Andrew Martin v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0092p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANDREW CHARLES MARTIN, ┐
Petitioner-Appellant, │
│
> No. 16-3864
v. │
│
│
UNITED STATES OF AMERICA, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
Nos. 1:12-cr-00574-1; 1:15-cv-00547—Christopher A. Boyko, District Judge.
Argued: January 24, 2018
Decided and Filed: May 14, 2018
Before: GIBBONS, WHITE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Christian J. Grostic, KUSHNER, HAMED & GROSTIC CO., LPA, Cleveland,
Ohio, for Appellant. Alejandro A. Abreu, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee. ON BRIEF: Christian J. Grostic, KUSHNER, HAMED &
GROSTIC CO., LPA, Cleveland, Ohio, for Appellant. Henry F. DeBaggis, UNITED STATES
ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. Andrew Martin filed a § 2255 motion to vacate his
sentence, arguing that his attorneys’ ineffective assistance cost him a three-point sentencing
No. 16-3864 Martin v. United States Page 2
reduction for acceptance of responsibility. The district court denied Martin’s motion without
holding an evidentiary hearing. Because the district court abused its discretion by declining to
hold an evidentiary hearing, we REVERSE the district court’s order and REMAND for further
proceedings.
I. BACKGROUND
In 2011, a probate court appointed Joy Comey administrator of the estate of her brother,
George Warehime. Later that year, Andrew Martin and his co-conspirator David Simons
fraudulently took ownership of Warehime’s property. Martin, then a nurse, accessed
Warehime’s medical records without authorization so that Simons could fabricate a story about a
relationship with Warehime that would make the putative property transfer look legitimate.
A dispute over the house followed in probate court.
During that time, Martin attempted to recruit a patient to “take [Comey] out.” The
patient purported to agree, but then contacted the police. Before the Government brought federal
criminal charges against Martin, Comey filed a Petition for Declaratory Judgment in probate
court, naming Martin and Simons as defendants and alleging fraudulent transfer of Warehime’s
property. The probate court entered judgment against Martin and Simons.
On April 18, 2013, Martin pled guilty in federal court to using interstate commerce
facilities with the intent to commit murder-for-hire, in violation of 18 U.S.C. § 1958; conspiracy
to commit wire fraud, in violation of 18 U.S.C. § 1349; and obtaining individually identifiable
health information, in violation of 42 U.S.C. § 1320d-6. He was represented by attorneys
Edward La Rue and Christopher Thomarios. There was no plea agreement, but Martin and the
Government jointly filed a Statement of Guilty Plea. The statement provided, among other
things, that the Government would move for a three-level reduction in the Guidelines “[i]f the
defendant continues to demonstrate that he has accepted responsibility for the offense conduct in
this matter.”
In the time between his guilty plea and sentencing hearing, Martin filed a Rule 60(b)
motion to vacate the judgment in probate court. In the motion, Martin presented a factual
narrative of the conduct underlying his civil and criminal cases that contradicted aspects of the
No. 16-3864 Martin v. United States Page 3
guilty plea statement. He denied “voluntarily or knowingly attempt[ing] to take fraudulent
means or actions against” the victims, asserting that “[a]t no time did [he] attempt to defraud or
maliciously act” against them. The Government brought Martin’s motion to the district court’s
attention at the sentencing hearing, arguing that it was “inconsistent with acceptance of
responsibility.” La Rue argued that the 60(b) motion was out of character for Martin, that Martin
filed it in a misguided attempt to mitigate the damage done to his family, and that Martin
nevertheless demonstrated an acceptance of responsibility by pleading guilty and in his
allocution at the sentencing hearing.
The court was unpersuaded and declined to grant any reduction for acceptance of
responsibility. Without the reduction, Martin’s total offense level was 32, which, given Martin’s
criminal history category of I, resulted in a guideline range of 121–151 months in prison. Had
Martin received the three-level reduction, his guideline range would have been 87–108 months.
The court imposed a sentence of 144 months, three years of supervised release, and $83,401.29
in restitution, which we affirmed on appeal. United States v. Martin, 572 F. App’x 334, 334 (6th
Cir. 2014).
Martin then filed this pro se § 2255 motion to vacate, arguing that his trial attorneys
provided ineffective assistance of counsel, in part because they advised him to file the Rule 60(b)
motion in his civil case, causing him to lose the three-point reduction for acceptance of
responsibility and therefore receive a longer prison sentence. Martin alleged that his counsel,
Thomarios, insisted that Martin include language in the 60(b) motion that was contradictory to
his guilty plea statement, and, when Martin asked whether it would affect his criminal case, his
attorneys “assured him it wouldn’t.” In support of his § 2255 motion, Martin attached his
affidavit and those of his wife and mother and requested an evidentiary hearing and the
appointment of counsel.
The Government filed a response in opposition to Martin’s § 2255 motion, attaching
affidavits from La Rue and Thomarios; the fee agreement between Martin and Thomarios
relating to the civil case; a fee agreement letter from Sonkin & Koberna, L.P.A., a different law
firm involved in Martin’s civil representation; a letter from Thomarios to Martin’s wife; a billing
statement from Thomarios for the civil representation; and email correspondence between the
No. 16-3864 Martin v. United States Page 4
Government and Donald Gallick, a lawyer who represented Martin in his criminal case before La
Rue and Thomarios were hired. In his affidavit, Thomarios denied advising Martin to file the
60(b) motion, reviewing the motion, advising Martin to include language contradicting the guilty
plea, or advising him that it would not have an effect on his criminal sentencing. Thomarios also
denied serving as Martin’s counsel of record in the civil case, but acknowledged providing
limited representation, including facilitating communication between Martin and Sonkin
& Koberna and advising Martin with respect to the research conducted by that law firm.
Thomarios’s fee agreement letter to Martin and his billing statement, however, indicated that
Thomarios billed $4,255.80 for 23.4 hours of work relating to the civil case. The work included
multiple meetings with Martin, conversations with his wife, and “[r]esearch of 60B motions.”
Sonkin & Koberna’s fee agreement letter indicated that the firm would provide limited
representation in the civil case and would not be filing an appearance as counsel for Martin.
Martin filed a reply, alleging inconsistencies in the Government’s response and
supporting documents and attaching, among other things, a supplemental affidavit from himself
and a printout of the civil case docket sheet with “[f]ile motion to set aside judgment” and
“motion for reconsideration” handwritten on the bottom of the last page. Martin alleged that
Thomarios gave him the printout with those instructions.
The district court denied Martin’s § 2255 motion without a hearing, finding that
“[Martin’s] claim that counsel advised him to file the Rule 60(b) Motion is not credible.” The
court also stated that “[t]he attorneys representing [Martin] in this criminal case did not represent
him in the civil case.”
Martin then filed a Rule 59(e) motion to alter or amend judgment, arguing that the district
court had overlooked Sixth Circuit precedent in denying his § 2255 motion without holding an
evidentiary hearing despite the existence of factual disputes. The court denied the motion,
stating that “[a]lthough [Martin] asserts that there are facts in dispute, [he] offers no proof
beyond mere self-serving allegations that either counsel was ineffective.” Martin sought and was
granted a certificate of appealability from this court on the questions “whether Thomarios
rendered ineffective assistance of counsel in relation to Martin’s decision to file a Rule 60(b)
motion” and “whether the district court erred in failing to conduct an evidentiary hearing on this
No. 16-3864 Martin v. United States Page 5
issue.” Martin v. United States, No. 16-3864 (6th Cir. Feb. 28, 2017) (order). We also
appointed counsel for the appeal.
Martin argues that the district court erred in denying relief without holding an evidentiary
hearing, and that the case should be reassigned to a different judge on remand. The Government
does not contest that—if true—Martin’s allegations would amount to ineffective assistance of
counsel; it argues that the district court properly denied Martin’s § 2255 motion without an
evidentiary hearing because Martin’s allegations are inherently incredible and are contradicted
by the record.
II. ANALYSIS
A. Evidentiary Hearing
A district court’s refusal to hold an evidentiary hearing on a § 2255 motion is reviewed
under the abuse-of-discretion standard. See Huff v. United States, 734 F.3d 600, 607 (6th Cir.
2013). “A court abuses its discretion when it relies on clearly erroneous findings of fact,
improperly applies the law, or employs an erroneous legal standard, or when we are firmly
convinced that the trial court committed a clear error of judgment.” United States v. Kilpatrick,
798 F.3d 365, 378 (6th Cir. 2015) (citation and internal quotation marks omitted); see also
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (“A district court would necessarily
abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.”).
An evidentiary hearing “is required unless the record conclusively shows that the
petitioner is entitled to no relief.” Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012)
(quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)); see also 28 U.S.C.
§ 2255(b). The burden “for establishing an entitlement to an evidentiary hearing is relatively
light,” and “[w]here there is a factual dispute, the habeas court must hold an evidentiary hearing
to determine the truth of the petitioner’s claims.” Turner v. United States, 183 F.3d 474, 477
(6th Cir. 1999). A petitioner’s “mere assertion of his innocence,” without more, does not entitle
him to an evidentiary hearing. Valentine v. United States, 488 F.3d 325, 334 (6th Cir. 2007); see
also Turner, 183 F.3d at 477. But when presented with factual allegations, “a district court may
No. 16-3864 Martin v. United States Page 6
only forego a hearing where ‘the petitioner’s allegations cannot be accepted as true because they
are contradicted by the record, inherently incredible, or conclusions rather than statements of
fact.’” MacLloyd v. United States, 684 F. App’x 555, 559 (6th Cir. 2017) (internal quotation
marks omitted) (quoting Arredondo, 178 F.3d at 782). “[W]hen a defendant presents an affidavit
containing a factual narrative of the events that is neither contradicted by the record nor
inherently incredible and the government offers nothing more than contrary representations to
contradict it, the defendant is entitled to an evidentiary hearing.” Huff, 734 F.3d at 607 (citation
and internal quotation marks omitted).
Martin presents more than “mere assertions of innocence,” Valentine, 488 F.3d at 333, or
conclusions, MacLloyd, 684 F. App’x at 559. His § 2255 motion contains factual allegations
about the deficiencies of his attorneys’ advice and assistance relating to the 60(b) motion in his
civil case. Martin alleges that Thomarios agreed to advise him on the civil matter and that
Martin paid Thomarios a $4000 retainer. Martin further asserts that between March and May of
2013, Thomarios advised him to file a 60(b) motion in his civil case, reviewed his draft motion,
insisted that he include language that contradicted his guilty plea, and assured him that it would
not affect his criminal case or sentencing. In support of these allegations, Martin submitted
affidavits from himself and his wife,1 along with a copy of the civil docket sheet with notes
regarding the filing of motions. Martin also notes that Thomarios’s billing statements, which
were attached to the Government’s response, reflect substantial work done on the civil case,
including “[r]esearch of 60B motions.” Martin claims that he would not have filed the civil
60(b) motion without his attorney’s “misadvice” and, therefore, would have received a
three-point reduction for acceptance of responsibility—and likely a shorter prison sentence.
Because Martin has presented factual allegations that support his ineffectiveness claim,
he is entitled to an evidentiary hearing unless the allegations cannot be accepted as true because
“they are contradicted by the record” or are “inherently incredible.” MacLloyd, 684 F. App’x at
559 (citation omitted). In denying Martin’s § 2255 motion, the district court found that:
1
In the affidavit, Martin’s wife asserted that Thomarios called her “[b]efore sentencing” and told her about
the research he was conducting in Martin’s civil case. She said Thomarios told her that he was “advising [Martin] to
file a Motion to Vacate to get the Probate judgment overturned” and “that filing the Motion to Vacate in the Probate
case would not affect [Martin’s] criminal case or sentence.”
No. 16-3864 Martin v. United States Page 7
[Martin’s] claim that counsel advised him to file the Rule 60(b) Motion is not
credible. The attorneys representing him in this criminal case did not represent
him in the civil case. [Martin] was referred to a law firm with experience in civil
matters. The Court finds this allegation of ineffective assistance of counsel to be
without merit.
In denying Martin’s Rule 59(e) motion to alter or amend the court’s denial of the § 2255 motion,
the court added that “[a]lthough [Martin] asserts that there are facts in dispute, [he] offers no
proof beyond mere self-serving allegations that either counsel was ineffective.” These
statements rest on critical misapprehensions of the evidence presented and the governing legal
standard.
First, the conclusion that neither of Martin’s criminal defense attorneys provided
representation to Martin in the civil case is not supported by the evidence. While Thomarios was
not counsel of record in Martin’s civil case, Thomarios’s affidavit, fee agreement letter, and
billing statement—all submitted by the Government in its opposition to Martin’s § 2255
motion—reveal that Thomarios did provide some legal representation to Martin in his civil case.
Though Martin was referred to another law firm, that firm, like Thomarios, provided only limited
representation to Martin in the civil case and did not enter an appearance.
Second, the court’s statement that Martin offered no proof beyond “mere self-serving
allegations” fails to acknowledge that Martin did, in fact, support his allegations with more than
his own words, and appears to overlook our governing precedent holding that a “self-serving”
affidavit is not inherently incredible. See Pola v. United States, 778 F.3d 525, 535 (6th Cir.
2015) (“[T]he district court appears to find [the petitioner’s] credibility lacking because the
affidavit is ‘self-serving.’ But an affidavit is not incredible just because the asserted facts favor
the affiant.”); see also MacLloyd, 684 F. App’x at 562 (“In this circuit, defendant’s statements
alone are sufficient to support a finding that he would have accepted [a plea] offer.”); Smith v.
United States, 348 F.3d 545, 551 (6th Cir. 2003) (noting that this court does not require that
petitioners supply “objective” evidence beyond their own assertions that they would have
accepted a plea offer (quoting Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2003))). The
district court’s conclusion that Martin’s claim was not credible was based on both legal and
factual errors.
No. 16-3864 Martin v. United States Page 8
On appeal, the Government argues that Martin’s allegations are both contradicted by the
record and inherently incredible, and thus that it was proper for the district court to deny his
§ 2255 motion without a hearing. The Government points to the sentencing hearing, specifically
La Rue’s statement that “[he] d[idn]’t have any good explanation for why [Martin] would do
what he’s doing here . . . except to say what he told me which was [that he] was trying to
somehow soften the blow against his family.” The Government also relies on Martin’s failure to
“object” to these characterizations or to the Presentence Report, or to otherwise inform the court
that he had filed the 60(b) motion because of his attorneys’ advice and assurances.
The record from Martin’s underlying criminal case is unlikely to conclusively show
whether he is entitled to relief because Martin’s allegations relate largely to “purported
occurrences outside the courtroom and upon which the record could, therefore, cast no real
light.” Machibroda v. United States, 368 U.S. 487, 494–95 (1962); see also MacLloyd, 684 F.
App’x at 561. What Martin and his attorneys said or did not say during his sentencing hearing
does not and cannot definitively establish what they did or did not say weeks earlier in the time
leading up to the filing of Martin’s 60(b) motion.
To the extent that the sentencing hearing does cast light on Martin’s allegations, it does
not clearly contradict them. Martin’s decision not to object to the Presentence Report is logical
because the PSR included the three-point reduction for acceptance of responsibility. Martin was
not asked whether he had been advised by his attorneys to file the 60(b) motion and, as he
argues, had no reason to know at that time that such reliance could be legally relevant.
Furthermore, it is unusual—and generally discouraged—for a represented defendant to make
objections on his own, to make his own arguments outside allocution, or to otherwise interrupt
the judge or lawyers at his sentencing hearing. Martin’s failure to independently object may
simply reflect a client’s reasonable decision to rely on his attorneys and follow typical court
procedures.
The Government further argues that Martin’s allegations are inherently incredible, both
because the timeline of events undermines them, and because Martin continued to deny
responsibility for the fraud and health-information charges in his post-conviction challenge.
According to Thomarios’s billing documents, he conducted 60(b) research in March of 2013,
No. 16-3864 Martin v. United States Page 9
met with Martin about the civil case several times in March and April, and ceased representing
Martin in the civil case by May 1. On April 10, 2013, the district court scheduled Martin’s
change of plea hearing for April 18. Martin and Thomarios’s April 15 meeting occurred before
Martin entered his guilty plea, but after Thomarios knew Martin planned to plead guilty, and
almost certainly after plea negotiations with the Government had begun. Thomarios continued to
represent Martin in the criminal case through sentencing, which presumably included additional
attorney-client meetings. While the timeline of events may not alone prove Martin’s claim that
Thomarios advised him regarding the 60(b) motion, it does not clearly contradict it or make it
inherently incredible.
Finally, the Government contends that Martin’s post-conviction denial of responsibility
renders incredible his assertion that he filed the 60(b) motion following counsel’s advice,
encouragement, and assurances. In his pro se § 2255 pleadings, Martin denied conspiring to
commit wire fraud and illegally obtaining health information for profit and set forth a factual
narrative that contradicted his guilty plea. The Government argues that this renders Martin’s
claim that he would not have filed the 60(b) motion in his civil case without the advice of his
attorney incredible.
Because “[r]easons other than the fact that he is guilty may induce a defendant to so
plead,” North Carolina v. Alford, 400 U.S. 25, 33 (1970) (citation omitted), a petitioner’s
“repeated declarations of innocence do not prove . . . that he would not have accepted a guilty
plea,” Griffin, 330 F.3d at 738. Valentine makes this clear: “although the government implies
that [the petitioner’s] protestations of innocence discredit his argument that he was willing to
accept a plea, this circuit has rejected this reasoning in the past.” 488 F.3d at 333.
Martin’s decision to plead guilty was likely informed by multiple factors independent of
his own belief about his guilt or innocence. La Rue’s affidavit supports this conclusion:
Mr. Martin did assert that he was coerced into many of the actions he later took in
furtherance of the conspiracy . . . . Mr. Martin, having been advised of our belief,
as his lawyers, that [our inability to corroborate the alleged coercion or threats]
would place the entire burden on [Martin] to convince the jury of these threats,
chose voluntarily to enter a plea of guilty to all counts. . . . [A]s [Martin] well
knew at the time, as a matter of the United States Sentencing Guidelines, because
No. 16-3864 Martin v. United States Page 10
both of the additional charges brought by Information were nine (9) levels or
more below the sentencing guidelines range for the Conspiracy to Commit
Murder for Hire, the effect of this plea was that no additional time was to be
assessed per U.S.S.G. Sec. 3D1.4(c).
In other words, Martin decided to plead guilty to the fraud and health-information charges in part
due to anticipated difficulties in proof and because he believed that plea would most likely not
increase his overall sentencing exposure. Martin’s statements at the sentencing hearing likewise
lend support to his claim. Despite apparent misgivings about the fraud and health-information
charges, when given the opportunity to speak, Martin was contrite and expressed remorse for his
criminal conduct, stating:
No words can explain my reprehensible actions, nor would I ever try to minimize
what I’ve done. More than anything, I would like to make amends and do what I
can to make things right. The best that I can do is to acknowledge my
wrongdoings, accept responsibility for my actions, pray for forgiveness, and give
my heart over to God.
In short, Martin’s repeated “protestations” may certainly be considered by the district court,
Smith, 348 F.3d at 552, but they do not render inherently incredible his claim that he would not
have voiced them in his 60(b) motion absent attorney advice.
In sum, the statements and omissions at sentencing, the timeline, and Martin’s pro se
pleadings do not “conclusively show” that Martin is entitled to no relief. 28 U.S.C. § 2255(b);
see also MacLloyd, 684 F. App’x at 562 (“The fact that the petitioner’s allegations may be
‘improbable’ is insufficient to forego a hearing.” (quoting Machibroda, 368 U.S. at 495)).
Martin and the Government present very different accounts of what led to Martin’s filing of the
60(b) motion in his civil case. The “motion and the files and records of the case,” 28 U.S.C.
§ 2255(b), “contain[] facts supporting both arguments, which necessitates an evidentiary
hearing,” Faison v. United States, 650 F. App’x 881, 886 (6th Cir. 2016). There exists a “factual
dispute,” and, as a result, the district court abused its discretion by declining to hold “an
evidentiary hearing to determine the truth of [Martin’s] claims.” Id. at 885 (quoting Turner,
183 F.3d at 477).
No. 16-3864 Martin v. United States Page 11
B. Reassignment on Remand
Martin also argues that his case should be reassigned to a different judge on remand
because the district court “prematurely and improperly” decided the credibility of the parties,
which will be an important issue at the evidentiary hearing.
We have the authority to reassign a case on remand under 28 U.S.C. § 2106. Sagan v.
United States, 342 F.3d 493, 501 (6th Cir. 2003). Reassignment, however, is an “extraordinary
power” that should be used “infrequently and with the greatest reluctance.” Id. (quoting Armco,
Inc. v. United Steelworkers of America, Local 169, 280 F.3d 669, 683 (6th Cir. 2002)).
In assessing whether reassignment is appropriate, we consider:
(1) whether the original judge would reasonably be expected to have substantial
difficulty in putting out of his mind previously expressed views or findings;
(2) whether reassignment is advisable to preserve the appearance of justice; and
(3) whether reassignment would entail waste and duplication out of proportion to
any gain in preserving the appearance of fairness.
Id.
That a district court erred by, for example, mischaracterizing evidence does not
necessarily warrant reassignment. See id. at 501–02 (“We do not think that the district court’s
mischaracterization of the evidence is grounds for reassignment. If we reassigned the case every
time a district court judge misconstrued some evidence, reassignment would surely cease to be
‘an extraordinary power . . . rarely invoked.’” (quoting Armco, 280 F.3d at 683)); see also
Solomon v. United States, 467 F.3d 928, 935 (6th Cir. 2006). Reassignment is not required
where “there is no evidence in the record indicating that the district judge will have difficulty
conducting [the proceedings upon remand].” United States v. Garcia-Robles, 640 F.3d 159, 168
(6th Cir. 2011).
In contrast, we have found it necessary to exercise our reassignment power when the
district court has indicated an unwillingness or inability to “heed the guidance of this Court” on
remand. United States v. Robinson, 778 F.3d 515, 524–25 (6th Cir. 2015); see also Rorrer v.
City of Stow, 743 F.3d 1025, 1050 (6th Cir. 2014) (reassigning where the district court’s
statements and “questionably imposed” one-sided discovery order suggested that it may have
No. 16-3864 Martin v. United States Page 12
substantial difficulty putting out of mind previously expressed views, and reassignment would
protect the appearance of justice). Other courts have found reassignment necessary where the
district court “rendered a visceral judgment on [the] appellant’s personal credibility.”
Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 142 (2d Cir. 2007); see also Earp v.
Cullen, 623 F.3d 1065, 1072 (9th Cir. 2010).
At bottom, the district court’s conclusion that Martin’s claim was not credible was based
on its determinations that Martin’s allegations were self-serving and that the record did not
support them. The first finding is partially true, but not legally decisive; the second is a
misapprehension that this opinion has cured. There is no indication that the district court’s
conclusion was based on “a visceral judgment on [Martin’s] personal credibility.”
Shcherbakovskiy, 490 F.3d at 142. We are therefore “satisfied that the judge will re-visit the
matter with a completely open mind.” Garcia-Robles, 640 F.3d at 168 (brackets and citation
omitted). The record does not indicate that this is “an extraordinary case that warrants
reassignment.” Howe v. City of Akron, 801 F.3d 718, 756 (6th Cir. 2015).
III. CONCLUSION
Because Martin has met the relatively light burden for establishing an entitlement to an
evidentiary hearing, the district court abused its discretion by failing to hold a hearing.
We therefore REVERSE the district court’s denial of Martin’s 28 U.S.C. § 2255 motion and
REMAND this case for an evidentiary hearing and proceedings in accordance with this opinion.