Guerrero v. United States

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 9, 2004
• Docket: 03-5886
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Guerrero v. United States No. 03-5886 ELECTRONIC CITATION: 2004 FED App. 0306P (6th Cir.) File Name: 04a0306p.06 Harold B. McDonough, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF: Caryll S. Alpert, FEDERAL PUBLIC UNITED STATES COURT OF APPEALS DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Harold B. McDonough, William Cohen, ASSISTANT FOR THE SIXTH CIRCUIT UNITED STATES ATTORNEYS, Nashville, Tennessee, for _________________ Appellee.

LUIS CARLOS GUERRERO , X _________________ Petitioner-Appellant, - - OPINION - No. 03-5886 _________________ v. - > JOHN D. HOLSCHUH, District Judge. Petitioner Luis , Carlos Guerrero was convicted of nine charges of cocaine UNITED STATES OF AMERICA , - Respondent-Appellee. - trafficking and sentenced to 175 years in prison. Pursuant to 28 U.S.C. § 2255, he moved to vacate his sentence, claiming N that he was denied the effective assistance of trial counsel Appeal from the United States District Court because his attorney failed to communicate a plea offer to for the Middle District of Tennessee at Cookeville. him. Guerrero appeals from the district court’s order denying No. 97-00040—William J. Haynes, Jr., District Judge. his motion to vacate his sentence. For the reasons set forth below, we AFFIRM the district court’s order. Argued: June 8, 2004 I. Decided and Filed: September 9, 2004 On February 17, 1988, Luis Carlos Guerrero, a native of Before: BOGGS and MOORE, Circuit Judges; Honduras, was indicted in federal court on nine counts, HOLSCHUH, District Judge.* including conspiracy to import and distribute cocaine, possession with intent to distribute more than a kilogram of _________________ cocaine, and distribution of cocaine. At his first trial, held in June of 1988, Guerrero was represented by John O’Donnell, COUNSEL an experienced criminal defense attorney, and by attorney Francis Clarke. After the jury failed to reach a verdict, the ARGUED: William J. Steed III, FEDERAL PUBLIC court declared a mistrial. Guerrero was re-tried in July of DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. 1988.1 This time, the jury convicted him of all nine counts.

1 * Just prior to the second trial, the gov ernment filed a motio n to The Honorable John D. Holschuh, United States District Judge for disqualify defense counsel. This motion was based on the governm ent’s the Southern District of Ohio, sitting by designation. stated intention to call a co-defendant to testify about a m eeting with

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On August 29, 1988, the district court imposed a prison The motion included a claim, among others, that O’Donnell sentence of 175 years and fines totaling more than $2 had failed to advise him of a plea offer. In support of this million.2 claim, Guerrero submitted his wife’s affidavit concerning her alleged conversation with O’Donnell. In response, the Guerrero served the first nine years of his sentence at a government submitted O’Donnell’s affidavit, in which he federal prison in Memphis, Tennessee. While he was there, stated that he no longer had the case file and did not he exchanged letters with his wife, Nancy, but she visited him remember any plea offer, but that it was his practice to only once. In March of 1997, he was transferred to a prison communicate all plea offers to his clients. in Miami, Florida so that he could be closer to his family. He alleges that shortly thereafter Nancy told him that, after the In an order dated March 4, 1999, the district court refused second trial, O’Donnell told her that the government had to consider most of the ineffective assistance of counsel made a plea offer, but O’Donnell had not conveyed the offer claims, noting that Guerrero had the opportunity to assert to Guerrero because O’Donnell “didn’t think much of it.” them on direct appeal but had failed to do so. The only Based, in part, on this new information, in 1997 Guerrero portion of Guerrero’s ineffective assistance of counsel claim filed a motion to vacate his sentence under 28 U.S.C. § 2255.3 that the district court addressed was his claim that O’Donnell had failed to inform him of O’Donnell’s own prior conviction The motion alleged that O’Donnell’s performance had been for possession of cocaine. Citing Strickland v. Washington, deficient in a number of ways, in violation of Guerrero’s right 466 U.S. 668 (1984), the court found that while O’Donnell’s to the effective assistance of counsel under the Sixth and failure to disclose this conviction may have constituted Fourteenth Amendments to the United States Constitution. deficient performance, Guerrero had failed to show that this prejudiced his defense. The district court therefore denied Guerrero’s motion to vacate his sentence. O’D onne ll and the anticipated need for O’Do nnell and Clarke to take the This court subsequently issued a certificate of appealability stand to rebut that testimony. It was eventually decided that O’D onne ll would represent Guerrero and Clarke would act as a “case agent” who with respect to Guerrero’s claim that O’Donnell had failed to would testify if neede d. On direc t appeal, we rejected G uerrero’s claim tell him of an alleged plea offer, noting that this alleged of ineffective assistance of counsel based on a potential conflict of ineffective assistance of counsel claim was based on a interest. See United States v. Gu errero, No. 88-5986, 1990 WL 166414 different ground for relief than that which had been (6th C ir. No v. 1, 19 90)(per curiam ). previously considered on direct appeal. Based on the 2 conflicting affidavits submitted by O’Donnell and Mrs. The district judge imposed a sentence of 20 years on ea ch of 8 Guerrero, we vacated the district court’s decision with respect counts and 15 years on 1 count, all sentences to run co nsecutively. to this one claim and remanded the case for further 3 proceedings on that claim. See United States v. Guerrero, 28 U .S.C. § 225 5 provides, in relev ant part: No. 99-5735, 2001 WL 1298843 (6th Cir. Aug. 7, 2001). A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the On remand, Judge Aleta Trauger of the United States ground that the sen tence was imposed in violation of the District Court for the Middle District of Tennessee conducted Constitution or laws of the United States . . . may move the court an evidentiary hearing to determine whether a plea offer had which imposed the sentenc e to vacate, set aside o r correct the been extended to Guerrero. At that hearing, held on June 17, sentence. No. 03-5886 Guerrero v. United States 5 6 Guerrero v. United States No. 03-5886

2002, Mrs. Guerrero testified that immediately after the The government then called O’Donnell as a witness.4 second trial she asked O’Donnell why her husband had not When asked if the government, at any time, offered a plea been offered a plea agreement like the ones that had been bargain to Guerrero, O’Donnell replied, “I don’t remember offered to the co-defendants. She stated that O’Donnell one way or the other.” J.A. at 102. However, he stated that replied that the government had made an offer, but he did not if an offer had been made, he “would have conveyed it in tell Guerrero about it because it was not a good offer, and he some manner to Mr. Guerrero,” because it was his practice to knew that Guerrero would not accept it. Mrs. Guerrero convey all offers, good or bad, to his clients. J.A. at 103-104. testified that she did not ask what the offer was, and He admitted that it was not uncommon for defendants in drug O’Donnell did not volunteer that information. She also cases to negotiate plea bargains, and that it would have been testified that, although she was upset that O’Donnell had not his usual practice to approach the government about the told her husband about the alleged plea offer, she did not tell possibility. He also noted, however, that sometimes the her husband about this conversation until mid-May of 1998, government was simply not interested in negotiating, and this nearly ten years after he was convicted. She explained that could have been one of those cases. because her husband had been in Memphis and she had been able to visit him only once, she had not had the occasion to O’Donnell testified that he does not remember discussing discuss it with him prior to that date. Mrs. Guerrero also the possibility of a plea agreement with Guerrero. Neither did testified that, after she told her husband about the plea offer, he remember having a conversation with Mrs. Guerrero about he sent the affidavit to her. Although she remembers signing a plea offer. He testified that her claim – that he told her that it and sending it back to him, she does not remember having he did not communicate a plea offer to Guerrero – would have her signature notarized. been inconsistent with his general practice. On cross- examination, O’Donnell admitted that it was possible that a At the same hearing, Guerrero testified that his attorneys plea offer had been extended to Guerrero; he simply did not never discussed a possible plea bargain with him. He was led remember. Likewise, he could not say for certain that he did to believe that any discussions concerning the possibility of not discuss a plea offer with Mrs. Guerrero; again, he simply cooperating with the government in exchange for a more did not remember. O’Donnell no longer had Guerrero’s case lenient sentence had to be initiated by the government. file, and attempts to locate it had been unsuccessful. Guerrero also stated that if a plea had been offered, he would have considered taking it. During the first trial, his attorneys Harold McDonough, the Assistant United States Attorney told him that he could be sentenced to up to 180 years in who prosecuted the case at both trials, also testified at the prison, yet they encouraged him to go to trial because they hearing. McDonough testified that he had no recollection of believed that he would win. After the first trial ended in a any settlement discussions or plea offer, and there was no mistrial, they told him not to worry because, even if he lost documentation in his files to support a finding that such an the second trial, they had grounds to appeal. offer had been made. He stated that if a plea offer had been made, he would have remembered; he also believed that he would have made some notation in the file. McDonough

4 Francis Clarke, co-defense counsel at the first trial, died several years before the evid entiary he aring. No. 03-5886 Guerrero v. United States 7 8 Guerrero v. United States No. 03-5886

testified that the government would not have agreed to an to her husband. Furthermore, although Mrs. Guerrero’s Alford plea, in which Guerrero would have been permitted to affidavit appeared to have been notarized, she testified that plead guilty while maintaining his innocence.5 McDonough she did not remember having it notarized. Judge Haynes also testified that it was unlikely that the government would considered Mrs. Guerrero’s testimony and also the testimony have offered a plea bargain, since it was believed that of John O’Donnell, Harold McDonough, and Allen Brown. Guerrero was a ringleader in the narcotics trafficking The court stated: conspiracy and had testified untruthfully at the first trial. John O’Donnell does not recall the statement, but given The final witness was Allen Brown, the Drug Enforcement the defense trial strategy and Guerrero’s insistence on his Administration (“DEA”) investigator assigned to the case. He innocence, that [sic] Court concludes that it seems testified that he was present for both of Guerrero’s trials. unlikely that the subject would have come up. Brown testified that if there had been plea negotiations, he McDonough, the prosecutor in this case, does not recall would have been consulted. According to Brown, there was any such plea offer and the lead agent states that the no discussion of a plea in this case, and defense counsel never Government never approached Guerrero . . . about a plea. raised the subject. He stated, “[t]here were no plea negotiations; I know that to be a fact.” J.A. at 149. J.A. at 31. The court also noted that it was unlikely that a plea offer would have been extended since: (1) Guerrero was At the end of the hearing, Judge Trauger recused herself at the top of the cocaine distribution ring, and the government from the case. She stated that she had not realized that had already entered into plea agreements with several co- McDonough would be testifying at the hearing. Since she defendants; (2) Guerrero insisted that he was innocent; and had once been his supervisor at the United States Attorney’s (3) the government believed that Guerrero had testified office, she believed that it would be improper for her to weigh untruthfully at the first trial. Judge Haynes found that his credibility against that of the other witnesses. The case Guerrero had failed to establish, by a preponderance of the was then assigned to Judge William Haynes. The parties evidence, that the government had extended a plea offer. He agreed that there was no need for another evidentiary hearing, therefore denied Guerrero’s motion to vacate his sentence. and that Judge Haynes could issue a decision based solely on the hearing transcript. II.

In an Order and Memorandum dated June 24, 2003, Judge Guerrero now appeals from Judge Haynes’s order denying Haynes denied Guerrero’s motion to vacate his sentence. In his motion to vacate his sentence. This court has jurisdiction the Memorandum, the court initially observed that because a to review the district court’s order pursuant to 28 U.S.C. defendant has the sole authority to decide whether to plead § 2253(a). While we review de novo a district court’s denial guilty, a defense attorney has a legal duty to disclose all plea of a § 2255 motion, the factual findings made by the district offers made. The court noted, however, that the only court in determining whether a petitioner has established evidence of a plea offer in this case came from Mrs. Guerrero, ineffective assistance of counsel are reviewed for clear error. who apparently waited ten years to disclose this information See Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003); Thompson v. United States, No. 02-5564, 2004 WL 193162 at **3 (6th Cir. Jan. 30, 2004)(citing McQueen v. Scroggy, 99 5 F.3d 1302, 1310 (6th Cir. 1996)). See also Kinnard v. United See Alford v. North Carolina, 400 U.S. 25 (19 70). No. 03-5886 Guerrero v. United States 9 10 Guerrero v. United States No. 03-5886

States, 313 F.3d 933, 935 (6th Cir. 2002)(“On federal habeas credibility of witnesses; it also reflects and preserves the corpus review, the appeals court reviews the district court’s proper relationship between trial courts and courts of legal conclusions de novo and its factual findings for clear appeal. error.”). Id. (citations omitted). Although not raised as an issue in his briefs, counsel for Guerrero stated during oral argument that in this case the The decisions of this Court, however, were not in complete district court’s factual findings should be given less deference agreement on this issue in 1981. The same year Jabara was than clear error because Judge Haynes did not conduct the decided, this Court, in Lydle v. United States, 635 F.2d 763 evidentiary hearing and did not have the opportunity to judge (6th Cir. 1981) said: the demeanor of the witnesses. Counsel contended that, under these circumstances, the district court’s factual findings The major rationale for deferring to district court should be subject to de novo review. findings which are not clearly erroneous is that the district court is able, as we are not, to observe the The same argument was made and rejected, however, in demeanor of witnesses. Where the trier of fact has United States v. Jabara, 644 F.2d 574 (6th Cir. 1981), which observed no witnesses, the “clearly erroneous” test is involved an appeal by the government from a finding of fact inapplicable. made by the district court on a record that did not involve any hearing or oral testimony. The government argued that Id. at 766 n.1. (citations omitted). See also K&M Joint because there was no oral testimony below, the court of Venture v. Smith Int’l, Inc., 669 F.2d 1106, 1119 n.8 (6th Cir. appeals had “the same ‘cold’ record upon which the trial court 1982)(Holschuh, J., concurring in part and dissenting in based its decision,” id. at 577, and therefore the court of part)(citing Sixth Circuit cases that have followed the appeals should review the record de novo to determine approach set forth in Jabara). whether the district court’s factual finding was supported by the record. This Court pointed out that Rule 52(a) of the The division of authority in this Circuit was mirrored on a Federal Rules of Civil Procedure provides that an appellate national level by a conflict of authority among the circuits. court must not set aside findings of fact of the district court To resolve this conflict, Rule 52(a) was amended in 1985 to unless those findings are clearly erroneous, and that “[t]his provide that: standard applies notwithstanding the fact that the appellate record may consist entirely of documentary evidence.” Id. Findings of fact, whether based on oral or documentary (citations omitted). The Court further noted that while the evidence, shall not be set aside unless clearly erroneous, corresponding rule in criminal cases, Rule 23(c), does not and due regard shall be given to the opportunity of the specify a standard of appellate review, the clearly erroneous trial court to judge the credibility of the witnesses. test has also been applied with reference to findings of fact in The Advisory Committee, in explaining the rationale for the criminal proceedings. The Court set forth the basis for the amendment, said: clearly erroneous test as follows: To permit courts of appeal to share more actively in the The “clearly erroneous” test does not derive solely from fact-finding function would tend to undermine the the trial judge’s superior opportunity to assess the legitimacy of the district courts in the eyes of litigants, No. 03-5886 Guerrero v. United States 11 12 Guerrero v. United States No. 03-5886

multiply appeals by encouraging appellate retrial of some why Rule 52(a) should not be applied in § 2255 cases.6 The factual issues, and needlessly reallocate judicial fundamental rationale for Rule 52(a) – as set forth in Jabara authority. and the Advisory Committee’s note – applies with equal force to appeals from the district court’s findings of fact in § 2255 Fed. R. Civ. P. 52(a) Advisory Committee’s notes. cases as it does in appeals from the district court’s findings of fact in other civil cases. It is interesting to note that the appellant in the present case, Luis Carlos Guerrero, while serving the sentence in question, Having determined that the “clearly erroneous” standard of filed a lawsuit against Francis White in the Middle District of review applies to the district court’s finding of fact that the Tennessee, and raised the same issue as he does in the present government did not make a plea offer to Guerrero’s counsel, case. In Guerrero v. White, No. 98-6342, 1999 WL 1282481 the final step is to apply that standard to the evidence in this (6th Cir. Dec. 28, 1999), he appealed an adverse judgment on case. “A finding is ‘clearly erroneous’ when, although there findings of fact and conclusions of law. With reference to the is evidence to support it, the reviewing court on the entire standard of review, this Court said: evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Guerrero urges us to review the district court’s findings Gypsum Co., 333 U.S. 364, 395 (1948). The burden is on the and the denial of his post-trial motion de novo because appellant to prove that a finding is clearly erroneous; this the decision was based principally upon his deposition requires more than a showing of conflicting testimony. See and other documentary evidence. While some federal Harrison v. Monumental Life Ins. Co., 333 F.3d 717, 722 (6th courts took this approach prior to 1985, the amendments Cir. 2003). to Fed.R.Civ.P. 52(a) settled the question and provide that “[f]indings of fact, whether based on oral or III. documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the Strickland v. Washington, 466 U.S. 668 (1984), sets forth opportunity of the trial court to judge the credibility of the relevant standard for determining whether a criminal the witnesses.” Further, we are bound to accept the defendant has received ineffective assistance of counsel. In factual inferences drawn by the trial court from order to obtain habeas relief based on ineffective assistance of undisputed facts unless they are clearly erroneous. See counsel, a petitioner must show that: (1) counsel’s Commissioner v. Duberstein, 363 U.S. 278, 291 (1960). performance was deficient; and (2) counsel’s deficient performance prejudiced the defense. Id. at 687. Guerrero, 1999 WL 1282481 at **2. To satisfy the first prong of Strickland, a petitioner must In the present case, the parties agreed that a decision could show that his attorney’s performance fell below what would be made by Judge Haynes based solely on the transcript of the hearing held by Judge Trauger. For the purpose of deciding which standard of review applies to Judge Haynes’s findings 6 Rule 12 of the Rules Governing Section 2255 Proceedings for the of fact, we find no distinction between a transcript of United States D istrict Courts specifically provides that a district court testimony in a hearing and a “deposition and other “may apply the Federal Rules of Criminal Procedure or the Federal Rules documentary evidence.” Id. Furthermore, there is no reason of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules.” No. 03-5886 Guerrero v. United States 13 14 Guerrero v. United States No. 03-5886

be considered objectively reasonable. Id. at 687-88. The There is admittedly some evidence to support a finding that Sixth Circuit has previously held that a defense attorney’s the government did extend a plea offer to Guerrero, and that failure to communicate a plea offer to his or her client O’Donnell failed to communicate it to him. At the constitutes deficient performance as a matter of law. See evidentiary hearing, Guerrero testified that O’Donnell never Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2003). discussed the possibility of a plea agreement with him. Mrs. Therefore, if Guerrero could show that the government Guerrero testified that after her husband was convicted, extended a plea offer that O’Donnell failed to communicate O’Donnell told her that the government had made a plea offer to him, he would have established the first prong of the but that he decided not to tell Guerrero about it because he Strickland test. With respect to the second prong of “didn’t think much of it.” J.A. at 39. O’Donnell conceded Strickland, a petitioner may establish the requisite prejudice that Mrs. Guerrero might be correct; he simply did not by demonstrating a “reasonable probability” that if he had remember one way or another whether a plea offer had been been notified of the plea offer, he would have accepted it. Id. made. He conceded that it was his practice to engage in plea See also Magana v. Hofbauer, 263 F.3d 542, 547-48 (6th Cir. negotiations with the government. He also acknowledged 2001); Turner v. Tennessee, 858 F.2d 1201, 1206 (6th Cir. that he had withheld other information from Guerrero, 1988), vacated on other grounds, 492 U.S. 902 (1989), including disclosure of his own arrest for possession of reinstated on other grounds, 940 F.2d 1000, 1002 (6th Cir. cocaine. Guerrero contends that O’Donnell’s failure to 1991). disclose this information makes it more likely that he also failed to convey the alleged plea offer. On appeal, Guerrero argues that he was denied effective assistance of counsel due to O’Donnell’s failure to inform There is, however, a great deal of evidence to support a him of the alleged plea offer. He further claims that if finding that no plea offer was ever made. Allen Brown, the O’Donnell had conveyed the alleged offer to him, there is a DEA Agent who participated in both trials, testified that if a reasonable probability that he would have accepted it. The plea offer had been made, he would have known about it. He threshold issue in this case, of course, is whether the stated, “[t]here were no plea negotiations; I know that to be a government ever extended a plea offer to Guerrero through fact.” J.A. at 149. Likewise, Assistant United States O’Donnell. This is a purely factual issue. The district court Attorney Harold McDonough testified that he would have made the factual finding that no such offer had been made. remembered if a plea offer had been extended and probably would have made some notation in the file. He did not On consideration of the entire record, including the ten-year remember any settlement discussions, and there was no delay in the assertion of this claim and the transcript of the documentation in the file indicating that a plea offer had been testimony of all witnesses who testified at the evidentiary made. McDonough also testified that, because the hearing, we are not left “with the definite and firm conviction government believed that Guerrero was one of the kingpins in that a mistake has been committed.” We find, therefore, that the cocaine distribution ring and had testified untruthfully at the district court’s finding of fact regarding the alleged plea the first trial, it was unlikely that the government would have offer was not clearly erroneous.7 extended a plea offer to him. O’Donnell testified that it was his practice to attempt to 7 negotiate a plea bargain. However, he explained that there are Even if we reviewed this factual finding de novo, as urged by Guerrero , we wo uld rea ch the sa me conclusion. “some cases where it was clear that the prosecution didn’t No. 03-5886 Guerrero v. United States 15 16 Guerrero v. United States No. 03-5886

want to make a deal. I don’t remember if this was one of testified that they did not remember extending a plea offer to them.” J.A. at 115. He does not remember discussing a plea Guerrero, and to the testimony of John O’Donnell, who agreement with either Mr. or Mrs. Guerrero. He did testify, testified that he had no recollection of plea negotiations in this however, that it was his practice to convey all plea offers to case. The court found that this testimony was consistent with his clients because “[i]t’s his choice, not mine.” J.A. at 104. the government’s theory. It noted: Therefore, if the government had made an offer, O’Donnell would have conveyed it to Guerrero, according to his First, the evidence is that Guerrero was at the top of the testimony, even if he did not believe it was a good one. distribution ring that the government was prosecuting and had pleas from one or more participants in this The district court noted that the only evidence of a plea distribution ring. Second, Guerrero insisted upon his offer came from Mrs. Guerrero. The court chose to discredit innocence, and such an offer would be inconsistent with her testimony for several reasons. Mrs. Guerrero testified that any discussion of a plea by his counsel with the she did not know the specific terms of the alleged plea offer; Government. Third, there had been a mistrial at which O’Donnell did not tell her, and she did not ask. She testified Guerrero testified and in the Government’s view that that even though she was upset when she learned that testimony was untruthful. A plea offer from the O’Donnell had failed to tell her husband of the alleged plea Government based upon untruthful testimony by offer, she did not tell her husband about this conversation Guerrero seems unlikely under these circumstances. until ten years later. Furthermore, when questioned about the affidavit, she stated that she remembered signing it and J.A. at 30. sending it back to her husband, but she did not remember having it notarized. Although the issue was not raised by either of the parties, we find that the district court erred in considering Guerrero’s Guerrero contends that the district court should not have insistence upon his innocence as a factor in determining discredited his wife’s testimony just because she waited ten whether a plea offer was extended to him. We touched on years to tell him about the plea offer. As a lay person, she this issue in Griffin v. United States, 330 F.3d 733 (6th Cir. would not have understood the legal significance of 2003). In Griffin, it was undisputed that defendant’s counsel O’Donnell’s alleged failure to communicate the plea offer. had failed to convey a plea offer to him; the first prong of Furthermore, until her husband was transferred to Miami, she Strickland was therefore satisfied. The only question was did not have the opportunity to communicate with him on a whether Griffin’s continued insistence upon his innocence regular basis. She did, however, visit him once and foreclosed a finding that, if the offer had been conveyed to exchanged letters with him. There was certainly sufficient him, he would have accepted it. See 330 F.3d at 738. We communication between Mrs. Guerrero and her husband held that his repeated declarations of innocence were not during a ten-year period that she could have told Guerrero dispositive on this issue and noted: about a plea offer if, in fact, one had been made even if, as claimed, she did not know the legal significance of Defendants must claim innocence right up to the point of O’Donnell’s failure to convey it to Guerrero. accepting a guilty plea, or they would lose their ability to make any deal with the government. It does not make The district court chose to give more weight to the sense to say that a defendant must admit guilt prior to testimony of Harold McDonough and Allen Brown, who accepting a deal on a guilty plea. It therefore does not No. 03-5886 Guerrero v. United States 17

make sense to say that a defendant's protestations of innocence belie his later claim that he would have accepted a guilty plea. Furthermore, a defendant must be entitled to maintain his innocence throughout trial under the Fifth Amendment. Id. While Griffin dealt with the prejudice prong of Strickland, the same reasoning applies with equal force here. To paraphrase Griffin, Guerrero was entitled to maintain his innocence at all times. If he did not maintain his innocence, he would have lost any ability to make a deal with the government. Even though the district court erred in considering Guerrero’s repeated claims of innocence as a factor in determining whether the government extended a plea offer to him, this was harmless error. As discussed above, there was more than enough additional evidence to support the district court’s finding that no plea offer was extended in this case. After reviewing the entire record, we are not left with a definite and firm conviction that the district court made a mistake in finding that the government did not extend a plea offer to Guerrero. It follows that O’Donnell cannot be charged with failing to communicate a non-existent offer to his client. Because Guerrero has failed to show that O’Donnell’s performance was deficient, he has failed to satisfy the first prong of Strickland. IV. We conclude that the district court’s factual finding that the government did not extend a plea offer to Guerrero is not clearly erroneous. We therefore AFFIRM the district court’s order denying Guerrero’s motion to vacate his sentence based on ineffective assistance of counsel.