Ashley v. United States

17 F. App'x 306
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 16, 2001
DocketNo. 99-3750
StatusPublished
Cited by1 cases

This text of 17 F. App'x 306 (Ashley v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ashley v. United States, 17 F. App'x 306 (6th Cir. 2001).

Opinion

RYAN, Circuit Judge.

The petitioner, William H. Ashley, appeals the district court’s denial of his pro [307]*307se petition, brought pursuant to 28 U.S.C. § 2255, asking the court to vacate his conviction and sentence. We will affirm.

I.

On September 20, 1990, following a federal jury trial, Ashley was convicted of conspiracy, armed bank robbery, and the use of firearms in connection with crimes of violence. After being sentenced to an aggregate term of 33 years in confinement, Ashley appealed the conviction and sentence, arguing that the district court erroneously admitted “other acts” evidence in violation of Fed.R.Evid. 404(b), and that there was insufficient evidence to support his conspiracy conviction. This court affirmed the conviction and sentence. See United States v. Ashley, No. 91-3108, 1991 WL 169335 (6th Cir. Sept. 4,1991) (unpublished disposition).

On April 25, 1997, Ashley filed a petition pursuant to 28 U.S.C. § 2255 challenging his conviction and sentence by raising claims relating to the performance of his court-appointed trial counsel, Keith Yeazel, and his appellate counsel. The district court issued an opinion denying all of Ashley’s claims except those relating to Yeaz-el’s alleged failure to communicate a plea offer and refusal to allow Ashley to testify on his own behalf.

A magistrate judge held an evidentiary hearing on September 4, 1998. Ashley testified that Yeazel had never advised him of the government’s plea offer because if Yeazel had, Ashley would have taken it. Ashley also testified that he had asked Yeazel several times if he could testify on his own behalf, but Yeazel repeatedly put him off and told him to wait and see what happened. Tammy Dennis, Ashley’s ex-girlfriend, testified that she had a telephone conversation with Yeazel in which she asked him if Ashley would be testifying at trial, and Yeazel responded that it would “not be necessary” or it would “not be a good idea.”

The habeas record was supplemented with a video deposition of Matthew Hay-how, taken on October 15, 1998, at the Federal Correctional Institution in Cumberland, Maryland. Hayhow was also represented by Yeazel, but his case did not go to trial because he accepted the plea agreement offered by the government. According to Hayhow, Yeazel told him that he had erred in failing to inform Ashley of a similar plea offer made in Ashley’s case and wanted to avoid making the same mistake in Hayhow’s case.

The sole witness for the government was Yeazel. Yeazel testified that he had represented approximately 20 federal criminal defendants before being appointed to represent Ashley, but that Ashley’s case had been the first to go to trial because Yeaz-el’s other clients had all accepted the offered plea agreements. Yeazel contends that he always informed clients of plea offers and that he told Ashley about the plea offer, but Ashley had refused to accept it. Yeazel also testified that he asked Ashley if he wanted to testify and Ashley “shook his head no.” However, Yeazel admitted that he did not have any written record of his communications to Ashley relating either to the plea offer or his willingness to allow Ashley to testify.

The magistrate judge issued a report and recommendation on February 2, 1999, recommending that the district court dismiss Ashley’s petition, which the district court adopted on May 15,1999.

II.

In federal habeas corpus proceedings, this court reviews the district court’s legal conclusions de novo and factual findings under a clearly erroneous standard. A habeas petitioner’s ineffective assistance of counsel claim is a mixed [308]*308question of law and fact, which is subject to de novo review. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999).

m.

According to Ashley, he first learned of the government’s plea offer when he asked Yeazel on the third day of his trial whether an offer had been made, to which Yeazel responded, “yes, they did.” Ashley argues that if he had been aware of the offer, he would have accepted it and his sentence would have been reduced by 20 years, from 33 years to 13 years. Ashley contends that because Yeazel never communicated the plea offer and has no written documentation showing that he did so, Yeazel’s representation was constitutionally ineffective and this court should reverse the district court’s judgment and remand the case for a new trial. Ashley also argues that Yeazel repeatedly “put off’ talking to him about his right to testify, which is corroborated by Dennis’s testimony that Yeazel told her it would “not be a good idea” for Ashley to testify.

The government maintains that Yeazel was not constitutionally ineffective because he informed Ashley of both the plea offer and his right to testify. Ashley did not raise his ineffective assistance of counsel claim on direct appeal or in the disciplinary complaint he filed against Yeazel with the Ohio Supreme Court in November 1990. In fact, Ashley never explains why he waited almost seven years after his conviction to raise a claim involving Yeaz-el’s alleged ineffectiveness.

Yeazel testified that he has never failed to inform a client of a plea offer, and that he “probably would have informed [Ashley] within the first month of [his] representation. Plea agreements are normally reached in these types of cases.” Specifically, Yeazel contends that he communicated the plea offer to Ashley while visiting him at the Franklin County Jail:

I remember, because it’s happened on a number of occasions. Mr. Ashley would sit there, and he would sort of just grin at me and just shake his head. And I believe that in this particular instance he would have told me, no, they’ve got to prove that I’m guilty.

Also, Yeazel testified that he discussed Ashley’s right to testify with him prior to trial and Ashley refused. Yeazel stated:

Again, he just sort of looked at me and grinned and shook his head no. And I remember sitting there at one of those big tables in Judge Kinneary’s courtroom when that happened. And I think that was after the Government had closed its case-in-chief and had rested, and before our case opened, as to whether or not he was going to testify.

Because Ashley filed his petition pursuant to 28 U.S.C. § 2255, he has the burden of persuading the court by a preponderance of the evidence that his version of the disputed events is more likely true. See Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993). Failure to communicate a plea offer to a client may constitute ineffective assistance of counsel. See Tyler v. United States, No. 98-1225, 1999 WL 427377, at *2 (6th Cir. June 16, 1999) (unpublished disposition).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

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17 F. App'x 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashley-v-united-states-ca6-2001.