                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0729n.06

                                            No. 10-4351                                      FILED
                                                                                        Oct 26, 2011
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                             LEONARD GREEN, Clerk


RICHARD NEWLAND,                                           )
                                                           )
       Petitioner,                                         )
                                                           )
v.                                                         )   ON APPEAL FROM THE UNITED
                                                           )   STATES DISTRICT COURT FOR
UNITED STATES OF AMERICA,                                  )   THE SOUTHERN DISTRICT OF
                                                           )   OHIO
       Respondent.                                         )
                                                           )
                                                           )


Before: DAUGHTREY, COOK, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Richard Newland claims that his trial lawyer was ineffective

with respect to Newland’s decision to enter a guilty plea to federal drug and firearms charges in a

prior federal proceeding. The district court denied his petition in this case, filed pursuant to 28

U.S.C. § 2255. We affirm.

       Newland’s claim is that his lawyer, Gary Tyack, provided ineffective assistance when Tyack

failed to explain, “blow by blow,” to use Tyack’s words, the disparity between Newland’s Guidelines

range if he pled guilty and his range after conviction on all counts after trial. The former was 66–76

months, the latter 101–111 months. Newland rejected the plea deal, was convicted at trial, and

sentenced to 108 months in prison.

       After an evidentiary hearing with respect to the petition in this case, the district court found

that Tyack had not, in fact, discussed the respective sentencing ranges in detail. Tyack himself
No. 10-4351
United States v. Newland

testified to that effect at the hearing. But the court also found that the reason Tyack had not done

so was that Newland had made clear that any plea deal which involved at least five years’

imprisonment was a nonstarter for him. Here, even the bottom end of the Guidelines range for the

plea deal exceeded that limit by six months. The court thus concluded that Tyack’s failure to discuss

the ranges in detail did not prejudice Newland, since there was no probability that he would have

taken the plea deal if Tyack had done so. That conclusion was fatal to Newland’s claim. See

generally Hodgson v. Warren, 622 F.3d 591, 598 (6th Cir. 2010).

       We review the district court’s factual finding for clear error and its denial of the writ de novo.

Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003) (citing Nagi v. United States, 90 F.3d 130,

134 (6th Cir. 1996)). We have no basis whatever to find that the district court erred with respect to

its factual findings. And that leaves Newland’s legal arguments untenable. He argues that the mere

fact of the disparity between the two ranges under the Guidelines—about 40 months—shows that

he was prejudiced by Tyack’s failure to discuss that disparity in more detail. But none of the cases

he cites involved a defendant who refused even to consider a plea deal involving more than a certain

amount of time (here, five years) in prison.

       It is true, as Newland points out, that the standard we apply here has an objective

component—namely, that “a decision to reject the plea bargain would have been rational under the

circumstances.” Padilla v. Kentucky, 130 S.Ct. 1473, 1485 (2010). But that is not all that Newland

must prove. He must prove also that he personally would have taken the plea deal if only his lawyer

had explained it better to him. See, e.g., Humphress v. United States, 398 F.3d 855, 859 (6th Cir.

2005). Newland has not proven that here: he insisted before trial that the government could never

                                                  -2-
No. 10-4351
United States v. Newland

prove him guilty, which caused him to draw a line at five years; and even after trial, he wrote letters

to Tyack insisting that the government had not proven its case. His claim thus fails.

       The district court’s judgment is affirmed.




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