United States v. Michael Arrington ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-2973
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UNITED STATES OF AMERICA
v.
MICHAEL ARRINGTON,
Appellant
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Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-09-cr-00078-009)
District Judge: Honorable Yvette Kane
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Argued on July 7, 2021
Before: AMBRO, JORDAN, and BIBAS, Circuit Judges
(Opinion filed: September 9, 2021)
Geoffrey Block (Argued)
Yale Law School
127 Wall Street
New Haven, CT 06511
Tadhg Dooley
David R. Roth
Wiggin & Dana
One Century Tower
265 Church Street
New Haven, CT 06510
Counsel for Appellant 1
Michael A. Consiglio (Argued)
Eric Pfisterer
Office of United States Attorney
Middle District of Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
Michael Arrington was convicted of conspiring to
distribute heroin, among other offenses. He filed a motion to
1
We express our thanks to the Yale Law School Advanced
Appellate Litigation Project and the supervising attorneys from
Wiggin & Dana for taking on this matter pro bono and
performing in an exemplary manner.
2
vacate his convictions under 28 U.S.C. § 2255 on the basis that
his trial counsel was ineffective for waiving his right to testify
without his consent. The District Court denied the motion. On
appeal, Arrington argues the Court should at least have held a
hearing before doing so. We agree that the District Court
partially relied on an incorrect legal standard in denying
Arrington’s motion without a hearing. However, because he
would not be entitled to a hearing even under the appropriate
standard, we affirm.
I. BACKGROUND
Arrington has a long criminal history, including
multiple drug-trafficking convictions and parole violations
from the 1990s and early 2000s. He does not dispute this
history but claims he stopped engaging in drug activity after he
was released from prison on parole in 2007. The Government,
by contrast, contends Arrington quickly resumed his criminal
activity after his release by becoming a drug supplier in
Pennsylvania in 2008.
In February 2009, the police arrested some of
Arrington’s alleged co-conspirators. In the wake of this arrest,
Arrington allegedly helped some of his other associates
attempt to escape apprehension, including by allowing two of
them to spend the night at his home before driving them out of
state. From his release on parole in 2007 until this point,
Arrington had appeared to be a “model parolee” and was
working steadily at a car wash. Supp. App. at 256–58, 302.
However, after his alleged associates were arrested, he
abandoned his parole appointments and eventually fled the
state altogether.
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Police subsequently arrested Arrington after he
unsuccessfully used an alias in an effort to evade authorities.
He was charged with possession with the intent to distribute
controlled substances, conspiracy to do the same, and traveling
in interstate commerce with the intent to facilitate unlawful
activity. He opted to go to trial, where attorney Laurence Kress
represented him and several of his alleged co-conspirators
testified against him. Among other statements, these witnesses
represented that Arrington supplied wholesale quantities of
drugs that they would divide and sell to customers. He
contends there were inconsistencies and credibility issues in
their testimony, including that one of the witnesses admitted to
asking another witness to lie to police on one aspect of
Arrington’s trafficking activity. Kress repeatedly highlighted
these issues for the jury during trial in an effort to cast doubt
on the Government’s case.
Although the District Court excluded evidence of
Arrington’s prior convictions, it allowed the Government, for
the purpose of proving consciousness of guilt under Federal
Rule of Evidence 404(b), to introduce evidence that he fled
from parole. This evidence was discussed only a handful of
times during trial. Arrington claims he told Kress that he
wanted to testify to explain that he absconded from parole not
because of his involvement in drug trafficking, but because he
had accumulated a variety of minor, unrelated parole violations
and decided to run rather than face the consequences. Kress
did not honor this request, instead deciding that Arrington was
not going to testify because doing so would open him to cross-
examination, which might enable the Government to diminish
his credibility by introducing evidence of his prior convictions.
Kress, according to Arrington, never sought his consent to
waive his right to testify or explained that the decision was his
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to make. However, during his closing argument, Kress
covered some of the material to which Arrington claims he
would have testified, including explaining that people abscond
from parole all the time for “different reasons that are personal
to them.” Supp. App. at 329. The Government addressed the
issue only briefly during its rebuttal closing argument,
suggesting that Arrington’s flight from parole corroborated the
other, and overwhelming, evidence of his guilt.
After deliberating for about three hours, the jury
convicted Arrington. He appealed, and we affirmed. See
United States v. Arrington, 530 F. App’x 143 (3d Cir. 2013).
We held, among other things, that the District Court did not
abuse its discretion in admitting the evidence of his flight from
parole for the purpose of showing his guilty conscience. Id. at
146.
In 2014, Arrington filed a pro se motion to vacate his
convictions under 28 U.S.C. § 2255, arguing, among other
things, that Kress was ineffective for unilaterally waiving his
right to testify. Alongside the motion, Arrington filed a
declaration stating that, if he had been given the opportunity,
he would have told the jury he was innocent and explained the
real reasons he absconded from parole. The District Court
denied this motion without a hearing. Although it presumed
all of his allegations were true and non-frivolous, it decided
Arrington was not entitled to relief because “the result of [his]
trial would not have changed had [he] presented the testimony
he now proposes.” J.A. at 25. In the alternative, the District
Court concluded Kress’s performance was not deficient.
Arrington filed an unsuccessful motion for
reconsideration, and then timely appealed to us. We granted a
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certificate of appealability on the ineffective-assistance issue
and appointed pro bono counsel to represent him.
II. DISCUSSION
A. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C.
§ 2255. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253(c). On appeal, Arrington does not ask us to address the
merits of his motion under § 2255. He requests only that we
decide whether the District Court erred in declining to hold a
hearing on his motion. We review that decision for abuse of
discretion, United States v. Scripps, 961 F.3d 626, 631 (3d Cir.
2020), but exercise plenary review over the Court’s underlying
legal conclusions and review its factual findings for clear error,
Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir. 1997).
B. Analysis
1. The Standard for Obtaining an Evidentiary
Hearing on a § 2255 Motion
We begin by clarifying the standard a district court
should use when determining whether a hearing is necessary
on a § 2255 motion alleging ineffective assistance of counsel.
Under that provision, a district court must hold a hearing
“[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b).
This involves a two-pronged inquiry. First, the district
court must “consider[] as true all appellant’s nonfrivolous
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factual claims.” United States v. Dawson, 857 F.2d 923, 927
(3d Cir. 1988). Second, it must “determine whether, on the
existing record, those claims that are nonfrivolous conclusively
fail to show ineffective assistance of counsel.” Id. at 927–28.
In evaluating claims at the second step, the test is the familiar
one set out in Strickland v. Washington, 466 U.S. 668, 687
(1984), which requires a movant to show that his counsel’s
performance was deficient and prejudiced his client’s defense.
“If a nonfrivolous claim clearly fails to demonstrate either
deficiency of counsel’s performance or prejudice to the
defendant, then the claim does not merit a hearing.” Dawson,
857 F.2d at 928. “If, on the other hand, a claim, when taken as
true and evaluated in light of the existing record, states a
colorable claim for relief under Strickland, then further factual
development in the form of a hearing is required.” Id. To
reiterate, “if a nonfrivolous claim does not conclusively fail
either prong of the Strickland test, then a hearing must be
held.” Id. (emphasis in original). This is a “reasonably low
threshold for habeas petitioners to meet.” United States v.
McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (citation omitted).
As we have observed in other contexts, “colorable legal merit
is distinct from actual merit.” United States v. Begin, 696 F.3d
405, 413 (3d Cir. 2012) (second emphasis in original).
The District Court erred in its articulation of the relevant
standard for obtaining a hearing on a § 2255 Strickland motion.
Although the Court partially described the correct standard at
the outset of its opinion, it later stated it was rejecting
Arrington’s claim in part because “the Government’s case
against [him] was more than adequate to secure a conviction,
even without evidence of [his] parole violation.” J.A. at 26.
But that describes the standard for evaluating a motion for a
judgment of acquittal under Federal Rule of Criminal
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Procedure 29, not the standard for obtaining an evidentiary
hearing on a § 2255 Strickland motion. See Fed. R. Crim. P.
29(a) (“[T]he court on the defendant’s motion must enter a
judgment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction.”); Saranchak v. Sec’y, Pa.
Dep’t of Corr., 802 F.3d 579, 599 (3d Cir. 2015) (“Strickland
prejudice does not depend on the sufficiency of the evidence
despite counsel’s mistakes.”).
On appeal, the Government seems to suggest that, to
warrant an evidentiary hearing, a § 2255 movant must prove
there is a “reasonable probability” that, absent counsel’s errors,
the trial would have had a “different result.” Gov. Br. at 31.
But “[t]hat misstates the appropriate standard,” McCoy, 410
F.3d at 132, because it accelerates the timeline on which a
movant must satisfy his burden under Strickland.
To prevail on a § 2255 Strickland motion, a movant
must prove prejudice, meaning “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
But the standard for obtaining a hearing on a § 2255
motion is less onerous. As noted above, the statute
“mandate[s] . . . an evidentiary hearing,” McCoy, 410 F.3d at
134, unless the movant’s Strickland claim fails as a “matter of
law,” Dawson, 857 F.2d at 929. See also Scripps, 961 F.3d at
635 (remanding for an evidentiary hearing because we could
not conclude “as a matter of law” whether counsel was
ineffective). A movant need not “prove” anything to warrant
a hearing. He must simply allege a set of facts that is not
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frivolous or clearly contradicted by the record and that
demonstrates (if assumed to be true) that he would plausibly be
entitled to relief under Strickland. Dawson, 857 F.2d at 927–
28. A hearing is warranted where, for example, resolution of
the motion turns on credibility or disputed facts, or the record
is inconclusive about whether a movant is entitled to relief. See
United States v. Tolliver, 800 F.3d 138, 142–43 (3d Cir. 2015)
(remanding for a hearing because of factual disputes between
the parties); United States v. Booth, 432 F.3d 542, 546 (3d Cir.
2005) (“[T]he district court abuses its discretion if it fails to
hold an evidentiary hearing when the files and records of the
case are inconclusive as to whether the movant is entitled to
relief.”); Dawson, 857 F.2d at 930 (“Credibility is a question
of fact to be decided by the finder of fact based on face-to-face
observation.”).
2. Arrington’s Claim
We turn to Arrington’s claim that the District Court
abused its discretion in declining to grant him a hearing before
denying his § 2255 motion. As noted, the Court partially relied
on an incorrect legal standard in considering that claim.
However, even under the standard articulated above, Arrington
would not be entitled to a hearing, as his proposed testimony
comes nowhere close to undermining confidence in the
outcome of his trial. His Strickland claim thus fails as a matter
of law.
First, the testimonial evidence against Arrington was
overwhelming. At trial, there was consistent testimony that
Arrington supplied drugs for his co-conspirators to cut and sell.
To the extent there were discrepancies in the witnesses’
accounts, they were minor. See, e.g., Arrington Br. at 12–13
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(noting that two witnesses provided differing accounts of
whether one of them was present for one drug transaction).
And while there was evidence that before trial one witness
asked another to lie to the police about a detail—whether it was
Arrington, or someone else, who had paid the witness to pick
up drugs the day of her arrest—there was no evidence that the
witness lied about any aspect of the case during her trial
testimony. Most importantly, Kress raised all of these issues
in open court during trial, but the jury still decided to convict
Arrington.
Compared with the testimonial evidence, Arrington’s
flight from parole was a minute portion of the Government’s
case against him; it came up only a few, brief times during the
three-day trial. In fact, the Government did not even bother to
make any closing arguments about Arrington’s parole absences
until its rebuttal after Kress sua sponte raised the issue during
his closing statement. Even then, the Government hardly
touched on the issue, simply suggesting that Arrington’s
apparent consciousness of his own guilt, as demonstrated by
his flight from parole, corroborated the profuse other evidence
against him. It was perhaps unsurprising that the Government
did not rely heavily on Arrington’s flight from parole, as the
record already contained another, much clearer, indicator that
he had a guilty conscience: namely, his own admission, via
stipulation, that he unsuccessfully used a false name to avoid
arrest. Against this backdrop, we simply cannot fathom that
Arrington’s proposed testimony on the reason for his parole
absences would have helped his case in any way.
Second, if Arrington had testified, it would almost
certainly have been devastating for his defense. Cross-
examination would have been “scorching,” United States v.
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Wines, 691 F.3d 599, 605 (5th Cir. 2012), enabling the
Government to seek to introduce impeachment evidence of his
prior convictions, parole violations, and drug activity.
Moreover, his proposed testimony on the reason for his parole
absences was internally inconsistent and could only have
undermined his case. Specifically, although Arrington initially
wrote in his declaration that he did not flee parole because he
was afraid of being indicted for drug trafficking, he then
contradicted himself by stating that one of the reasons he fled
was that he was scared the Government would come looking
for him after one of his alleged co-conspirators was arrested.
Because Arrington’s proposed testimony could not possibly
have helped his case—indeed, we can conjure no way it would
not have hurt him—we conclude his Strickland prejudice claim
is not colorable. 2 Thus the District Court was not required to
hold an evidentiary hearing.
2
The District Court held, in the alternative, that Arrington did
not make adequate allegations under Strickland’s performance
prong. The Government does not defend this conclusion on
appeal, and for good reason. The declaration accompanying
Arrington’s § 2255 motion, presumed to be true, states a
colorable claim that Kress’s performance was deficient
because he waived Arrington’s right to testify without consent.
See United States v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995)
(“The duty of providing . . . advice [on the right to testify] and
of ensuring that any waiver is knowing and intelligent rests
with defense counsel.”); United States v. Teague, 953 F.2d
1525, 1534 (11th Cir. 1992) (en banc) (holding that defense
counsel’s performance is deficient under Strickland if he never
informs the defendant that the ultimate decision of whether to
testify belongs to the defendant). The District Court purported
to accept Arrington’s allegations about Kress’s performance as
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* * * * *
The bar for obtaining an evidentiary hearing on a § 2255
motion is low. Even so, Arrington does not meet it, because
his claim conclusively fails Strickland’s prejudice prong. We
therefore affirm.
true and nonfrivolous, but it discredited those allegations in the
same breath by concluding that Kress had indeed secured
Arrington’s informed consent before waiving his right to
testify. J.A. at 23–25. The record did not clearly contradict the
allegations about Kress’s unilateral decision that Arrington not
testify, and the Court went too far in concluding otherwise.
However, this does not provide a basis for reversal, as
Arrington’s claim conclusively fails Strickland’s prejudice
prong for the reasons discussed above.
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