federal prosecution, before us on direct review, where the defendant seeks to reinstate a plea offer made in state court. The rationale of Turner and Allen applies with equal force here, however, because there is significant evidence in the record that the United States Attorney's office was involved with the state court plea negotiations pursuant to Project Safe Neighborhoods. Most importantly, the United States Attorney's Office was involved in deciding whether a plea offer would be made available to Morris in state court, and the state court plea offer included an agreement that Morris would not be prosecuted in federal court, even though the state and federal governments could have chosen to pursue separate prosecutions. Because the United States Attorney's Office made itself a party to the state court plea offer, the district court was justified in enforcing the plea offer against it based on traditional principles of contract law. Although there is no basis for the purported remand to state court and the related reinstatement of the state plea offer, dismissal of the federal indictment was within the district court's authority³ to put Morris back in the position he would have been in but for the denial of his right to counsel in light of the federal prosecutor's entanglement with the state plea process.

B. Denial of Sixth Amendment Right to Counsel

The government also challenges the district court's conclusion that Morris was denied the effective assistance of counsel in violation of the Sixth...