United States v. Brannon , 48 F. App'x 51 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-6800
MICHAEL C. BRANNON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-98-637, CA-01-1947-7-20)
Submitted: September 16, 2002
Decided: October 7, 2002
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Vacated in part, dismissed in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Michael C. Brannon, Appellant Pro Se. Regan Alexandra Pendleton,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BRANNON
OPINION
PER CURIAM:
Michael C. Brannon appeals the dismissal of his 28 U.S.C. § 2255(2000) motion. After a jury trial, Brannon was convicted of posses-
sion with intent to distribute cocaine base and sentenced to 360
months’ imprisonment. We have carefully considered the record on
appeal and the arguments of the parties, and we find that Brannon has
made a substantial showing of the denial of a constitutional right on
his claim that his attorney provided ineffective assistance with regard
to a possible guilty plea. Thus, we grant a certificate of appealability
in part, vacate a portion of the district court’s order and remand for
further proceedings consistent with this opinion.
I.
Brannon first argues that his attorney provided ineffective assis-
tance by disregarding Brannon’s request to pursue a plea and advising
Brannon to proceed to trial. In its unverified answer, the Government
states that, on the strength of the case, the prosecutor decided to go
to trial and elected not to enter into plea negotiations. The Govern-
ment therefore asserts that, since counsel could not negotiate with an
unwilling adversary, there was no ineffective assistance.
The Government also submitted an affidavit from Brannon’s trial
attorney which contradicted the Government’s own statements in its
brief. Counsel avers that
I explored the plea possibilities with Assistant U.S. Attor-
ney, Harold Gowdy. If Brannon, pled guilty, it appeared he
would receive a sentence in the fifteen (15) year range. If he
stood trial and lost, he would receive in excess of thirty
years. I strongly recommended a guilty plea, but he rejected
it saying, after 15 years, his children would be in their late
teens and he would miss them growing up. I reminded him
that if he were found guilty, which I felt he would in trial
and so advised him, that his children would be adults after
30 years.
UNITED STATES v. BRANNON 3
Thus, the parties’ statements are diametrically opposed. Brannon
alleges that his attorney refused to seek a plea agreement on his behalf
and incompetently urged him to go to trial. The attorney claims that
he secured a tentative (and beneficial) plea offer that Brannon
rejected. The Government claims that it declined to enter into plea
negotiations. The district court rejected the claim without holding a
hearing, finding that (1) a defense attorney cannot negotiate with an
unwilling prosecutor and (2) Brannon could not show that he would
have received a lighter sentence had he pled guilty.
To succeed on a claim of ineffective assistance of counsel, a defen-
dant must show that counsel’s performance was objectively unreason-
able and that it prejudiced him. Lockhart v. Fretwell, 506 U.S. 364,
369-70 (1993). The norms of practice as set forth in the American Bar
Association ("ABA") Standards may serve as guides to determine
what is reasonable professional assistance. Strickland v. Washington,
466 U.S. 668, 688 (1984). In order to show prejudice, the defendant
must show that, but for counsel’s error, the result of the proceeding
would have been different. Id. at 694.
A defense attorney should keep a defendant apprised of all devel-
opments in the plea negotiation process and communicate the prose-
cutor’s proposals promptly. Johnson v. Duckworth, 793 F.2d 898,
900-02 (7th Cir. 1986). Erroneous advice during the plea negotiation
process or the failure of a defense attorney to timely inform his client
of a plea offer constitutes unreasonable professional assistance. See,
e.g., Paters v. United States, 159 F.3d 1043, 1047-48 (7th Cir. 1998)
(holding that when appellant alleged attorney gave him erroneous
advice during plea negotiations regarding the maximum sentence if he
proceeded to trial, hearing warranted in district court to determine if
defendant would have accepted the plea); United States v. Blaylock,
20 F.3d 1458, 1465-66 (9th Cir. 1994) (failing to inform defendant of
plea offer was unreasonable assistance).
In this case, Brannon alleges that his attorney failed to pursue plea
negotiations in a case where guilt was clear. In addition, assuming
that his attorney did conduct negotiations as the attorney claims,
Brannon impliedly contends that the plea offer was never communi-
cated to him. We find that, in a case such as here where the evidence
4 UNITED STATES v. BRANNON
was strongly against Brannon, failure to pursue plea negotiations or
failure to communicate a plea offer would be unreasonable assistance.
If Brannon can show that he would have accepted a plea offered
by the Government and that the sentence under the plea offer was less
than the sentence ultimately imposed, he may be able to show preju-
dice. See Paters, 159 F.3d at 1047, Engelen v. United States, 68 F.3d
238, 241 (8th Cir. 1995) (holding defendant could not show prejudice
arising out of misadvice of defense attorney when there was no show-
ing defendant would have accepted offer). Here, Brannon alleges he
wanted to plead guilty, and his attorney asserts that a guilty plea
would have decreased his sentence by fifty percent. Accordingly,
Brannon may be able to show prejudice.*
Based on the foregoing, we find that Brannon has a colorable claim
of ineffective assistance of counsel and has made a substantial show-
ing of the denial of a constitutional right, which is necessary for the
issuance of a certificate of appealability. 28 U.S.C. § 2253 (2000). In
finding that the Government would not have negotiated with Brannon
and that Brannon would not have received a reduced sentence by
pleading guilty, the district court accepted the Government’s unveri-
fied assertions and ignored counsel’s sworn statements that he had
worked out a deal with the Government and that Brannon would have
received a substantially reduced statement.
Unless it is clear from the pleadings, files, and records that Bran-
non is not entitled to relief, § 2255 makes an evidentiary hearing man-
datory. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
The district court’s determination as to whether to hold a hearing
under § 2255 is reviewed for abuse of discretion. Id. at 529-30. Not-
withstanding the court’s wide discretion in the matter, there are a cat-
egory of petitions, usually involving credibility, that will require an
evidentiary hearing. Id. at 530.
Because Brannon’s allegations, if believed, are sufficient to show
ineffective assistance of counsel, and because the district court’s hold-
*While the Government asserts that it would not have bargained with
Brannon’s counsel, this claim is in an unverified pleading and is contra-
dicted by Brannon’s counsel’s affidavit.
UNITED STATES v. BRANNON 5
ing rests on disputed factual findings, the district court erred in resolv-
ing the case without a hearing. Thus, we vacate this portion of the
district court’s order and remand for the district court to hold a hear-
ing on this claim.
II.
Brannon next asserts that the federal government could not prose-
cute him, as the federal drug laws were pre-empted by the state drug
laws covering the same behavior. As this claim is raised for the first
time on appeal and Brannon has made no showing of exceptional cir-
cumstances, we will not address it. Muth v. United States, 1 F.3d 246,
250 (4th Cir. 1993); First Virginia Banks, Inc. v. BP Exploration &
Oil, Inc., 206 F.3d 404, 407 n.1 (4th Cir. 2000) (declining to consider
issues raised for first time on appeal).
III.
Brannon suggests that the district court prevented him from filing
a response to the Government’s answer. The Government’s answer
was filed on November 21, 2001. On December 3, Brannon filed a
letter stating that he was preparing a response and requesting that the
court not render a decision until his response could be filed. The court
entered its final order on March 26, 2002. In a letter dated April 1,
Brannon requested reconsideration of the denial of his motion,
because his response was not taken into account. However, Brannon
did not file a copy of his proposed response. The district court denied
the motion for reconsideration.
Brannon had over four months to file a response, and he has failed
to show any reason for his delay. Moreover, even on appeal, Brannon
does not state what he wished to present in his response that was not
considered by the court. Accordingly, the court did not err in deciding
the case before Brannon filed a response.
IV.
We have considered Brannon’s remaining claims and find that he
fails to make a substantial showing of the denial of a constitutional
6 UNITED STATES v. BRANNON
right for the reasons discussed by the district court. United States v.
Brannon, No. CR-98-637; CA-01-1947-7-20 (D.S.C. March 26,
2002). Thus, we grant a certificate of appealability in part, vacate the
portion of the district court’s order dismissing Brannon’s claim that
he received ineffective assistance regarding a possible plea offer,
remand that claim for a hearing, deny a certificate of appealability as
to Brannon’s remaining claims, and dismiss the remainder of the
appeal. We dispense with oral argument, because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
VACATED IN PART, DISMISSED
IN PART, AND REMANDED