RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 McAdoo v. Elo No. 01-2050 ELECTRONIC CITATION: 2004 FED App. 0105A (6th Cir.)
File Name: 04a0105a.06 Debra M. Gagliardi, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS DIVISION, Lansing, Michigan, Appellee. ON BRIEF: James R. Gerometta, UNITED STATES COURT OF APPEALS Penny R. Beardslee, FEDERAL PUBLIC DEFENDERS OFFICE, Detroit, Michigan, for Appellant. Debra M.
FOR THE SIXTH CIRCUIT Gagliardi, OFFICE OF THE ATTORNEY GENERAL, _________________ CORRECTIONS DIVISION, Lansing, Michigan, Appellee.
SILAS T. MCADOO , X _____________________ Petitioner-Appellant, -
- AMENDED OPINION - No. 01-2050 _____________________ v. -
> JULIA SMITH GIBBONS, Circuit Judge. Silas McAdoo , appeals the district court’s denial of his petition for a writ of FRANK ELO , Warden -
Respondent-Appellee. - habeas corpus. McAdoo pled guilty in Michigan state court to one count of second-degree murder and two counts of N assault with intent to commit murder. Pursuant to a plea Appeal from the United States District Court agreement, he was sentenced to three life sentences to run for the Eastern District of Michigan at Detroit. concurrently. McAdoo later claimed that his attorney No. 98-74705—Paul D. Borman, District Judge. misinformed him about the consequences of a life sentence.
McAdoo raises three issues in this appeal, arguing that (1) his Argued: February 5, 2003 guilty plea was not knowing and voluntary because he misunderstood its consequences, (2) his plea was illusory Decided and Filed: April 15, 2004 based on the effective unavailability of parole for those serving a statutory life sentence, and (3) his trial counsel was Before: GILMAN and GIBBONS, Circuit Judges; ineffective for allegedly misinforming McAdoo about his POLSTER, District Judge.* possible sentence. For the following reasons, we affirm the district court’s denial of habeas relief.
_________________
I.
COUNSEL
McAdoo was charged in Michigan state court with one ARGUED: James R. Gerometta, FEDERAL PUBLIC count of first-degree murder and two counts of assault with DEFENDERS OFFICE, Detroit, Michigan, for Appellant. intent to commit murder. The charges arose from the stabbing death of McAdoo’s wife, Alicia Kelley, and the stabbing of two of his daughters. At McAdoo’s preliminary
*
hearing, his ten and fourteen year old daughters testified The Ho norable Dan Aaron Polster, United States District Judge for the Northern District of Ohio, sitting by designation.
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about the facts of McAdoo’s offenses, all of which occurred there was confusion when McAdoo entered his plea about in the family home. what the sentence would be. The prosecutor responded that there was some confusion at sentencing, “but not at plea On January 9, 1995, the trial date, McAdoo entered a time.” guilty plea to the lesser offense of second-degree murder and two counts of assault with intent to commit murder. The At the resentencing hearing, McAdoo, who was not under agreement was in exchange for the dismissal of the first- oath, had the following exchange with the state trial court: degree murder charge that carried a maximum sentence of life without parole. At the plea proceeding, McAdoo’s attorney THE COURT: Mr. McAdoo, sir, do you wish to say told the court that the plea agreement indicated three life anything before this Court imposes the correct sentence, sentences. McAdoo signed the plea form, which stated that which was pursuant to the plea agreement? the agreement was for three life sentences. McAdoo stated to the court under oath that no one had promised him anything DEFENDANT McADOO: Yes, Judge Braxton. The other than what the plea form indicated. day that you accepted my plea, I don’t know if you remember. I know you have a lot of cases that you have Sentencing was held on February 1, 1995. At the outset, to do, but when Batchelor first came before you with me, McAdoo’s attorney stated that McAdoo did not want to and you asked me more than once did I understand, and withdraw his plea, and McAdoo agreed on the record. The you asked me how did I plead, and I pled not guilty. court stated that it was ready to “impose a sentence in accord with the sentence agreement.” It then sentenced McAdoo to Then he took me, and we went into the back chambers parolable life for the murder conviction and two concurrent or in another room, and he made the statement to me, and terms of twenty years imprisonment for the assault maybe I am wrong, but I was told that the three life convictions. The sentencing judge stated, “Count one and sentences would be 20, 20, 20 to run concurrently, and murder two for a term of statutory life which is 20 years.” that my kids would not have to be subjected to the Court. Although the judge indicated an intent to sentence McAdoo in accord with the plea agreement, she failed to do so. First, THE COURT: But he did inform you that they were a statutory life term does not equal twenty years in Michigan. three life sentences. Is that correct? Second, the plea agreement did not call for twenty-year sentences for the assault convictions. DEFENDANT McADOO: Yes, Ma’am.
The prosecution then moved to amend the sentence to THE COURT: Which is indicated on this form. conform to the plea agreement, which had provided for three MR. DEFENDANT: But he, I guess what I am trying concurrent life sentences rather than one life sentence and two to say is, Judge Braxton, that if I had understood what he twenty-year sentences. Resentencing occurred on March 24, was telling me which, as I stated to you before, I had no 1995. McAdoo, then represented by his second counsel, knowledge of what was going on whatsoever. I have no Robert Plumpe, requested the withdrawal of his guilty plea, – claiming that he did not understand the nature of his plea agreement and that he was under the influence of medication THE COURT: Now you had some knowledge because at the time he entered his plea. Defense counsel argued that I spoke to you. But you go ahead.
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DEFENDANT McADOO: What I am trying to say is McAdoo was then appointed a third counsel, Edward my lawyer, Batchelor, he never spoke with me about Jabbour, who filed another motion to withdraw McAdoo’s anything. It was just the first time I ever saw this piece guilty plea, arguing that the plea was not knowing and of paper here was the day that you took my plea voluntary. The sentencing court held a hearing on this motion agreement. When I first saw you, and it was more or less on March 7, 1996. Jabbour argued that McAdoo entered his stated to me accept it or get another attorney. I wrote all plea believing that he would be released after twenty years this up, and I turned it in to the Grievance Commission. imprisonment and that this alleged misunderstanding nullified the plea.
But anyway to sum it all up, he told me something that was different than what you did, and that’s the only thing The court conducted an evidentiary hearing on May 9, I am arguing, and is the fact that I didn’t understand what 1996, to determine whether McAdoo’s alleged he was doing. If I would have understood that he was misunderstanding nullified his plea. At the May 9, 1996, sentencing me to three life sentences to the point, why hearing, Batchelor testified that his understanding was that not fight the case? the penalty for first-degree murder in Michigan was a sentence of “natural life” and the penalty for second-degree I didn’t want my kids to be subjected to it. It was murder was a sentence of “parolable” life. He testified that he enough that they went through. And then for him to tell was familiar with the “Lifer Law,”2 which would have me that it would be the three life sentences, I know I governed McAdoo’s possibility of parole. When asked what need to be punished for what I did. No problem his understanding of the “Lifer Law” was, Batchelor stated, whatsoever with that. But that’s not what he explained “in terms of what I remember in discussion with Mr. McAdoo to me. That’s all I am trying to say to the Court. with regards to the Lifer Law, we never discussed it.” When asked whether he had said anything to McAdoo about what a The court then conformed the sentence to the written plea sentence of life imprisonment means, Batchelor responded, “I agreement and stated that it would consider McAdoo’s don’t recall saying anything to him about life imprisonment.” motion to withdraw the plea if he presented evidence that his mental state and medication prevented him from knowingly McAdoo presented the testimony of Michael Patrick entering a guilty plea.1 Martin, prisoner advocate for the Wayne County jail at the time of McAdoo’s incarceration there, and Mark Carrico of
2
The “Lifer La w,” M.C.L. § 791.233b; M.S.A. § 28.303(3), provides 1 that prisoners convicted of an enumerated offense (such as second-degree On May 4, 199 5, the court conducted a hearing on that issue. Dr. murder) are not eligible for parole until the prisoner has served the Ke ith Dlugokinski, a psychologist from the prison where McAdoo was minimum term less available d isciplinary cred its. People v. Lino, 539 incarcerated, testified that McA doo was suffering from major depression N.W.2d 545 , 549 (M ich. Ct. A pp. 1 995 ), overruled on other grounds by and was being medicated at the time he entered his plea. However, Peo ple v. Carson, 560 N.W.2d 657, 665 (M ich. Ct. App. 1996). In Dlugokinski also testified that McAd oo’s medications would not have McA doo’s case, the “Lifer Law” would have m eant that he was likely to significantly impaired his cognitive abilities. Although no order denying be eligible for parole after serving appro ximately fifteen years. Lino, 539 the motio n to withd raw the plea appe ars in the record, it is evident that the N.W.2d at 548-49 (defendant serving parolable life sentence for crime court denied the mo tion. T he issue of M cAd oo’s p sychological state and committed on or after O ctober 1, 1992 , is subject to the jurisdiction of the med ications has no t been raised in this app eal. parole board and eligible for parole after fifteen years imprisonment).
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the Team for Justice, who visited McAdoo after his Upon questioning Mr. Batchelor, he indicated there was, incarceration. Jabbour asked Martin if McAdoo told him in fact, a plea bargain that was made on the day of trial. about the sentence agreement contained in the plea He testified further that he, being Mr. Batchelor, was of agreement. The prosecution objected to this evidence as the opinion that the plea offered the defendant would hearsay. Jabbour argued that the evidence was “state of give him a better opportunity to put his client in the best mind” testimony, but the court sustained the objection. possibl[e] posture that he could be in, and he made it Jabbour attempted to elicit the same information from Carrico know[n] to his client what his options were at the time that he had from Martin. Carrico stated that, at some ... unspecified time before McAdoo was transferred to a state prison to serve his sentence, McAdoo told Carrico he would This Court, after listening to the witnesses and the “get out in 17 years.” Jabbour then asked the court to rule testimony that was presented in terms of the defendant's that if McAdoo testified, he could not be questioned about the state of mind, the defendant stated it was his underlying facts of the offense. The court ruled that McAdoo understanding he would be parolable in 17 years which, could be questioned about any facts that were relevant to the in fact, is the truth. And this Court, when taking a plea motion to withdraw the plea. McAdoo did not testify.3 from any defendant as best as I can recall, I’m very meticulous in terms of whether or not the defendant has At the close of the hearing, the court denied McAdoo’s an understanding of what it is he's doing. Of course, I motion to withdraw his guilty plea, concluding: cannot and I do not go behind the scene to ask questions as to w[he]ther or not--what the defendant's particular If I look at the testimony and my view of the witnesses understanding is of what a certain word means to a that testified this afternoon, he stated – Mr. Carrico stated particular defendant. That I do not do. So, based upon he met the defendant back in 1994, and that the the testimony I've heard, I deny the defendant’s motion. defendant’s mother called him because he’s a member of the Team for Justice. He further testified that he visited Following denial of his second motion to withdraw his weekly with the defendant before he was sent to Jackson guilty plea, McAdoo filed a delayed application for leave to [prison], and Mr. Carrico also testified he was at the appeal to the Michigan Court of Appeals. This application sentencing. Mr. Carrico further testified that defendant was denied for lack of merit in the grounds presented. told him he would be eligible for parole in 17 years. McAdoo then filed a delayed application for leave to appeal That’[s] what your witness means to the understanding to the Michigan Supreme Court, which was denied. the defendant had at that time.
McAdoo then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 18, 2001, the district court entered an order denying the petition for habeas corpus.
3 McAdoo was granted a certificate of appealability with McAdoo later stated in an affidavit filed in the district court that Batchelor had told him that a “life sentence” in M ichigan was the respect to his claims that his plea was involuntary, that his equivalent of a twenty-year sentence and that he would be paroled in app roxim ately seventeen-and -a-half years. Beca use this affidavit was not part of the record before the state court, we do not consider it in assessing whether the state court’s decision to deny M cAd oo’s m otion to withdraw his plea was objec tively unreasonable.
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plea was illusory, and that his defense counsel was ineffective errors in state procedure and/or evidentiary law do not rise to in advising him about the consequences of his plea.4 the level of federal constitutional claims warranting relief in a habeas action unless the error renders the proceeding so II. fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment. Estelle v.
The Antiterrorism and Effective Death Penalty Act McGuire, 502 U.S. 62, 69-70 (1991). (“AEDPA”) governs this case. Under 28 U.S.C. § 2254(d), a federal court may not grant habeas relief unless the III. adjudication in the state court proceedings:
A.
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly We apply the standards of AEDPA to McAdoo’s three established Federal law, as determined by the claims. His first contention is that his guilty plea was not Supreme Court of the United States; or knowing and voluntary because he was misinformed by his attorney about the consequences of his plea. Although (2) resulted in a decision that was based on an McAdoo acknowledges that he was aware that he was unreasonable determination of the facts in light of receiving a life sentence, he argues that he misunderstood the the evidence presented in the State court proceeding. implications of a life sentence because of erroneous statements made to him by his lawyer and that the state court Under AEDPA, “[a] federal habeas court may not issue the finding otherwise was objectively unreasonable. writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly The Supreme Court has held that a defendant must have established federal law erroneously or incorrectly.” Williams “sufficient awareness of the relevant circumstances and likely v. Taylor, 529 U.S. 362, 411 (2000). Rather, the issue is consequences” of his plea. Brady v. United States, 397 U.S. whether the state court’s application of clearly established 742, 748 (1970). A guilty plea must be accompanied by “an federal law was “objectively unreasonable.” Id. at 409. affirmative showing that it was intelligent and voluntary.”
Boykin v. Alabama, 395 U.S. 238, 242 (1969). Such a A federal court is to apply a presumption of correctness to showing is generally made by the government’s production of state court findings of fact for habeas corpus purposes unless a transcript of state court proceedings to establish that the plea clear and convincing evidence is offered to rebut this was made voluntarily. Garcia v. Johnson, 991 F.2d 324, 326 presumption. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 (6th Cir. 1993). F.3d 358, 360-61 (6th Cir. 1998). The appeals court gives complete deference to the federal district court’s and state Prior to entering his plea, McAdoo signed the Pretrial court’s findings of fact supported by the evidence. Clemmons Settlement and Notice of Acceptance, which indicated that the v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). Trial court sentence for each of the three offenses would be life imprisonment. When entering the plea, McAdoo stated under oath that he understood the terms of the plea agreement and 4 A certificate of appealability was denied on McAdo o’s claim that his that he knowingly and voluntarily entered into the agreement.
attorney was ineffective for failing to pursue a diminished capa city McAdoo also testified that no additional promises, other than defense.
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those contained in the plea agreement, had been made to him. immediately qualified that information by adding that the Shortly before McAdoo entered his plea, his attorney stated maximum period he could serve for the sentence would to the court that the plea agreement called for three life be 15 years. Nowhere does the record show that Hart was sentences and that he had discussed the agreement with informed before entering his plea of the true sentence, a McAdoo. The attorney also stated that he had explained minimum of 30 years and a maximum of 75. He was McAdoo’s constitutional rights to him and McAdoo had informed by the court of this range at his sentencing indicated his understanding. hearing, but again at the hearing, the court stated that under Ohio law he would only serve 15 years of the McAdoo does not contend that the plea colloquy was sentence. . . . Although this statement occurred after Hart inadequate. He acknowledges that he knew he was agreeing entered his plea, it is evidence that the trial judge himself to a life sentence. His argument is rather that there was did not understand the consequences of the plea confusion about the consequences of a parolable life sentence agreement and, accordingly, did not give Hart correct in Michigan at the time and that he relied on the alleged out- information on the consequences of his plea. of-court statements of his attorney. In further support of the existence of confusion, he cites the statement of the judge at Id. at 258. This case differs from Hart in that McAdoo was sentencing that he would receive “a term of statutory life aware he was receiving a life sentence. Unlike the court in which is 20 years” and the attorneys’ silence after that Hart, the state court in this case made its sole misstatement at statement.5 the sentencing, only after the plea had been entered and accepted. Any misstatement by the judge at sentencing could McAdoo contends that his case is analogous to Hart v. not possibly have affected McAdoo’s understanding at the Marion Correctional Institution, 927 F.2d 256 (6th Cir. time he entered his plea, the relevant time for our inquiry. 1991). In Hart, the state trial judge and Hart’s attorneys incorrectly informed him that his maximum period of After an evidentiary hearing about whether McAdoo’s plea incarceration would be fifteen years if he pled guilty. The was entered knowingly, the state court found that his alleged maximum was actually seventy-five years. This court stated: misunderstanding did not invalidate the plea. The state court accepted as true McAdoo’s evidence (in the form of Carrico’s This record shows that the court informed Hart he could testimony) that he believed he would be paroled in seventeen be sentenced from 60 to 150 years. The court years. This evidence, however, does not show that his plea was unknowingly entered, as the state court correctly found. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (“We have never 5 McAdoo also attempts to show confusion about the consequences held that the United States Constitution requires the State to of a parolable life sentence by submitting evidence that the State Bar of furnish a defendant with information about parole eligibility Michigan addressed the issue of the consequences of a life sentence at an in order for the defendant’s plea of guilty to be voluntary.”); annual meeting in September 2000, some five and a half years after McAdoo entered his guilty plea and so me four and a half years after his James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (“The United state evidentiary hearing. Evidence about this meeting obviously was not States Constitution does not require the State to furnish a a part of the reco rd co nsidered b y the state court. In any event, statements at the annual meeting tend to show that there was confusion about the likelihood of parole for prisoners sentenced to parolab le life, but they do not indicate that it was reasonable to believe that a life sentence in Michigan mean t anything other than what its name implies.
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defendant with information about parole eligibility in order did not affect the outcome of the state hearing. The state for the defendant’s plea of guilty to be voluntary.”).6 court heard testimony from Carrico that McAdoo believed that he would be eligible for parole in seventeen and a half McAdoo’s argument that at the time of his guilty plea there years. It accepted that testimony as truthful and also was confusion in Michigan about the consequences of a determined that McAdoo’s belief was consistent with his parolable life sentence is intertwined with an argument that actual date of parole eligibility under Michigan law. the state court made erroneous evidentiary rulings at the hearing on his request to withdraw his plea.7 First, McAdoo McAdoo attempts to characterize his misunderstanding contends that the state court erroneously excluded Martin’s about the consequences of his sentence of parolable life as a “state of mind” testimony. Second, he contends that the state misunderstanding about more than his parole eligibility date court’s incorrect ruling that, if McAdoo testified, he could be or the likelihood of parole. He argues that he in fact thought cross-examined about the underlying facts of the case forced a life sentence meant a twenty-year sentence. Although him to elect not to testify.8 Whatever the merit of these McAdoo presented no evidence of this belief to the state evidentiary arguments, the state court’s evidentiary rulings court, at resentencing (in an unsworn statement during his allocution), he told the state court that Batchelor told him that “the three life sentences would be 20, 20, 20 to run 6 concurrently.”
As a practical matter, any information given to a defendant about paro le at the time he pleads guilty is inherently imprecise. Both parole In Ramos v. Rogers, 170 F.3d 560 (6th Cir. 1999), the eligibility and likelihood are unpredictable. A number of factors, such as the earning of sentence credits, may affect the time at which a prisoner defendant attempted to withdraw his guilty plea after becomes eligible for parole. Furthermore, factors such as the crimes of sentencing. While accepting his plea, the state trial court conviction, the entire crimina l record, and behavior in prison may impact asked Ramos whether he understood that he was not going to the likelihood of parole at a particular time after a prisoner becomes receive probation under any circumstances. Id. at 562. eligible for parole. The likelihood of parole is also affected by changes Ramos responded that he understood. Later, he attempted to in the law and in the comp osition and attitudes of parole bo ard members. See James, 56 F.3 d at 666 (noting that changes in L ouisiana’s withdraw his guilty plea, arguing that his lawyer had actually commutation procedures made paro le more difficult to attain). As promised him that he would receive “supershock probation.” McAd oo’s evidence of the 2000 Michigan bar meeting suggests, the fact Id. at 562-63. On appeal, Ramos contended that he was told that few Michigan prisoners sentenced to parolable life are paroled when only that he was ineligible for probation but not that he was they are first eligible is attributable to a “political shift.” An assessment ineligible for supershock probation. Id. at 563. He testified of the likeliho od that M cAd oo w ill be paroled when he becom es eligible that he did not know the difference between supershock in 201 0 wo uld have be en speculative in 199 5 whe n he pled guilty and is speculative today, beca use there is no m eans o f ascertaining future paro le probation and “regular” probation. Id. The court was not boa rd policy or other relevant factors. persuaded by the argument that the individual defendant’s misunderstanding of a commonly used term rendered his plea 7 McAdoo does not claim that these evidentiary rulings made the void. It held that “such word games cannot be permitted to proceedings so fund amentally unfair as to dep rive him of due p rocess. vitiate the use of simple words in court.” Id. at 565 n.6.
8 Ramos essentially asked the court to rely on his subjective McAd oo’s description of the state court ruling is not pre cisely impression of the words used, garnered from his lawyer’s accurate. W hile certainly the state court left open the possibility of such misstatements, rather than the plain meaning of the statements cross-examination, it did so only to the extent an underlying fact might be relevant to the motion to withdraw the plea.
made in court. This court declined to do so:
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If we were to rely on Ramos’s alleged subjective pleas). McAdoo acknowledged in court under oath that he impression rather than the record, we would be rendering was agreeing to a life sentence, and the evidence and his the plea colloquy process meaningless, for any convict unsworn statement presented to the state court failed to show who alleges that he believed the plea bargain was that he reasonably believed he was actually agreeing to a different from that outlined in the record could withdraw maximum sentence of only twenty years. his plea, despite his own statements during the plea colloquy . . . indicating the opposite. This we will not Therefore, the state court did not err in finding that do, for the plea colloquy process exists in part to prevent McAdoo understood the consequences of his plea. The state petitioners such as Ramos from making the precise claim court’s findings are entitled to considerable deference under that is today before us. Where the court has scrupulously AEDPA. A federal court may grant habeas relief only where followed the required procedure, the defendant is bound the state court proceeding “resulted in a decision that was by his statements in response to that court’s inquiry. based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d).
170 F.3d at 566 (internal quotation marks omitted). Considering the record here, we cannot say that the state court’s determination that McAdoo knowingly and The present case presents a closer question than Ramos. voluntarily entered his plea was unreasonable. However, as in Ramos, we hold that a term that is unambiguous on its face and agreed to by the defendant in B. open court will be enforced. See Hall v. Maggio, 697 F.2d 641, 643 (5th Cir. 1983) (per curiam) (holding that McAdoo next contends that his plea bargain was illusory defendant’s misunderstanding about life sentence, based on because he obtained no real benefit from entering a guilty “common knowledge” and attorney’s misadvice, did not plea. The Michigan Parole Board rarely grants parole to invalidate plea). We note that the term “life sentence” is not prisoners sentenced to parolable life, as explained by the ambiguous. The United States Constitution does not require Michigan Court of Appeals in People v. Lino: judges to explain the meaning of “life sentence” and other unambiguous terms during the plea colloquy in order to The reality is that those who receive nonmandatory life combat alleged misinformation that is not revealed on the sentences are rarely paroled after ten years, and, in fact, record. Cf. Boykin, 395 U.S. at 243-44 (requiring explicit the majority of defendants sentenced to life waiver of certain constitutional rights on the record when imprisonment are never granted parole. . . . [F]rom 1986 court takes guilty plea); United States v. Hanley, 906 F.2d through 1990, only seven prisoners serving parolable life 1116, 1121 (6th Cir. 1990) (holding that defendant was not sentences were paroled. Of the 975 prisoners serving entitled to relief on his claim of ineffective assistance of such a term in 1990, only two were paroled. In 1991, counsel where his counsel incorrectly advised him that he only one prisoner serving a parolable life term was would be eligible for parole in a third of the time he received paroled. In 1992, again only one prisoner serving a for a sentence because the court informed the defendant of the parolable life term was paroled. potential range of incarceration for his crime and advised him that he would be sentenced under the guidelines); see also 539 N.W.2d at 549 (citations omitted). In view of these Fed. R. Crim. P. 11(b) (setting forth the elements the federal statistics, McAdoo argues that his “promised benefit will not court must address when considering and accepting guilty materialize.” He argues that he is entitled to a new trial or a
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second chance to negotiate a plea bargain because he Cir. 2003) (relying on Wiggins v. Smith, 539 U.S. 510 “expected he would be released on parole given the (2003)). information he received concerning the workings of parole in Michigan.” The Supreme Court has adopted a two-pronged test for determining whether a defendant received adequate assistance This argument fails, however, because McAdoo did obtain of counsel. Strickland v. Washington, 466 U.S. 668, 687 his bargained-for benefit – the possibility of parole. Under (1984). First, a defendant must show that counsel’s Michigan law, a defendant convicted of first-degree murder performance was deficient, which “requires a showing that faces a sentence of mandatory non-parolable life, while counsel made errors so serious that counsel was not second-degree murder carries a sentence of parolable life or functioning as the ‘counsel’ guaranteed the defendant by the any term of years. Pursuant to his plea agreement, McAdoo Sixth Amendment.” Id. at 687. The reviewing court should was sentenced to three concurrent terms of parolable life. It “indulge a strong presumption that counsel’s conduct falls was not necessary for the prosecutors or the court to explain within the wide range of reasonable professional assistance.” the likelihood of parole to McAdoo. Hill, 474 U.S. at 56. A Id. at 689. Second, a defendant must show that counsel’s defendant’s mere expectation about the parole process is deficient performance prejudiced the defendant. Id. at 687. “simply no ground for habeas relief.” James, 56 F.3d at 667. In order to satisfy the “prejudice” requirement in a plea As the district court stated, “the relative reluctance of the agreement context, “the defendant must show that there is a Michigan Parole Board to grant parole to prisoners sentenced reasonable probability that, but for counsel’s errors, he would to life does not render his plea illusory.” We hold that not have pleaded guilty and would have insisted on going to McAdoo derived a benefit by avoiding a trial on the first- trial.” Hill, 474 U.S. at 58-59. degree murder charge which was punishable by life without parole and receiving instead a sentence of life with the McAdoo’s argument that his counsel was ineffective is possibility of parole. As such, his plea was not illusory. closely tied to his argument that his guilty plea was not knowing and voluntary. With respect to the ineffective C. assistance issue, his brief to this court states that he should receive an evidentiary hearing because the district court Finally, McAdoo claims that his counsel, Batchelor, was erroneously relied on the state court’s finding that McAdoo constitutionally ineffective for allegedly misinforming him of understood the amount of prison time that he would be the consequences of his plea. He requests that this issue be required to serve. McAdoo’s reply brief simply states that the remanded for an evidentiary hearing. district court erred in accepting the findings of the state trial court because McAdoo was denied a full and fair hearing on McAdoo presented his ineffective assistance of counsel the issue. His brief in the district court states that the claim in his application for leave to appeal in both the incorrect advice establishes deficiency of performance, as a Michigan Court of Appeals and Michigan Supreme Court. result of which he entered a plea that was not knowing and Neither court discussed the merits of the issue, and both voluntary, and “that fact establishes the prejudice prong.” denied leave to appeal in orders of one sentence. When a state court fails to address the merits of a properly raised Considerable case law supports a determination that giving ineffective assistance of counsel issue, this court conducts its erroneous advice about parole may constitute deficient review de novo. Maples v. Stegall, 340 F.3d 433, 437 (6th performance. Affirmative misstatements about parole
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possibilities are more objectively unreasonable than failure to he would not have pleaded guilty and would have gone to inform the defendant about the parole possibilities. James, 56 trial. F.3d at 667 (noting that “this Court and others have recognized that affirmatively erroneous advice of counsel as McAdoo’s exchange with the state judge at resentencing is to parole procedure is much more objectively unreasonable at best ambiguous. While he suggested that he might have than would be a failure to inform of parole consequences”). fought the case if he had known he would serve a life When defense counsel grossly misinforms a defendant about sentence, he also said that he did not want his children to be details of parole and the defendant relies on that subjected to a trial. Prior to this time McAdoo had been misinformation, the defendant may have been deprived of his present at the preliminary hearing and was aware that the constitutional right to counsel. See Strader v. Garrison, 611 evidence against him, which included his daughters’ F.2d 61, 65 (4th Cir. 1979). In Meyers v. Gillis, 142 F.3d 664 testimony, was overwhelming, a fact that the state courts were (3d Cir. 1998), a habeas petitioner argued that his counsel was entitled to take into account in determining whether he would ineffective for giving him incorrect advice about parole have pled guilty in the absence of any erroneous advice rather eligibility. The Third Circuit granted habeas relief, stating than go to trial on first degree murder charges. McAdoo also that “Meyers did not realize he was, in all reality, pleading conceded that Batchelor and the court informed him that he guilty to an offense that did not allow him to receive parole in would receive three life sentences. He signed the plea form the future.” Id. The court noted that, while a defendant does indicating three life sentences. Moreover, Batchelor testified not have a constitutional right to be provided with parole that he did not discuss the Lifer Law with McAdoo. Given eligibility information prior to entering a plea, any this record and considering McAdoo’s ineffective assistance information that is provided by defense counsel must be claim de novo, we conclude that McAdoo cannot establish the accurate. Id. at 667 n.2. prejudice prong of his claim – that is, he cannot establish a reasonable probability that he would not have pled guilty in McAdoo argues that Batchelor was ineffective because he the absence of erroneous advice. allegedly gave McAdoo incorrect information regarding the terms of the plea agreement. He claims that Batchelor told McAdoo requests an evidentiary hearing on the ineffective him that he would serve at most twenty years in prison.9 assistance of counsel issue and argues that he did not receive Assuming McAdoo’s claim to be true, his argument that his a “full and fair” hearing in state court. Under AEDPA, a counsel’s performance was deficient may have merit. defendant who “failed to develop the factual basis of a claim in State court proceedings” cannot obtain an evidentiary McAdoo’s ineffective assistance claim fails in any event, hearing unless he satisfies two statutory exceptions not however, because McAdoo cannot establish prejudice. The applicable here. 28 U.S.C. § 2254(e)(2). However, when a prejudice prong of Strickland requires McAdoo to show that defendant diligently seeks an evidentiary hearing in the state there is a reasonable probability that, but for counsel’s errors, courts in the manner prescribed, but the state courts deny him that opportunity, he can avoid § 2254(e)(2)’s barriers to obtaining a hearing in federal court. Williams v. Taylor, 529 9 At his state evidentiary hearing, McAdoo’s counsel did not U.S. 420, 437 (2000). A defendant fails to develop the factual specifically ask Batchelor whether he made this statement to McAdoo. basis of a claim only when he is at fault for failing to develop Batchelor, however, implicitly denied the statement by saying that he and the factual record in state court, as when he or his counsel has McAdoo did not discuss the Lifer Law. M cAdoo, as previously noted, did not testify.
not exercised proper diligence, or greater fault, in failing to
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develop the record. Id. at 432 ; Moss v. Hofbauer, 286 F.3d 851, 858-59 (6th Cir.), cert. denied, 537 U.S. 1092 (2002). The test for “failed to develop” is defined as a “lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel” in his or her attempts to discover and present a claim in the state court. Williams, 529 U.S. at 432; Thompson v. Bell, 315 F.3d 566, 594 (6th Cir. 2003). Diligence for purposes of § 2254(e)(2) depends upon “whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in the state court.” Williams, 529 U.S. at 435; Thompson, 315 F.3d at 594. If the petitioner did not fail to develop the facts in the state court, then the district court may hold an evidentiary hearing. Williams, 529 U.S. at 433; Thompson, 315 F.3d at 594; Moss, 286 F.3d at 859.
Section § 2254(e)(2) may or may not preclude remand for an evidentiary hearing on the ineffective assistance issue.10 We need not reach this issue, however. Even if we could remand for an evidentiary hearing, doing so would be futile. The present record appears to be complete. McAdoo points to no fact that he could develop on remand that would result in the granting of the writ. His affidavit in the district court addresses his claims about erroneous advice but does not contain anything that relates to the prejudice issue. Nor does he identify any such evidence in his briefs; he simply relies on his claim of an invalid plea to establish prejudice. Yet the state court did not unreasonably find his plea to be valid. Thus, McAdoo’s claim of prejudice fails.
IV.
For all the foregoing reasons, we affirm the district court’s denial of McAdoo’s petition for writ of habeas corpus.
10 Addressing the effect o f § 22 54(e)(2) on M cAd oo’s request for an evidentiary hearing would require us to consider the state court’s evidentiary rulings and M cAdoo ’s decision not to testify at the state court hearing on his motion to withdraw his plea.