United States v. Akande

• Decision Date: 20 April 2020
• Docket Number: No. 18-6833,18-6833
• Citation: 956 F.3d 257
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Sherif AKANDE, a/k/a Sharif Akande, a/k/a Reef, a/k/a Reef Wall, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

956 F.3d 257

UNITED STATES of America, Plaintiff - Appellee,

v.Sherif AKANDE, a/k/a Sharif Akande, a/k/a Reef, a/k/a Reef Wall, Defendant - Appellant.

No. 18-6833

United States Court of Appeals, Fourth Circuit.

Argued: January 30, 2020

Decided: April 20, 2020

ARGUED: Joel M. Bondurant, Jr., BONDURANT LAW, PLLC, Huntersville, North Carolina, for Appellant. David Ira Salem, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before MOTZ, WYNN, and THACKER, Circuit Judges.

Reversed and remanded by published opinion. Judge Motz wrote the opinion, in which Judge Wynn and Judge Thacker joined.

DIANA GRIBBON MOTZ, Circuit Judge:

Sherif Akande pleaded guilty to fraud offenses without entering a plea agreement. The district court sentenced him to 199 months’ imprisonment, and we affirmed. Akande then moved under 28 U.S.C. § 2255 to vacate his conviction, contending that he received constitutionally ineffective assistance from his counsel. The district court denied the § 2255 motion. We granted a certificate of appealability and now reverse the judgment of the district court and remand for further proceedings.

I.

In May 2012, a federal grand jury indicted Akande on counts arising from a bank fraud conspiracy. Akande moved to suppress evidence recovered from his residence, which the district court denied. He then pleaded guilty to all charges without reaching any plea agreement with the prosecution (an "open plea").

The district court held a hearing and conducted a standard plea colloquy. During the colloquy, the court listed the many rights Akande would waive with his open plea, including the presumption of innocence, the full panoply of trial rights, and the right to appeal trial issues; Akande responded that he understood. The court concluded the colloquy by finding that Akande’s plea was valid and accepting it.

Shortly thereafter, Akande sought to withdraw his plea. His counsel attempted to persuade the Government to consent to this; after waiting on the Government for several months with no response, defense counsel filed a motion to withdraw the plea. The Government opposed the motion, and the district court held a hearing on it. At that hearing, Akande’s counsel explained that after the court denied Akande’s suppression motion, Akande and counsel "engaged in extensive discussions regarding a plea agreement or a plea that had been offered by the government." Plea counsel reported that in their discussions, Akande emphasized that his "appellate rights ... were very important" to him. Counsel further explained that in response she told Akande that if he "pled open to the court," "he would be preserving all of his appellate rights."

But, as Akande’s counsel admitted to the district court at the hearing to withdraw the plea, the advice that Akande could preserve all of his appellate rights by entering an open plea was "not a correct statement of the law." Rather, in order to plead guilty while preserving his appellate rights, Akande would have had to enter a conditional plea under an agreement with the prosecution, which counsel believed "would probably not have even been possible" because the suppression ruling "was not dispositive," see United States v. Fitzgerald , 820 F.3d 107, 110 n.1 (4th Cir. 2016). Counsel also explained at this hearing that she doubted that Akande understood from the plea colloquy that her advice had been wrong, and that contrary to what she had told him, by entering an open plea, Akande "was giving up the right to [appeal] the pretrial suppression ruling."

Plea counsel explained that when Akande called her the day after pleading guilty, but before sentencing, he reaffirmed that he "want[ed] to maintain all of [his] appellate rights." She "wasn’t really sure what he was alluding to," but "after some discussion," it became clear that Akande had "relied on [her] statement to him that he would maintain all of those rights" when he entered an open plea. Thus, as counsel explained, Akande "made his decision to plead guilty based on his ability to maintain his constitutional challenge to the search of his home." But in fact, Akande could maintain his appellate right to challenge the suppression ruling only by proceeding to trial. Counsel informed the court that once Akande understood that choice, he asked to go to trial, and she accordingly filed the motion to withdraw Akande’s guilty plea.

The district court then began to consider the merits of that motion. In the course of this discussion, counsel stated that Akande asserted his actual innocence, but she questioned whether he should testify. Noting that actual innocence was one factor in deciding whether to permit a defendant to withdraw a guilty plea, the district court asked how Akande would show his innocence without testifying. Counsel responded that Akande was "prepared to go forward with the other factors" and proceeded to discuss them. After a brief recess, plea counsel moved to withdraw from representing Akande. The district court granted her motion, continued the hearing on Akande’s motion to withdraw the guilty plea, and appointed new counsel.

Some months later, the district court held another hearing. Akande’s newly appointed counsel first withdrew Akande’s motion to withdraw the guilty plea, explaining that Akande was "not asserting a claim of innocence." The district court then turned to sentencing. In seeking an adjustment for acceptance of responsibility, sentencing counsel stated that Akande filed his motion to withdraw his plea "only upon a misunderstanding" as to "his right to appeal." The court denied the adjustment and sentenced Akande to 199 months’ imprisonment. Akande appealed his sentence, and we affirmed. United States v. Akande , 624 F. App'x 94 (4th Cir. 2015).

Akande moved for relief under 28 U.S.C. § 2255. He contended, inter alia , that his plea counsel rendered constitutionally ineffective assistance. Without holding a hearing, the district court denied the § 2255 motion, concluding that Akande could not show prejudice arising from counsel’s erroneous advice.

Akande noted an appeal, and we granted a certificate of appealability.¹ We review the denial of a § 2255 motion de novo. United States v. Poindexter , 492 F.3d 263, 267 (4th Cir. 2007). When, as here, the district court denies relief without an evidentiary hearing, we construe the facts in the movant’s favor. Id.

II.

To establish a violation of the Sixth Amendment right to the effective assistance of counsel, a defendant must show that counsel’s performance was constitutionally deficient and caused him prejudice. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Government does not meaningfully dispute that plea counsel’s erroneous advice amounted to constitutionally deficient performance.

Examination of the record explains why any such argument would be meritless. In her motion to withdraw Akande’s guilty plea, and in her testimony during the district court’s hearing on that motion, plea counsel detailed the inaccurate advice she gave Akande. Counsel told Akande that while he could not reserve the right to appeal the suppression ruling in a conditional plea agreement, he could challenge the admission of the evidence he sought to exclude in either of two other ways. She advised Akande that if he went to trial, he could argue that under Federal Rule of Evidence 404(b), "the facts shouldn’t be admissible against him since he wasn’t indicted" based on any of the documents found in his home. In the alternative, counsel explained that if Akande "pled open to the court, he would be allowed and he would be preserving all of his appellate rights," such that he could challenge the suppression ruling itself on appeal. That advice, as counsel acknowledged, was "not a correct statement of the law," because a defendant cannot challenge a pretrial suppression ruling on appeal after entering an open plea, see Tollett v. Henderson , 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Plea counsel’s misadvice addressed how and when Akande could challenge the admission of the evidence at issue: she told him that he could not do so via a conditional guilty plea pursuant to an agreement with the Government, but he could do so by entering an open plea.

The Government suggests that plea counsel also advised Akande that a suppression appeal would not succeed, and consequently that forgoing such an appeal did not cause any prejudice. But the Government has presented no evidence to support this theory.² And in any event, even if we agreed with the Government’s reading of counsel’s testimony, the likelihood that Akande would prevail on appeal is of no moment here. The viability of an appeal is immaterial. The Supreme Court has repeatedly instructed that when it comes to the Sixth Amendment, it is the right to an appeal that counts. See, e.g. , Garza v. Idaho , ––– U.S. ––––, 139 S. Ct. 738, 748, 203 L.Ed.2d 77 (2019) ("This Court has already rejected attempts to condition the restoration of a defendant’s appellate rights forfeited by ineffective counsel on proof that the defendant’s appeal had merit."); Roe v. Flores-Ortega , 528 U.S. 470, 486, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ; accord Velazquez v. Superintendent Fayette SCI , 937 F.3d 151, 163 (3d Cir. 2019).

Accordingly, we turn to the two questions at the heart of this case: whether the district court corrected plea counsel’s error, and, if not, whether Akande has established that the error prejudiced him.

A.

Circuit precedent holds that a defendant cannot prevail on a claim of ineffective assistance of counsel that arises from counsel’s misadvice if, before accepting the plea, "the district court provides an admonishment that corrects the misadvice and the defendant expresses that he understands the admonishment." United States v. Akinsade , 686 F.3d 248,...