Emond Logan v. United States , 910 F.3d 864 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0267p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EMOND DUREA LOGAN, ┐
Petitioner-Appellant, │
│
> No. 17-1996
v. │
│
│
UNITED STATES OF AMERICA, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
Nos. 1:08-cr-00274-16; 1:15-cv-00076—Paul Lewis Maloney, District Judge.
Argued: October 18, 2018
Decided and Filed: December 13, 2018
Before: GRIFFIN and DONALD, Circuit Judges; BERTELSMAN, District Judge.*
_________________
COUNSEL
ARGUED: Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for
Appellant. Sally J. Berens, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C.,
Covington, Kentucky, for Appellant. Sally J. Berens, UNITED STATES ATTORNEY’S
OFFICE, Grand Rapids, Michigan, for Appellee.
*The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
No. 17-1996 Logan v. United States Page 2
_________________
OPINION
_________________
GRIFFIN, Circuit Judge.
Two heads are not always better than one. Petitioner Emond Durea Logan learned as
much when he received conflicting advice from his two attorneys while considering whether to
accept a plea offer with a ten-year sentencing cap. His counsel of record told him it was a very
good plea deal that avoided the high risks of proceeding to trial, and Logan signed the plea
agreement. However, his second attorney—retained by Logan’s family but not counsel of
record—subsequently persuaded Logan to withdraw from the plea agreement. Ultimately,
Logan accepted a second plea agreement that did not include a sentencing cap and received a
much longer sentence than contemplated by the first agreement. In the district court and now on
appeal, Logan claims ineffective assistance of counsel on the basis of his retained attorney’s
advice. On these facts, the district court held that Logan did not sustain his burden of showing a
Sixth Amendment violation. We agree and, therefore, affirm the judgment of the district court.
I.
Logan was a drug courier in a cross-country drug ring from 2004 to 2007. In this role, he
routinely transported “loads of cocaine from the Los Angeles, California area to the Detroit,
Michigan area, using a tractor-trailer,” and returned with the resulting “drug proceeds in the form
of United States currency from Michigan to California.” In total, Logan transported over
150 kilograms of cocaine from California to Michigan.
Logan was arrested and indicted in California, was transferred to the Western District of
Michigan, and pleaded not guilty to charges of conspiracy to distribute cocaine, 21 U.S.C.
§§ 846 and 841(a)(1), (b)(1)(A)(ii), and conspiracy to commit money laundering, 18 U.S.C.
§§ 1956(h) and 1957. On October 2, 2009, the district court appointed attorney Richard Zambon
to serve as defense counsel.
No. 17-1996 Logan v. United States Page 3
Shortly thereafter, Zambon received a phone call from Leo Terrell, a California-based
attorney. Terrell told Zambon that petitioner’s family contacted him about representing
petitioner in this case. Zambon met with Logan, who confirmed that his family hired Terrell and
that Terrell would be representing him in this case. In late-October 2009, Terrell came to
Zambon’s office, where the two discussed the case and Zambon gave Terrell the complete
discovery packet. Terrell told Zambon that he would soon be entering his appearance on
Logan’s behalf.
Zambon next met with petitioner on November 2, 2009. Logan reiterated his preference
that Terrell represent him, but because Terrell had not yet filed his appearance with the court or
paid his admission fee, Zambon was still Logan’s attorney of record. So Zambon continued to
relay plea offers to Logan, advised him of his options going forward, and reviewed the
sentencing guidelines and evidence with him. Zambon met with Logan approximately six more
times from November 2009 to January 2010. Although Terrell had not filed an appearance in
Logan’s case, by this point Logan’s father had paid a $100,000 retainer to Terrell and retained
him as Logan’s counsel.
Terrell finally paid his admission fee to the Western District of Michigan on January 15,
2010, but did not file a motion to substitute as defense counsel until February 4. Zambon again
met with petitioner around this time and advised him that he “did not think the court would allow
the substitution of attorneys as it appeared that Mr. Terrell had a conflict of interest because of
his joint representation of several of [Logan]’s family members who were either potential
witnesses or potential co-defendants.” Nevertheless, petitioner informed Zambon that he
supported Terrell’s motion and wanted Zambon off the case. Therefore, Zambon filed a motion
to withdraw as counsel based on the deterioration of the attorney-client relationship.
On February 17, 2010, the court denied both Terrell’s motion to substitute as counsel and
Zambon’s motion to withdraw, leaving Zambon as petitioner’s only attorney of record. Two
days later, Zambon again met with petitioner to discuss a plea offer. This plea offer required
petitioner to plead guilty to the conspiracy-to-distribute-cocaine charge in exchange for dismissal
of the money-laundering charge and a ten-year sentencing cap. In addition, the prosecution
agreed not to bring criminal charges against Logan’s wife, brother, and sister-in-law for their
No. 17-1996 Logan v. United States Page 4
conduct relating to the criminal conspiracy. Zambon explained to Logan that he believed it was
a very good plea agreement and, while Zambon testified that he “never tell[s] a client what to
do,” based upon his familiarity with the case he “had to tell Mr. Logan that this was a very good
plea agreement.” Petitioner agreed; Zambon and Logan signed the plea offer and the Assistant
United States Attorney (AUSA) signed and filed it with the court. Over the weekend, however,
Terrell and Logan had four separate phone conversations. Through these conversations, Terrell
convinced Logan to reject the plea deal at the change of plea hearing, because Terrell thought he
could “beat the case.”
The parties appeared for the plea hearing the following Monday. Petitioner rejected the
plea offer in open court, claimed that he only signed the plea agreement because he felt
“pressured” into doing so, and stated that he was not guilty of any crime. The prosecution stated
on the record that if petitioner rejected this plea agreement, it would no longer make any offers
with a ten-year sentencing cap. Petitioner persisted and the government terminated its offer.
The government then dismissed the indictment and filed a second, superseding
indictment in a multi-defendant companion case. The second superseding indictment again
accused petitioner of conspiracy to distribute five kilograms or more of cocaine, 21 U.S.C.
§§ 846 and 841(a)(1), (b)(1)(A)(ii), and conspiracy to commit money laundering, 18 U.S.C.
§§ 1956(h) and 1957. At a subsequent hearing, the court disqualified Terrell from serving as co-
counsel for some of petitioner’s family members/co-defendants, on the basis of a possible
conflict of interest, though it permitted Terrell to serve as Logan’s counsel in this case, with a
local attorney serving as co-counsel. Eventually, based on Terrell’s advice, Logan pleaded guilty
to the conspiracy-to-distribute-cocaine charge (with the money-laundering charge dismissed by
agreement). Unlike the prior offer (and consistent with the government’s warning at the
previous plea hearing), this plea agreement was without a sentence cap. Subsequently, petitioner
was sentenced to thirty-five years’ imprisonment, to be followed by five years of supervised
release.
On direct appeal, Logan argued only that the government breached his plea agreement by
opposing his request for a two-level sentencing reduction for acceptance of responsibility.
United States v. Logan, 542 F. App’x 484, 489 (6th Cir. 2013). On plain error review, we
No. 17-1996 Logan v. United States Page 5
affirmed, reasoning that while released on bond Logan funded a marijuana grow operation,
encouraged a government witness not to cooperate, and threatened to kill both a co-conspirator
and the AUSA assigned to his case. Id. at 489–92.
Petitioner filed this § 2255 motion to vacate his sentence, contending that he received
ineffective assistance of counsel. The district court denied the motion, holding that “[t]he right
to counsel is not the right to be free from any ineffective assistance of counsel. Rather, so long
as a defendant receives adequate legal assistance, his constitutional rights have been secured.”
The district court reasoned that Zambon’s effective assistance to Logan counterbalanced
Terrell’s “abysmal” performance and denied relief. However, the court granted Logan a
certificate of appealability regarding his claim of ineffective assistance of counsel.
Petitioner now appeals.
II.
We review de novo a district court’s decision denying a § 2255 motion. Downs v. United
States, 879 F.3d 688, 690 (6th Cir. 2018). We review the district court’s findings of fact for
clear error. Guerrero v. United States, 383 F.3d 409, 414 (6th Cir. 2004). The ultimate question
of whether a defendant received ineffective assistance of counsel is a mixed question of law and
fact, which we also review de novo. United States v. Levenderis, 806 F.3d 390, 401 (6th Cir.
2015).
III.
Section 2255 allows a prisoner in federal custody to move the court to set aside or correct
his sentence if “the sentence was imposed in violation of the Constitution or laws of the United
States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was
in excess of the maximum authorized by law, or [the sentence] is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). Petitioner bases his motion on the alleged denial of his Sixth
Amendment right to counsel.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall . . .
have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This does not simply
No. 17-1996 Logan v. United States Page 6
guarantee the mere existence of legal counsel but provides “the right to effective counsel—which
imposes a baseline requirement of competence.” United States v. Gonzalez-Lopez, 548 U.S. 140,
148 (2006) (emphasis added). The Supreme Court has extended this right to critical pre-trial
proceedings, including plea negotiations. Missouri v. Frye, 566 U.S. 134, 140 (2012). And the
Court has made clear that a counsel’s erroneous advice to reject a plea offer can establish
ineffective assistance, so long as the criminal defendant can satisfy Strickland. Lafler v. Cooper,
566 U.S. 156, 172–74 (2012).
Under Strickland’s two-part framework, a criminal defendant claiming ineffective
assistance of counsel during plea negotiations must prove that (1) counsel’s performance was
deficient, i.e., that “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) the deficient performance
actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
deficient performance prong is “measured against an objective standard of reasonableness under
prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotation
marks omitted) (citations omitted). “To show prejudice from ineffective assistance of counsel
where a plea offer has lapsed or been rejected because of counsel’s deficient performance,
defendants must demonstrate a reasonable probability they would have accepted the earlier plea
offer had they been afforded effective assistance of counsel.” Frye, 566 U.S. at 147.
The parties agree that the pertinent considerations for whether petitioner received
ineffective assistance of counsel all come from the few days between when Zambon advised
Logan to plead guilty, and when Terrell eventually convinced him otherwise, resulting in
petitioner rejecting the plea agreement with a sentencing cap. The parties agree Zambon
provided effective assistance of counsel; Terrell’s performance, however, is a different matter.
The district court stated that “Terrell’s shadow representation [of Logan] was certainly
‘ineffective’ in many senses,” but concluded that it did not require the conclusion that Logan’s
right to effective assistance of counsel was violated. We agree that Terrell’s services were
deficient. Even beyond his hair-trigger advice during the plea-agreement phase, his conduct was
continually questionable throughout the proceedings below. Terrell represented other defendants
in the case until he was finally precluded from doing so by the district court, due to some
No. 17-1996 Logan v. United States Page 7
compelling conflict-of-interest problems. Furthermore, Terrell was not the attorney of record at
the time Zambon negotiated the plea agreement because Terrell delayed filing a notice of
appearance for over two months—a delay he chalked up to his busyness with other cases and his
need to research the law and issues related to Logan’s case. 1 But both below and before this
court, petitioner has limited his ineffective assistance claim to Terrell’s behavior surrounding the
plea offer, so we need not consider these other exceedingly questionable acts.
Collectively, then, petitioner received both competent and deficient advice on whether to
accept the February 19 plea offer with a ten-year sentencing cap. Such conflicting advice
undercuts Logan’s claim of ineffective assistance of counsel. In interpreting constitutional text,
“we are guided by the principle that ‘[t]he Constitution was written to be understood by the
voters; its words and phrases were used in their normal and ordinary as distinguished from
technical meaning.’” Dist. of Columbia v. Heller, 554 U.S. 570, 576 (2008) (quoting United
States v. Sprague, 282 U.S. 716, 731 (1931)). And the Sixth Amendment guarantees all criminal
defendants the right to counsel in their defense, U.S. Const. amend. VI, which we have long
interpreted as guaranteeing the right to effective counsel, see, e.g., Reece v. Georgia, 350 U.S.
85, 90 (1955) (“The effective assistance of counsel in such a case is a constitutional requirement
. . . .”). This right “embodies a realistic recognition of the obvious truth that the average
defendant does not have the professional legal skill to protect himself when brought before a
tribunal with power to take his life or liberty, wherein the prosecution is presented by
experienced and learned counsel.” Johnson v. Zerbst, 304 U.S. 458, 462–63 (1938). Thus, the
Supreme Court has noted that the purpose of the Sixth Amendment’s right to counsel is
“protecting the unaided layman at critical confrontations with his adversary.” United States v.
Gouveia, 467 U.S. 180, 189 (1984); see also Frye, 566 U.S. at 144 (“[C]riminal defendants
1Additionally, and while not related to his direct representation of Logan, we seriously question Terrell’s
decision not to participate in the § 2255 proceedings, even after being subpoenaed. When petitioner’s new counsel
emailed him, requesting that he provide an affidavit in support, he outright refused, responding, “Please do not
contact me regarding this matter.” When petitioner’s counsel responded that it was likely Terrell would be
subpoenaed if he did not submit an affidavit, Terrell responded, “I suggest you seek advice regarding any attempt to
obtain comments from me regarding my former client. I look forward to your subpoena and will challenge that
document.” Though he received a subpoena from the U.S. Marshal Service, he never appeared for the hearing. In
addition to his woeful representation of Logan, his combative behavior to initial requests for his participation and his
complete failure to appear even after being subpoenaed are inexcusable, reflect poorly on the profession, and might
be grounds for professional discipline.
No. 17-1996 Logan v. United States Page 8
require effective counsel during plea negotiations. Anything less might deny a defendant
effective representation by counsel at the only stage when legal aid and advice would help him.”
(internal quotation marks and ellipsis omitted)). But as these recitations have been framed and
phrased, they encompass an affirmative right (the right to effective assistance of counsel at
critical proceedings), not a negative right (the right to be completely free from ineffective
assistance). Because Zambon adequately assisted Logan at the plea-bargain stage, Logan
received his Sixth Amendment right to effective assistance of counsel, regardless of Terrell’s
subsequent, contradictory advice.
While unpublished, and thus not binding on this panel, this Court’s decision in
Santosuosso v. United States, 74 F.3d 1240; 1996 WL 15631 (6th Cir. 1996) (per curiam)
(unpublished table decision), is instructive on this issue, and comes to the same conclusion.
There, the defendant pleaded guilty to participating in an illegal gambling business upon the
advice of his defense counsel that the defendant was highly likely to be convicted at trial and
would face an eighteen-month sentence, rather than the three-month sentence offered in the plea
deal. Santosuosso, 1996 WL 15631, at *1. Around this same time, the defendant received
advice from two other lawyers, who were not his attorneys of record and who convinced the
defendant to reject the plea deal and hire them to represent him in his criminal proceedings. Id.Defendant was ultimately convicted of two counts of perjury at trial and sentenced to twenty-one
months in prison. Id. at *2. This court denied relief, finding persuasive a Ninth Circuit decision
concluding “that ‘[t]he Sixth Amendment right to effective assistance of counsel . . . does not
include the right to receive good advice from every lawyer a criminal defendant consults about
his case.’” Id. at *3 (quoting United States v. Martini, 31 F.3d 781, 782 (9th Cir. 1994) (per
curiam) (citation omitted)); see also Faison v. United States, 650 F. App’x 881, 888 (6th Cir.
2016) (quoting approvingly from Martini and Santosuosso).
This reasoning comports with our published caselaw in similar situations. In Harrison v.
Motley, the defendant received conflicting advice from his attorneys about whether he should
take the stand himself and whether the defense should even call witnesses or put on a case in
chief. 478 F.3d 750, 755–56 (6th Cir. 2007). We held that the fact that the defendant “was
ultimately responsible for deciding whether to testify himself or to call certain defense witnesses
No. 17-1996 Logan v. United States Page 9
did not render him without the aid of counsel.” Id. at 756. In other words, when a defendant
receives the necessary information to make a call, the fact that the ultimate decision is left to him
does not render counsel absent or ineffective.
Here, in a similar vein, Zambon—petitioner’s counsel of record at the time—advised
Logan about the risks of going to trial; Logan even testified that he signed the plea agreement
because he was guilty and was worried about facing a sentence of thirty years or more, meaning
that he was aware of the risks of proceeding to trial. Zambon also told Logan that this was a
very good plea deal and explained the risks of either accepting or rejecting it. On the other hand,
Terrell—who was not petitioner’s counsel of record at the time—recommended rejecting the
plea and proceeding to trial because he thought he could get Logan off on the charges. And even
Terrell advised Logan both that whether to accept the plea offer was ultimately Logan’s decision
and that the fear of a higher sentence after trial was a valid concern. In short, petitioner received
all the information needed to make an informed decision on whether to accept the plea deal from
his counsel of record. Id.As the Supreme Court has noted, “[a] defendant . . . has the ultimate authority to
determine whether to plead guilty.” Florida v. Nixon, 543 U.S. 175, 187 (2004) (internal
quotation marks omitted); see also Smith v. United States, 348 F.3d 545, 552 (6th Cir. 2003)
(“The decision to plead guilty—first, last, and always—rests with the defendant, not his
lawyer.”). And “[i]f a plea bargain has been offered, a defendant has the right to effective
assistance of counsel in considering whether to accept it.” Lafler, 566 U.S. at 168. Logan
undoubtedly received as much from Zambon. Because he failed to show that he was denied his
Sixth Amendment right to effective assistance of counsel, the district court did not err in denying
his motion to vacate his sentence under 28 U.S.C. § 2255. “To hold otherwise would allow
defendants represented by multiple lawyers to take two bites at the apple . . . .” Stoia v. United
States, 109 F.3d 392, 399 (7th Cir. 1997).
And because petitioner relies heavily on Lafler, the seminal case on ineffective assistance
during plea bargaining, we must note the differences between the two cases. In Lafler, the
defendant had only one attorney, who told him to reject a favorable plea and proceed to trial
because “the prosecution would be unable to establish his intent to murder [the victim] because
No. 17-1996 Logan v. United States Page 10
[the victim] had been shot below the waist.” 566 U.S. at 161. This was legally incorrect, and the
defendant was convicted. Id. at 161–62. The Court agreed with the lower courts that the
defendant had been prejudiced by his counsel’s advice. Id. at 174. In analyzing the deficient
performance prong, the Court merely noted that “deficient performance has been conceded by all
parties. The case comes to [the Supreme Court] on that assumption, so there is no need to
address this question.” Id. But on that point the Court also stated that “an erroneous strategic
prediction about the outcome of a trial is not necessarily deficient performance.” Id.
Here, petitioner’s counsel of record told him the risks he faced in going to trial, including
that he could face more jail time than was offered in the ten-year-capped plea deal. Zambon told
petitioner that he could face a sentence in the range of thirty years to life. Terrell’s erroneous
contrary prediction that there would be ways to get petitioner to “walk”—meaning no additional
jail time—is not necessarily deficient performance under Lafler. Id. Hindsight, as we know, is
not the lens through which we grade attorney performance. See Premo v. Moore, 562 U.S. 115,
125 (2011) (“Failure to respect the latitude Strickland requires can create at least two problems
in the plea context. First, the potential for the distortions and imbalance that can inhere in a
hindsight perspective may become all too real. The art of negotiation is at least as nuanced as
the art of trial advocacy, and it presents questions farther removed from immediate judicial
supervision. There are, moreover, special difficulties in evaluating the basis for counsel’s
judgment: An attorney often has insights borne of past dealings with the same prosecutor or
court, and the record at the pretrial stage is never as full as it is after a trial.”). That said, we have
already noted our agreement with the district court that Terrell’s counsel was deficient for
numerous reasons. But unlike in Lafler, the deficient performance was not all that petitioner
received. Logan was also counseled by Zambon, who provided all that the Sixth Amendment
requires. In sum, petitioner was given all he needed to make an informed decision on the plea
offer from Zambon, his attorney of record, and, under these facts, the counsel he received was
sufficient under the Sixth Amendment. Lafler, 566 U.S. at 168.
Finally, petitioner also now argues that his claim of ineffective assistance succeeds
because Zambon never advised him to take the plea deal and merely told him it was a good one,
while Terrell explicitly told him not to take the deal. In other words, he argues that his deficient
No. 17-1996 Logan v. United States Page 11
attorney explicitly told him not to take the plea deal, whereas his good attorney only advised him
that a “very good” plea deal existed. But below, petitioner argued and testified that Zambon
gave him good advice—to accept the plea—that he should have followed. Though Zambon
testified that he did not directly tell Logan whether to take the plea deal and left the decision up
to him, the district court did not clearly err in its factual finding that Zambon advised Logan to
take the “very good plea agreement.” See Guerrero, 383 F.3d at 414.
IV.
We affirm the judgment of the district court.