United States v. Ahmad Hashimi ( 2024 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-7190
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AHMAD SAYED HASHIMI, a/k/a Jimmy, a/k/a Jimmy Jimski, a/k/a Jamshaid,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, Retired District Judge. (1:16-cr-00135-LO-1; 1:20-cv-01148-
LO)
Argued: May 9, 2024 Decided: August 2, 2024
Before WYNN, HARRIS, and HEYTENS, Circuit Judges.
Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which
Judge Wynn and Judge Heytens joined.
ARGUED: Zachariah Alexander Spurrier, WEST VIRGINIA UNIVERSITY COLLEGE
OF LAW, Morgantown, West Virginia, for Appellant. Philip Samuel Alito, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Lawrence D. Rosenberg, JONES DAY, Washington, D.C., for Appellant. Jessica D. Aber,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
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PAMELA HARRIS, Circuit Judge:
A federal jury convicted Ahmad Hashimi of four criminal charges after his lawyer
conceded guilt on two. Hashimi says his lawyer made the concession against his wishes
and therefore violated the Sixth Amendment autonomy right established in McCoy v.
Louisiana, 584 U.S. 414 (2018). The district court denied Hashimi’s 28 U.S.C. § 2255motion without an evidentiary hearing. But that step is appropriate only where “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), and the record here does not make that conclusive showing.
Accordingly, we vacate the denial of Hashimi’s § 2255 motion and remand for further
factual development.
I.
A.
Ahmad Hashimi was indicted in the Eastern District of Virginia on four counts, two
drug-related and two involving violence. According to the government, Hashimi ran a
drug-distribution conspiracy and, in related activity, assaulted and kidnapped his ex-
girlfriend.
Hashimi and his court-appointed lawyer Bruce Johnson had a rocky relationship
from the start. Hashimi repeatedly complained about Johnson in written and oral
submissions to the court, generally focused on poor communication that Hashimi believed
prevented him from obtaining a plea deal. The district court rebuffed Hashimi’s attempts
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to have Johnson replaced, accepting Johnson’s representations that Hashimi had been
presented with numerous plea offers and had rejected them all of his own volition.
Hashimi proceeded to trial. The government put on several witnesses, including
Hashimi’s ex-girlfriend, who testified that Hashimi choked her during a fight over her
infidelity and later kidnapped her to reclaim drugs he believed she had stolen from him.
Other witnesses generally corroborated this account and offered additional testimony
related to the drug conspiracy.
At the close of evidence and out of the presence of the jury, attorney Johnson again
raised the possibility of a plea, asking the court if Hashimi could “tender a plea of guilt” to
the “kidnapping and interstate domestic violence” charges while putting the drug
conspiracy charges to the jury. J.A. 601-02. Johnson’s plan, apparently, was to argue for
lenience at sentencing based on Hashimi’s purported “acceptance of responsibility” on the
assault and kidnapping counts. J.A. 602. The government objected, saying that it would
consent to Hashimi pleading to all or none, but not some, of the charges against him.
The court sided with the government, rejected the putative plea, and put the whole
case to the jury. 1 Accordingly, it never conducted a plea colloquy and Hashimi never
confirmed or denied his desire to plead guilty to any of the charges against him.
1
The trial transcript does not make clear the legal basis for denying Hashimi the
right to plead guilty to two of the charges against him. We are not aware of a ground on
which the government could object to the proposed guilty plea or on which the district
court could refuse such a plea, and at oral argument, the government forthrightly conceded
that it, too, was unable to identify any relevant legal authority. But Hashimi does not
challenge this aspect of his trial and so we do not address it further.
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His plea gambit having failed, Johnson took another tack. In his closing argument
to the jury, Johnson made a critical concession that had not yet featured in the trial: that
Hashimi had, in fact, assaulted and kidnapped his ex-girlfriend.
The last few days I’ve done very little, if no questioning relating to the kidnap
and domestic violence. Shame on Mr. Hashimi, shame on him. I am sure he
was humiliated that [his ex-girlfriend] was cheating on him behind his back,
I am sure, but that doesn’t excuse what he did. And if he were allowed to,
he would accept responsibility for that right in front of you.
J.A. 649.
Those two counts conceded, Johnson devoted his efforts to contesting the drug
counts. It did not work. The jury was persuaded by Johnson’s concession but not his
defense, and it found Hashimi guilty on all counts. The court sentenced Hashimi to a total
of 300 months’ (25 years’) imprisonment.
B.
This is our third encounter with Hashimi’s case. Hashimi first appealed directly
from his conviction and sentence and we affirmed. See United States v. Hashimi, 718
F. App’x 178 (4th Cir. 2018). In that first appeal, as relevant here, Hashimi argued that
Johnson provided ineffective assistance under the Sixth Amendment when “he conceded
Hashimi’s guilt on Counts 3 and 4” – the violence charges – “during closing argument
without Hashimi’s consent.” Id. at 181. We disagreed, reasoning that because the
concession of guilt “may have been a strategic decision, counsel’s ineffectiveness does not
appear on the face of the record and thus Hashimi should raise this claim, if at all, in a 28
U.S.C. § 2255 motion.” Id.4
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Less than five months later, the Supreme Court called that ruling into question,
“shift[ing] the balance of power between counsel and client” in a way that would bear on
Hashimi’s case. Smith v. Stein, 982 F.3d 229, 235 (4th Cir. 2020). In McCoy v. Louisiana,
the Supreme Court “added a new item” to the list of “fundamental decisions reserved to
the client,” Kellogg-Roe v. Gerry, 19 F.4th 21, 26 (1st Cir. 2021): the decision to maintain
innocence at trial. See McCoy v. Louisiana, 584 U.S. 414, 422-24 (2018). Conceding guilt
before a jury, the Court explained, is not a “strategic choice[]” for counsel to make, subject
to the familiar Strickland standard for ineffective assistance. Id. at 422, 426-28; see
generally Strickland v. Washington, 466 U.S. 668 (1984). Instead, the defendant has a
Sixth Amendment-secured autonomy right to make that choice himself, and a violation of
that right ranks as structural error calling for reversal. McCoy, 584 U.S. at 426-28.
After it decided the McCoy case, the Supreme Court granted Hashimi’s petition for
writ of certiorari, vacated our decision, and remanded for reconsideration under McCoy.
Hashimi v. United States, 139 S. Ct. 377 (2018). On remand, we again affirmed Hashimi’s
conviction and sentence, but this time with a caveat. United States v. Hashimi, 768
F. App’x 159 (4th Cir. 2019). The record on direct appeal in this case, we observed, was
silent as to “whether Hashimi consented or objected to his counsel’s concession of guilt.”
Id. at 163. So on the record as it then stood, we could not say that Hashimi had been
deprived of his McCoy autonomy right. Id. But we invited Hashimi to help us assess his
claim on a fuller record: “[I]f there are facts not currently in the record before us that call
[our] conclusion into question, Hashimi remains free to raise this claim in a 28 U.S.C.
§ 2255 motion.” Id.5
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Hashimi accepted the invitation. He filed a § 2255 motion in district court, arguing,
as relevant here, that his lawyer violated the principle articulated in McCoy when he
conceded Hashimi’s guilt on two counts against Hashimi’s wishes. With his motion,
Hashimi presented to the district court two pieces of evidence that he hoped would fill out
the record for McCoy purposes. First was a sworn declaration by Hashimi with two
relevant statements. One asserted that Johnson had failed to consult with him about his
case: “At no point in advance of trial, and only minimally during trial, did my attorney
consult with me about the details of my case or discuss with me a theory of my defense.”
J.A. 781. The other alleged that Johnson had failed to obtain Hashimi’s consent to concede:
“At no time before or during the trial in this matter did I give my attorney . . . permission
to concede, during his closing argument to the jury, my guilt on any counts of the
Indictment.” J.A. 780.
Second was a page of handwritten notes passed between Hashimi and Johnson. In
the notes, exchanged during Hashimi’s ex-girlfriend’s trial testimony, Hashimi appears to
express disbelief at the testimony and encourages Johnson to try to impeach it:
Hashimi: It’s funny how [the ex-girlfriend] remembers everything to the
teeth precoached.
Johnson: One of the reasons I recommended plea to you of [illegible] count.
You now have unlimited exposure.
Hashimi: I never met her nor know Sharon we need her to testify.
…
Johnson: I don’t understand why you would take the risk.
Hashimi: She [is] clearly lying we need to prove it with Sharon.
Johnson: C’mon Hashimi c’mon dude. You really think jury is going to
totally disbelieve her.
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J.A. 839. According to Hashimi, this exchange illustrates a persistent divergence between
himself and his lawyer as to whether to admit guilt: While Johnson continued to press
Hashimi to admit or concede guilt, Hashimi steadfastly searched for ways to convince the
jury of his innocence.
C.
The district court denied Hashimi’s § 2255 motion. United States v. Hashimi, No.
1:16-cr-00135-LO (E.D. Va. Aug. 25, 2022), reproduced at J.A. 840-62. 2 In considering
the McCoy issue, the court juxtaposed that case with Florida v. Nixon, 543 U.S. 175 (2004),
an earlier case that also involved a concession of guilt at trial. In McCoy, the district court
reasoned, the defendant “vehemently protested his attorney’s decision to concede guilt . . .
at every opportunity.” J.A. 845. By contrast, Nixon held a guilt concession acceptable
where counsel had explained his plan to the defendant several times and the defendant
“made no attempt to respond, object, or make inquiries.” J.A. 846. This case, the court
concluded, fell on the Nixon side of the line, because Hashimi’s declaration said only that
he did not give permission for a concession of guilt – not that he had expressly denied that
permission. Id. Without evidence that Hashimi had verbalized his desire to maintain
innocence, the district court held, there could be no McCoy violation.
2
Because the district court’s unpublished order is not available via a publicly
accessible legal database, we cite to the version contained in the joint appendix on appeal.
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The district court rejected other claims by Hashimi not at issue here and denied
Hashimi’s § 2255 petition without holding an evidentiary hearing. It also declined to issue
a certificate of appealability. J.A. 861-62.
Hashimi timely appealed and we granted a certificate of appealability on the McCoy
issue, finding that “Hashimi has demonstrated that reasonable jurists could conclude that
counsel conceded guilt against his wishes, in violation of McCoy v. Louisiana, 138 S. Ct.
1500 (2018).” J.A. 865.
II.
On appeal from the denial of a 28 U.S.C. § 2255 motion, we review the district
court’s legal conclusions de novo. United States v. Mayhew, 995 F.3d 171, 176 (4th Cir.
2021). Where, as here, the district court denies a § 2255 motion without an evidentiary
hearing, we treat the district court’s decision like a grant of summary judgment, which
means that we view the facts in the light most favorable to the § 2255 movant – Hashimi –
and draw reasonable inferences in his favor. Id. 3 Viewing the record in that light, a district
court abuses its discretion if it denies § 2255 relief without holding an evidentiary hearing
“[u]nless the motion and the files and records of the case conclusively show that [Hashimi]
3
We have been less than perfectly consistent on this point, analogizing a denial of
§ 2255 relief without a hearing both to a grant of summary judgment, see, e.g., Mayhew,
995 F.3d at 176, and to a grant of a motion to dismiss, see, e.g., United States v. Paylor, 88
F.4th 553, 565 (4th Cir. 2023). Because we conclude that an evidentiary hearing is
necessary in this case even under the harder-to-satisfy summary judgment standard, we
need not resolve which is the more perfect analogy.
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is entitled to no relief.” 28 U.S.C. § 2255(b); see also United States v. Runyon, 994 F.3d
192, 208 (4th Cir. 2021). Under this standard, we conclude that Hashimi is entitled to an
evidentiary hearing at which he may try to substantiate his McCoy claim.
A.
The district court properly identified the Supreme Court’s decisions in McCoy and
Nixon as the starting point for analysis of Hashimi’s claim. We begin by laying out the
principles that flow from those decisions. And we note at the outset that the parties in this
case do not meaningfully dispute these background principles, focusing instead on how
they apply to the facts of Hashimi’s case – or, more properly, to what we know of those
facts at this point in the proceedings.
The Sixth Amendment “contemplat[es] a norm in which the accused, and not a
lawyer, is master of his own defense.” Gannett Co. v. DePasquale, 443 U.S. 368, 382 n.10
(1979). To that end, the Supreme Court has reserved for a criminal defendant the right to
make “certain fundamental decisions” about his defense no matter how strongly his lawyer
may disagree. United States v. Roof, 10 F.4th 314, 351 (4th Cir. 2021). This is a narrow
class of decisions; “trial management” remains the “lawyer’s province,” and counsel need
not seek or obtain consent before deciding, for instance, “what arguments to pursue, what
evidentiary objections to raise, and what agreements to conclude regarding the admission
of evidence.” McCoy, 584 U.S. at 422 (quoting Gonzalez v. United States, 553 U.S. 242,
248 (2008)); see also Roof, 10 F.4th at 351. But some decisions are so fundamental that
they are “reserved for the client,” including “whether to plead guilty, waive the right to a
jury trial, testify in one’s own behalf, and forgo an appeal.” McCoy, 584 U.S. at 422.
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McCoy added to that “latter category” the decision whether to maintain innocence
or concede guilt at trial. Id.; see also Kellogg-Roe, 19 F.4th at 26. That decision, the
Supreme Court explained, is not a “strategic choice[] about how best to achieve a client’s
objectives” but instead a “choice[] about what the client’s objectives in fact are.” McCoy,
584 U.S. at 422. It follows, the Court held, that a defendant has a Sixth Amendment
autonomy right to make the choice for himself. Id. at 426-27. And, critically, because
counsel’s strategic decisions and competence are not at issue, a violation of that autonomy
right is not subject to the Strickland standard for ineffective assistance, which requires a
showing of prejudice. Id. at 426 (citing Strickland, 466 U.S. at 692). Instead, a violation
of the Sixth Amendment autonomy right is a structural error, entitling the defendant to a
new trial without the need to show prejudice, because the error both negates the defendant’s
“right to make [] fundamental choices about his own defense” and impacts the trial in ways
that are “immeasurable.” Id. at 427-28.
To protect a client’s right to decide for himself whether to concede guilt to a jury,
McCoy explained, defense counsel is obliged to do two things. First, McCoy contemplates
a consultation between defense counsel and client, in which defense counsel may try to
persuade a client that conceding guilt is or has become the best course. Id. at 423-24. And
second, if the client expresses a preference in response to that consultation, counsel may
not “override” it and must instead abide by it. Id. at 424. We emphasize, again, that the
parties here agree on these twin obligations; at oral argument, the government clarified that
it reads McCoy as requiring defense counsel both to consult with a defendant before
conceding guilt and to honor any objection raised by the defendant.
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But what happens if defense counsel, convinced that he has before him the rare case
in which conceding guilt at trial is the best path forward, consults with his client and
receives no response – neither approval nor objection? McCoy answers that question by
reference to its earlier-decided Nixon case: If “a client declines to participate in his
defense,” then the choice defaults to the attorney, who “may permissibly guide the defense
pursuant to the strategy she believes to be in the defendant’s best interest.” McCoy, 584
U.S. at 424 (discussing Nixon, 543 U.S. at 181).
Like McCoy, Nixon involved a capital defendant facing overwhelming evidence of
guilt. See Nixon, 543 U.S. at 180-82. And as in McCoy, defense counsel determined that
“the most promising means to avert a sentence of death” was to concede guilt at the guilt
phase of trial and then hope for mercy at the sentencing phase. Id. at 178, 190-91. But
unlike the defendant in McCoy, who vocally opposed his counsel’s “assertion of his guilt
at every opportunity,” 584 U.S. at 424, the defendant in Nixon took no position on his
counsel’s planned concession of guilt, refusing to engage at all in his defense: Counsel
“attempted to explain this [concession] strategy to Nixon at least three times,” and each
time, Nixon “was generally unresponsive” and “never verbally approved or protested” the
concession. Nixon, 543 U.S. at 181; McCoy, 584 U.S. at 424. In those circumstances, the
Court held, the client’s effective abdication of his right to choose allowed counsel to make
the decision instead. Nixon, 543 U.S. at 192. But essential to the Nixon Court’s holding
were the lawyer’s efforts to leave the decision with the client: “When counsel informs the
defendant of the strategy counsel believes to be in the defendant’s best interest and the
defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule
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demanding the defendant’s explicit consent.” Id.; see McCoy, 584 U.S. at 424 (discussing
Nixon).
In short, McCoy and Nixon leave us with a reasonably straightforward rule. If
defense counsel assesses conceding guilt to a jury as the wisest path, he has two obligations:
He must consult with his client, and, if the client engages, he may not “steer the ship the
other way.” McCoy, 584 U.S. at 424. If the lawyer violates these rules and thus “usurp[s]
control of an issue within [the defendant’s] sole prerogative,” the remedy is a new trial,
regardless of whether prejudice can be demonstrated. Id. at 426-27.
B.
Against this standard, we conclude that the district court erred in denying § 2255
relief on Hashimi’s McCoy claim without first holding an evidentiary hearing. The record
in this case, taken in the light most favorable to Hashimi, gives rise to a reasonable
inference that Hashimi’s court-appointed lawyer, Johnson, failed to meet the obligations
imposed by McCoy before conceding Hashimi’s guilt on two charges in his closing
argument to the jury. And nothing in the record conclusively rebuts this possibility. See
Mayhew, 995 F.3d at 176. That is enough to entitle Hashimi to an evidentiary hearing into
a potential violation of the Sixth Amendment autonomy right recognized in McCoy.
When we last considered Hashimi’s McCoy claim, recall, we had only the direct
appeal record before us, with no indication as to whether Hashimi “consented or objected
to his counsel’s concession of guilt.” Hashimi, 768 F. App’x at 163. But Hashimi
supplemented that record by submitting to the district court, along with his § 2255 petition,
an affidavit stating that he did not consent to the concession: “At no time before or during
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the trial . . . did I give my attorney, Bruce A. Johnson, Jr., permission to concede, during
his closing argument to the jury, my guilt on any count[.]” J.A. 780. In this posture, we
take Hashimi’s allegation as true. See Mayhew, 995 F.3d at 176. So for present purposes,
we must rule out what would be the most straightforward defense of Johnson’s concession
to the jury: that Johnson first consulted with his client and obtained Hashimi’s consent.
See McCoy, 584 U.S. at 424.
The district court properly assumed that Hashimi had not consented to Johnson’s
concession of guilt. But Hashimi still could not make out a claim under McCoy, the district
court reasoned, because he did not aver that he expressly objected to the concession, either.
J.A. 846. Absent evidence that Hashimi “expressly told his lawyer not to concede his guilt
during closing statements,” the district court concluded, his case was governed by Nixon,
not McCoy, and Hashimi’s claim could be rejected without need for further development
of the facts. Id. For two principal reasons, we disagree.
1.
First, it is true, as the district court reasoned, that the Supreme Court approved a
concession of guilt in Nixon where the defendant did not consent but also did not object to
his lawyer’s plan to concede – a scenario that matched, in the court’s view, with the
contours of Hashimi’s affidavit. But that analysis overlooks a critical element of Nixon:
In that case, the defendant neither consented nor objected to a concession of guilt after his
lawyer consulted with him, three times, in a futile effort to get his input and leave the choice
to concede guilt where it belonged, with the client. Under those circumstances – where
attempts to consult are stonewalled and the client refuses to make the concession decision
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himself – counsel is free to fall back on his own professional judgment. See Nixon, 543
U.S. at 181-82; McCoy, 584 U.S. at 424.
But that rule does not apply when a lawyer fails his initial duty of consultation,
conceding guilt to a jury without first consulting with his client and seeking the client’s
views. McCoy does not impose on criminal defendants who have chosen to go to trial a
prophylactic (and mostly redundant) obligation to notify their lawyers that their plan for
trial is not to concede guilt to the jury. Instead, and as the government concedes, McCoy
puts the obligation on the lawyer, requiring that before counsel may make a concession of
guilt to the jury, he must discuss his plan with the defendant. McCoy, 584 U.S. at 424. Put
differently, McCoy is not satisfied if a defendant fails to object because he was never given
the opportunity to object. Were it otherwise, this loophole would swallow the McCoy rule,
transferring the concession decision from client to lawyer so long as the lawyer never asks
the client’s permission. 4
And on this record, viewing the record facts in the light most favorable to Hashimi
and drawing reasonable inferences in his favor, we cannot say “conclusively” that
Hashimi’s lawyer satisfied his McCoy obligation to consult with his client before
4
Of course, a client could, as McCoy himself did, stand up in open court and
disavow his lawyer’s concession. See McCoy, 584 U.S. at 419. But we do not craft legal
rules to encourage clients to speak out of turn in court, and, had Hashimi done so, the
district court doubtless would have responded the way the trial court responded to McCoy:
with an admonition that the court “would not permit ‘any other outbursts.’” Id.; cf. Jordan
v. Hargett, 34 F.3d 310, 314 (5th Cir. 1994) (calling it “inappropriate” to require a
defendant “personally to make . . . a record” of a dispute between him and his lawyer by
“speak[ing] out of turn” in court (internal quotation marks omitted)).
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conceding guilt to the jury. See 28 U.S.C. § 2255(b); Mayhew, 995 F.3d at 178. Instead,
we have Hashimi’s affidavit, which we credit for present purposes, asserting a general
failure to consult on the part of his attorney, J.A. 780, and a long record of a significant
communicative breakdown between Johnson and his client, as Hashimi complained to the
court at least three times of “mistrust” between them. J.A. 82-83; see also J.A. 19, 32, 78.
That evidence does not, of course, conclusively prove that there was no consultation. But
if we draw all inferences in Hashimi’s favor, it is enough to raise significant questions.
Those questions multiply when we consider the government’s theory for how
Hashimi’s affidavit can be squared with the rule of McCoy. As the government recognizes,
under McCoy, Johnson was permitted to concede Hashimi’s guilt to the jury only if
Hashimi was “informed of the plan” and then consented or “neither consent[ed] nor
object[ed],” as in Nixon. Appellee’s Br. at 31. The consent option is out for now, the
government understands, given Hashimi’s affidavit. So the government goes with the
Nixon option: that at some point during the trial – perhaps at the close of evidence, along
with the exploration of a guilty plea to assault and kidnapping – Johnson consulted with
Hashimi about conceding guilt to the jury and was met with a Nixon-like silence, with
Hashimi refusing to offer a view either way on the planned concession.
But on the present record, that is pure speculation. Most obviously, Johnson did not
put the hypothesized consultation and client non-responsiveness on the record, bringing it
to the court’s attention and laying the groundwork for a concession of guilt under Nixon. 5
5
We have no occasion to decide whether an on-the-record colloquy with the court
is a necessary predicate to a lawyer’s concession of guilt at trial. See McCoy, 584 U.S. at
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Nor did the government submit in the § 2255 proceedings a declaration from Johnson
attesting to the government’s scenario. See United States v. Pressley, 990 F.3d 383, 389-
90 (4th Cir. 2021) (requiring evidentiary hearing in part because counsel did not submit
affidavit outlining his decision-making process). And what we can glean from the course
of proceedings depicts only a highly engaged defendant bent on maintaining his innocence
on all counts. Per the trial court, Hashimi repeatedly rejected plea offers and instead
“decided to go to trial,” J.A. 694, exercising his “[a]utonomy to decide that the objective
of the defense is to assert innocence.” McCoy, 584 U.S. at 422. And the trial notes
submitted by Hashimi with his § 2255 petition suggest that he remained actively engaged
in his defense and eager to maintain his innocence notwithstanding his lawyer’s views,
pushing Johnson to challenge the credibility of his ex-girlfriend’s testimony. Under all the
circumstances, Hashimi does not seem like a defendant who would sit mute if counsel
shared with him a plan to give up half his case at the close of evidence.
Nor are we persuaded, as the district court suggested, that Hashimi’s seeming
interest in pleading guilty to the assault and kidnapping charges against him at the close of
422 (grouping defendant’s autonomy to decide whether to concede guilt at trial with right
to decide “whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf,
and forgo an appeal”). But defense counsel planning to concede their client’s guilt at trial
might be well advised, under McCoy, to put their consultations with their clients on the
record. We of course have no desire to add to the burdens of trial courts in conducting
criminal trials. But we trust it will be the rare case, particularly outside the capital-case
context of McCoy and Nixon, in which defense counsel will think it advisable to concede
a client’s guilt to the jury. See McCoy, 584 U.S. at 433 (Alito, J., dissenting) (explaining
that it is “hard to imagine” a non-capital case in which a competent attorney would choose
to concede his client’s guilt at trial).
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evidence is enough to demonstrate a changed mind as to the “objective of the defense,”
McCoy, 584 U.S. at 422, and a willingness to concede guilt on those counts to the jury.
See J.A. 846 (noting that Hashimi “attempted to enter a guilty plea” on the two charges “in
exchange for a reduction in the sentencing guidelines based on acceptance of
responsibility”). We can assume that Johnson acted with Hashimi’s consent in raising the
possibility of pleading guilty at the close of evidence. Even so, consent to plead guilty is
different in kind from consent to admit guilt to a jury; a defendant might well be interested
in pleading guilty but not in assuring a guilty verdict from a jury and the accompanying
opprobrium, and the Sixth Amendment reserves to him the right to make that choice. Cf.
McCoy, 584 U.S. at 419 n.2 (“Encouraging a guilty plea pretrial, of course, is not equivalent
to imparting to a defendant counsel’s strategic determination to concede guilt should trial
occur.”).
To be clear, our point here is not that the record conclusively rebuts the
government’s theory. The possibility remains that Johnson did indeed consult with
Hashimi before conceding his client’s guilt to the jury, consistent with McCoy, and that
Hashimi sat silent à la Nixon. And evidence of Hashimi’s apparent interest in pleading
guilty to the counts in question may well be relevant to that inquiry. But the record before
us, viewed in the light most favorable to Hashimi, is simply too “murky” on this point to
allow for a decision without further factual development, and an evidentiary hearing is
therefore required. See Runyon, 994 F.3d at 208 (requiring evidentiary hearing to clarify
“murky” evidence regarding counsel’s strategic considerations).
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2.
We have a second disagreement with the district court’s analysis. In denying relief
under McCoy without a hearing, the court relied critically on the fact that Hashimi’s
affidavit says that Hashimi never gave his attorney permission to concede, but not that he
expressly denied such permission. J.A. 846. For the reasons given above, the record as it
stands yields a reasonable inference that Hashimi did not give his permission because he
was never asked, in violation of McCoy’s consultation rule. But we think Hashimi’s
affidavit leaves open a second possibility, as well: that Hashimi did expressly deny
permission for the concession, and that Johnson violated McCoy’s core command by failing
to honor Hashimi’s expressed wish to maintain his innocence.
Hashimi’s affidavit says as follows: “At no time before or during the trial in this
matter did I give my attorney, Bruce A. Johnson, Jr., permission to concede, during his
closing argument to the jury, my guilt on any counts of the Indictment.” J.A. 780. That
statement, to be sure, can be read as the district court and government read it, where
Hashimi, informed of Johnson’s plan to concede guilt, neither consents nor objects – the
Nixon scenario, under which the client defaults his choice and the authority to concede
guilt falls to the attorney. But Hashimi’s affidavit is also consistent with a different version
of events, in which Hashimi does expressly tell Johnson not to concede guilt and then
describes that in his affidavit, as one might, as having not given permission for the
concession when asked. We do not know, in other words, whether Hashimi’s affidavit is
worded cleverly, to avoid a fact unfavorable to Hashimi (that he never expressly objected),
or poorly, so that it inadvertently omits a fact favorable to him (that he did expressly
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object). But given the posture, in which we view the evidence in the light most favorable
to Hashimi, we see no reason to commit at this juncture to the former interpretation over
the latter.
Again, we emphasize that the record as it stands today would admit of a scenario in
which Johnson carefully adhered to his obligations under McCoy – notwithstanding that
McCoy had yet to be decided – consulting with Hashimi about the wisdom of conceding
guilt to the assault and kidnapping charges before the jury and receiving neither approval
nor disapproval from his client. An evidentiary hearing may well bear out the
government’s scenario, in other words – or even establish, contrary to Hashimi’s affidavit,
that Hashimi in fact expressly approved Johnson’s concession of guilt. But we draw our
inferences here in Hashimi’s favor, not the government’s, and so viewed, the record
remains decidedly “murky” as to whether Johnson consulted with Hashimi about
conceding guilt and, if he did, whether and how exactly Hashimi responded. See Runyon,
994 F.3d at 208; United States v. Poindexter, 492 F.3d 263, 272 (4th Cir. 2007) (“[W]hen
a defendant brings a § 2255 claim based on his attorney’s failure to file a requested notice
of appeal, the district court should hold a hearing if it is unclear in the record whether the
attorney was so instructed.”). Under these circumstances, where the record does not
“conclusively show” that Hashimi cannot prevail on his McCoy claim, see 28 U.S.C.
§ 2255(b), this case must return to the district court for an evidentiary hearing.
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III.
For the reasons given above, the judgment of the district court is vacated and the
case remanded for proceedings consistent with this opinion.
VACATED AND REMANDED
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