Woods v. United States ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0624n.06
No. 07-5644 FILED
Sep 23, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
PAUL ALLEN WOODS, )
) ON APPEAL FROM THE
Petitioner-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
v. ) DISTRICT OF TENNESSEE
)
UNITED STATES OF AMERICA, ) OPINION
)
Respondent-Appellee. )
BEFORE: NORRIS, MOORE, and McKEAGUE, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Petitioner Paul Allen Woods appeals from the denial
of his motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255. In November 2000,
petitioner entered into a written plea agreement with the government. He conceded guilt on two
counts of a seventeen-count superseding indictment and subsequently received a sentence of life
imprisonment. His direct appeal was dismissed by this court because the plea agreement included
a provision waiving his right to appeal. In this proceeding, petitioner raises three issues: ineffective
assistance of trial counsel based upon a conflict of interest; prosecutorial misconduct; and the
constitutionality of his sentence.
No. 07-5644
Woods v. United States
I.
In a memorandum opinion denying petitioner’s ineffective assistance of counsel claim, the
district court1 gave the following summary of the underlying criminal activity that resulted in this
prosecution and subsequent guilty plea:
A lengthy federal investigation determined that between 1993 and 1999, the
sophisticated Paul Woods drug organization was responsible for distributing
hundreds of kilograms of cocaine in the Middle District of Tennessee. Motor
vehicles equipped with hidden compartments exchanged currency and cocaine
between Nashville, Texas, and Florida. The investigation revealed that Petitioner
used funds acquired by his drug organization to finance the ownership of a nightclub
and various businesses associated with the promotion and production of rap music.
On June 25, 1997, Petitioner became a fugitive; he eluded capture after he displayed
a pistol to officers, fled in a vehicle, and then fled on foot. The details of Petitioner’s
criminal misdeeds are numerous, including hiding money in a safe, getting his
girlfriend to hide money for him, ordering others to transfer drugs and money, and
hiding from the police in both Nashville and Atlanta. After discovering a warrant
had been issued for his arrest, Petitioner even attempted to have plastic surgery to
change his appearance in order to continue to elude capture.
Petitioner has appeared before this Court on numerous occasions and this
Court has found that Petitioner pervasively obstructs justice. Petitioner lied under
oath to the grand jury and suborned perjury when he attempted to get two witnesses
to lie at his sentencing hearing.
On November 27, 2000, Petitioner attended a plea hearing at which he
attempted to plead guilty to the entire indictment charged against him. However, he
continually denied an essential element of one of the charges. This Court rejected his
pleas and advised him that pleading guilty to the entire indictment would mandate
a life sentence without possibility of parole. On November 28, 2000, Petitioner again
1
The Honorable Thomas A. Wiseman, Jr., presided over the original prosecution and the early
stages of the § 2255 proceedings. However, after Judge Wiseman denied the ineffective
assistance of counsel claim, petitioner filed a motion requesting that the judge recuse himself.
That motion was granted and the case was transferred to the Honorable William J. Haynes, Jr.
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appeared for a plea hearing, again attempted to plead guilty to the entire indictment,
but again denied a leadership role under the continuing criminal enterprise charge.
Therefore, this Court again rejected the plea. Prior to both appearances, Petitioner
had rejected the plea. On November 29, 2000, Petitioner appeared a third time and
pled guilty to conspiracy to counts two and three of the indictment. Petitioner offered
a plea agreement he had drafted and signed. After three modifications were made to
the agreement and initialed by Petitioner, the Court accepted his guilty plea pursuant
to that agreement.
Memorandum, Sept. 5, 2003 at 2-3 (footnote omitted).
The focus of the two principal claims advanced by petitioner concern the events that led to
his decision to plead guilty. Judge Wiseman did not conduct an evidentiary hearing before denying
petitioner’s ineffective assistance of counsel claim. However, on June 12, 2006, Judge Haynes
conducted a one-day hearing on the prosecutorial misconduct allegations which by necessity touched
on the representation petitioner received during plea negotiations. The district court ultimately
denied the claim in a memorandum and order filed April 19, 2007. Because this court reviews the
factual findings of the district court in a § 2255 proceeding for clear error, Hamblen v. United States,
591 F.3d 471, 473 (6th Cir. 2009), it makes sense to rely upon findings of fact set forth in its April
19, 2007 memorandum:
[Robert] Marlow, Woods’s defense counsel, testified that Woods initially
wanted to go to trial. In October 2000, Woods expressed his interest in pursuing a
plea agreement. As a condition to any plea agreement, Woods had to enter a proffer
agreement. Under the proffer agreement, Woods would have to agree to be debriefed
or interviewed by government officials to enable them to determine whether to accept
his offer to plead guilty and also whether to agree to request a reduced sentence.
Marlow testified that Woods agreed to the proffer or debriefing process. “I had been
informed that Woods wished to try to reach an agreement. I contacted Mr. [Sunny]
Koshy [the assigned Assistant United States Attorney] myself. Mr. Koshy and Mr.
Goodman [a DEA agent] and possibly one other. We went over and had an initial
meetings [sic] with Mr. Woods at Metro Center. I think basically to make sure that
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[Woods] was going to cooperate and he was willing to tell what he knew about drug
trafficking.”
Wood’s first proffer session with federal officials was at the Metropolitan
Nashville Criminal Justice Center where Woods was detained. James (Benny)
Goodman was the lead agent for the Drug Enforcement Administration (“DEA”). At
that time, Goodman was a police officer with the Metropolitan Nashville-Davidson
County police department and an agent of the DEA Drug Task Force created by the
DEA’s Nashville Office. At this initial meeting, Goodman observed Koshy review
the proffer letter agreement with Woods in great detail. Thereafter, Woods, Marlow,
Koshy and Goodman signed the proffer letter agreement.
After that initial proffer session, there were nine additional debriefings at
DEA’s Nashville office in the Courthouse building. As part of his agreement to
cooperate with the government, Woods was interviewed at the DEA’s office . . . at
various times, by Sunny Koshy, the lead Assistant United States Attorney, Goodman,
the lead DEA agent and William DeSantis, the lead Internal Revenue Service (“IRS”)
agent. DeSantis did not participate in all of the Woods’s debriefings. As to the
substance of Woods’s cooperation in the debriefing sessions, Goodman explained
that by the time of Woods’s debriefing, many of Woods’s co-defendants had agreed
to cooperate with the government. Goodman agreed with the characterization of
Woods’s cooperation as “fairly inconsequential.”
After several hours at one of the proffer sessions, Woods requested lunch and
asked Goodman whether Tracey Buford, his girlfriend who operates a restaurant,
could bring his lunch to the DEA office. Goodman agreed to allow Buford to deliver
lunch to the DEA office. Woods and Marlow ate their lunch in a small DEA
interview office. Buford was also in the same office. Goodman did not remain in
that office the entire time and would repeatedly exit and reenter. According to
Goodman, Buford brought Woods lunch to four or five of these debriefing sessions.
On each of those occasions, Goodman conceded that after lunch and before Buford’s
departure, Woods requested to have a “couple of minutes” of private time with
Buford, his girlfriend, and each time Goodman agreed. Goodman estimates that
Buford and Woods were alone for two or three minutes and at most four minutes.
During these visits, Woods was dressed in a jumpsuit and his legs were shackled.
Goodman would reenter the room anytime unannounced.
....
According to Woods and Buford, during this private time, they had sexual
relations in the DEA conference room. Buford described these encounters as lasting
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five (5) to ten (10) minutes. Woods and his girlfriend insist that the scenario was
repeated during several of Woods’s subsequent DEA interviews. Woods and his
girlfriend also testified that Goodman was aware of this sexual activity in the DEA
office and that Goodman also engaged in sexual banter with them. Woods and
Buford also insist that Koshy, Goodman and DeSantis approved of these sexual
encounters. Yet, Buford conceded that her testimony about Koshy’s, Goodman’s and
DeSantis’s approval of these visits is based upon what Woods told her.
Marlow, Woods’s counsel, remained in the room during these private visits
of Woods and Buford, but would turn his back on them. Marlow denied hearing any
conduct by Woods and his girlfriend that was suggestive of sexual intercourse in that
small DEA office. Goodman could not recall whether Marlow always remained in
the room, but does recall one debriefing when Marlow stepped outside of the room
to ask about the agents’ view of the value of the Woods’s debriefing and the level of
his cooperation. As to Woods and Buford being alone, DeSantis also recalled only
one time when agents and Marlow stepped outside to talk for a couple of minutes,
probably at Marlow’s request. DeSantis never received any requests from Woods for
time alone with Buford nor heard any such requests by Woods to Koshy or Goodman.
Except for that one occasion, whenever DeSantis was present, Marlow was in the
room with Woods and Buford.
The issue of Woods’s private visits and sexual contact with his girlfriend
arose during Woods’s criminal proceedings. In a letter filed by the Clerk’s office on
April 25, 2001, Woods wrote to Judge Wiseman about, among other things, the
luncheon office visits with his girlfriend and free local and long distance telephone
calls and complained of Koshy’s and Goodman’s involvement in these matters.
Koshy’s response was that the Court should investigate the matter and that with this
letter, Woods was trying to secure a downward departure motion. Noteworthy is that
the primary focus of this letter is Woods’s denial of a leadership role in the
conspiracies. Woods’s letter ascribes to the government officials the following
purpose for the visits and telephone calls: “Your Honor I the defendant Paul Woods
feel that just because DEA officer Goodman provided me with sexual activities
during and after debriefing sessions and unlimited free local and long distance calls
to Atlanta, Ga. and also allowing me to have meals brought to me during our
sessions, that I would be willing to lie for the government.” . . . The defendant, Paul
Woods, feels that the government is trying to breach the plea agreement because the
defendant is not willing to lie for the government.” Woods testified at his May 9,
2001 sentencing hearing, but did not mention either the Buford visits nor the
telephone calls cited in his April 25th letter.
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To be sure, Woods presented a transcript of a telephone conference that
Woods arranged with Marlow. The transcript includes a statement attributed to
Marlow “that was many occasions that we up there and (inaudible) . . . would leave
you two alone.” In addition, John Peryam, a second year law student who assisted
Woods in this action, interviewed Marlow by telephone at Woods’s request.
Peryam’s interview was based upon a draft affidavit prepared by Woods for Marlow
describing Buford’s sexual visits with Woods at the DEA office. According to
Peryam, Marlow stated that Woods and his girlfriend were left alone to have sexual
contact. Marlow never observed sexual intercourse, but did see them groping each
other. Peryam testified that he recalled Marlow saying that Sunny Koshy had
knowledge of these visits. Yet, Peryam’s contemporary notes of that conversation
actually reflect that Marlow’s statement was that he “assumed” Koshy and Goodman
knew about these contact visits. In addition, Peryam’s notes reflect that Marlow used
the phrase “private contact,” not sexual contact or relations. In a subsequent
conversation with Peryam, Marlow felt uncomfortable about any such statement
about Koshy. Peryam prepared a draft affidavit for Marlow, but Marlow never
signed that draft.
Sonja Howard, another of Woods’s girlfriends who lives in Atlanta, testified
that she spoke with Woods in a telephone conversation arranged by Goodman.
According to Howard, Goodman told her he wanted her to identify two pictures.
Woods then talked to Howard and Woods told her that if she came to Nashville, they
would get ten (10) minutes alone. Howard came to Nashville and spoke to
Goodman, but she did not see Woods. According to Howard, Goodman told her that
Woods had “p’d him off” and there would not be any personal visit. Goodman,
however, denied any conversation with Howard about her having a private visit with
Woods. Goodman conceded that Woods may have made a long distance telephone
call to Howard in Atlanta from the DEA’s Nashville office, but Woods never
requested that Howard be brought to Nashville.
Koshy denied any knowledge or approval of any sexual contact visits between
Woods and Buford. Koshy and Goodman explained that in some circumstances,
DEA allows a defendant to have family visits while the defendant is in DEA custody,
but neither the DEA nor Goodman authorized sexual contact between Woods and his
girlfriend. Koshy and Goodman did discuss Buford’s providing food to Woods as
generating a Giglio disclosure for any testimony by Woods. Goodman denies any
sexual banter with Woods or Buford.
As Woods’s motivation to plead guilty, Marlow testified: “I think Woods
wanted to enter a plea, I think he wanted to try to and cut a deal and minimize
exposure to time that he was going to face incarceration.” As noted earlier, Woods’s
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proffer agreement establishes that Woods’s decision to plead guilty was made prior
to the first of these contact visits. Woods’s letter to the Court and his handwritten
plea agreement establish Woods’s independent decision to plead guilty.
As to these factual disputes, the Court first credits the testimony of Sunny
Koshy, that he was unaware of and did not authorize or condone any of Woods’s
private visits or sexual contact with Buford. Goodman actually agreed to Woods’s
brief visits with Buford. Although Woods and his girlfriend had some sexual contact
on these visits, the Court credits testimony of Marlow who was in the room at the
time of most of these visits, that Woods and his girlfriend did not have sexual
intercourse. According to Marlow, Woods and his girlfriend had only a few minutes
in the small DEA conference room and sexual intercourse did not occur. There may
have been some banter between Woods, his girlfriend and Goodman, but the Court
finds that the banter of the sexual nature described by Woods and his girlfriend, did
not occur.
Memorandum, April 19, 2007, at 5-10 (citations omitted) (emphasis in original).
Against this backdrop looms the question of defense counsel Marlow’s representation of his
client. Petitioner retained him for $28,000 and the deed to six acres of land. On October 18, 2000,
Marlow filed a motion to withdraw with a supporting affidavit. According to the affidavit, he had
consulted with attorneys at the Disciplinary Council of the Tennessee Board of Professional
Responsibility about a potential conflict of interest and had been advised that he had an actual
conflict, not simply a potential conflict.
On the day that counsel filed his motion, he appeared at the first proffer meeting with
petitioner and AUSA Koshy, Goodman, and one other individual. In an affidavit sworn in 2003,
petitioner states that Marlow arranged this meeting without his permission. In the same document,
petitioner alleges that Marlow asked him if he knew Vaughn Askew, whom Marlow was
representing in another drug prosecution. This dual representation created the potential conflict of
interest.
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On October 20, the district court held a hearing on the motion to withdraw. Marlow told the
court that he had discovered an actual conflict of interest at about the same time that petitioner
decided to explore cooperating. According to Marlow, he had been advised by disciplinary counsel
that “I had a conflict . . . if either one of these clients went to trial.” However, Marlow went on to
explain that he could remain as counsel under certain conditions:
[Disciplinary counsel] also opined . . . that if they both were cooperating and the
cooperation was not inconsistent as to each other’s culpability, then there would be
no conflict . . . .
I have made full disclosure to both clients, the conflict I have explained to
Mr. Woods, that if he was going to persist in his plea of not guilty and go to trial, it
is mandatory I would have to withdraw, I was disqualified. I also explained to him
if he decided to cooperate . . . , it is my opinion that I probably could continue to
represent him but he would have to waive that conflict . . . .
The court then asked petitioner, who was present, if he understood the situation. He said that he did
and that he wanted to have Marlow represent him and to continue to cooperate with AUSA Koshy.
Petitioner also told the court that he did not object to Marlow’s continued representation of Vaughn
Askew. The court then gave petitioner the following advice:
[Y]ou don’t have to waive your right to have another lawyer. You could insist upon
it and if you couldn’t hire somebody else, the Court would appoint somebody else for
you. But you have a right to have somebody who does not have any sort of an
apparent conflict of interest or potential conflict of interest. . . . On the other hand,
it’s something you can waive if you are satisfied with what Mr. Marlow is doing and
what he has done and what he proposes to do for you . . . .
Petitioner elected to “stay” with Marlow.
Thereafter, petitioner and Marlow participated in the debriefing sessions described earlier.
In his 2003 affidavit, petitioner states, “After the first few meetings with the government, Mr.
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Marlow informed me the government was impressed with my information and wanted to use me as
a witness in future trials. He indicated I could expect to receive a plea agreement providing for
between 3-7 years in prison.”
On November 22, 2000, the government sent Marlow a proposed plea agreement that
contemplated a sentence of between 20 years to life in prison. Petitioner refused it “because I felt
the government would provide a better offer.”
A plea hearing had been set for November 27 and petitioner intended to plead not guilty.
Koshy and Marlow met with him. According to petitioner, when they heard that he intended to reject
the plea, they both became angry and Marlow told him that he was being stupid. At the hearing,
petitioner attempted to plead guilty to the entire indictment as discussed by Judge Wiseman in the
portion of his memorandum opinion quoted earlier. The court continued the hearing because it was
convinced that petitioner did not fully understand what he was doing. According to his affidavit,
petitioner’s “intent was to take responsibility for my illegal actions to the extent I believed I was
guilty of them. However, I was unwilling to take responsibility for actions I was not guilty of,
specifically having a leadership role and the gun possession charge.”
In any event, the next day the court began the plea colloquy but stopped when petitioner
continued to deny a leadership role. The court explained its position to petitioner in these terms:
Now, I didn’t write the Indictment; the Grand Jury did. That is what the
Grand Jury has charged you with. Now, when you come before me, I have two
choices. You can stand up here and plead guilty to it, or you can go to trial. Now,
there is a third choice that I don’t have anything to do with. And that is you and your
lawyer and the U.S. Attorney can work out an agreement. . . .
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. . . [A]nd furthermore, your lawyer, if you go to trial, is going to have to
withdraw from representing you because he has a conflict with another person that
he has represented, who would likely be a witness against you . . . .
The district court then set trial for May 7, 2001. Marlow renewed his motion to withdraw, which
the court granted with the provision that he return any portion of the retainer which “is fair under
what you have done.”
The next day, November 29, petitioner was again brought to court. Despite having
withdrawn as his attorney, Marlow was present along with AUSA Koshy and they spoke with
petitioner before court proceedings began. Petitioner had prepared a handwritten plea agreement,
which he gave to Koshy. It provided for a five to forty year sentence. Koshy accepted the agreement
and inserted language that there were no other agreements, which petitioner initialed.
When proceedings convened, Koshy informed the district court that “apparently Mr. Woods
wants to continue on with Mr. Marlow as his retained counsel.” Turning to the terms of the plea
agreement, the district court observed that the sentencing range was inaccurate and must be 20 years
to life imprisonment. After some discussion, the agreement was amended and initialed by petitioner.
During the hearing, Koshy noticed that paragraph ten of the agreement omitted language making it
clear that whether petitioner should receive a U.S.S.G. § 5K1.1 reduction in sentence was a matter
to be determined by the government. The district court considered the omission “a contrived
ambiguity” and petitioner initialed a change to the agreement that included that language.
Addressing petitioner, the district court went through the terms of the plea agreement and
determined that the plea was based upon petitioner’s free will. It also conducted a final colloquy
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with petitioner about Marlow’s conflict of interest and elicited from petitioner that he wished to keep
Marlow as his attorney despite these potential problems. The plea was ultimately accepted.
On April 2, 2001 petitioner wrote the letter to the district court alluded to earlier in which
he informed the court of the sexual improprieties that occurred during the plea negotiations and also
asserted that the government sought false testimony. According to his affidavit, this letter elicited
a response from Marlow who visited petitioner and told him to “stick to the damn plan.”
Petitioner’s sentencing hearing occurred on May 9, 2001. He received a sentence of life
imprisonment. No § 5K1.1 motion for substantial assistance was filed by the government.
II.
In reviewing the denial of the three claims for relief advanced by petitioner, we apply a de
novo standard of review to the legal conclusions reached by the district court but must uphold its
factual findings unless they are clearly erroneous. Benitez v. United States, 521 F.3d 625, 630 (6th
Cir. 2008). To warrant relief under 28 U.S.C. § 2255, a petitioner must demonstrate the existence
of “an error of constitutional magnitude which had a substantial and injurious effect or influence on
the guilty plea or the jury’s verdict.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)
(citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). With those precepts in mind, we turn to
the arguments advanced by petitioner.
1. Ineffective Assistance of Trial Counsel
This court dealt with a case of an alleged conflict of interest due to multi-defendant
representation some years ago in Thomas v. Foltz, 818 F.2d 476 (6th Cir. 1987), and that case
continues to provide a roadmap to the proper analytical approach in such cases:
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The starting point for analyzing a claim of ineffective assistance of counsel
is the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Under that standard, a criminal
defendant must show both that his counsel’s performance was deficient and that it
prejudiced his defense in a manner which deprived him of a fair trial. This standard
is adjusted, however, when dealing with a situation where a defendant enters a guilty
plea instead of being found guilty after a trial. In the context of guilty pleas, the first
element, the “performance” aspect, of the Strickland test remains the same but the
second element, the “prejudice” requirement, changes. “[I]n order to satisfy the
‘prejudice’ requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 88
L.Ed.2d 203 (1985).
The instant case involves a specific type of ineffectiveness claim, that of
conflict of interest, which is also examined under a slightly different standard from
that used in a traditional ineffectiveness claim. The Supreme Court set forth the
standard for determining conflict of interest cases in Cuyler v. Sullivan, 446 U.S. 335,
100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and summarized it again in Strickland as
follows:
In Cuyler . . . [we] held that prejudice is presumed when counsel is
burdened by an actual conflict of interest. In those circumstances,
counsel breaches the duty of loyalty, perhaps the most basic of
counsel’s duties. Moreover, it is difficult to measure the precise effect
on the defense of representation corrupted by conflicting interests.
Given the obligation of counsel to avoid conflicts of interest and the
ability of trial courts to make early inquiry in certain situations likely
to give rise to conflicts . . . it is reasonable for the criminal justice
system to maintain a fairly rigid rule of presumed prejudice for
conflicts of interest. Even so, the rule is not quite the per se rule of
prejudice that exists for the Sixth Amendment claims mentioned
above [actual or constructive denial of the assistance of counsel
altogether]. Prejudice is presumed only if the defendant demonstrates
that counsel “actively represented conflicting interests” and that “an
actual conflict of interest adversely affected his lawyer's
performance.”
Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (emphasis added) (quoting Cuyler, 446
U.S. at 345-50, 100 S.Ct. at 1716-19). This Circuit has interpreted the Cuyler test as
directing courts “to determine, on the facts of each case, whether there is an actual
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conflict of interest and whether that conflict has caused ineffective performance in
violation of the provisions of the Sixth Amendment. . . .” Smith v. Bordenkircher,
671 F.2d 986, 987 (6th Cir.), cert. denied, 459 U.S. 848, 103 S.Ct. 107, 74 L.Ed.2d
96 (1982).
Just as the Strickland standard has to be adapted to the guilty plea context, so
must the Cuyler standard be adapted. The primary question in the guilty plea context
is whether the plea was a “voluntary and intelligent choice” made by the defendant.
North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970).
Thus, in order to successfully assert a claim of ineffective counsel based on a conflict
of interest, a defendant who entered a guilty plea must establish: (1) that there was
an actual conflict of interest, Smith, 671 F.2d at 987; and (2) that the conflict
adversely affected the voluntary nature of the guilty plea entered by the defendant.
Foltz, 818 F.2d at 480 (citation and footnote omitted). It is worth emphasizing that the Supreme
Court held in Cuyler, that “[i]n order to demonstrate a violation of his Sixth Amendment rights, a
defendant must establish that an actual conflict of interest adversely affected his lawyer’s
performance.” 446 U.S. at 350.
Petitioner contends that defense counsel Marlow had two conflicts of interest: he represented
potentially adverse parties, albeit in separate prosecutions; and he had a financial stake in obtaining
a guilty plea from his client.
In United States v. Hall, 200 F.3d 962 (6th Cir. 2000), we reversed the denial of a § 2255
motion to vacate based upon ineffective assistance stemming from a conflict of interest. In that case,
counsel represented two brothers, one of whom was much more culpable than the other. Counsel
took the case to trial rather than encourage the less culpable defendant to enter into a plea agreement,
which would have resulted in significantly less prison-time than he eventually received. In reversing,
we noted that “[f]oregoing plea negotiations is proof of an actual conflict of interest.” Id. at 966
(citing Foltz, supra; Holloway v. Arkansas, 435 U.S. 475, 490 (1978)); see also Ruffin v. Kemp, 767
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F.2d 748, 752 (11th Cir. 1985) (attorney’s negotiation of plea bargain for one client that included
testimony against another client is actual conflict of interest).
In Wheat v. United States, 486 U.S. 153 (1988), the Supreme Court affirmed the refusal of
the district court to allow a defendant to waive a potential conflict of interest in order to be
represented by the same counsel as his co-defendants. The trial court had concluded that such
representation would likely result in a conflict of interest. In the Supreme Court’s view, “the district
court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those
rare cases where an actual conflict may be demonstrated before trial, but in the more common cases
where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial
progresses.” Id. at 163. Where, as in the instant case, a trial court has been informed that a conflict
may arise, it “must take adequate steps to ascertain whether the conflicts warrant separate counsel.”
Id. at 160.
Turning to the facts of his case, in his affidavit supporting his initial motion to withdraw,
Marlow averred that he had an actual conflict of interest due to his representation of another person
(Askew). In the hearing on the motion to withdraw, AUSA Koshy conceded that “Mr. Askew did
provide information that I would have used in any trial of Mr. Woods.” As recounted earlier,
however, the district court informed petitioner that “you have a right to have somebody who does
not have any sort of an apparent conflict of interest or potential conflict of interest,” and went on to
explain, “it’s something you can waive if you are satisfied with what Mr. Marlow is doing and what
he has done and what he proposes to do for you, that is your right.”
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As did the district court, we conclude that Marlow labored under a potential, rather than
actual, conflict of interest. Because petitioner was made abundantly aware of that potential conflict,
he could, and did, waive his right to be represented by someone else. See United States v. Davis, 490
F.3d 541, 548 (6th Cir. 2007) (“[a] defendant may make a knowing, intelligent, and voluntary
waiver of [his] right to conflict-free counsel, and a defendant has a Sixth Amendment right to
counsel of [his] choice”) (quoting United States v. Straughter, 950 F.2d 1223, 1234 (6th Cir. 1991)).
This conclusion is bolstered by a number of factors. First, counsel himself recognized a conflict and
filed a motion to withdraw. Second, the district court responded by fully informing petitioner of his
options, including that Marlow could not proceed to trial. And, third, petitioner acknowledged those
restrictions but elected to proceed with Marlow. In short, petitioner knowingly elected to enter a plea
of guilty despite the court’s guidance concerning the implications of Marlow’s potential conflict and
his option to retain new counsel. Given the facts before us, petitioner’s waiver of conflict-free
counsel was valid and hence his Sixth Amendment claim was properly rejected by the district court.
2. Prosecutorial Misconduct
The allegations that accompany petitioner’s prosecutorial misconduct claim are admittedly
troubling. Even if we accept the factual finding of the district court that, while “Woods and his
girlfriend had some sexual contact on these visits, [they] did not have sexual intercourse,” Agent
Goodman exhibited poor judgment by according petitioner personal favors while plea negotiations
were ongoing. However, poor judgment does not necessarily amount to prosecutorial misconduct
sufficient to entitle petitioner to § 2255 relief.
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In assessing whether a plea was knowing and voluntary, courts must consider whether the
plea was induced by improper threats, promises, or other things that have “no proper relationship to
the prosecutor’s business.” See Brady v. United States, 397 U.S. 742, 755 (1970) (citation omitted).
Petitioner argues that Agent Goodman’s acquiescence to intimate contact between petitioner and Ms.
Buford rose to the level of a bribe, rendering his guilty plea less than free and voluntary.
While the contact between petitioner and Ms. Buford was ill-advised, there is nothing in the
record to indicate that it affected petitioner’s ultimate decision to plead guilty. In reaching this
conclusion, we affirm based upon the reasoning of the district court:
The Court first concludes that these visits did not impact Wood’s decision to
plead guilty. The Court credits Woods’ statements in his plea colloquy that no one
had applied any psychological or other pressure to get him to waive his rights and to
plead guilty. As Woods’ counsel testified Woods wanted to plead guilty given his
substantial criminal activities and his extensive exposure at sentencing. Second, the
proffer sessions that later led to these contact visits, did not begin until Woods had
decided to plead guilty. Third, in his letter to Judge Wiseman before his sentencing,
Woods does not suggest that these visits caused him to plead guilty, rather Woods
asserted that the Government was breaching a plea agreement. Woods rejected the
government’s plea offers and insisted upon and wrote his own plea agreement. The
government accept[ed] Woods’ handwritten plea agreement that was the basis for his
convictions. Thus, the Court finds the lack of a causal connection between Woods’
decision to plead guilty and these visits with Buford.
The Court also concludes that these visits were not intended to provide any
sexual contacts so as to elicit any plea agreement or facilitate any cooperation from
Woods. Woods had agreed to cooperate before any visit from Buford. At the time
of Woods’ debriefing and cooperation, most of his co-defendants were already
cooperating with the government, as reflected by their testimony at Woods’
sentencing hearing.
Memorandum, April 19, 2007, at 11.
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No. 07-5644
Woods v. United States
Petitioner also invokes a legal proposition explicitly rejected by the Seventh Circuit: that
“outrageous” governmental conduct may rise to a level where it so shocks the conscience that it
becomes an independent ground for ordering a new trial. See United States v. Boyd, 55 F.3d 239,
241 (7th Cir. 1995). The Seventh Circuit’s resolution of this claim is not binding on us, however,
and the Supreme Court and this court have previously considered whether conduct by the
government that is so outrageous that it “shocks the conscience” could bar prosecution. See
Hampton v. United States, 425 U.S. 484, 489-90 (1976); United States v. Payne, 962 F.2d 1228,
1231-32 (6th Cir. 1992). Each case involved the allegedly outrageous acts of governmental agents
investigating criminal activity: in Hampton, by controlled drug purchases; in Payne by setting up a
sting operation to undercover money laundering. In Hampton, the Supreme Court acknowledged that
language from a prior opinion, United States v. Russell, 411 U.S. 423 (1973), implied that such a set
of facts might arise: “[W]e may some day be presented with a situation in which the conduct of law
enforcement agents is so outrageous that due process principles would absolutely bar the government
from invoking judicial processes to obtain a conviction.” Hampton, 425 U.S. at 489 (quoting
Russell, 411 U.S. at 431-32). The Court went on to distinguish that language before concluding,
“[t]he limitations of the Due Process Clause of the Fifth Amendment come into play only when the
Government activity in question violates some protected right of the Defendant.” Id. at 490. Payne
echos that language. 962 F.2d at 1231 (citing Hampton). In neither case did the court grant
defendant the requested relief.
Even if we acknowledge that under some circumstances the government’s conduct in
prosecuting a criminal case may be so outrageous that a defendant’s due process rights are
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No. 07-5644
Woods v. United States
implicated, the facts before us are not remotely close to making out such a claim. No protected right
of defendant was violated and we therefore hold that this theory does not entitle petitioner to relief.
3. Sentencing
Petitioner’s final claim is that the district court failed to take the sentencing factors outlined
in 18 U.S.C. § 3553(a) sufficiently into account, including petitioner’s difficult childhood. Instead,
the court relied on the sentencing guidelines when it imposed a mandatory life sentence. Petitioner
argues that he should have been sentenced under United States v. Booker, 543 U.S. 220, 249 (2005),
which changed the sentencing landscape by instructing district courts to use the guidelines as
advisory only. However, the district court imposed petitioner’s sentence before Booker and its
progeny were decided and this court has held that the post-Booker sentencing regime is not to be
applied retroactively. Humphress v. United States, 398 F.3d 855, 863 (6th Cir. 2005).
Consequently, petitioner’s challenge to the calculation of his sentence must be rejected.
III.
The judgment of the district court is affirmed.
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